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October 20, 2017

Do all women have a right to enter Sabarimala?

  • The Supreme Court of India has repeatedly struck down discriminatory religious practices, the latest of which is the triple talaq (in Shayara Bano v. Union of India , 2017). Reference of the Sabarimala entry row to a five-member Constitution Bench is in itself a radical judicial move. Preventing women’s entry to the Sabarimala temple with an irrational and obsolete notion of “purity” clearly offends the equality clauses in the Constitution. It denotes a patriarchal and partisan approach.
  • The entry prohibition takes away the woman’s right against discrimination guaranteed under Article 15(1) of the Constitution. It curtails her religious freedom assured by Article 25(1). Prohibition of women’s entry to the shrine solely on the basis of womanhood and the biological features associated with womanhood is derogatory to women, which Article 51A(e) aims to renounce. The classification based on age is, in essence, an act of discrimination based on sex.



A fragile judgment

  • There is no unanimity on whether the Sabarimala temple bar is ‘age-old.’ The practice rests on a fragile rule and an equally fragile judgment of the Kerala High Court ( S. Mahendran v. The Secretary, Travancore Devaswom Board , 1991). The very purpose of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is to ensure entry of all Hindus to temples without being discriminatory. Rule 3(b), which instigates obstruction to women’s entry on the ground of menstruation, apparently runs counter to the very object of the parent enactment and is therefore untenable. The High Court, in its verdict, relied too much on the Tantri’s (chief priest) opinion without a deeper analysis of the competing claims.
  • B.R. Ambedkar famously said that public temples, like public roads and schools, are places meant for public access and so the question of entry is, essentially, a question of equality. The managerial rights of religious authorities under Article 26(b) of the Constitution cannot override the individual woman’s religious freedom guaranteed under Article 25(1). The former is intended to safeguard, not annihilate, the latter. Liberty is tested at the individual level, for individuals alone can constitute the public in a republic. The ethical autonomy of women and the intrinsic value of womanhood need to be asserted in the realm of spirituality. In S.R. Bommai (1994), the Supreme Court said that “secularism operates as a bridge” for the country to move on from “tradition to modernity.” As American jurist Ronald Dworkin opined, political morality is to be brought into the heart of constitutional law.

Individual liberty

  • It is erroneous to conceive of the issue only as one involving a fissure between individual freedom and gender justice on the one hand and religious practice on the other. More importantly, it also reflects a conflict among believers themselves. Therefore, it is essential to prevent monopolisation of religious rights by a few under the guise of management of religious institutions. Those at the helm of affairs can only manage the institutions in a lawful and fair manner and they cannot be permitted to manage others’ freedom. Any other interpretation of Articles 25 and 26 would damage the very idea of individual liberty.
  • Article 25(2)(b) enables the state “(to provide) for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of the Hindus.” Viewed so, a legislation to put an end to the objectionable practice ought to have been attempted much earlier. However, as it has happened in independent India, religious reform has predominantly been a judicial task. There is reason for optimism for religious liberals aspiring for a fairer temple ambience.

A first step

  • With the introduction of a new financial instrument, India is a step closer to building a vibrant market for commodities. Success in the long journey, however, will require avoiding some policy mistakes of the past. The Multi Commodity Exchange has introduced gold option contracts for the first time in India. The derivative instrument allows investors to enter into contracts to either buy or sell gold some time in the future at a pre-determined price, thus allowing investors to hedge any volatility in the price of the metal, for a price. The fact that options usually also turn out to be cheaper than binding future agreements will help in the wider participation of investors in the realm of commodity speculation. As Finance Minister Arun Jaitley stated during the launch of the derivative at the MCX, gold options will also help bring into formal channels more of the gold that is traded.
  • Notably, the introduction of gold options is in line with the government’s announcement last year that it would take steps towards introducing new varieties of commodity derivatives in the market. MCX, in fact, has said it might seek permission to write options contracts on other commodities which, based on their current futures trading volumes, satisfy rules set by SEBI. To improve market efficiency, the market regulator is also mulling the entry of mutual funds and portfolio management services into the business of investing in commodity derivatives.
  • Naturally, some concerns have been expressed over financial speculation. The benefits of well-regulated commodity speculation, however, are likely to outweigh the potential systemic risk from asset bubbles. Options, like other financial derivatives, allow price risks to be transferred between market players in an efficient manner. The business of anticipating prices in the future is left to professional speculators while their clients benefit from the prospect of stable prices. In the process, financial derivatives can facilitate the conduct of real economic activity in higher risk segments — including in agriculture and industrial activity — that would not happen otherwise. Confusion over this has led to an unjustified hostility towards financial speculation, as well as some hasty policy measures.
  • Almost a decade ago, a rapid increase in food prices pushed the government to impose a blanket ban on any speculation on agricultural products. While it may have been relevant for the specific circumstances, the wide-ranging nature of the move slowed the development of a healthy market for commodity speculation. The government should now resist similar temptation and focus instead on real-time monitoring systems. Apart from the standardised derivatives approved by SEBI for trading in exchanges, a framework that promotes over-the-counter products will help improve the scope for risk mitigation. The debut of gold options should be seen as a step towards greater reforms.

Not bounty but property

  • “Gratuity is not paid to the employee gratuitously or merely as a matter of boon,” Justice P.B. Gajendragadkar of the Supreme Court once aptly described the obligation of the employer. Thus, the Payment of Gratuity Act, 1972 makes every establishment employing 10 or more persons liable to pay gratuity.
  • In keeping with the spirit and intent of the Supreme Court’s judgments, the legislature has included an exhaustive, but by no means comprehensive, list of people who can benefit from the welfare legislation, which includes factory employees, workmen in mines, oilfields, plantations, ports, railway companies and shops. Given the ground it covers, the 1972 Act is viewed as an important social security legislation for the multitude of wage-earners in industries, factories and establishments.
  • The gratuity law provides social security to workmen after retirement, no matter whether this retirement was a result of the rules of superannuation, or physical disablement, or impairment of a vital part of the body. “It is a sort of financial assistance to tide over post-retiral hardships and inconveniences,” the Supreme Court described.
  • Payment of gratuity does not make the employee indebted to the employer. Instead, the court, speaking through Justice V.R. Krishna Iyer, held that “gratuity for a worker is no longer a gift but a right”. Thus, pension and gratuity are not bounty but the “property” of workmen.
  • Meanwhile, the government also recognises the need for periodic upgradation of this legislation considering factors like wage increase and inflation. The latest upgradation was in September when the Union Cabinet gave its approval for the introduction of the Payment of Gratuity (Amendment) Bill of 2017 in Parliament. The Bill doubles the ceiling of tax-free gratuity to Rs. 20 lakh.
  • The 2017 amendment proposes to increase “the maximum limit of gratuity of employees, in the private sector and in public sector undertakings/autonomous organisations under government not covered under Central Civil Services (Pension) Rules, at par with Central government employees.”
  • The present upper ceiling of Rs. 10 lakh on the gratuity amount was introduced in a 2010 amendment. Before that, the maximum amount of gratuity was Rs. 3.5 lakh. Till recently, the ceiling had been Rs. 10 lakh even for Central government employees. But with implementation of the Seventh Central Pay Commission, the ceiling was doubled to Rs. 20 lakh with effect from January 1, 2016.