Religion, sex and law make a heady cocktail because law is used to regulate both religion and sex. So, when some renegade priests are accused of rape, our netas may not know enough of the law to realise they are violating it by attacking venerable religious beliefs rather than renegade predator-priests who violate their sacred vows to exploit nuns.
When the chief of a hardline political party, who is a self-proclaimed defender of the Marathi manoos, advised Muslims to pray at home instead of crowding the streets in response to azaan, broadcast over loudspeakers, he was violating their rights. Unlike instant triple talaq or nikah halala, the call to azaan does not violate fundamental rights of others apart from causing noise pollution.
And when the National Commission for Women (NCW) chief Rekha Sharma urged the BJP government at the Centre to ban confessions in all Indian churches because four predator-priests had allegedly sexually abused a married woman after extracting her secrets in the confessional, she displayed her ignorance of the Constitution.
Sharma’s lack of legal acumen was on display for the entire nation because she holds degrees in political science and English literature and runs an event management firm. She seems ignorant of the fact that no government in India can legislate on matters of religious belief. Whatever is recommended by the various commissions can be ignored by the Parliament and the state legislatures, which are the sole law-making bodies.
The National Minorities Commission stoutly opposed a nation-wide ban on confessions which is governed by the 1983 Code of Canon Law under which no ordained priest can ever disclose what transpires in the confessional. If the priest violates his vows, he has to be defrocked.
The bishop of the Malankara Orthodox Syrian Church, Franco Mulakkal, at Jalandhar, allegedly tried to bribe a nun in Kerala into withdrawing her criminal case against him for sexually abusing her 13 times between 2014 and 2016, by using an intermediary to promise land and a building for a convent. But the nun stood her ground and leaked a tape-recorded conversation to the media. The bishop should be defrocked but no action has been taken.
The Supreme Court has wondered what is happening in the Kerala churches but neither the renegade priests nor the maverick bishop have been held guilty. Until the courts convict them or they are defrocked, they are presumed innocent. These renegade priests have broken their sacred vows and cannot hear confessions. But the profane acts of a few priests cannot culminate in banning confessions throughout India.
The call to azaan is part of the five pillars of Islam, which can be regulated only by imposing a ceiling of 60 decibels or less on the volume broadcast by the loudspeakers as Israel has done. Ordering devout Muslims to pray at home is a direct violation of their right to profess Islam. Just as banning the sacrament of confession is a direct attack on Indian Christians’ beliefs in Christ’s teachings from which the sacrament has arisen.
Neither the Narendra Modi government nor any of the 29 state governments will ban azaan or the sacrament of confession because religion is not a subject for the state to legislate upon. But the fact that the NCW chairperson has raised this demand will make Indian Christians lose their reverence for the sacrament of confession.
The issue here is these netas are voicing opinions about religious beliefs they do not understand, opening themselves to a charge of creating enmity between religious groups to divide India. Nor do they understand that Article 25 protects religious beliefs of the majority and minorities without discrimination. For any ordinance banning azaan or the sacrament of confession in churches, will boomerang on the government one year before elections.
The third issue which has arisen is whether the Supreme Court will legalise gay sex between consenting adults in private. If it does so, it will widen the amplitude of fundamental rights which range between Articles 12 and 32. The corollary is if gay sex in private is legalised there is no cogent reason why adultery should not be decriminalised. This is because Constitutional morality overrides popular morality which is kaleidoscopic.
But the Centre wants adultery to remain a criminal offence because it will destroy the sanctity of marriage although legalising gay sex between consenting adults has the same effect. This is why the Supreme Court admitted a petition which seeks to remove adultery as a criminal offence.
Despite Supreme Court judgments declaring that when a rapist marries his victim, the courts should not reduce the sentence to one already undergone by him, the Calcutta high court has reduced the sentence imposed on a rapist to that already undergone by him as he has married the victim and sired children.
Ironically, the judgment was delivered by a woman judge who appears to have greater sympathy for the couple than adhering to the law which is without sympathy. This so-called “humanitarian” approach of the courts has not been appreciated by the Supreme Court because a rape remains a rape whether the rapist has married the victim or not.
For law does not see a rape through the eyes of religion or popular morality which varies in time and place. So a priest who forces himself upon a nun will remain a rapist whether he is defrocked or marries the nun or not.
Olav Albuquerque holds a Ph.D in law and is a journalist-cum-lawyer of the Bombay high court.
