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Daring to equalize

Two major liberal Supreme Court judgments last month are advantageous to many Parsis and Zoroastrians. The lifting of the ban on entry to women between the ages of 10 to 50 to the Sabarimala Temple by a four to one judgment is a great victory for women’s rights. With the unanimous five-member bench striking down Section 377, homosexuality has been decriminalized, bringing relief to many gays/lesbians, including Parsis, who suffered much discrimination, ridicule, humiliation and harassment.

The four to one Sabarimala verdict should strengthen the case of Goolrookh Gupta now before the Supreme Court and Prochy Mehta/Sanaya Vyas whose matter is before a single judge of the Calcutta High Court. Gupta is challenging in the Supreme Court the Valsad Parsi Anjuman ban on entry of all interfaith married Parsi women to the local fire temple and Doongerwadi. Mehta/Vyas are inquiring of the Calcutta High Court who has the right of entry to the sole, local adarian.

Chief Justice of India Dipak Misra stated that the rules of the Sabarimala Temple violated Article 14 and 25 of the Constitution. "It is constitutional morality that is supreme. Prohibition can’t be regarded as an essential component of religion. Women are not lesser or inferior to men. Patriarchy of religion cannot be permitted to triumph over faith." He and Justice Ajay Khanwilkar stated in a joint judgment that the "Irony of society is to impose a rule, however unjustified, and then justify the rule. Historically, women have been treated unequally… No philosophy has so far convinced the large population of this country to open up and accept women as equal partners."

Justice Rohinton Nariman stated the ban is not backed by Article 25 and 26 of the Constitution. The Hindu (September 29, 2018) quoted Nariman as stating, "Right to practice religion, as claimed by the tantrics and worshipers, must be balanced with the fundamental right of women who were barred from entering the temple based on the biological ground of menstruation."

In The Times of India Nariman is quoted as stating, "In the more recent religions such as Sikhism and the Bahai’i faith, a more pragmatic view of menstruation is taken, making it clear that no ritualistic impurity is involved. The Sri Guru Granth Sahib deems menstruation as a natural process – free from impurity and essential to procreation. Similarly, in the Bahai’i faith the concept of ritual uncleanliness has been abolished by Baha’u’llah."

Justice (Dr) Dhananjaya Chandrachud is quoted in The Hindu as stating, "To suggest that women cannot keep the vratham (pious observances such as fasting and pilgrimage) is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court must refuse to recognize such claims."

The lone dissenting voice was that of Justice Indu Malhotra who opined the court should not interfere in religious matters. The "Equality doctrine cannot override the fundamental right to worship under Article 25," she asserted. An editorial in The Indian Express (September 29, 2018) noted, "Justice Malhotra’s words are a cautionary reminder that it may need more than a judicial pronouncement to enable social reform." While an editorial in The Times of India cautioned, "The judgment also opens a Pandora’s box: will courts rule on religious bars to women priests and many other social and religious customs where patriarchy is prevalent?"

More importantly would the liberal judgment create a conservative backlash? The USA and several countries in Europe, not to mention Turkey and the Philippines, have elected right wing, fascist leaning politicians.

In the Section 377 case decriminalizing homosexuality, Nariman, according to Livelaw News Network (September 6, 2018) had stated, "Constitutional morality is the soul of the constitution... These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality… The fundamental rights chapter is like the north star in the universe of constitutionalism." Among Parsis, sadly a coterie of traditionalists holds sway.

A two-member bench of the Supreme Court had in 2013 upheld Section 377 stating the number of gay/lesbian individuals was minuscule. But studies estimate that around five to 10% of a population could be gay/lesbian. According to a report in The Guardian of April 5, 2015 (Cambridge professor) David Spiegelhalter, in his book Sex By Numbers: What statistics can tell us about sexual behavior answers key questions about our private lives reveals how the Kinsey report "claim that 10% of us are gay is actually close to the mark."

Same sex attraction is not limited to humans. notes, "Homosexual behavior has been observed in hundreds of species, from bison to penguins. It is still not clear to what extent homosexuality in humans or other animals is genetic (rather than, say, due to hormonal extremes during embryonic development), but there are many mechanisms that could explain why gene variants linked to homosexuality are maintained in a population."

For this issue Parsiana requested Hoshang Merchant and Roy Wadia to write on what the striking down of Section 377 means to them. They both term the judgment a first step. Much more needs to be done, they noted.

In 1935, the father of psychoanalysis, Sigmund Freud wrote to a mother: "I gather from your letter that your son is a homosexual. I am most impressed by the fact that you do not mention this term yourself in your information about him. May I question you why you avoid it? Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation; it cannot be classified as an illness; we consider it to be a variation of the sexual function, produced by a certain arrest of sexual development. Many highly respectable individuals of ancient and modern times have been homosexuals, several of the greatest men among them (Plato, Michelangelo, Leonardo da Vinci, etc). It is a great injustice to persecute homosexuality as a crime – and a cruelty, too."


The mother was not alone in her reluctance to use the term. Around 1896, poet Lord Alfred Douglas, the lover of Irish playwright and poet Oscar Wilde, termed homosexuality "the love that dare not speak its name." Now it can dare.


Villoo Poonawalla