State and religious protocols in India

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By JOSÉ VERÍSSIMO TEIXEIRA DA MATA*

Sociocultural changes give rise to a powerful civil society, aware of its rights and the democratic dispute

With its rapid industrial development, India, a country of great diversity, many languages ​​and a long history, is undergoing rapid and important socio-cultural changes. In India, people's lives are anchored not only on civil law, on civil usages and customs, and to a certain extent on arguments of the common law of insular extraction, but also in the different prescriptions and religious authorities, which reach the different communities, as happens to the two largest, the Hindu (79%) and the Muslim (14%). In 2018, the Supreme Court imposed itself in the process of updating Indian law, removing the criminal debris from colonial legislation, dictated at the time by the British Empire, which criminalized homosexual relations and adultery.

Also in 2018, the Supreme Court of India, by one of its Chambers, issued two notable decisions, that of triple talaq, and that of the Sabarimala temple, both of enormous practical and symbolic content. The first for reaching the Muslim community, and the second for the Hindus.

O triple talaq it was a divorce practiced within the Muslim community. It basically consisted of the following: the Muslim husband obtained a divorce by pronouncing or writing the word three times. talaq (divorce).

A group of Muslim women, alleging the evident discriminatory character of this tradition in the face of merely legal divorce, petitioned the Supreme Court asking for the banning of such practice. Two years elapsed between the petition and the final decision of a chamber of the Supreme Court of India on the matter, when it was considered that secular or religious practices, freely recognized and exercised, are subject to the dictates of the constitution and the State with regard to fundamental rights and guarantees, such as gender equality, pursuant to art. 25 da Constitution Indian.

 

Sabarimala

The case of the Sabarimala temple, in the state of Kerala, concerns the Hindu community, and, although in line with the decision of the triple talaq, is fuller of symbolism and has greater reach, not least because of the stubborn resistance of the faithful to the entry into force of the Supreme Court decision. This unusual resistance required the use of police force by the State, with the arrest and initiation of proceedings against more than two thousand traditionalists. An unequivocally remarkable fact, which testifies to the importance of the State in the modernization of religious practices.

One of the shrines of Hinduism, destination of great pilgrimages, including other faiths, the Temple of Sabarimala strictly observed an edict of the priests that prohibited, in the beginning of the nineties, the entry of women between 10 and 50 years old, that is that is, in the normal period of menstruation. This edict would be a response to the desecration of the temple, perpetrated by the actress Jayamala, who in 1986, in the exuberance of her twenty-seven years, not only entered the sacred space of the temple (sanctum sanctorum), but touched the feet of Sri Ayyappa, the deity of the place, whose purity and sanctity would be linked to celibacy. The Supreme Court found that the edict, by barring the entry of menstruating women into the Temple of Sabarimala, was discriminatory and violated the fundamental rights provided for in the Constitution of India, especially its art. 25: “25. All persons are endowed with freedom of conscience and the right freely to profess, practice and propagate their religion, subject to public order, morality, public health and other provisions of this part [of the Constitution].

In item (ii) of its conclusion, the Judging Chamber considered that the expression “all persons”, which appears in art. 25 of the Indian Constitution includes women. And that the right guaranteed by the aforementioned device has nothing to do with sex, or, at least as far as the decision was concerned, with certain physiological factors specifically attributable to women, such as the fact that they menstruate during a phase of their lives.

It is worth noting, in the case of Sabarimala, that the solution found by the Supreme Court of India, to specify the protection of the right to religion, its procedures and rituals, did not jeopardize, in the analyzed case, the core of Hinduism, but, above all, , highlighted, with his intervention, that it is up to the State, through the Judiciary, to analyze what is nuclear or accessory in religion, when the constitutional rights of the faithful or citizens are at stake. In this regard, I quote two vital paragraphs from the aforementioned decision:

“123. “By allowing women to enter the Sabarimala temple to offer prayers, one cannot imagine that the nature of the Hindu religion could be fundamentally altered or modified in any way. Consequently, the exclusivist practice to which the support of infraconstitutional legislation in the form of Law n . 3, b, of the 1965 Acts, framed by virtue of the 1965 Act, is neither an essential nor integral part of the Hindu religion, of which the devotees of Lord Ayyappa are followers, and shall not remain.”

“124. No one can say that the essential part or practice of a religion has been altered by a particular date or event. Such alterable parts or practices are not peremptorily the “core” of a religion on which belief is based or on which religion is founded. They can only be regarded as mere adjuncts to non-essential parts or practices”.

The meaning of the decision in the case of the Temple of Sabarimala for India, a country where religious traditions carry exceptional weight, is unequivocal, as it is a decisive signal and in the space of the entire nation, whose reach goes far beyond a court decision occurred in 2016 in the State of Maharashtra, where the Court of Bombay had already ruled for the right of women to enter the Shingnapur Temple, of Hindu faith. That same Court, still in 2016, granted access to the Haji Ali Dargah Mosque, in response to a petition from a Muslim women's movement.

However, it goes without saying that the case of Sabarimala will have repercussions far beyond India, as it reminds us that in the name of constitutional guarantees one can enter the temple, its procedures and even rituals, not just to guarantee life or integrity. but also to ensure other fundamental rights, such as gender equality. The democratic emergence in India is thus operating in all spaces of that great nation and modernizing social relations, even within sacred places.

In this way, citizenship is rapidly expanded, by melting old dogmas and social divisions, which were built over centuries of agrarian economy and which were reinforced by the harmful practices of the cruel colonial implantation of the British Empire. Thus, a powerful civil society emerges, aware of its rights and the democratic dispute.

Moreover, it is seen, by the skill and balance that the Supreme Court of India displayed in this episode, that it is not just any court. It is worth emphasizing this fact, especially when many in Brazil make an effort, dressed as legal operators, to ape the teachings of some courts and legislation, simply because they come from countries that still seem to be central to them.

*José Verissimo Teixeira da Mata, adviser to the Chamber of Deputies, holds a master's degree in philosophy from the University of São Paulo (USP). He translated, among other books, On Interpretation, by Aristotle (Unesp).

References


Decision of the Supreme Court of India in the Sabarimala case. Available in www.supremecourtofindia.nic.in

A Constitution from India. Available in www.india.gov.in/my-government/constitution-india

The Sabarimala Verdict establishes the supremacy of Constitutional morality. Article by TKA Nair on Hindustantimes.

Sabarimala: The SC strikes yet another blow in favor of gender equality. The Hindustantimes, editorial.

Inde: arrest of 2000 traditionalists empêchant aux femmes d'accéder to a temple. Le monde, Paris.

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