On Wednesday, October 17, a mob of protesters demonstrating against the entry of women into Kerala’s Sabarimala temple went on a rampage and attacked the female journalists reporting from the location of the protest. In the video released by a news channel, it is evident that the mob predominantly consists of men. There was a very apparent amount of aggression in their movement, and a lot of intimidatory gesticulation could be seen. The protesters attacked republic TV’s south India bureau chief, Pooja Prasanna. The video journalist accompanying Pooja was attacked. The incident took place in the town of Nilakkal located in Pathanamthitta district while the TV crew was on its way to the Pamba base camp.
The crew was not even proximate to the Sabarimala temple. The incident occurred in the presence of police protection. The police did not take any stringent action against the violence nor did they attempt to pacify the mob. They were mute spectators to the incident, as if in agreement with the protestors. The TV crew had to request more police deployment, to no avail. Visuals put out by the news channel show around 50 to 60 people chanting Ayyappa slogans while surrounding the car that the reporter and the channel crew were travelling in. The mob shortly turns violent, aggressively banging the car’s windshields and windows, in an attempt to break them. The car’s rear bumper and rear windshield were both broken in the attack.
The channel also reported that the journalist and the rest of the camera crew were attacked and slapped by the mob after they stepped out of the car. The protesters also snatched the crew’s equipment. Visuals also show Pooja Prasanna confronting protesters, asking them why she and her crew were not being allowed. She was seen confronting the police after the attack as well. Speaking to Republic, Pooja stated that the protesters also attacked many other journalists. The News Minute’s Saritha Balan was violently attacked in Nilakkal. CNN-News 18’s crew and reporter Radhika Ramaswamy were surrounded by angry protesters, who vandalised the vehicle. The mob repeatedly beat against the windows as Radhika and her crew were trapped inside. Many other journalists were attacked, harassed, and not allowed to proceed towards Pamba.
1. This is an instance of judicial failure. Police protection was provided, and security forces were deployed at the location of the protests that is, at Nilakkal and yet, reporters were abused. The police did not take any immediate action against the protestors. After Pooja Prasanna reported this incident, Rahul Easwar stated in a news interview, “Please remember that 99% of the protest was absolutely Gandhian and non-violent and the rest 1% was violent. I apologise to Republic TV and especially Pooja Ji for what happened. There is nothing wrong in owning up to a mistake. It was a clever provocation by Police.” This implies that the police were not only compliant but also, quite possibly in support of the protestors. Additionally, the percentage and proportion don’t matter.
If a protest turned violent and reporters were attacked, then it will qualify as a violent protest regardless of the inherent Gandhian motives. Moving on, it is very convenient to shift the accountability from the protestors to the police. It is very easy for the left front government to wash their hands of the whole incident after considerably politicising it. The Sabarimala issue has been heavily politicised and sensationalised which has affected Kerala, a state that requires more focus to be devoted to rebuilding what was destroyed in the recent floods than to religious protests. For political parties and fronts, the SC verdict meant an opportunity for aggrandisement and expanding their base. With elections fast approaching, to put it plainly, the verdict provided a political opportunity to win over the masses. Incidentally, the three main political fronts LDF, UDF and NDA did welcome the judgment and hailed the highest court for upholding democratic values and respecting equality. But, when they saw a political opportunity, the three fronts pursued political gains by supporting the protesting communities and putting law and order at stake.
2. This is an instance of non-compliance with laws and regulations. It is of critical importance to note that, this incident occurred after the SC Verdict permitting women of menstruating age to enter Sabarimala. The Supreme Court ruled that not allowing women in their “menstruating years” into the Sabarimala is ultra vires the constitution, and all women should be allowed to enter the temple.
A 4:1 verdict was delivered by a five-judge constitution bench comprising Chief Justice of India Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. Justice Indu Malhotra expressed the one dissenting opinion on the bench. CJI Misra read out his judgment first, on behalf of himself and Justice Khanwilkar. “The dualistic approach against women degrades the status of women,” LiveLaw quoted him as saying. He also stated that the devotees of Ayyappa do not constitute a separate religious denomination.
“Rule 3(b) of 1965 Rules is a clear violation of the right of Hindu women to practice religion under Article 25,” Misra ruled. “The right guaranteed under Article 25 has nothing to do with gender or physiological factors.”
“The bar on entry of women between the age of 10 and 50 years is not an essential part of the religion,” Bar and Bench quoted the CJI as saying. Justice Nariman read his concurring judgment next, saying, “There is no protection under Article 26 for Ayyappa devotees and therefore the rules will not apply insofar as Sabarimala is concerned.”
“Rules disallowing women in Sabarimala are unconstitutional and violative of Article 21,” the judge said. In his concurring judgment, Justice Chandrachud held that Article 25 protects all persons, it means every individual in the society.”
This incident, therefore, proves that legal reformation and amendment of laws is of no practical relevance unless society reciprocates such reformation. In a democratic country, dominant narratives within society cannot be neglected while reforming the law. This does not imply that the law is not amended, this implies that the law needs to be amended while simultaneously ensuring that the regional police force which is in close contact with common citizens take note of the amendments. This implies that citizens be educated about the connotations of the amendment. This implies that the citizens be aware of the rationale behind such changes and the process of making citizens aware is a responsibility of social activists belonging to the legal profession.
After this occurrence, Smriti Irani, the Union Minister issued the following statement:
“I am nobody to comment on the Supreme Court verdict but I believe I have the right to pray, but not the right to desecrate.” Thereby indirectly proclaiming that walking into a temple while menstruating is “violently disrespectful” to the holy.
“Would you take sanitary napkins steeped in menstrual blood and walk into a friend’s home? You could not. And would you think it is respectable to do the same thing when you are walking into the house of God? So that is the difference,” said the minister.
This was her response to an activist who intended to carry a blood-soaked sanitary napkin into Sabarimala. Looking at it now, you might find her response not quite as outrageous. But dear Smriti Irani, choosing to base your entire response to the Sabarimala issue by responding to one extremist idea is frivolously convenient.
Smriti probably deployed this strange analogy because she believed the false rumours that Rehana Fathima, one of the women who attempted to reach the Sabarimala shrine on Friday, was carrying blood-soaked sanitary pads in her ‘irumudikettu’ (the bag of holy offerings Sabarimala devotees carry on their heads).
But clearly, there is more logic and reasoning behind why women should be permitted into Sabarimala than this misplaced example of sanitary napkins.
Furthermore, Smriti shares an account of what she faces as a Parsi woman at fire temples. “I am made to stand outside. I stand either on the road or sit in my car […] When I took my newborn son to a fire temple in Andheri, I had to give him at the temple; I gave him to my husband because I was shooed away and told, don’t stand here.” This statement, right here, is a manipulation tactic called gaslighting where you attempt to trivialise someone else’s struggles by stating that there are bigger problems, or that you have suffered more. This is a common response to cases of sexual abuse. Molestation is trivialised by comparing it to rape, verbal abuse is trivialised by comparing it to molestation. This is a vicious cycle. We keep normalising the wrong; we keep comparing the worse with the worst until we reach a point of devastation where we don’t have anything to compare it to.
Further, during the SC Verdict, Justice Indu Malhotra had stated:
“The court should not interfere unless if there is any aggrieved person from that section or religion. What constitutes essential religious practice is for the religious community to decide, not for the court.”
How will the government or the court function if it does not interfere? The court is an institution created to interfere, correct, and reform society. And it is obvious that there will not be any opposition to the idea proposed by a section of people, from within the section. Claiming that the religious community should decide upon their principles, practices, and atrocities translate to, “Let them do what they want to”, which is entirely opposed to the idea of having a government. There are liberties with reasonable restrictions otherwise, we as a society will turn hostile and anarchical. Hundreds of people supporting an insensible convention due to religious brainwashing and political propaganda is exactly how a mob mentality functions.
There will definitely be objections and speculations raised from people outside the community, and I’m sorry for the nuisance, but this is how civilisation and governance works. People have to be corrected. You cannot be concerned with only that which is directly associated with you or what you have a stake in. You cannot ‘personalise politics’ all the time. Everyone cannot be fighting for themselves alone. You have to be a part of a bigger revolution because this small step, this liberation from conventions, this freedom to women will pave a way towards achieving larger objectives. From #metoo to Sabarimala, there is intersectionality at play, and various, seemingly distinct social issues are intrinsically connected. If not for yourselves, fight for your fellow women. Speak up even if you are not a devotee of Ayyappa – because this restriction will enable several other temples and institutions to place similar gender discriminatory restrictions.
The response by Smriti Irani on the Sabarimala issue and the dissenting statements by Justice Indu Malhotra on the SC Verdict are a clear indication of how there is a lack of unity, a lack of solidarity, a lack of sisterhood within the community that is championing for equality. On the one hand, Smriti Irani speaks about equality and how women should raise their political standards and on the other, we see her siding with the protestors for the sole purpose of political mobilisation and vote bank politics.
Justice Indu Malhotra also added that:
“Notions of rationality cannot be brought into matters of religion.”
Again, clearly stating that religion and rationality are separate. Religion cannot be rational or practically consequential. It’s similar to saying that, religion has the liberty, the space to be irrelevant. It’s an excuse. If we go ahead with such rationalisations for how religion and fundamentalism affect our nation, we’ll never progress because we will keep legitimising everything in the name of religion. It’s similar to accepting something due to ignorance. Accepting something because that’s how it has been, all these years. Dear Indu Malhotra, restricting women of menstruating age from entering into Sabarimala has been a tradition, and it is a tradition which needs to be demolished. Society has to evolve. We have to move ahead, even if it comes at the price of dissent and disapproval from people who still believe in the convention. We cannot let society stagnate because it is not prepared to progress. If not now, when? Over time, the convention will only strengthen and get deep-rooted in society. The world is moving, India cannot stand still.
Coming to the bigger issue of law and social change, society doesn’t always agree with the law and law seldom gives in to society. But, there are sides to this.
Reforming society without reforming the law will be an aimless effort because, until the legal system formally accepts the revolution, until the law changes, all rioting and campaigning and protesting are of no practical utility. As long as there are procedural governance and systematic structure to legal reform, only protesting is not enough. There has to be a tangible change on paper. On the contrary, simply changing the law without considering the retaliation from society, without thinking of the citizenry, will lead to cases similar to the Sabarimala issue.
Hence, protests have to be an instrument of legal reform. Social change should guide legal change. Society and law cannot function independently due to their symbiotic relationship with one another and the common aim of change, acceptance, and peace. Social transformation is a result of legal change, and legal change is an outcome of social transformation. These two, have to aid one another. Hence, we require more social activism that is centred around the law. We need lawmakers, policymakers, retired judges, and others from the legal profession stepping into the arena of social activism.
With the third wave and intersectional feminism coming in, even feminists have to ensure that their voices echo beyond the streets.
There is no use of women rioting on the streets if the women in the Parliament are silent. In America, we’re observing a new pattern. We can see that social campaigns are affecting the temperament of the Congress. From Maxine Waters to Dr. Ford to Kamala Harris. However, there is an absence of sisterhood in the government as well. Female politicians in America have long been viewed and sold to voters (and donors) as distinctly different from men, more grounded and tuned in to the real-life health and welfare needs of women, children and families; more collaborative and cooperative, “much less about ego and much more about problem-solving,” as Senator Debbie Stabenow of Michigan has put it. Women of colour in particular, and black women especially, were known as advocates for a wide range of marginalised communities.
However, it is difficult to say whether seeing more women in the US Senate will affect any real change in this era of hyperpartisanship when women bring down other women when petty political tools are being utilised only to support their respective parties while neglecting the impact of their stances on the nation as a whole. Largely gone are the moderates- Blanche Lincoln of Arkansas, Kay Bailey Hutchison of Texas, Olympia Snowe of Maine, Connie Morella of Maryland—whose example created the image of female politicians as uniquely able to reach across the bipartisan divide back in the 1980s and 1990s. Hence, today we’re observing extreme stances being expressed. There is no moderation; there are no mellow women.
And, this kind of a competitive bureaucratic atmosphere has existed and will continue to exist because competence and competition are not affected by the restrains of gender. Women do not owe anything to other women, except mutual respect and understanding that at the end of it all, degrading one woman is equivalent to degrading the entire community of women. In America, we see partisan politics, but we also see women coming together. Or at least, we are starting to see women come together within the Congress to achieve common objectives, irrespective of their individual party lines. We see that feminism is finally catching up to Congress as well. Women are indeed coming together. U.S. Sen. Joni Ernst is among the Republicans joining Sen. Kirsten Gillibrand, is sponsoring a bill aimed at curbing sexual harassment in Congress. Eight Republicans joined a dozen Democrats in unveiling the bill, called the Congressional Harassment Reform Act.
The bill would eliminate forced mediation, extend protection to interns and fellows, force members to pay for sexual harassment claims if they’re found personally liable of sexual harassment and require any settlements to be publicly disclosed unless a victim wants to keep them private. In a statement, Ernst said there should be no tolerance for sexual harassment. “This bipartisan legislation,” she said, “takes the necessary steps to provide victims with greater protections and choice, holds members of Congress liable for their wrongdoings and protects taxpayer dollars.”
So, we’re looking forward to female senators using their position of power to contribute to the debate, to enhance the quality of discussion with substantial statements instead of low standard mudslinging, allegations, and attempts at character assassination. Competition is amazing for the people, but there has to be a balance between rivalry and rationality. This applies especially to women because we are at a delicate juncture with feminism and feminist campaigns spearheading social revolutions, it is crucial for us to be politically correct and appropriate while issuing any statements. Even the slightest of errors can make this movement regress because of the vast audience that consumes political news and the kind of influence that politicians exert. Yet, it is a refreshing sight to see how female politicians are taking note of social activism and how senators are reciprocating the courage of social activists.
Moving back to our subject, it is essential to note that social change is indeed guiding legal change in America. The American democracy is broken, not because of how the citizens are utilising their democratic rights but because of the extent to which the current leadership has trivialised diplomacy. Whenever social change guides legal reform, there is more order in society because then, the law moves in accordance with society.
However, it is to be noted that the law cannot always abide by the whims and fancies of the society. But, law seldom changes independently. There is always a minority dissent or rebellion, that leads to lawmakers considering an amendment. In most circumstances, legal change is a consequence of social change. The magnitude of social change might vary. It is either a strong majority demanding social change or a tiny minority campaigning for change. But, there always has to be a catalyst. Society stimulates the law for reevaluation. This is what we observed with the amendment of Section 377.
Gay sex has long been taboo in conservative India, particularly in rural areas where nearly 70% of people live, with homophobia widespread. Some still regarding homosexuality as a mental illness. Hindu right-wing groups supportive of Prime Minister Narendra Modi’s ruling Bharatiya Janata Party (BJP) have been especially vocal, calling gay relationships a disease and a Western cultural import. Ahead of the Supreme Court hearing on petitions filed against Section 377 of the Indian Penal Code, Bharatiya Janata Party (BJP) leader Subramanian Swamy opined that homosexuality was a danger to national security.
Over the years, we had seen small spouts of dissent against the existence of the section in the IPC. The issue of Section 377 was first raised by an NGO, Naz Foundation, and AIDS Bedhbhav Virodh Andolan, in the Delhi high court in 2001. Both the petitions were dismissed in the court. Eight years later, the Delhi HC decriminalised sex between consenting adults of the same gender by holding the penal provision ‘illegal’. However, the 2009 judgement of the high court was overturned in 2013 by the Supreme Court which had also dismissed a review plea. The LGBT community got hope in 2014 when the SC directed the government to declare transgender a ‘third gender’ and include them in the OBC quota.
On August 24, 2017, the SC had upheld the Right to Privacy as a fundamental right under the Constitution. The SC also had called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. In January 2018, a three-member SC bench heard a petition filed by five people asking the apex court to revisit the Naaz Foundation judgement. The case was referred to a larger bench and help was sought from the Centre also. The apex court on July 17 reserved its verdict on whether to decriminalise Section 377 or not.
Gender rights activists have argued that Section 377 violates different articles of the Indian Constitution — Article 14 guaranteeing equality before law to all individuals; Article 15 ensuring that no person is discriminated against on the basis of caste, gender, creed etc. and Article 21 ensuring the right of life and liberty to all the citizens of the country. Hence, it since evident that the rebellion against heteronormativity in India started with an independent foundation, magnified itself through campaigns, social media and other platforms for social activism, and ultimately after receiving legal aid and after putting forth factual reasons for the abolition of this section, we have finally seen some progress.
It is important to note that, the social revolution, social activism, in the beginning, was as important as the legally valid arguments stated by the committee. Social change might appear inessential, but it is not. Even though legality brings forth concrete, permanent reforms in a country’s governance, without adequate social activism, there will be a higher degree of opposition to any such reform. The people have to be convinced. In the case of Section 377, one of the prime reasons why we had a reduced degree of dissent from the alt-right was that homosexuality had been a part of public discourse for a long time.
Social activists had addressed homosexual relationships, same-sex marriages, and the transgender community multiple times, while also advocating for legal reform. It is crucial to keep society updated. Spontaneous legal reform will experience massive opposition, in spite of its legal relevance if society is not convinced or if there has been no social change to support such legal reform. This will qualify as poor implementation of an amendment. Before introducing any progressive laws, it is the responsibility of the government, legal professionals and those working in public interest to ensure that the citizenry is educated and aware.
Section 377 is not the first instance of smooth conduct of legal reformation, nor is it the first instance when society has peacefully obeyed the SC order. The reform might have been delayed, the process of achieving it was definitely a struggle, yet there was a certain procedure to it.
Taking from that, the Sabarimala issue is not the first instance of SC orders being disobeyed blatantly either.
Cow vigilantism has been another issue that has made headlines this year which remains unattended to, despite the SC passing an order for the same. This is a result of non-compliance by the states, among various other causes. The Supreme Court on Friday, 7th September took a stern view of the fact that only nine of the 29 states and two of the seven union territories (UTs) have so far complied with its July 17 order giving a slew of directions to deal with mob violence and cow vigilantism incidents across the country. A Bench headed by Chief Justice of India Dipak Misra gave the last opportunity by granting one more week to the remaining states and UTs to do the needful and warned them that any default would be viewed seriously, and their home secretaries would have to appear personally before it.
We also observed similar disobedience or contempt during the Cauvery dispute in Karnataka, which had led to a constitutional crisis regarding the authority of the state assembly and that of the Supreme Court.
The Supreme Court had said that the Centre was “in sheer contempt of this court” for disobeying its order to frame a Cauvery water sharing scheme by March 30, 2018, and ordered the water resources secretary to be present in court on May 14 with the scheme’s draft. In its February 16 judgment, the SC had directed the Centre to frame a scheme within six weeks to implement the Cauvery Water Disputes Tribunal’s (CWDT) modified award of river water among Karnataka, Tamil Nadu, Kerala and Puducherry. In its February 16 judgment, SC had attempted to end the 126-year-old dispute. It had increased Karnataka’s share, reduced Tamil Nadu’s while keeping Kerala and Puducherry’s allocation unchanged. However, this was not implemented by the respective states thereby showing clear contempt of the SC verdict.
So, we have seen time and again that if society and law do not move together, it leads to rioting and contempt. To avoid such situations, there has to be better communication and cooperation between the government and the people and within the government. We see an increased rate of judicial activism as well. Judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government and government policies and also administration. It is a way through which justice is provided to the disadvantaged and aggrieved citizens.
Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government. In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. That is why the Supreme Court had to expand its jurisdiction by, at times, issuing novel directions to the executive.
Judicial activism is necessary in cases of ineffectiveness and inefficiency of the government, human rights violations, and misuse of provisions in the Constitution. We can also see a number of amendments being brought about in the Constitution. Recently, we saw the Section 377 verdict followed by the verdict on the adultery law. We, as citizens, need to realise that India is entering into a phase of dynamism and reformation. We are seeing the wrong from the right and letting go of constitutional provisions which have little to no relevance today. We see greater levels of judicial activism because our government is plagued with stagnation.
Our government is so partisan and so centred around elections and votes that it has forgotten to observe the greater good of the country, which was its original objective. And because the government refuses to act and correct, the Supreme Court has to do so, and this is then referred to as judicial activism. India should accept this with open arms rather than observing it as an ‘intervention’. And, if it is an intervention, it is a very necessary intervention.
It is time we see beyond the restraints of religion and bureaucracy.
It is time the law and the society join forces.