@Evening: 🧑‍⚖️ Is SC Finally Changing On Cultural Matters?

🛕 Sabarimala, a test case

A recent apex court about-turn may be a sign of (good) things to come.

Context: An SC constitutional bench headed by Justice K M Joseph upheld the validity of a TN law that allows the bull-taming sport of Jallikattu.

• It also allowed two other bull-racing sports, in Karnataka and Maharashtra.

• Coming around nine years after the apex court first upheld a total ban on Jallikattu in 2014, this about-turn is a kind of unstated mea culpa.

• The bench suggested it will not interfere with the legislature’s view that Jallikattu is part of the state’s cultural heritage.

• This is unusual, for the SC has, in the past, ridden rough-shod over cultural sensitivities, R Jagannathan writes.

Past cultural takes. The apex court has curbed the use of crackers during Diwali, but also:

• Imposed restrictions on the height of the dahi handi human pyramid during Janmashtami celebrations.

• Ended the Sabarimala bar on women in the reproductive age since the deity, Swami Ayyappa, is worshipped as a Naisthika Brahmachari, an eternal celibate.

Is the SC changing? One can't say for sure as yet, but...

• We saw evidence of welcome rethinking in April.

• The constitutional bench headed by the Chief Justice had gone over the top to suggest there's nothing absolute about gender identity, when hearing pleas to allow same-sex marriages.

• The bench even considered bringing same-sex marriages within the ambit of the Special Marriage Act, a law specifically devised by Parliament to allow for inter-faith or inter-caste marriages.

• But it steered clear of messing around with personal laws.

• As Solicitor General Tushar Mehta started educating the bench on the legal impact of a move to legalise same-sex marriages, the court started changing its stand.

Closer look. Mehta said “recognition of same sex marriage will open 160 other laws for change. Is this a matter for the court to decide or a matter of legislative policy?”

• He also wondered how the courts can legalise matters about the LGBTQIA+ group, with the plus sign indicating that many self-declared genders can be inconclusive or even whimsical.

• With the bench reserving its verdict in the case, indications are that it will limit itself to issuing a “constitutional declaration” on the validity of same-sex marriage, without trying to amend any particular law.

Real test case. When the SC gets down to reviewing the Sabarimala case, it will hopefully look at the cultural rights of the devotees involved.

• The problem is that Kerala's Left Front government may not be as supportive of Hindu culture as the DMK government was on Jallikattu.

Good signs. The gain from the Jallikattu verdict, and the change in its tune on same-sex marriages, is that the highest court is not resistant to cultural arguments or logic.

• One hopes that the SC gets out of its colonised mindset and starts looking at Indian issues with an Indic lens.