When a 400 year old custom prohibits women’s entry into a temple,It should be the duty of any conscientious judge to find out the reasoning behind a ban.

According to reports in news media, the operative part of Bombay High Court Chief Justice, D. H. Waghela’s observation vis-à-vis the PIL filed by Ms. Vidya Bal regarding gender-inequality in the matter of entry into Shani Shingnapur temple, reads like this:
“There is no law that prevents entry of women in any place (…) If a male can go and pray before the deity why not women?”   

mensturation taboo Is Indian Judiciary Devoid Of Cultural Consciousness?
The rest of the learned Justice’s observation is devoted to invoking, as if to serve as deterrence, the Maharashtra Hindu Places Worship (Entry Authorization) Act and makes it incumbent upon the state government to enforce the same!
What way such a judgment is different from the Barrister Asaduddin Owaisi’s avowed position for not chanting Bharat Mata ki Jai?   The barrister justifies by saying that it is constitutionally non-mandatory and the Chief Justice seems to be saying it is mandatory by law to allow women into temples.  Neither the AIMIM leader nor the Bombay High Court Chief Justice took into consideration the specificity of the opposing viewpoint!  One understands AIMIM leader’s position for he has a political axe to grind and therefore a tendency to consolidate his constituency is innate to his behavior. But could the same thing be said about a Chief Justice?  The least this latter could have done, when a similar case is pending with the Supreme Court in connection with Sabarimala Temple, is to take steps to club both the cases.

Jurisprudence anywhere in the world not mandate that Justice be partisan or partial..  This implies that the judicial process takes into consideration both petitioner’s and respondent’s points of view as comprehensively as possible before pronouncing.  But, going by media reports, there is not even a passing mention as to why the Shani Temple’s four hundred year old tradition should be considered vitiated!  Learned Chief Justice’s summary observations seem to be motivated by a ‘modernity itch’ rather than rendering a non-partisan judicial verdict.  For, he was only trying to fit the case into a legal frame rather than using legal resources to identify justice. In fact, it appears that the Chief Justice has simply set aside the Shani Temple’s restrictions vis-à-vis women’s entry as so much of superstition!  To that extent his observations are to be considered prejudiced by a modernity bias.

Menstruating women Is Indian Judiciary Devoid Of Cultural Consciousness?
Religious matters, matters connected with human-divine relationships cannot be seen apart from the legends, myths, and beliefs that derive from them.  For the simple reason that God is not a visible and tangible entity whose likes and dislikes could be factually ascertained. It is given to us through myths and legends or rather the way we interpret the Divine touch, the feeling towards an unknown but powerful benefactor.  It is thus no wonder that Temple rituals, rules and restrictions are in consonance with such beliefs.  The problem is that myths surrounding a deity and his abode vary from place to place and from deity to deity just as reflected in the offerings and Prasad we make for various gods.

Against such a background, the question is not one of gender-bias.  It is rather one of Temple Trustees’ integrity in following the legends and myths associated with the presiding deity.  For after all, if the legends have it that women’s entry be restricted or that a certain period of the day is inauspicious, hence, darshan should not be allowed, the Temple Trustee has little choice but to follow such briefs.  Sabarimala case illustrates it very well.  As deity is in penance (tapasya) mode, women cannot enter the temple.  And we have ample evidence in our mythology of divine dancers disturbing tapasya of even great sages, thereby establishing innate antagonism between the presence of Women and the act of tapasya.   

Unfortunately, the Shani Shingnapur temple does not come up with such a tangible justification.  The only defense that the Trustees have come up with is just the fact that restricting women’s entry is a 400 year old custom at the temple.  It is both easy and tempting to discount such summary justifications bereft of a sound rational backing.  More so, the political wisdom contained in the Western-inspired tenets of freedom and equality is both facile and self-serving and comes with an aura of rationality and modernity.  Yet, the fact remains that without having a detailed knowledge of one of the parties’ predicament a nonpartisan justice cannot be administered.

A work around devised by the legal system, very often and in stark opportunism, is to place the burden on the respondent!  But the point is, in this case, this latter is merely a judicial person, not the one who can be accused of being the actual offender perpetrating gender-bias unless it is contended either that he created the myths and legends or that he manipulated them to intentionally get women barred from entering the temple for some partisan gains. Yet, the Chief Justice, Justice Waghela’s observations do not even remotely point in that direction!

Notice also that issues connected with the religious practices, devotees’ relationship with the divine, mythology, rituals, practices, beliefs, temple restrictions… all of them partake of a larger cultural dimension of this country.  Ultimately India owes its ethos and individuals their character, to these various factors. This means the case of gender-bias is the one between an impulsive petitioner most probably inspired by the alluring Western tenets and the vast Indian culture, of which the Temple Trustees may have but a very small idea. 

we bleed Is Indian Judiciary Devoid Of Cultural Consciousness?
A court of law, especially a bench headed by the Chief Justice of a High Court, is expected to rise above these sectarian positions and, if only in the interest of non-partisan justice,  inform itself as comprehensively as possible about both the positions, before passing a judgment.  More importantly, as a case such as this pits Indian Cultural Ethos directly against Western political expediency, it becomes de rigueur that the judges verify cultural and spiritual justification of such temple practices. In this case, as no direct illumination is available on the temple restriction over women’s entry, it is incumbent upon the court, if this latter is not to be carried away by the modernist infatuation and if it intends to be non-prejudicial to Indian culture, to study the entire literature available on Shani Bhagavan both to assess his character and inclination as well as the beliefs surrounding him in the folklore that may provide justification for what could after all be protecting women from him (or his malefic drishti).

It is regrettable that the Indian judiciary, perhaps under enormous and incessant socio intellectual pressure, has given itself to expedient way outs whenever it is confronted with issues connected to Indian Nationhood and Indian Cultural ethos.  The discussions held, the viewpoints expressed in connection with sedition law, freedom of speech, the sexuality laws point to such a development.  Otherwise, it is difficult to see how the legal luminaries allow the country to adopt the West’s licentious laws on sexuality as our own, that is, of a country that preaches sexual moderation and emphasizes marital relationships; Or how intellectuals justify anti-nationalism as freedom of expression; Or assimilate exercise of sedition laws to fascism and communalism!
What we fail to understand is that Western principles are just the tools of politico social management. 

Secularism, equality, freedom and the rights defined within these parameters are just meant to avert socio-political conflicts.  They manifestly lack ethical content.  Or what is dubbed as such is defined within the narrow legal and constitutional confines.  It is thus secularism sans respect, uniformity rather than equality, and freedom without direction.  That is the reason why the image-conscious Western societies run on a dual principle.  Uphold, for all practical purposes, solemnity of these state principles but unleash an undercurrent of collective action to defeat their holistic objectives.  In simple language, ‘have the cake and eat it too!’

womennot allowed Is Indian Judiciary Devoid Of Cultural Consciousness?
Indian culture does not partake of such a duplicitous thinking.  Its main purpose is character-building and thereby emancipating individuals to higher levels of humanness.  Its ethical content and human concern distinguish it from the Western ethos.  As it is not an extraneous arrangement but one that endeavors internal transformations, Indian culture cannot present a symmetrical face even as the principles such as secularism, equality and freedom are innately symmetrical and the Western law operates within this a priori.  It is therefore necessary that the Indian judiciary defines (and the intellectual community understands) even if we have to borrow Western principles to be in line with international thinking, these terms and principles need to be defined from the Indian perspective.  Otherwise, we shall only be working towards destruction of our own indigenous culture by super-imposing an alien mind-set.

Thus, when a 400 year old custom prohibits women’s entry into a temple, that fact cannot be set aside as sheer nonsense.  It should be the endeavor of any conscientious judge to find out the reasoning behind such a ban.  It would again be seen as high-handed to make temple trustees responsible for such a state of affairs unless evidence of manipulation by them is available. It is also necessary to understand that gender-equality before god cannot be assimilated to temporal instances of such disputes, if only because spirituality comes with an altogether different set of rules.  .

By Dr. Codadu Pratap

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