Sabrimala temple authorities consider women of menstruating age may defile the temple by their presence and harm its purity.
by Sneha Tripathi 9 September 2020
“Culture does not make people. People make culture. If it is true that the full humanity towards women is not our culture, then we must make one.”
- Chimamanda Ngozi Adichie
Abstract
Social movements around the world can change the way people of a country understand their Constitution. Social movements are capable of creating new forms of constitutional understanding through conflict and constraints arising out of a constitutional culture that guides the interpretation of the language of the rights guaranteed under it. The constitution brought and continues to bring the most vital and enduring transformation like the rule of law with its enforcement in the 1950s. It started providing legitimacy to many pre-independence British laws such as the Indian penal code, 1860, the Indian Evidence Act, 1872, and the Criminal Procedure Code, 1898 and served as the legal touchstone for all the future justice laws.
The constitution of India is a living document because of many reasons. One of them being that it is accepting of the changes that are required by the society and is flexible enough in its interpretation i.e. it the judiciary can and has interpreted ours in accordance with the circumstances. From time to time, some changes are required in the constitution. The constitution helps the government to have democratic governance by providing a framework
The judges who interpret the constitution typically consider not only the constitutional text and its historical background but also related interpretation of history, developments in constitutional and current societal facts, and issues. The year 2018 would be marked as a historical year for the constitution and its guardians. With the major judgments like Navtej Singh Johar v. Union of India, Adultery Law, and Indian Young lawyers Association v. the State of Kerala which raised a question of who has an upper hand, right to religion or equality.
Introduction
Sabarimala Shree Dharma Sastha Temple is one of the most famous Hindu temples in India and attracts millions of devotees every year from all around the world with about two crore devotees visiting the pilgrimage center every year and is one of the most ancient mountain shrines situated in a dense forest on the hill of Sabari, of the village named Ranni-Perunad in a district in the Indian state of Kerala. The shrine is over 4000 feet above sea level and is surrounded by lush green tropical jungles and 18 hills of Sahyadris (Western Ghats).[i] The Sabarimala temple is looked after by the Travancore Devasom Board whose main stakeholders are Travancore Devasom Board, The head priest family, the Royal Family and, Ayyappa Seva Sangam.
Lord Ayyappa is worshipped as a ‘Nastik Bramhchari’ which means celibacy for life and the shrine is a symbol of him. The rules set by the board lays down that women belonging to the menstruating age which is 10 to 50 years are not allowed to enter the temple and visit the holy shrine. This is one of the many rituals people visiting the temple have to follow. They are also required to follow a fast with 41 days of austerity period before the start of the pilgrimage. These pilgrims are required to bath two times a day and wear plain black clothing. The main stairway to the temple consists of 18 steps and only the pilgrims with double-headed baggage and offerings for the god can climb where the deity is placed.
Issue and Why the Issue Arose?
The entire fuss around the Sabrimala temple comes from the fact that menstruating women aren’t considered pious by the temple authorities and so women between 10 to 50 years of age aren’t allowed inside the temple. This is because some devotees fear that women of menstrual age may defile the temple by their presence and harm its purity.
the right to equality to women first came into the picture when the High Court of Kerala In the case of S. Mahendran vs. The Secretary of Travancore Devasom Board, Thiruvananthapuram ,and Others,[ii] had concluded from the above case that the restriction imposed on women aging from 10 to 50 years on entering the holy temple and offering worship at the Shrine is under the usage prevalent from time immemorial and for the last 20 years woman irrespective of their age are not allowed to visit the temple when it opens for the monthly poojas. However, this High Court verdict was reversed by the Supreme Court and this has raised a fury among a lot of devotees.
The petition filed before the honorable Supreme Court in 2006 mentions that the religious practices and customs had changed during the past 55 years especially after 1950, which is the year in which the renovation of the temple took place after the ‘fire disaster’ occurred. Even during the prevailing old customs used to prevail, visitation of the women to the shrine occurred. The female members of the royal family also visited the temple centuries ago which shows that restrictions on women entering the temple in the past is doubtful. There are also instances of the females going to the temple for a rice feeding ceremony of infants. The changes in these rituals were brought by the installation of a flag in the year 1969 at the shrine.
The Apex Court of the country questioned the constitutional basis of the restriction and discrimination, at the behest of the public interest litigation filed and placed before it by the Indian Young Lawyers Association where it called for allowing women of all age’s entry into the temple.
The perpetuation of such discrimination based on women’s natural biology and process of menstruation goes against the Fundamental Rights present in the constitution and against freedom from discrimination guaranteed by the Constitution. It can also be viewed as an equivalent to the restriction on access to public spaces such as the public roads from the place of the start of the pilgrimage i.e. Ayyappa temple which is also against fundamental rights guaranteed to citizens of India irrespective of caste, creed, and gender under the paramount law of the nation.
In the recent case, The Kerala High Court judgment of the year 1991 was cited by the respondents, the ones who were upholding the ban on women entering the Sabarimala temple in Kerala. The division bench of the high court held that the prohibition imposed on women by the managing board of the temple was not violative of the constitutional provisions provided under Articles 15, 25, and 26. In addition to that, Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was also not violated as the restriction was only for a particular group based on age and not women as a class.
The verdict aligned with the belief that the deity is a ‘Naisthik Brahmachari’ and counsel appearing for Kerala, urged the special three-judge Bench led by Chief Justice of India, Dipak Misra to summon the records of the case. The integrity of the judgment was questioned by the highest court of the republic after a period of 25 years along with the search of definitive proof that women didn’t visit the shrine even centuries ago.
Supreme Court judgment of 2018
Chief Justice, Dipak Misra in his verdict said that the devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion, and Rules based on biological characteristics will not muster the Constitution.
Justice D.Y. Chandrachudhad said that any customs or rituals which contradict the fundamental rights of citizens must be quashed. The statement made by him contradicts the judgment laid down in the famous Narasu Mali case wherein the court has held that no un-codified personal law is to be looked into for the violation of the provisions under part III of the constitution. That reasoning that they gave was that Article 13 is subjected only to the fundamental rights and Personal laws are not part of these provisions. After this case, the personal laws have been considered to be out of the domain of the paramount law of the land and are not criticized under the principles such as equality and Liberty.[iii]
The Supreme Court in the Anand Marg case, 2004 has held that the performance of tandava dance in public is not an integral part of the religion of the Anand Marg sect. The court struck it down. Also in the Shirur Mutt case, the same court has said that the religious organizations and authorities have complete right to decide the essential rites and rituals of that particular community and no outside force has a right to interfere in that.[iv] But contradicting their own opinion, the state has said that the judiciary has right to regulate theses rituals and practices if they perform any economic or political function even if they were essentially associated with religion.
Justice R. Nariman, while giving the judgment concurred and added that Ayyappa devotees do not form a denomination but only a part of Hindu worship.
While giving a dissenting judgment, Justice Indu Malhotra supported the opinion of letting the religion left alone and questioned the rationality of the involvement of courts in the religious matters home to faith and sentiment of people in a secular nation. But she made it a point to draw a line against the immoral practices like sati. She said in her judgment that there is no need to make the religion homogenous in a secular country and all religious groups should be allowed to practice it, irrespective of the irrationality of it. The courts should not be allowed to enter the territory of the state thus the petition should not be entertained and issues raised are not justified.
She also mentioned that the customs and practices related to religion cannot be tested solely on the basis of Article 14 or the principles of rationality which are embedded therein and held that Constitutional morality in a secular polity gives everyone the right to practice their faith by the tenets of their religion, irrespective of whether the practice is rational and logical or not. She mentions that the rule against the entry of women within the age range of 10 – 50 years is an essential religious practice to the respondents.
Post-judgment era
Post-judgment it is argued that entering Sabarimala has a requirement, that is, it must be preceded by a 41-day penance, which would be difficult for women because of the menstrual cycle. The Supreme Court on 14th November 2019 referred the review petitions to a larger bench that should consist of more than 7 judges. The 9 judge bench on February 10 rejected the objections in the review petitions about referring the case to a larger bench. Seven questions of law were also set by the apex court where the scope and ambit of the fundamental right were to be examined.
Conclusion
The present Chairman of the Travancore Devasom Board had gone to the extent and said that the day the machine is invented to find whether women are menstruating or are pure, we can permit them to enter Sabarimala. They make it sound like the worst thing that a woman can do in her life is menstruating. If we consider this argument of theirs, how are they making sure that all the male devotees entering the holy temple have observed the 41-day customary penance? So is there any way by which those men can be banned and also who do not observe the 41-day penance or fast, which will in a way remove the gender bias in Sabarimala.
It is hypocritical on part of the people to hold on to the centuries-old custom to deny Sabarimala for women. It is not the custom or traditions but the patriarchal bias and notions of the society which are the basis of this argument. Religion is an integral part of the citizens of India as it is a part of their life from birth to death. But while saving the personal laws from the principles of fundamental rights, social matters often come to a standstill which is not beneficial for a secular democracy in the long run. Thus, collective conscience becomes all the more important to maintain solidarity and letting the constituent elements of the nation more diffused and developed.
The issues of entry of women in the religious places like Sabarimala temple, Shani Shignapur, and Haji Ali are not recent but have been clearly become more important now than ever and have started a heated debate between religious traditions and the right to gender equality. Violation of the fundamental right to non-discrimination is most apparent along with the freedom of religion provided under the constitution. The main issue should not be an entry in the shrine but the question of religious and gender equality. The issue is not only concerned with the traditional practices but also with the civil and human rights along with equality in opportunity in all spheres of public life.
The intervention of the state laws into the customary practices of the various communities is seen to have produced great changes like the laws which existed before them. It is to be noted that this is not just a process where the non-state acquires the elements of the state law, but also a case where the state law or the dominant law also seems to inculcate the elements of the customary law.
The courts in India have led social reform agendas in the country which is still largely related to some form of collective conscience which can be oppressive to unprivileged and marginalized communities in the society such as scheduled castes, regional and religious minorities, and women. India has also witnessed murders of social reformers and activists who fought gender bias in temples and places of worship. Thus, the emancipator role of the Apex Court is of utmost importance and need of the hour in fighting such deep-rooted biases that still exist in the society.
It is unfortunate for humanity that the courts have become the arbiter of what constitutes true religion. This situation has arisen and has compelled the judiciary to take action because the Indian state is becoming inefficient in being the agent for the reform and management of the society. Beliefs and customs of devotees cannot be and should not be changed through a judicial process. The reforms should come from within the society and for its benefit and benefit of the polity. Till the time that doesn’t happen, the interference of the court in religion can’t be avoided.
Sneha Tripathi is a fourth-year student at Hidayatullah National Law University, Raipur.
[i] Sabrimala shree Dharma Sastha Temple, Travancore Devasom Board, <http://travancoredevaswomboard.org/administration/eosab/sab/sabarimala-sree-ayyappaswami-temple>
[ii] S. Mahendran v. The Secretary Travancore Devaswom Board, Thiruvananthapuram, and others, AIR 1993 Ker 42
[iii] Indian young Lawyers Association v. The State of Kerala, 2018 SCC OnLine SC 1690
[iv] The Commissioner, The Hindu Religious Endowments v. Sri Laxmindratirtha Swaminar, 1952 AIR 282