AuthorNarain, Vrinda


On January 2, 2019, at 3:45 AM, Bindu Ammini and Kanaka Durga undertook a three-mile hike up the Sabarimala Hill in Kerala, southern India, to enter the Sabarimala Temple. (1) The temple attracts an estimated twenty-five to forty million pilgrims annually, (2) but Ammini and Durga were no ordinary pilgrims. For one, they needed to be escorted by police. (3) Further, their pilgrimage captured international headlines while triggering heated debates and mass protests across India. (4) Most importantly, they were women. To understand why such a seemingly trivial fact is so crucial in the context of Sabarimala, one must rewind to the nascent years of post colonial India. Since the early 1950s, women of menstruating age were prevented from entering the centuries-old shrine, (5) a prohibition formalized by statute in 1965. (6) But on September 28, 2018, in a ground-breaking decision mediating the perceived opposition between religious freedom and women's equality rights, a 4-1 majority of the Supreme Court declared the impugned statute ultra vires the Constitution, effectively lifting the ban on female pilgrims. (7) What followed can only be described as political and legal mayhem.

When the temple temporarily reopened in October, several women attempted the trip; all were accosted with threats of violence, subjected to physical harassment and property vandalism, and blocked from completing the trail. (8) Kerala's communist-coalition government had been receptive to the decision, promising police protection to female pilgrims and cracking down on blockades at the temple's entry points. (9) Further, Kerala's government accused the ruling federal Hindu nationalist Bharatiya Janata Party ("BJP") of stoking division and violent protests in a bid to instrumentalize the court decision as a wedge-issue in the coming election and manufacture a narrative of Hindu values "under threat." (10) The BJP seemed to confirm the accusations, describing the evolution of events in Kerala as "a struggle ... between religious beliefs and state government's cruelty," (11) while denouncing the Kerala administration as "a government headed by non-believers [that] is out to destroy the sanctity of the temple where more than four crore pilgrims throng during the season. We won't sit idle. We are planning a massive movement to save the temple." (12)

To further complicate matters, by February, at least sixty-five petitions had been filed in the Supreme Court requesting a review of the judgment as well as an interim stay. (13) Unsurprisingly, many of the petitioners were religious or Hindu nationalist organizations, including the All Kerala Brahmins Association, the Nair Service Society, and the National Ayyappa Devotees (Women) Association. (14) On November 14, 2019, a 3-2 majority of the Supreme Court noted that the issues raised in the Sabarimala judgment were not limited to the Sabarimala Temple. (15) Specifically, it singled out three cases currently before the courts: one concerning Muslim women entering a mosque through the main door; (16) another concerning Parsi women married to non-Parsis entering the Agyari; (17) and a case assessing whether female genital mutilation constitutes an essential religious practice with respect to the Dawoodi Bohra community. (18) Though the majority refused to stay the Sabarimala ruling, it nonetheless listed seven questions related to the above three cases that must be referred to a bench of no fewer than seven judges. (19) Consequently, the review process of the Sabarimala judgment is paused, pending a larger bench resolution of these questions. (20) The referral decision has been met with considerable criticism, with many expressing fears that the protests and the Executive's disapproval of the ruling influenced the Court to adopt an overly liberal approach to its review competence. (21)

If the Sabarimala saga is a glaring reminder of the tired political dichotomization of religious freedoms and women's rights, it is also a testament to Indian women's long battle for substantive equality. Indeed, the importance of constitutionalism as the key difference between equality as a promise and equality as a fact is best exemplified in India, where despite the existence of constitutionally guaranteed fundamental rights, the material reality of women's lives does not reflect much improvement. Women in India constitute an oppressed group. They are marginalized, exploited, and excluded in virtually all aspects of life. India ranks 131st of 189 countries on the 2020 Gender Inequality Index. (22) Female labor force participation is an abysmal 20.5%, (23) while female post-secondary education attainment stands at 27.7%. (24) Women in India remain disadvantaged with regard to employment, literacy, educational attainment, and political participation. (25) They are disadvantaged within the family, as the private sphere is regulated by discriminatory religious personal laws that contradict formal equality guarantees in the public sphere. (26) Moreover, gender equality has been undermined by the contradictory constitutional embrace of formal equality in the "public" sphere and inequality in the "private" sphere. (27) Until recently, the constitutional protection of religious freedoms has been (mis)interpreted to shield discrimination from scrutiny under personal laws, thereby legitimizing women's inequality within the family and the community. (28) Effectively, women have been excluded from equal citizenship.

Whereas Hindu law has been reformed in some aspects, the state has historically done little to legally reform Muslim women's inequality under religious personal law systems, justifying its inaction on the grounds of minority rights and religious freedom. (29) Where the State has recently intervened to regulate or reform matters linked to Muslim law in the name of advancing gender equality, its intentions have been unsurprisingly met with skepticism in light of the amplifying anti-Muslim politics in India. (30) This has left the courts, the designated apolitical institution, as the best positioned promoters and guardians of equality rights within minority communities. But despite its transformative mandate, the Supreme Court has been reluctant to enforce laws to protect women's rights and has even held some social reform legislation unconstitutional. (31) Although the Constitution promises radical change and substantive equality, democratic institutions and structures of accountability have failed women. (32) As things stand, women remain on the margins of democracy and citizenship and gender equality in India is largely illusory.

However, it would be a mistake to presume that, in the face of institutionalized patriarchy, women in India dejectedly abandoned all efforts to expand their rights. On the contrary, women have turned to constitutional litigation to challenge their exclusion and resolve a variety of gender-related claims such as political participation, employment discrimination, equality within the family, and sexual harassment in the workplace, among others. (33) Through these actions, women have challenged orthodoxy, interrogated norms, revised categories, and insisted on substantive equality. The Supreme Court has, in turn, been receptive to Public Interest Litigation ("PIL") and constitutional challenges to gender inequality in personal and customary laws, showing its interpretational creativity when reading constitutional guarantees, and even drawing on principles of international human rights to fill gaps in domestic legislation. (34) Furthermore, in what might be characterized as a constitutional dialogue between the judiciary and legislature, Parliament has drafted bills and legislation in response to calls for protection of women's human rights.'3 Yet, changes in jurisprudence or legislation must be examined with caution before they are celebrated as entrenchments of gender equality.

Legislative innovations in India relating to gender equality, however ambitious in scope, generally remain paralyzed in formalism, failing to translate into the factual emancipation of the subjects they aim to empower. (36) This, I argue, is a symptom of two cancers: first, the failure to recognize that legal reforms require a reorganization of all relevant institutions in order to "de-normalize" oppressive social norms and bridge the gap between the promise of a right and its institutional enforcement; (37) second, the failure to delineate constitutionalist principles that ensure a meaningful interpretation of legislation and hold the legislature accountable for their practical shortcomings. It is precisely for the latter symptom that the Sabarimala case should command attention--particularly the concurring opinion of Justice Chandrachud which promotes citizenship as a pillar of not only the Constitution, but its foundational morality.

Given the continued political, social, and economic disadvantage of women in India, it is important to ask about women's substantive equality and question whether the Indian Constitution is for women too. (38) While acknowledging the limitations of constitutional challenges generally, this Article seeks to understand the extent to which the Indian Supreme Court has constitutionalized women's equality rights by turning to Indian Young Lawyers Association v. State of Kerala, (39) commonly referred to as the Sabarimala judgment, as a case study. The ruling, in its high and low points, offers a glimpse of the evolving state of judicial relief for statutorily created gender-based discrimination in India. Focusing on how the Supreme Court balances religious freedom with gender equality, this Article considers whether the Indian Constitution can represent women's interests, be interpreted in a way that responds to women's inequality, and promote inclusive citizenship for women.

The remainder of this Article shall be structured as follows. Part I maps out important...

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