NLSIR's Sumukhi Subramanian in Conversation with Deepa Das Acevedo* on her latest book, The Battle for Sabarimala, which delves into the landmark 2018 Indian Supreme Court decision allowing women access to the Sabarimala temple. Through historical, legal, and ethnographic lenses, she examines the broader implications of the controversy for religion-state relations and India's constitutional framework.
Q. Could you briefly introduce the main themes of The Battle for Sabarimala? What are some of the key arguments you explore, and what do you hope readers take away from them?
The Battle for Sabarimala reaches out to readers at a few different levels. Most directly, it tells a more multifaceted story of the dispute over women’s access to Sabarimala than we often encounter in the media or in disciplinarily defined scholarship. I go as far back as the eighteenth century (using archival records), and across law, anthropology, religious studies, gender studies, and Kerala studies. Too often, I find, we tend to stay stuck within a certain historical moment or disciplinary framework, and in this book I try to resist that trend. Second, the book shows that both legally and socially, the outcomes that we have witnessed—the decision in Indian Young Lawyers Association & Ors v The State of Kerala & Ors ("IYLA") as well as the failure of that decision—were not foreordained. Constitutionally and historically, there were multiple paths that could have been taken. This book acknowledges that multiplicity even as it explains the path that was actually taken. Finally, and for a more academic audience, this book shows what an anthropology of constitutional law—a constitutional ethnography, to borrow Kim Lane Scheppele’s term—might look like in practice.
Q. What was your research process like for this book, given the interdisciplinary analysis you undertake? Were there any particular challenges or surprises that you encountered while researching such a complex and sensitive subject?
Truthfully, I never expected to write a book—I went into academic law, which, in the United States, is not a “book” field, and so I expected to write journal articles for most of my career. Throughout my post-doc and the first two years of my first tenure-track job, I wrote only journal articles because that is what was professionally required of me (and what I thought I was better at). Because of this, The Battle for Sabarimala was written long—much longer than usual—after the research for it was finished.
I actually think this unusual order of operations worked to my advantage in two ways. First, at the time that I did the fieldwork portion of the research, which was during my doctorate, the women’s entry dispute was not big news. This meant that I got to do a lot of my research at a moment when my topic was less controversial than it later became. (At the time I was in the field, the biggest news item involving Sabarimala was the makaravilakku stampede of 2010, which figures prominently in my dissertation but not much in the book). Second, when I wrote the book, I not only had the benefit of a completed doctorate, I had also finished my law degree and was two years into being a law professor, so I had legal training as well. Combined, these two factors ensured that my thinking about Sabarimala was not overly shaped by the highly ideologically-charged environment in which the hearings, opinion, and protests took place, and that my analysis was equally informed by both social science and legal training.
Q. How has writing this book shaped or changed your own perspective on the issues you discuss? Did you find your views evolving as you went deeper into your research?
I’d be surprised to find anyone who has studied the same topic for over a decade without changing their opinion on any aspect of that topic! For me, one of the most interesting and surprising developments in the debate over women’s entry at Sabarimala has been the analogy between menstrual impurity and caste discrimination that was articulated by then-Justice Chandrachud in his IYLA opinion[1]. Honestly, the analogy had not occurred to me, and for a while I remained deeply skeptical about it. But the lawyer in me has been trained to think in terms of analogies, and the more I’ve thought about it, the harder I find it to argue against the analogy to caste discrimination.
Q. Some have argued that the Sabarimala case reflects a broader disconnect between constitutional morality and public sentiment. Do you agree? How do you view this disconnect, and do you think it is unique to the Indian constitutional framework?
Constitutional morality, in the way we now use that term, is a bit of a misnomer. For one, the term doesn’t exist in the Constitution—only its antonym, public morality, does. Second, as Abhinav Chandrachud has pointed out, it’s a term with origins in the thinking of Ambedkar and Grotius but both of them used it to mean the opposite of its current usage: they meant an affinity for legal form and process rooted in the Constitution, not a foundational (and rather ethereal) substantive moral code. Third: I think we need to ask ourselves what exactly the distinction is between constitutional morality and basic structure such that there’s real value in having both concepts. I’m not really an expert on Indian constitutional law (I don’t even have any formal training in Indian law!) but I’ve never been clear on what, if anything, that distinction might be.
All of this is to say: I think constitutional morality is a bit of a problematic concept to think with. But setting that aside, and getting to your question, I don’t think any disconnects between constitutions (whatever they are taken to consist of or mean at a given time) and public sentiment (whatever that is believed to consist of at a given time) are unique to India. Constitutional frameworks, even ones as lengthy and granular as India’s is, are presented as sets of context-agnostic precepts even if they are not themselves context-agnostic products. How can such frameworks not regularly be in tension with prevailing public sentiment—again, assuming that there is such a thing?
Q. Some scholars discuss how the Sabarimala case was mistakenly treated as a policy-making judgment, particularly with the Supreme Court’s decision to club it with other sensitive cases related to (very different) religious practices. Do you agree? In your view, what are the potential long-term consequences of such an approach, not only on the autonomy of religious institutions but also on the role of the judiciary?
I’ve written critically about IYLA elsewhere besides the book, and for much of the same reasons that Arghya articulates in that op-ed; I think it was a badly reasoned decision even if I am not quite at the level of saying, alongside Arghya, that it was legally incorrect. But the review petition process that unfolded after IYLA goes beyond being “badly reasoned”—it simply confounds me. Review petitions are, even ordinarily, a perplexing phenomenon: I’ve found myself explaining them to Indian citizens, sometimes even to Indian lawyers! To take that process and use it to bootstrap a revisitation of not only one difficult opinion (IYLA) but also of other issues related to other religious communities, and even to reexamine a longstanding principle of religious freedom jurisprudence (the Essential Practices Doctrine)… well, it was puzzling to me, and I think it has amply proven itself to be problematic.
Q. It has been argued that communitarian dignity, as outlined by Justice Sikri in the Aadhar judgement,[2] extends the concept of intrinsic dignity from individuals to entire communities, treating it as a public good. This shifts the focus from solely protecting individual rights to also safeguarding the collective values of a community. Using this concept, it has been contended that if restricting a religious denomination’s essential practice would violate the group’s dignity, that dignity should take precedence over an individual’s claim to protection from the practice. Do you think this prioritization is justified?
I don’t think it is possible to have a blanket, ex ante yes/no answer to this question. Here’s what I do know. First, India’s constitutional framework has never been as exclusively focused on the individual as the base unit of society as some other frameworks, most notably the United States’. Second, regardless of constitutional frameworks, there is risk in placing too much emphasis on either individuals or groups and there is no appropriate balance that remains appropriate for all time. Third, Indian jurisprudence has developed some highly creative ways to mitigate these tensions—note that I said “mitigate” not “resolve”—and I think the Essential Practices Doctrine as it was originally understood is one. When the Doctrine focused on distinguishing between what is essentially religious and not religious, granted authority to draw that distinction to religious communities, but provided that the communities’ characterization was a thumb on the scale rather than an impenetrable defense—to me that seemed like a nuanced, if imperfect, set of checks and balances to establish in a realm where no approach will be perfect.
Q. A focus on the community could be argued to highlight a distinctly Indian approach to religious freedom and group rights. In many other constitutional democracies, individual rights are often prioritized over collective ones. Do you think the Indian approach offers a more balanced perspective, or could it be seen as less ‘progressive’ in safeguarding individual autonomy?
I’ve long thought that India’s approach is characterized not by an exclusive focus on group rights (and certainly not by an exclusive focus on individual rights) but by a recognition that both groups and individuals are key loci of rights. This is similar to how I think about the division of authority over religious life generally: it is neither purely an aspect of private life (and therefore a matter of citizen sovereignty) nor purely an aspect of public life subject to state authority. As we are learning around the world, no constitutional arrangement is intrinsically and inevitably more “progressive” or more “individualistic”: laws are made by people, interpreted by people, and enforced by people, which means they are subject to virtually infinite variation in practice.
Q. Some suggest that courts, while occasionally defying public opinion, largely align with popular sentiment over time. Do you agree? Do you think this undermines the judiciary’s role as a guardian of minority rights and constitutional principles?
Courts are made up of judges, clerks, lawyers, staffers. They are people, with sentiments, and (quite often) a dislike of being disliked. We do ourselves a disservice to believe otherwise. Courts, moreover, are institutions—and institutions are subject to organizational dynamics and environmental influences apart from and in addition to the individuals they consist of. We do ourselves a disservice to believe otherwise. None of this is to say that courts should not try to rise above popular sentiment—otherwise, what would distinguish them from elected officials besides their lack of electoral mandate? But I think we need to do two mutually contradictory things at once: expect courts to do something that, we realize, no entity composed of human beings can do perfectly on a consistent basis: be entities that are not of their time and place.
Q. There have been consistent expressions of concern that the Sabarimala judgment might open the floodgates for challenges against practices in other religious institutions, potentially disrupting long-standing traditions across various faiths. Do you think this possibility of far-reaching change strengthens the majority’s reasoning, as it underscores the transformative power of constitutional values, or does it weaken their reasoning by highlighting the risks of judicial overreach and the destabilization of social harmony? Crucially, if a religious practice is perceived as discriminatory by some members of the faith, how should courts address such internal disagreements?
There are two questions here, one empirical and one normative. The empirical question is: will a decision like IYLA that seemingly paves the way for challenges to longstanding religious practices open the floodgates for other, similar challenges? In other words, was IYLA the thin end of the wedge? Meanwhile, the normative question is: assuming that IYLA is the thin end of the wedge—is this a good thing or a bad thing?
Neither of these are questions I can answer definitively right now. The empirical question is something we can only answer in hindsight; as a matter of conjecture, I think that such challenges have never been particularly unusual in India, so any increase we see going forward will be incremental rather than definitive. The normative question is something I could not answer at a general level at all. As my preceding answers suggest, I don’t think that constitutional values dictated the result that we observed in IYLA, although they certainly made that result both likely and reasonable. I also don’t think that, in the abstract, “constitutional values” have a stable and identifiable content, or else I’d feel more confident about what exactly is meant by “constitutional morality.” And finally, even if I felt differently about the answers to the first two questions, I could not declare that it is always a bad thing or always a good thing for constitutional values, whatever they are and assuming that they dictate only one possible outcome, to supersede anything else—like, for instance, religious practices that are perceived to be discriminatory.
Q. On a more general note, scholars have critiqued the liberal elite in India for being out of touch with religious sensibilities. Do you agree with the assertion that there is no significant "political constituency" for liberalism in India, and courts cannot be solely depended upon to sustain a liberal, constitutional order? How might this shape future legal and societal debates on contentious issues like gender equality in religious spaces?
First: elites, by definition, are going to be “out of touch” in some way—they are elites! I’m not sure the pejorative valence of characterizing them as “out of touch” is warranted, but it is to be expected that people who are meaningfully different along certain axes think and feel in ways that are meaningfully different. Second: the social scientist in me finds it hard to agree with a strong blanket statement like “there is no significant ‘political constituency’ for liberalism in India” because the lawyer in me wants to ask: What counts as significant, or even as a political constituency? Puzzles and their solutions exist by virtue of how we frame them. But—third—both the social scientist and lawyer in me agree that “courts cannot be solely depended upon to sustain a liberal, constitutional order.” Unelected bodies with no power of the purse (let alone those without any other enforcement power!) cannot single-handedly sustain a politico-legal order no matter how inspirational they may have once been or how culturally omnipresent they may continue to be.
Again, I think—largely because of what my much wiser and braver friends in India tell me!—that this means we need to get comfortable with a type of cognitive dissonance. On the one hand, we each need to believe in what we think is right and to work within the institutional frameworks we want to preserve in order to defend those things that we think are right. On the other hand, we need to avoid assuming that any institution, or any framework, will do the work of believing, defending, and sustaining for us what we value. No person and no institution can do our “dirty work” for us, whether that work involves reshaping society or preserving a pre-existing social order.
[1] Indian Young Lawyers Assn. (Sabarimala Temple-5 J.) v. State of Kerala, (2019) 11 SCC 1 [320]-[358]. Chandrachud J. analogises the stigma surrounding menstruation to caste-based untouchability, asserting that both are forms of social exclusion rooted in notions of purity and pollution. He contends that practices excluding menstruating women from public and religious spaces violate Article 17, which prohibits untouchability in any form, and broader constitutional values of dignity and equality. [2] K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 [138]-[145]. According to Sikri J., communitarian dignity reflects the idea that human dignity is not just an individualistic concept but is deeply tied to the community. It emphasises the realisation of intrinsic worth of communities through collective efforts, particularly directed toward uplifting deprived and marginalised sections of society.
*Deepa Das Acevedo is a legal anthropologist and Associate Professor at Emory University School of Law. Her research integrates ethnographic fieldwork with legal and policy analysis, focusing on employment regulation, the anthropology of law, and the intersections of law and politics in India.
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