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Gay sex, adultery, women’s rights: India’s Supreme Court is taking on the patriarchy

On Sept. 27, India's top court lifted a ban that prevented female devotees between the age of 10 and 50 from entering an ancient Hindu temple in Kerala. (Video: Reuters)

NEW DELHI — India’s Supreme Court on Friday overturned a renowned Hindu temple’s effective ban on the admission of menstruating women, the latest in a trio of pathbreaking verdicts this month that have taken aim at colonial-era laws and the country’s deeply entrenched patriarchy.

The ruling gave women the right to enter a 12th century Hindu temple that was closed off to female devotees aged 10 to 50, roughly covering their menstruating years. The decision followed the court’s decriminalization of gay sex and adultery earlier in September, both trailblazing verdicts that came after long legal battles. 

“In the last two or three years, we are again seeing the emergence of a liberal court,” said Indira Jaising, a lawyer who represented women campaigning to lift restrictions on entry into the Ayyappan temple in the southern Indian state of Kerala.

India’s Supreme Court often makes decisions that politicians and bureaucrats decline to touch. Unlike the U.S. Supreme Court, which hears only about 80 cases every year, the 25 judges of India’s top court hear 9,000 cases and deliver 1,000 verdicts a year, according to Aparna Chandra, a professor at the National Law University in New Delhi. 

The court rules on issues that many Indians argue should be tackled by Parliament — notably environmental degradation as India urbanizes, rights for women and minorities and even municipal issues such as garbage dumping and outlawing fireworks in Delhi during the Hindu festival of Diwali, when the city chokes on pollution.

India’s Supreme Court decriminalizes gay sex in historic ruling

“It’s a question of the court filling a vacuum,” said Gautam Bhatia, a lawyer practicing in Delhi. “And that means it is not just adjudicating issues of law but also acting as a moral and ethical barometer.”

The verdicts come as India’s chief justice, known for his liberal judgments, prepares to step down on Tuesday, a day before his 65th birthday — the legal age of retirement from the court. Experts said the judge has taken on a number of “legacy cases” in recent months to cement his role in history books as he prepared to retire. 

“Historically, women have been treated with inequality,” said the chief justice, Dipak Misra, as he delivered the verdict to lift the Ayyappan temple’s restrictions on women’s entry. “Society has to undergo a perception shift.”

Adultery ruling is the latest progressive ruling by India’s Supreme Court

The Supreme Court’s fierce independence stems from an existential crisis during India’s emergency rule from 1975 to 1977, a period of executive rule under then-Prime Minister Indira Gandhi, during which a compliant court suspended fundamental rights and allowed the government to imprison political dissidents. 

After the emergency ended, the court became increasingly autonomous — snatching the power to appoint judges from the executive and widening access to the court through public interest litigation — a quirky legal tool that allows anyone to have his or her case heard by the Supreme Court. The court also takes on cases suo motu — a Latin phrase meaning on its own motion — based on news articles.

The court has assumed a particularly important role in the age of majoritarian politics, said Jaising, the plaintiffs’ lawyer in the temple case, who was a legal adviser to the previous Congress Party-led government. Prime Minister Narendra Modi’s governing Bharatiya Janata Party (BJP) courts India’s Hindu majority, she said, and Friday’s ruling to allow women into the ancient shrine “really dents the primacy of religion, which is a fundamental plank of this government’s politics.”

Modi has remained neutral on the court’s rulings in the gay sex, adultery and temple cases.

Despite those progressive judgments, said Dushyant Dave, a senior lawyer, the court has been unwilling to rule against the government on thorny, politically sensitive cases. 

On Friday, just minutes after allowing women into the ancient temple, the court also extended the house arrest of five political dissidents. On Thursday, in a complicated and long-running case about whether a Hindu temple can be built on the site of a mosque razed by Hindu hard-liners in 1992, the court’s judgment favored the Hindu majority. Earlier this year, the court also brushed aside the need for an independent probe into the suspicious death of a high court judge, in a case that was linked to the powerful president of the BJP, Amit Shah. 

Dave said the court’s progressive rulings on women’s and gay rights were “inevitable in this day and age,” low-hanging fruit for a judge bent on establishing his legacy. “The real test comes when there’s a serious difference between the government and citizens,” he said. “That’s where you have to show that you’re willing to stand up to the executive of the day.”

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Still, for many, overturning a centuries-old rule marked a significant step in the right direction. 

The Ayyappan shrine, which sits on a mountain surrounded by a densely forested tiger reserve and is visited by 50 million pilgrims every year, has been closed to women who are between puberty and menopause. 

Menstruation is associated with impurity in India, and menstruating women face huge stigma. They are often kept out of communal cooking and eating places on days that they are menstruating and barred from entering temples. Jaising argued in court that the restriction was a form of untouchability, an ancient practice that segregates “impure” people under India’s outlawed, but still operational, caste system.

Nikita Azad, a petitioner who appealed to the Supreme Court in 2015 said the court’s judgment “definitely sends a message,” although changing social attitudes would take many years.

Now a Rhodes scholar at Oxford University researching menstruation and capitalism for her master’s degree in women’s studies, Azad comes from a deeply religious Hindu family and has always wanted to visit the shrine with her parents. She plans to visit the temple a year from now, when she returns to India from Oxford. 

Temple authorities said they have the right to manage their own religious affairs and will appeal the court’s verdict.

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