On May 17, 1954, the US Supreme Court delivered a controversial ruling on the subject of equal rights for American citizens. A group of parents in Kansas, South Carolina, Virginia and Delaware had challenged the educational policy in these states, arguing that separate schools for white and black children violated the equality clause in the American constitution.
The case was not, on the face of it, about lack of educational opportunities for black Americans. The issue was simply about equality of access. Black children were asking to be admitted to whites-only schools in the face of state rules that excluded them.
The US Supreme Court agreed with the petitioners, and ordered that the states put an end to segregation with ‘all deliberate speed.’ The order flew in the face of both pragmatism and immediate progress. As Gerald Rosenberg showed in his book The Hollow Hope, there was no discernible improvement in desegregation in educational facilities in the years right after Brown vs Board of Education of Topeka, as state governments dragged their feet in implementing the orders.
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In the short term, the decision probably exacerbated rather than improved race relations in the US South. Yet the ruling was impervious to both these concerns. Neither pragmatic nor community interests came in the way of enforcing the fundamental right to equal consideration.
The idea behind the Brown ruling, remarkable for its time, was the following idea: if a person makes a case for equal treatment, arguments of pragmatics and community interest must give way, except in the most compelling circumstances. This is a moral position that many people find difficult to understand.
- It is no use lamenting the fact that the Supreme Court must speak the language of local customs and traditions. It is a part of any constitution that gives a special place to fundamental rights, especially the right to equality. In this respect, the Indian and American constitutions are similar.
The Sabarimala decision is taking the position that a violation of a fundamental right, namely the right of every person, regardless of gender, to religious worship, has occurred and needs to be remedied. Once a violation has been recognised, the response follows as a matter of course. As a nation, we are committed to this constitutional train of thought.
Supreme Court speaks only the language of liberal rights
It is also missing the point to say that the Supreme Court’s order is impractical or will result in a cost to the public exchequer. Similar arguments were made against the Brown ruling. But the mandate of fundamental rights, once it is in play, is uncompromising.
A female devotee makes the trek to Sabarimala. Credit: PTI
- Remedying a violation of a fundamental right might actually , in the short term, go against the interests of the community of which the rights holder is a member.
It might well be true that the Sabarimala judgment has in fact harmed the movement for greater access for women in places of worship, including the call for more woman priests. Local counter-mobilisation might set the movement back several years. Even this possibility is not a sufficient criticism of the Supreme Court decision.
Brown was inititally derided
The enforcement of human rights have their limits. One can appreciate the vitality and compelling nature of human rights without denying some limitations on their enforcement. But enforcing the Sabarimala judgment neither raises existential issues nor is it impossible or absurd to enforce. It is time we acknowledge the categorical nature of the demands made on us by the fundamental rights enshrined in our Constitution.
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The decision in Brown was also initially derided as a case of judicial overreach. Today many constitutional scholars believe it to be one of the catalysts for the American civil rights movement.
Today, the Sabarimala case is being criticised for its stand against age-old traditions. Posterity might judge it differently – as the harbinger of gender equality in religious matters. Judicial rulings have immediate impact, but also myriad intangible and unpredictable ways of changing people’s hearts and minds.
Professor Nigam Nuggehalli teaches at the National Law School of India University, Bangalore.