Secularism

Globally, the concept of secularism has been a contested one, despite the predominant and popular assumption that it is based on neutrality—that is, the separation of religion and state. It has also been defined as the state's equidistance from and equal treatment of all religions in the public sphere.Footnote ¹⁴ Talal Asad has contested these pervasive definitions of secularism, instead arguing that ‘secular’ is a problematic term based on the flawed assumption that it is a neutral, non-religious epistemology.Footnote ¹⁵ Asad demonstrates how secularism has less to do with the disappearance of religion but in fact depends on and is circumscribed by the conceptual boundaries of religion in the West and the former colony. Secularism and religion are co-constructed rather than oppositional. Relations of power construct religious ideology, its traditions and practices, producing “religiously defined knowledge,”Footnote ¹⁶ with secularism implicated in and constituted by religion, both in and through its management and regulation of religion.Footnote ¹⁷ Similarly, Saba Mahmood argues that secularism is a universalizing project promoted through the (Christian) colonial encounter with the “Other” to incorporate her into its ‘civilized’ world view. She demonstrates how religious knowledge has been managed in and through secular governance and is responsible for violence against minorities, in addition to their increasingly precarious circumstances.Footnote ¹⁸ She states that secularism's “claim to religious neutrality notwithstanding, the modern state has become involved in the regulation and management of religious life to an unprecedented degree, thereby embroiling the state in substantive issues of religious doctrine and practice.”Footnote ¹⁹ Secularism has thus become the technique by which the modern state regulates religious life.

The layered and complex analysis of secularism by critical scholars is pertinent to postcolonial India, where the content and meaning of secularism has been partly informed by its colonial antecedents. The colonial power reified and essentialized the practices of religious communities to both govern and regulate them, identifying practices and traditions that were deemed central or essential to the constitution of each faith, and setting up categorized and fixed communities and faiths that were previously fluid, heterogeneous, and ambiguous. Similarly, the categories of Hindu and Muslim emerged and were produced by the colonial power with the “discovery” and compilation of Indian customs and traditions that came to be regarded as a corpus of authoritative texts, which were then clearly defined and legally translated through family law.Footnote ²⁰ Religion therefore emerged as a central political identity and formed the basis of the colonial power's subsequent partition and foundation of the postcolonial states of India and Pakistan. The colonial power further secularized native life through the legal categorization of religion as private and part of the personal domain, while at the same time deploying religion as a means by which to regulate the different communities.Footnote ²¹ This historical background informed the development of what was called the essential religious practices test by the higher judiciary in the post-independence period.Footnote ²² In its application, the test has restricted the right to religious freedom of religious minorities and non-mainstream Hindu sects, and it has been used to establish the parameters and content of mainstream Hinduism, which has also been influenced by Hindu nationalists who argue that their Hindtuva political agenda is coterminous with Hinduism.Footnote ²³

Secularism in Indian constitutional law is not based on the separation of religion and state or state neutrality in India. Instead, the postcolonial state has continued to play a central role in constructing religion through the enactment of laws that have shaped the contours of religion for different religious communities, thus continuing the colonial practice of setting the limits on what constitutes religion in the ongoing life of Indians.Footnote ²⁴ The state derives its power from a distinct understanding of Indian secularism that is based on the equal treatment of all religions, and tolerance, ostensibly shorn of its colonial and western underpinnings.Footnote ²⁵ This model acknowledges the presence of religion in secularism and the role of the state in ensuring the equal treatment of religion. In other words, secularism in India is not the opposite of religion, nor is it what remains when religion is subtracted.Footnote ²⁶

The Hindu Right has increasingly and somewhat paradoxically tried to cast itself as the true inheritor of Indian secularism based on the equal treatment of all religions. Central to its ideology of Hindutva, which posits Hinduism not simply as a religion, but as a racial and nationalist project, is the installation of religion (that is, Hinduism) and culture as primary attributes of nationalism and citizenship identity.Footnote ²⁷ Muslims and Christians are posited as outsiders to the history of the nation because their faiths are said to have originated outside of India, and hence they are constructed as foreigners, aliens, and invaders.Footnote ²⁸ If they fail to assimilate, they are perceived as dangerous and a threat to the very identity of the Hindu nation, subject to being incarcerated, deported, or even eliminated. Elimination of difference is fundamental and this plays out in the context of secularism that, according to the Hindu Right, has its roots in Hindutva.Footnote ²⁹ This understanding is pursued in the Hindu Right's understanding of gender equality.

Gender Equality

The discursive strategies of the Hindu Right seek to redefine the relationship between religion and politics in Indian society, in part, by bringing a very particular understanding of equality to the popular understanding of secularism. These strategies have also played out in relation both to the rights of Muslim women and the treatment of the Muslim community and to the rights of Hindu women in relation to Hindu men.

The precise meaning of equality within the discourse of the Hindu Right depends on the context in which it is being deployed. In much of its contemporary political rhetoric, the Hindu Right deploys a formal understanding of equality. In the context of the attack on minority communities and the discourse of secularism, equality refers to the requirement of formal equal treatment—that is, sameness in treatment. Any special protections of the rights of religious minorities is cast as appeasement and as a violation of the true spirit of secularism. This approach is distinct from a substantive approach to equality, where special protections adopted for alleviating historical disadvantage are treated as temporary special measures and as integral rather than as an exception to equality.

Equality, as deployed by the Hindu Right, is done so in a way that presumes a set of differences between Hindu men and Muslim men. The nationalist resistance to colonial rule together with the freedom struggle gave rise to a hegemonic masculinity—namely, the Hindu male protector.Footnote ³⁰ Nationalism was asserted alongside the articulation of a virile, heteronormative, powerful Hindu masculinity focused on protecting the nation and its women. This understanding is asserted against the predations of the colonial ruler and the West of the Other (namely, the Muslim).Footnote ³¹ This embrace of Hindu masculinity is also an expression of Hindutva's racial project, which posits Hindus as a race indigenous to India while simultaneously casting the Muslim as an outsider whose fealties lie elsewhere, and hence presents a threat to the very identity and existence of the Indian nation. Based on this logic, Muslims are not entitled to equality unless they demonstrate their loyalty by relinquishing any claims to special treatment, surrendering their cultural differences, and assimilating into the norms of the Hindu nation.

In the context of women, equality has become a foundational discourse in the Hindu Right's attack on minority rights and in its agenda for women. It foregrounds gender equality within its Hindu nationalist campaigns, using it to argue in favor of sameness of treatment between women of different religious communities. At the same time, it uses equality to affirm the difference between (Hindu) men and women and to justify the difference in treatment between them. This discursive strategy is most evident in the struggle over the reform of personal laws. One of the issues long advocated by the Hindu Right has been the demand for a secular uniform civil code, the object of which is to unify all personal laws that currently govern issues of marriage, divorce, guardianship, property, and other familial matters, and which is argued as important to securing gender equality.Footnote ³² In this process, the Muslim community's opposition to a civil code—distilled as a deep suspicion of its anti-Muslim and majoritarian moorings—is interpreted as an opposition to women's equality.

In the 1980s, the Shah Bano case became the focus of the Hindu Right's campaign for the reform of personal laws and the enactment of a uniform civil code.Footnote ³³ Shah Bano, a severty-three-year-old Muslim woman divorced by her husband of forty years, brought a petition for maintenance from her husband under the Code of Criminal Procedure, 1973.Footnote ³⁴ According to Muslim personal law, she would only have been entitled to maintenance for the period of iddat—that is, three months after the divorce. In April 1985, the Supreme Court held that she was entitled to maintenance under section 125 of the Code and voiced its opinion that such maintenance would not be contrary to the Quran. The Hindu Right backed Shah Bano, invoking the right to equality and, in the process, attempted to demonize Muslim men. More orthodox and conservative groups within the Muslim community responded with outrage against the decision, with cries of “religion in danger.” Many within the Muslim community suspected that the judgment was intended to undermine Islamic law in accordance with the agenda of the Hindu Right. The Congress government at the time, initially supportive of the Supreme Court's decision, subsequently reversed its position and responded by enacting the Muslim Women's Act, 1986, which provided that section 125 of the Code of Criminal Procedure would not apply to divorced Muslim women.Footnote ³⁵ The women's movement, along with progressive Muslim organizations, campaigned against the bill. The Hindu Right also campaigned vigorously against the bill, which, in its view, was simply another example of the government pandering to minorities.Footnote ³⁶

The demand for a uniform civil code is articulated within the discourse of secularism and formal equality. The Hindu Right deploys equality to claim the sameness of all women, and that all women must be equal. This move presents Hindu men as the legitimate protectors of all women, including Muslim women. At the same time, when the Hindu Right argues that all women must be treated equally, they mean that Muslim women should be treated the same as Hindu women, despite the continuing legal discrimination faced by Hindu women on several fronts including marriage, maintenance, and inheritance. There is no argument in favor of treating all women the same as privileged and entitled Hindu men.Footnote ³⁷ In the discourse of the Hindu Right, equality does not mean treating women the same as men, but becomes an affirmation of the essential difference between women and men, based on their biology and their different roles in the family and society. In relation to Hindu women, this position is based on restoring women to the position that they once occupied in the ostensible golden age of Hindu culture, before the degeneration of Hindu society, which they claim took place at the hands of foreign invaders (both Muslims and the white man). Both in relation to women and Muslims, Hindutva seeks to protect and expand the dominance of majoritarian males.

Triple Talāq, Protectionism, and Hindu Majoritarianism

In 2017, a constitutional challenge was brought by Shayara Bano, a Muslim woman and mother of two, backed by the Indian Muslim Women's Movement (Bhartiya Muslim Mahila Andolan), to the practice of triple talāq. The challenge was to section 2 of the Muslim Personal Law Application Act of 1937.Footnote ³⁸ This section declares that the personal law shall apply to the adjudication of cases between Muslims that encompass matters relating to the “dissolution of marriage, including talāq.” The petitioner's central assertion was that the section violated her fundamental rights to equality under Articles 14 and 15 and her life and liberty under Article 21 of the Constitution.

In determining whether the petitioner's right to equality had been violated, the Supreme Court involved itself in determining whether the practice of triple talāq was essential to Islam and protected by the fundamental right to freedom of religion enshrined in Articles 25 and 26 of the Constitution.Footnote ³⁹ The “essential religious practices test” was developed in the post-Independence period and largely elaborated upon in the decisions of Justice P. B. Gajendragadkar, Chief Justice of India from 1964 to 1966, who sought to expunge the superstitious and irrational elements from different religions.Footnote ⁴⁰ This test has been used by courts to ascertain those aspects of religion that do not fall within the State's purview and hence are not entitled to absolute protection. In trying to demarcate the line between religion and the secular functions of religious denominations in which the State could interfere, the courts have been drawn into theological reasoning. The consequence is that they effectively determine the content of religious beliefs and, in the process, construct tradition and religious identity, both of which become frozen and fossilized.

The practice of triple talāq was opposed not only by women's organizations, but more importantly by Muslim women who were not allowed a similar right and suffered disadvantage resulting from this unilateral and abrupt pronouncement.Footnote ⁴¹ The practice was backed by the All India Muslim Personal Law Board, which argued that triple talāq was a legitimate way to end a marriage and any interference with the practice would constitute an interference with the right to religious freedom.Footnote ⁴² The case was used for political purposes by the Bharatiya Janata Party, which has headed the central government since 2014. The party's support for a ban on the practice serves its interests in denigrating the Muslim community, specifically Muslim men, and remains consistent with the party's political and ideological position and the constitutional commitment to gender equality. The party argues that triple talāq violates both secularism and equality: secularism is violated because the Muslim community is being treated differently; equality is violated because Muslim women are treated differently compared to Hindu women. In the process, the Hindu Right brandishes its liberal credentials and sets up gender equality in opposition to the right to freedom of religion (for Muslims). Secularism and equality are both used to reinforce the shape of the Muslim woman as weak, subordinate, and victimized—while simultaneously advancing an assimilationist agenda under the dictates of Hindu majoritarianism and Hindu male supremacy. In so doing, the discourse of equality is being used to undermine substantive equality and substantive secularism—as discussed earlier. The Muslim woman was placed in the awkward and risky position of choosing between her right to formal equality (backed by the Hindu Right) or her religious freedom (associated with conservative Muslims and male control of religious institutions). This tension was contrary to the central objective of the petitioners who, as Muslim women, painstakingly sought to steer the case in the direction of the right to gender equality while at the same time preserving their right to religious identity and expression.

In August 2017, in a 3–2 plurality decision, the Supreme Court set aside the practice of triple talāq. A central question was whether triple talāq was subject to fundamental rights scrutiny under Article 13(1) of the Constitution, which provides that any laws inconsistent with or derogating from the fundamental rights chapter, including those that were “in force in the territory of India immediately before the commencement of this Constitution” shall be held as void.Footnote ⁴³ Justices Rohinton Nariman and U. U. Lalit found that all forms of talāq recognized and enforced by Muslim personal law were codified in the Shariat Act, 1937, and thus subject to Article 13.Footnote ⁴⁴ Justice Nariman focused entirely on the doctrine of arbitrariness in Article 14 of the Constitution, which invalidates legislation if it is “disproportionate, excessive or otherwise . . . manifestly unreasonable,” to set aside the practice.Footnote ⁴⁵ He further held that the practice could not be protected under Article 25 as it did not constitute an essential religious practice—the only practices that are protected by Articles 25 and 26. Drawing upon the line of cases establishing what constitutes an essential part or practice of a religion, Justice Nariman held that the practice was not integral to Islam, stating that, “Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it . . . . [T]herefore, this would not form part of any essential religious practice . . . . [I]t is equally clear that the fundamental nature of the Islamic religion . . . will not change without this practice.”Footnote ⁴⁶

In his concurring opinion, Justice Kurian similarly struck down the practice, although he arrived at his conclusion via a separate route. He held that the practice was not codified under the 1937 Act, and instead assessed whether “triple talaq had any legal sanctity?”Footnote ⁴⁷ After a brief discussion of the Quran's instructive verses on talāq, Justice Kurian held that they accorded “sanctity and permanence to matrimony.” While talāq was permissible, attempts at reconciliation were an essential step that, if successful, also enlivened the possibility of revocation;Footnote ⁴⁸ however, Justice Kurian stated, “In triple talaq, this door is closed.”Footnote ⁴⁹ He thus held that triple talāq was not part of the uncodified Islamic law and therefore was illegal. Justice Kurian avoided any discussion of Muslim women's claims to equality rights.

In the dissenting opinion, then chief justice Jagdish Khehar, writing on behalf of himself and Justice Abdul Nazeer, reviewed the Quranic verses on marriage and talāq, and reiterated how “the termination of the contract of marriage, is treated as a serious matter for family and social life.”Footnote ⁵⁰ The verses indicated that efforts be directed at bringing couples back together. Without setting out much evidence, he held that triple talāq was part of the uncodified personal laws of the Sunni Hanafi school prevalent in India and was thus protected from interference, except to the extent provided under Article 25.Footnote ⁵¹ In fact, he even suggested that the personal law was immune from a fundamental rights challenge, because “the Personal Law has been elevated to the stature of a fundamental right” and as such is “enforceable as it is.”Footnote ⁵² He thus held that the Court could not “nullify and declare as unacceptable in law what the Constitution decrees us not only to protect but also to enforce . . . Interference in matters of personal law is clearly beyond judicial examination.”Footnote ⁵³ It was for Parliament to amend the Act and not for the courts to intervene in this area, even when the practice of triple talāq was undesirable.

The decision received global attention as a victory for women's rights and gender justice; and there was euphoria on the streets, with Muslim women also celebrating the decision. At one level, the intervention by Muslim women becomes an example of resistance to the dominance and consolidation efforts of both Hindu and Muslim men. It simultaneously marks a successful bid to be included within the terms of gender equality, while at the same time affirming cultural difference. However, on closer scrutiny, questions arise as to whether this decision is a much-lauded victory for gender equality or instead offers few sound jurisprudential grounds upon which to advance women's rights to equality. Rather, arbitrariness and the “essential religious practices test” are provided as the two major grounds for setting aside the practice.

The plurality ruling against the practice is based partly on how other faiths have eradicated discriminatory practices such as polygamy—a position which preferences the monogamous, heteronormative marital relationship.Footnote ⁵⁴ The Court also reiterated that the marital tie is sacrosanct in Islam and should not be dissolved easily. Justice Nariman stated that the reasons for this are obvious: “Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage.”Footnote ⁵⁵ In this respect, the decision remains firmly embedded in preserving the stability of the heterosexual, marital unit. It approvingly states that Islam considers matrimony as sacrament and discourages the marital tie from being “broken capriciously and whimsically by a Muslim man without any attempt at reconciliation . . . to save it.”Footnote ⁵⁶ At the same time, somewhat paradoxically, Muslim husbands still retain the unilateral right to divorce their wives by pronouncing talāq over a period of a few months.

In addition, while Muslim women led the challenge to the practice of triple talāq, throughout the judgment, the Muslim woman is repeatedly referred to in protectionist language. She is represented as a long-suffering victim who needs to be rescued either by the courts or the legislature. For example, the treatment of Muslim women under customary law is referred to as “oppressive” and “disgraceful.”Footnote ⁵⁷ In citing judgments discussing the practice of triple talāq, the Court included references to the “harsh realities” of Muslim women that serve as a “reminder to the court that unless the plight of sufferers is alleviated in a larger scheme through legislation by the State, justice will be a distant dream.”Footnote ⁵⁸ There are also repeated references to the “plight” and “suffering” of Muslim women who experience a worse fate compared to women of other faiths.Footnote ⁵⁹ The Shariat Act is described as having “put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community.”Footnote ⁶⁰ In casting the petitioner as a victim, all the judges simply affirmed the prevailing position that Muslim women need to be rescued from Muslim men; an understanding that coincides with that of the Hindu Right and its attempts to further demonize and stigmatize Muslim men. The Muslim is categorized and iterated as a political-social-cultural problem to be solved, rather than as a political-social-cultural subject whose problems need solving. More specifically, the historical, cultural, and political causes of the Muslim woman's exclusion and discrimination remain unaddressed. A similar concern has been expressed in relation to the Islamic veil bans in Europe, where Muslim women have argued that the focus on rescuing women from the veil is informed by a savior mentality that obscures the political, historical, and even economic explanations for Muslim women's oppression and discrimination.Footnote ⁶¹

Not only is the decision woefully inadequate in providing any sensible or useful guidance on gender discrimination, its protectionist and paternalistic posture also reflects the Court's continued inability to comprehend women, Muslim and non-Muslim, as bearers of rights entitled to full equality as Indian citizens. While the shaping of gender within a protectionist discourse in judicial decisions is not anomalous, it is acutely evident in the context of the Muslim woman. At no point in the Shayara Bano decision are either the structural aspects of gender discrimination or the normative dimensions of gender seriously addressed.

The Court's decision in the triple talāq case encouraged the government to propose a bill outlawing the practice and treating it as a criminal act carrying a punitive sentence of three years and a fine. After several attempts, the bill was eventually enacted into law in 2019 with triple talāq being pronounced a criminal offense.Footnote ⁶² The ordinance and bill reflect the persistent efforts of the Hindu Right to persecute Muslim men and constrain Muslim women within the logic of the Hindu Right's ideology and vision of a Hindu nation, while also reproducing and confirming the marital, heteronormative order. The rush to criminalize Muslim men is indicative of how the Hindu Right intends to pursue an assimilationist agenda through coercive means and, simultaneously, to further stigmatize and criminalize Muslim men.

“Love Jihad,” Carcerality, and Gender Equality

The Hindu Right has long feared that Muslim men would convert and marry Hindu women in order to reproduce and increase the Muslim population. This fear has been problematically branded as “love jihad” (love revolution) and instrumentalized as a weapon for demonizing and attacking the Muslim community and staging the rescue of Hindu women.Footnote ⁶³ The issue became a public sensation when actor Kareena Kapur, a Hindu and well-known heroine of Bollywood cinema, married actor Saif Ali Khan, a Muslim, in 2012. The Vishwa Hindu Parishad immediately accused the couple of love jihad and called upon followers to launch a moral crusade against such cases to save vulnerable Hindu women from the imagined threats of “hypersexualized” Muslim men to the Hindu family and the Hindu nation.Footnote ⁶⁴ The hysteria generated by such calls not only produced a litany of false cases but also triggered vigilante campaigns that surveyed and forcibly separated couples in seemingly interreligious relationships.Footnote ⁶⁵ In addition, websites containing advice for young Hindu women on how to protect themselves from love jihad and remain vigilant have proliferated. The normative desire driving these campaigns is linked not only to an idealized understanding of the moral role and identity of Hindu women but also to the patriarchal Hindu family and its integral link to the identity of the Hindu nation. In the name of defending the nation and its women, any steps are justified.Footnote ⁶⁶

In 2017, the conversion to Islam and subsequent marriage of a Hindu woman, Hadiya (formerly Akhila), to a Muslim man, became the most prominent case of love jihad to come before the courts. In 2014, Hadiya, who at the time was a twenty-four-year-old medical student from Kerala, converted to Islam of her own volition. Two years after her conversion, she married Shafin Jahan, a Muslim man. In December 2016, her father, Asokan, filed a writ of habeus corpus in the Kerala High Court alleging that his daughter had been coerced into converting and was on the verge of being recruited by the Islamic State in Syria. In exercising its parens patriae jurisdiction, the Court directed the police to ensure Hadiya's safety through continued surveillance and that she remain in the country during the pendency of the proceedings. It further directed that Hadiya cease residing with her friend, Sainaba, a Muslim woman. Agreeing to resume her studies in homeopathy, the Court directed that she shift her residence to the university hostel. At a subsequent hearing, Hadiya appeared before the Court with Shafin Jahan, declaring that he was her lawfully married husband. The Court promptly ordered the police to investigate the education, family background, and antecedents of Shafin Jahan. After receiving the report in May 2017, the Kerala High Court concluded that Shafin Jahan was associated with persons having extremist links and a “girl aged 24 years is weak and vulnerable” and easily exploited.Footnote ⁶⁷ The Court annulled the marriage, holding it to be a sham.Footnote ⁶⁸ It stated, “Ms. Akhila is the only child of her parents. There are no other persons in this world, who would consider the welfare and wellbeing of their daughter to be of paramount importance than her parents.”Footnote ⁶⁹ Shafin Jahan promptly challenged the lower court's order in the Supreme Court on the ground that it, inter alia, violated the autonomy of an adult woman and was “an insult to the independence of women in India.”Footnote ⁷⁰

The Supreme Court directed the National Investigation Agency, or NIA—the primary mechanism established by the central government in 2008 to combat terror in India—to launch an investigation into the Hadiya case.Footnote ⁷¹ The NIA was to assess whether Hadiya had been brainwashed and whether her marriage was an isolated case or part of a larger operation to force Hindu women to convert and marry Muslim men with the intention of recruiting them for terror operations. Civil rights groups expressed their alarm at the Supreme Court's directions and the expansion of the proceedings in ordering the probe. In the meantime, Hadiya remained incarcerated at her parent's home, ostensibly for her own protection.

The Court took cognizance of the NIA's preliminary arguments, as well as those of Hadiya's father, and stated that in cases where “there is material with regard to a pattern of indoctrination, the choice of the person should not be treated as absolute for guiding the jurisdictional spectrum of habeas corpus.”Footnote ⁷² The parties urged that, in light of the husband's antecedents, interaction with the lady “should not be… allowed” until this larger issue was decided. Hadiya thus remained in the custody of her parental home.Footnote ⁷³

It was not until November 2017 that Hadiya was directed to come before the Court, where she declared that her marriage was consensual and asserted that she wanted her freedom. The Court permitted her to continue her medical studies but instructed her to reside in the university hostel, and not with her husband or even on her own. The Court further ordered that the NIA probe continue.Footnote ⁷⁴

Ultimately, in its final ruling, the Court set aside the lower court judgment and upheld the validity of the marriage. Having found that a “grevious miscarriage of justice” had occurred in Hadiya's case, Justice Chandrachud said that the Court had a duty “to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure.”Footnote ⁷⁵ He further held that the lower court had overreached its jurisdiction in annulling the marriage and appeared to have prescribed what it thought was a “‘just’ way of life or ‘correct’ course of living for Hadiya.”Footnote ⁷⁶ Justice Chandrachud held that Hadiya had every right to choose whom she wished to marry and that such a choice could not be affected by matters of faith. Referring to the Supreme Court's ruling which held that the right to privacy is a fundamental right, Justice Chandrachud further held that courts have no role in approving or disapproving of intimate personal decisions, and that rights concerning what to wear, what to eat, what to believe, and whom to marry were essential to an individual's autonomy and their right to life.Footnote ⁷⁷ He stated that the strength of the Constitution lay in the plurality and diversity of culture that it was duty bound to uphold.

The broader implications of this judgment and the Court's emphasis on the constitutional guarantee of an individual's choice, autonomy, and self-determination have the potential to resist Hindutva's homogenizing efforts regarding marriage, family, faith, equality, and secularism. The decision fully recognizes the agency and autonomy of all women to make decisions about marriage, faith, and other intimate matters without interference. At the same time, the courts subjected the choice of a Hindu woman to convert to Islam and marry a Muslim man to an extraordinary level of scrutiny and surveillance. The central paradox is that the judicial approach undermines a woman's right to choose and infantilizes her precisely at the point when her choice, in the court's view, appears to undermine her autonomy. The underlying assumption is that to choose a faith where women are assumed to be invariably oppressed is to choose subordination over autonomy. The judiciary regards this as no choice at all. Gender equality is defined by and aligned with majority political ideals and thus axiomatically associated with the autonomous, non-Muslim, female subject. In the context of Muslim women, or the choice to become a Muslim woman, gender continues to be framed within the language of paternalism and (Hindu male) protectionism.

The Kerala High Court expressed its “displeasure” over Hadiya's choices and validated the feelings and intentions of her parents. Asokan, Hadiya's father, expressly stated that Islam was a “religion of terrorism.”Footnote ⁷⁸ Stressing that marriage is “the most important decision in her life” and should not be taken without the active involvement of her parents, the Kerala Court not only diminished her autonomy and infantilized her, but also reinforced the idea that a sensible, mature, Hindu woman from a Hindu family would not opt for conversion to Islam nor marry a Muslim man.Footnote ⁷⁹ This assumption frames the Court's construction of Hadiya's subjectivity, referring to her as either a “detenue” or by her Hindu name, Akhila, throughout the judgment. She is cast as untrustworthy for her delay in informing the Court of her marriage, while at the same time being perceived as vulnerable to brainwashing or indoctrination by her Muslim husband and the Muslim community.

In the Supreme Court, the struggle was cast as one almost entirely between Hadiya's husband and her father. As in the triple talāq case, regardless of Hadiya's unequivocal assertion that both her conversion and marriage were of her choosing, her choice remained subject to intense legal and male scrutiny and surveillance throughout the proceedings. The question remains why the Supreme Court deployed the state surveillance apparatus to investigate the circumstances of Hadiya's marriage. By inviting the NIA to assist it in carrying out an investigation, with the validity of the marriage between Shafin and Hadiya not part of that investigation, the Court signaled that a Muslim woman's rights are contingent not on her status as an autonomous Indian citizen but on the security threat to the Hindu nation purportedly posed by her marriage. While the Court attempted to move away from infantilizing an adult woman who, it held, is entitled to marry whomsoever she wishes, at the same time, it implicitly reinforced the dominant understanding of women as victims, especially a converted Hindu woman, acting under false consciousness and therefore requiring greater scrutiny. It is again somewhat paradoxical that Hadiya, a mature, highly educated young woman, remained confined to her parent's home until the Supreme Court decided whether the lower court had engaged in judicial overreach. Implicit in this protectionist intervention is an anxiety about Hadiya's decision to embrace Islam and marry a Muslim man. As is evident in the triple talāq case, the Court regards Muslim women as worse off than their counterparts in other faiths. In the process, the Muslim man is treated with heightened suspicion, and Islam is seen to harbor a more sinister element, thereby not constituting an obvious choice for a Hindu woman to embrace. Shortly after the decision upholding her marriage, Hadiya was clearly of the view that she had been subjected to intense legal and social scrutiny simply because she had embraced Islam.Footnote ⁸⁰

There is no doubt that the final judgment in Hadiya's case introduced a counter-hegemonic wobble with the potential to push back the tides of Hindu majoritarianism in the legal arena. But the language of paternalism manifest throughout the proceedings circumscribes judicial respect for women's personal and sexual autonomy more generally, and the capacity of a Muslim woman to exercise her right to choose more specifically. The Court's interventions and scrutiny of the choices of a Muslim woman, especially of a Hindu woman turned Muslim, using the intelligence and surveillance apparatus of the state is problematic. Ultimately, it serves to reinforce the myth propagated by the Hindu Right over an unsubstantiated claim that hordes of Hindu women are converting to Islam and being duped into marriage to Muslim men by feigned declarations of love.Footnote ⁸¹

Sabrimala Shrine and Menstruating Hindu Women's Right to Worship

The Sabarimala case is distinct from the two cases discussed earlier insofar as it involves the question of gender equality in relation to a practice associated with the majority Hindu community. I offer this case by way of comparison with the above two cases to amplify the complex and contradictory understanding of gender equality in Indian constitutional discourse in general and its role in advancing the Hindu Right's ideological agenda in particular.

The Sabarimala case emerged from a complaint against young women trekking in the Sabarimala hills and offering prayers at the Sabarimala shrine, a temple in Kerala. The complaint was brought by a devotee of Ayyappa, the shrine's central deity. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, prohibits certain persons from entering the temple or offering worship. These include women “at such time during which they are not by custom and usage allowed to enter a place of public worship.”Footnote ⁸² The Travancore Devaswom Board, one of the statutory boards responsible for temple governance—and consisting entirely of men—read the rule as being applicable to menstruating women, specifically those between the ages of ten and fifty, whose presence at the shrine was considered offensive given the fact that the central deity was celibate.Footnote ⁸³ These women were also regarded as incapable of complying with the rule requiring worshipers to perform forty-one days of penance before prostrating before the deity.Footnote ⁸⁴ While the temple authority was tasked with ensuring women's overall safety, presumably from sexual harassment, somewhat contradictorily, they seemed to regard the prospect of menstruating women entering the premises as terrifying and threatening, capable of contaminating and corrupting the celibate Lord Ayyappa.

The Kerala High Court held that the prohibition did not discriminate against women as an entire class. The prohibition applied only to women of a particular group: those between the ages of ten and fifty.Footnote ⁸⁵ It accepted the temple board's view that the deity's being a Nasik Brahmachari (a celibate) necessitated that “young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.”Footnote ⁸⁶ Relying on the testimony of men who claimed to have knowledge about the practice followed by the temple and on reports of astrologers who were ostensibly able to discern the wishes of the deity, the Court concluded that “the deity does not like young ladies entering the precincts of the temple.”Footnote ⁸⁷ These reports were considered by the Court as conclusive of the wishes of the deity to “prohibit woman [sic] of a particular age group from worshipping in the temple,” and therefore “the same has to be honoured and followed by the worshippers and the temple authorities.”Footnote ⁸⁸

In 2006, a public-interest litigation petition filed by six women lawyers belonging to the Indian Young Lawyers Association, and supported by several feminist and civil society groups, challenged the constitutional validity of the ban primarily on the ground that it violated women's equality rights. They also requested that the Court lay down guidelines “in matters of general inequality related to religious practices in places of worship.”Footnote ⁸⁹ The case was referred to the Constitution Bench of the Supreme Court. The litigation arose in the context of an emerging temple entry movement focused on gaining access for women to temples and shrines in different parts of India.Footnote ⁹⁰ The Travancore Devaswom Board regarded the case as an interference in the religious practices of the devotees, which included the belief that avoiding contact with women of a certain age is integral to the ascetic deity's path toward renunciation.Footnote ⁹¹ The board viewed the practice not as embedded in gender discrimination but as a continuation of an age-old essential practice. The board was also of the view that the devotees of Ayyappa formed a separate religious denomination and hence were entitled to manage their own religious affairs and determine their own rules and practices under Article 26 of the Constitution.Footnote ⁹²

In a 4–1 majority decision, the Constitutional Bench struck down rule 3(b) on several grounds, including that it violated the right to equality of women and undermined Hindu women's rights to worship at the shrine contrary to their fundamental rights to freedom of religion under Article 25. The majority held that the devotees of Ayyappa were not a separate religious denomination but were “just Hindus.”Footnote ⁹³

The majority ruled that any religious practice based on discrimination lost its status as an essential religious practice for this very reason. Then chief justice Dipak Misra, together with Justice A. M. Khanwilkar, set the tone for the majority ruling by holding that “Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one's religion . . . Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.”Footnote ⁹⁴

However, on the issue of gender inequality in the Hindu faith, Justice Misra stated, “In no scenario, can it be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple.”Footnote ⁹⁵ The Justices further held that the rules violated a Hindu woman's right to worship under Article 25(1), to “freely practice their religion and exhibit their devotion toward Lord Ayyappa.”Footnote ⁹⁶ In holding that the Hindu religion was nondiscriminatory in essence, and that women devotees had a right to enter into the temple, the faith emerges as enlightened and nondiscriminatory.

Adopting a slightly different line of reasoning in his concurring opinion, Justice Chandrachud held that religion could not be used as a justification for denying women the right to worship. He held that the individual right to freedom of religion was not absolute. Not only was it constrained by state laws regulating or restricting economic, financial, political, or other secular activities that may be associated with religious practices, but also by those regarding health, morality, and public order, as per the reasonable restrictions clause of Article 25(2). More significantly, the right to freedom of religion was also subject to the right to equality guaranteed under Articles 14 and 15, which prohibits discrimination on the grounds of sex, among other factors.Footnote ⁹⁷ He stated, “[T]he individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III.”Footnote ⁹⁸ In his view, the use of menstruation as a reason for denying women the full right of entry was used to intensify discrimination.Footnote ⁹⁹ On the issue of whether the bar fell within the ‘essential practices test,’ Justice Chandrachud held: “Its effect is to impose the burden of a man's celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham [penance] is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims.”Footnote ¹⁰⁰

Justice Chandrachud adopted a substantive approach to equality that takes into consideration the historical and structural discrimination that produces exclusion and disadvantage, stating, “Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity.”Footnote ¹⁰¹

In her lone dissent, Justice Indu Malhotra, the only female judge on this bench, held that the constitutionality of religious practices could not be tested exclusively against the right to equality or rationality. In her view, it was up to worshippers rather than the courts to determine the essential practices of a religion. She held that a balance had to be found between religious beliefs and nondiscrimination. Justice Malhotra was also of the view that the Ayyappa devotees formed a separate denomination and hence were entitled to manage their own religious affairs, and determine their own rules and practices under Article 26 of the Constitution.Footnote ¹⁰² She held that the prohibition did not violate the equality clause, as it did not affect all women, but only women within the age bracket of ten to fifty.Footnote ¹⁰³

At one level, the case is a victory for equality rights for women, especially given Justice Chandrachud's adoption of a substantive approach to equality based on historical disadvantage and systemic discrimination. However, unlike the other cases discussed, gender equality is not set up in direct confrontation with faith. The majority adopts a more nuanced approach by deploying two important arguments. First, it held that the Ayyappa devotees were not a separate denomination and that the shrine was a Hindu temple. Second, it adjudicated on whether the practice was essential to the faith, concluding that it was neither essential to, nor even part of the Hindu faith.

Through these two maneuvers, the Court seemed to avoid the conflict between gender equality and the majority religion. By reiterating the exemplariness of Hinduism in not discriminating against women's rights to worship, the Hindu faith comes out unscathed, unlike the Court's treatment of Islam. The problem is that in determining whether the rule was an essential part of the Hindu faith, the Court was imbricated in a form of theological reasoning. In addition, despite its efforts to avoid a confrontation with Hindu devotees, the Court was ultimately unable to overcome the perception amongst devotees that it had aligned itself entirely on the side of gender equality and against religion.

At one level, Sabarimala could be read as a straightforward case of formal equality: women should be treated the same as male worshippers and physiology cannot be a legitimate ground for exclusion. However, as discussed, in the context of religion, gender equality becomes highly contested. And within the context of the majority religion, this contest plays out between those who support gender equality regardless of religion and those for whom the reference point of equality is religion. It is this polarization that was manifest in the storm of protests that erupted in response to the implementation of the Supreme Court judgment among devotees, including female devotees, with the Hindu Right lending its unconditional support.Footnote ¹⁰⁴ As discussed above, the Hindu Right favored equal treatment of Muslim women with Hindu women, but not women with Hindu men.

Women's rights activists who attempted to enter the shrine were faced with violent threats, attacked, and even ostracized by their families.Footnote ¹⁰⁵ Several review petitions were filed in light of the public response to the case and there were familiar cries of ‘religion in danger.’ The Court somewhat controversially referred the case to a larger bench, which has agreed to review it.Footnote ¹⁰⁶

The Supreme Court's decision did not disrupt the normative architecture that structures gender, nor did this even appear to be the goal of those who challenged the practice. The case reflects the struggle of excluded women to realize their desire for recognition and full equality with men through a wholesale pursuit of rights within the existing paradigm, rather than being transformative of gender. And even though the case defends a Hindu woman's rights to pray at the shrine, the fact that the main petitioners were not devotees, and feminist activists fostered the perception that the Court had aligned itself entirely on the side of gender equality and against religion.