Sabarimala: The Holy Place or Battle Ground

Abstract:

The article follows the Sabarimala Temple problem of Kerala, and also says about it Women’s freedom and culture clash. According to age-old practices and beliefs, women between the ages of ten and fifty were not permitted into the Temple of Sabarimala. The situation changed, however, when the Supreme Court’s constitutional bench declared on September 28, 2018, that restricting the entry of menstruating-age women was unconstitutional. Thus the SC allowed women to enter the Temple of Sabarimala regardless of their age.

Introduction

In an environment in which each nation follows its unique view of various subject areas of law, the uniformity that occurs internationally in human rights legislation is very welcome.

A highly enraged revolt triggered in Kerala a few months earlier, when the masses came to realize about the ban on menstruating women entering the SABARIMALA TEMPLE1 dedicated to Lord Ayappa, the Hindu Deity. The shrine is situated in the Kerala district of Pathanamthitta, in the Periyar Tiger Reserve in the Western Ghats. The hypocrisy in this situation is that this activity happened in the territory considered to be God’s own, and is now promoted.

This indignation gave rise to a lot of questions about different issues, mostly involving the people’s state of mind and again giving India’s constitutional integrity an argumentative infringement. The conflict between this land’s social norms and legislation persists on several topics and it is very clear that the social customs undoubtedly dominate our rule in one direction or another. This infringement of social norms poses a major obstacle for the Indian constitution to push any forward after 70 years of its formation.

It leads to two fundamental issues in the light of the theme of this article. First, it asks if the decision presented is appropriate for the nation or not in any conceivable aspect. Second, is the clear issue as to whether custom will prevail, conventional or legitimate. The right verdict can be easily predicted in advance from a common understandable vision and can be made applicable.

History of Sabarimala

Origin

Sabarimala is a former temple. After its construction, it remained essentially unattainable for around three centuries. The initial road to Sabarimala was rediscovered by a prince of the Pandalam Dynasty, Manikandan, in the 12th century. This prince is called an Ayyappa Avatar. It is assumed he was meditating at the temple of Sabarimala and was one with the spiritual as Ayyappan.[1]

Beliefs

The Sabarimala pilgrims will enter the temple by challenging forest treks, as the vehicles are unable to access it. Before heading to Sabarimala the pilgrims will practice celibacy 41 days before moving. We are often expected to adopt exclusively a Lacto-vegetarian diet, refrain from drinking, use no profanity, and encourage the hair and nails to expand without cutting. We are supposed to bathe twice a day, and frequently visit nearby temples. They wear black or blue clothing, do not shave until the pilgrimage is over, and smear vibhuti or sandal paste on their foreheads.

What is the Issue?

A group of five female lawyers challenged Rule 3(b) of the 1965 Rules on Kerala Hindu Places of Public Worship (Authorization of Entry) which authorizes restrictions on menstruating age for women.’ After the Kerala HC maintained the centuries-old ban, they moved the supreme court, and stated that only the “tantri (priest)” is allowed to agree on customs.

Background of this Issue

• The Sabarimala temple forbids menstruating women from making the pilgrimage to Sabarimala (between the ages of 10 and 50 years). The constraints find their origins in the myth that the temple god, Swami Ayyappa, is a ‘Celibate’ (NaishtikaBrahmachari).
• The Kerala Hindu Places of Public devotion (approval of Entry) Rules, 1965, also prohibit women from entering the premises of the Sabarimala temple. In 1991, Kerala High Court ruled in favor of the ban by noting that the prohibition has been in effect throughout history and was not legally discriminatory.
• In 2006, the Supreme Court Opposed the prohibition by the Indian Young Lawyers Group.
• The Kerala government, however, protested to the Supreme Court that devotees’ convictions and practices cannot be changed by a judicial procedure, and that the judgment of the priests is final.
• The Supreme Court, therefore, referred the matter to a larger Constitutional bench.

Arguments against Women Entry in the Temple

Nair Service Society (NSS), a prominent casteist outfit, opposed the demand for allowing women belonging to all age groups entry into the Sabarimala temple. The Ayyappa idol in Sabarimala is said to be a Naishtika Brahmachari(celibate). Lord Ayyappa at Sabarimala is unique since he is celibate and doesn’t want the presence of women aged between 10- 50 as it will affect his penance.

Article 25 (2) which throws open public Hindu religious institutions to all classes and sections of society can be applied only to social reforms and it does not apply to matters of religion covered under Article 26 (b) of the Constitution. Article 26 (b) provides the right to every religious denomination to manage its affairs in matters of religion. The Court in Ritu Prasad Sharma vs State of Assam (2015), held that religious customs which are protected under Articles 25 and 26 are immune from challenge under other provisions of Part III of Constitution. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, bars women from entering the temple premises.

Article 25

It says, “The freedom of conscience” and the right to “profess, practice and propagate religion” is guaranteed under clause (1) of this article and is subject to certain factors.

Article 25, thus, obligates the State to ensure that communal atmosphere be kept clean and unpolluted.14

Article 26(b)

Clause (b) of this Article guarantees to every religious denomination “the right to manage its own affairs in matters of religion”.15

Arguments in Favor of Women Entry in the Temple

Sabarimala Temple is a public temple and this is an important determinant in adjudicating the claim of women’s entry. “Right to freely profess, practice and propagate religion” is a constitutional right. Restriction imposed on the entry of women aged between 10 and 50 years is unconstitutional. There are hundreds of other gods and goddesses where such rules don’t apply. There is no restriction in praying to them. Some arguments suggest menstruating women should not enter the temple because they may “pollute” the confines. This is unacceptable because there is nothing “unclean” or “impure” about a menstruating woman.

The biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15, and 17 of the Constitution. It curtails her religious freedom assured by Article 25(1). Prohibition of women’s entry solely on the basis of womanhood and the biological features associated with womanhood is derogatory to women, which Article 51A (e) aims to renounce.

The NGO “Happy to Bleed” intervened to oppose the restriction, terming it as an outdated taboo against menstruation. The CJI observed that the temple draws funds from the Consolidated Fund, is a “public place of worship” and that there is “no concept of private mandirs”.

A temple or any place of worship cannot claim a right to the deity who is being worshipped in that place, since the deity by definition is present to all at all other places. In the case of the god of Sabarimala, he is worshipped in countless temples outside Sabarimala where women of the proscribed age group can enter. He is also worshipped by women of this age in their houses.

Hinduism is not a religion but a way of life, which is why its practice cannot be dictated only and narrowly by religious pundits and Tantric priests. Religious practices must remain relevant to changing social structures and relationships. It needs reform from within.

Article 21

“No person shall be deprived of his life or personal liberty except according to procedure established by law”. This right was considered to be the nucleus of the State, the most indigenous and democratic clause of our living system, the founding head of our laws. However, the petitioners added that there are numerous Ayappa Temples in the world, and no people of such ages are restricted to enter and worship there, so why has only the Sabarimala shrine limited women’s entry?

Such action infringes certain civil freedoms and is therefore said to be completely unlawful. It contradicts human rights under Articles 14 (equality), 15 (abolition of discrimination) and 17 (untouchability -abolition).

Review of Article 14, 15 &17

ARTICLE 14

EQUALITY BEFORE LAW

The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

For virtually all written constitutions which have constitutional freedoms, the term “equality before law” makes its way. It implies that any person is liable to the ordinary law of the country, whatever his rank or status, and is subject to the jurisdiction of the ordinary tribunals.

ARTICLE 15

PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH

“It prohibits discrimination against citizens on the ground ONLY of religion, race, caste, sex, place of birth or any of them”.

The Article contains four clauses, each discusses prohibition against different kinds of discrimination to the citizens.

The following are its clauses:

CLAUSE (1) “prohibit the state from discriminating again citizens on the ground ONLY of religion, race, caste, sex, place of birth or any of them”

Discrimination against one person inherently implies discrimination on behalf of the other.

The terms “discriminate against” imply “to render an unfavorable difference in respect of; unfavorably separate from others”

CLAUSE (2) “provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction, or condition with regard to:

1. Access to shops, public restaurants, hotels and places of public entertainments; or
2. The use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public”.

CLAUSE (3) “enacts that nothing in article 15 shall prevent the state for making any special provision for women and children”

From the reading of clauses 1 2 and 3 together follows that while discrimination on the ground of sex is impermissible, provisions for women and children are permissible

CLAUSE (4) says this is a clause that is empowering. It merely gives the State flexibility in rendering specific arrangements. This allows no duty on the State to take any measure under it.

ARTICLE 17

ABOLITION OF UNTOUCHABILITY

“Abolition of untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offense punishable in accordance with law.

The Temple administration argued that the site is a religion with its terms and should thus create its laws, against which the petitioners claimed that the temple derives its support from the general public and therefore it is indeed a public place of worship and not a private temple. One consideration of this regard is that social practices will stay important to growing institutions and interactions within the culture. Hence, it needs reforms from within.

Prior Kerala High Court Decision (1991)

A Kerala High Court Division Bench had investigated the Sabarimala Tanthri (chief priest) on 5 April 1991 and maintained the ban on women in a specific age category offering worship at the shrine. The bench of the High Court claimed that this custom does not breach the Constitution because it pressures the people within a specific age category and not the woman as a whole.

The argument had been posed by S. As a Public Interest Litigation (PIL), Mahandaran. He regretted young people trekking Sabari hills (Sabarimala) and praying at the Sabarimala Shrine. According to him, this is contradictory to the practices and usages that were practiced in the temple. V.I.Ps spouses are reported to have received preferential care. He also taken punitive recourse against the parties involved. On 24 September 1990, the appeal came before the court. Notice was ordered to the plaintiff and Smt. S. Chandrika, former Devaswom Commissioner, Travancore Devaswom Board, to give their reasons in the matter on 3 October 1990, and to be given at the Tribunal. The Court passed its judgment in support of the conventional practice which prevailed.[2]

The Kerala HC Original Verdict

(1) The restrictions placed on women over the age of 10 and under the age of 50 from walking the Holy Hills of Sabarimala and offering worship in the Shrine of Sabarimala is consistent with the prevailing use from ancient times.

(2) This limitation imposed by the Devaswom Board does not contravene Articles 15, 25 and 26 of the Constitution

(3) Such a limitation is therefore not in violation of the requirements of the Hindu Place of Public Worship (Authorization of Entry) Act of 1965, because there is no distinction between one segment and another, or between one class and another, in the case of entrance into a temple, while the ban extends only to people of a certain age category and not to people of a gender.

Statement of the Apex Court

A Five-Judge Judicial Supreme Court Bench originally reserved its judgment on August 1, after an eight-day trial in July. But it got delayed until September 28, 201827 owing to many thwarts. The Constitutional Bench was led by Dipak Misra, former Chief Justice of India, who heard the PIL filed by the non-profit organization, the Indian Lawyers Association, demanding the accession of all women and Girls inside the temple, With 24 respondents in the case, the matter of enabling women to join the temple posed concerns regarding religious freedom, gender equity and female sovereignty, explicitly or indirectly.

The Constitutional Bench found five questions drafted by the Supreme Court to explain this issue.

1. That an exclusionary activity focused solely on a biological criterion for women constitutes ‘discrimination’ and thereby contradicts the very essence of Articles 14, 15, and 1729 and is not governed by ‘morality’ as mentioned in Articles 25 and 2630 of the Constitution?
2. If the custom of prohibiting these women constitutes a ‘normal religious activity’ under Article 25 (freedom to exercise and promote religion) and if a religious organization may assert to do so under the protection of the right to manage its spiritual affairs?
3. If Ayappa Temple has a denominational character and, if so, is it lawful on the part of a ‘holy religion’ controlled by a legislative board and funded by the Combined Fund of Kerala and Tamil Nadu under Article 290-A of the Constitution of India to engage in these rituals, in breach of the constitutional principles/morality laid down in Articles 14, 15(3), 39(a) and 51-A(e)?
4. That Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Laws requires ‘holy affiliation’ to restrict women between the ages of 10 and 50 from entering the country? And if so, wouldn’t it play foul of Articles 14 and 15(3) of the Constitution by excluding women’s sexual entry?
5. If Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965 and if it contradicts the requirements of Part III of the Constitution if considered as being supra vires?

Resolution

In a 4-1 decision, the Constitutional Bench of the Supreme Court, appealing to all the evidence and opinions of the parties, said that the temple law breached the right to dignity and the right to worship of menstruating-age people, providing a green light on the entry of women of all ages into the temple.

The CJI Dipak Misra and Justices Khanwilkar, Nariman, and Chandrachud agreed in the 4-1 decision while Justice Malhotra was dissenting.

The lone woman judge on the bench, Justice Indu Malhotra’s only note of dissent: “We do not hesitate to say that such an exclusionary practice violates women’s right to visit and enter a temple to freely practice the Hindu religion and display their devotion to Lord Ayappa.”

Justice Malhotra was of the view that it is not worth considering such an argument. The Supreme Court on its decision claimed that the custom of prohibiting women from joining the temple jurisdiction is entirely unconstitutional. These activities operate in one direction or another against the Constitution. The Apex Court would also never find its decision inclined to such a consideration that flouts our constitutional system.

Conclusion

Of course, The Sabarimala Verdict was in favor of Women, but my question is – WILL THAT BE ENOUGH?

This rule of not allowing women into the shrine was a symbol of the unjustified prevalence of patriarchy in society. Unfortunately, to forbid women the rights that are guaranteed to them, in the name of religion, tradition, and culture has been a practice that has gone on, but The Honorable Supreme Court by its judgment has attacked directly on the male ego. Women are now legally allowed entry into the temple, but that still begs two questions. Will measures to ensure their safety be employed? Can women visit the temple without being subjected to jibes, discrimination, and violence at the hands of the many other people who visit it and may not welcome the move to allow women entry? Apart from this, the possibility of ill-treatment from those who disagree with the verdict is a very real threat to all women visiting the temple.

Above Questions portray the need of the hour and must be answered with utmost carefulness.

To conclude, Change is the law of nature. A tremendous change is necessary for altering the morality of people. Do religious or cultural sentiments, most of which are borne out of long-existing patriarchal ideas regarding women and their place in public-life, hold more bearing that the rights of women? They do not, and maybe this verdict will prove to be a constant reminder that the violation of women’s right in the name of culture is only an attempt to weaponize culture and use it to push women as far away as possible from public life, be it stating biological reasons or even legend.[3]

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References:

[1] The 1991 S. Mahendran vs The Secretary, Travancore (1991), [AIR 1993 Ker 42], Kerala High Court judgement is being cited by those upholding the ban on women entering the Sabarimala temple in Kerala.  

[2] See Supra, 392-94, for the test to determine whether a practice is integral to religion. 

[3] Kerala Hindu Places of Public Worship Rules, 1965.