For centuries women in our society have had to struggle for an equal representation in public spaces. The struggle has not only been about representation but an ideological battle with the deep-rooted norms and customs in a patriarchal society that view women in a place of subordination. Whether it is the Shah Bano case, a case that invalidated the practice of instant triple talaq and laid the ground for protection of rights of Muslim women, or the entry of women inside Haji Ali Dargah in Mumbai, we have seen that the struggle has been an ongoing one and reformatory in its approach. The recent hearing by the constitution bench of the Supreme Court on 27th July 2018 on the entry of women to the Sabarimala Temple in Kerala is another long-standing fight against the patriarchal dogma of the religious order which does not allow the entry of women into the temple.
The Ayyappa temple in Sabarimala region in Kerala has been in the news for its controversial provision of denying entry to women of menstruating age (ten to fifty years). This temple is located in the Periyar Tiger Reserve in the Western Ghats mountain ranges of Pathanamthitta district of Kerala, which happens to be one of the most famous pilgrimage sites for Hindus. The prohibition to temple entry for women can be traced in the legend that the deity of the temple Lord Ayyapa was a ‘Naishtika Brahmachari’ ( who followed celibacy), and as per the supporters of the temple ban, women of menstruating age are regarded as “not pure” to enter the temple as that would disturb the celibacy of the deity. In the past three decades, this issue has drawn resistance and protests from diverse sections of society and has given rise to a legal dispute. The chronology of the long-standing petition in the Supreme Court on the ban of women entering temple can be traced back to 1991.
In 1991, this ban to temple entry for women was challenged before the Kerala High Court in S. Mahendran Vs The Secretary, Travancore. Kerala High court ruled in favour of the prohibition of women entering the temple and claimed that these restrictions have existed since time immemorial and not discriminatory to the Constitution. This order of the High Court was implemented and followed for the next 15 years. In 2006, the ban was challenged by the Public Interest Litigation filed by the Young Lawyers Association with the Supreme Court, claiming that rule 3(b) of Kerala Hindu places of Public worship (Authorisation of entry) Rules 1965 that states, “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship” is violative of constitutional ideals of equality, non-discrimination and religious freedom. On April 25 2016, the representative advocate of the Devaswom, K.K Venugopal said: “There is a reasonable classification by which certain classes of women are excluded”. The Supreme Court asserted if the statement was implying that menstruation was associated with purity of women. The case was then referred to the Constitution Bench by the Supreme Court.
Further, in 2018, Dipak Misra, The Chief Justice of India, addressing the PIL, questioned the temple’s authority to deny entry to women. The case is being heard by a constitution bench headed by Misra along with Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. The court held that Sabarimala pilgrims could not be a separate sect or religious denomination. The customs are subjected to constitutional validity and prohibition of women entry to temple in violation of the Fundamental rights. Justice Chandrachud claimed, “Your right to pray as a woman is not dependent on any law, it is a constitutional right”. He further added that notification issues under the rules prescribing the age restrictions on women entry as “arbitrary on the face of it”.
In a country like India, society and religion are inseparable from each other. The Sabarimala case has brought this idea to the fore, with a controversy between religion Vs fundamental rights. The legal intricacies involved in the case are complex and multi-layered. The petitioners before the Supreme Court have argued that these reasons are discriminatory against women and go against the text and spirit of the Constitution. The defenders retorted back saying that the constitution grants to every religious denomination the right to determine its own rules. The debate here lies in the fact that what it means to be a secular state is to grant autonomy and freedom to the denominations, from state interference.
While, on the other side, the same religion is seen as a public matter which strictly determines an individual’s social and moral standing in the community. This critical domain cannot be left untouched by constitutional ideals. If we look at our history, the Dalit movements for civil rights in the 20th century had the issue of temple entry at its centre. This gained massive prominence since in a religious society, temple bans for “untouchables” were not solely about denying them the right to worship but it was a matter of subordination and exclusion. It was thus, crucial to address it to acquire equality and membership of the community. As BR Ambedkar said, “the issue is not entry but equality”. Decades later the issue of equality remains central to our society. We are still living in those times where women are discriminated against by rules and customs. The attempt to get the entry for women inside the temple is a struggle not so much about putting down the religious faith or to disturb the celibacy vow of Lord Ayyappa, but it is a struggle to ensure that we do not continue to deny equal membership to women by associating ideas of purity and pollution.
Customs and Notions of equality
Article 15 of the constitution prohibits the state from discrimination against any citizen on the grounds of religion, race, and caste. However, Kerala High Court asserted that women who are bound by customs and rules of the religious order which prohibit their entry inside the temple, shall not be allowed to offer worship in such a situation. This provision has been extended to the entry in Sabarimala temple in respect of a particular age group of women and not women as a class. Further, the Constitution grants right to equality before law and right against discrimination based on sex. The ideology of purity and pollution would thus be a violation of the constitutional right against untouchability, i.e., Article 17. In the petition placed with the Supreme Court, the first question posed by the three-judge bench is “Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the Articles 14, 15 and 17?”
To address this question, it’s important to understand that women are banned from temples not just because of gender but also because of orthodox Hindu texts that propounded ways in which menstruating women pollute upper caste environment. The exclusion is based on touch and sight- as a threat of pollution. Article 14 guarantees right to equality, article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth and article 17 abolishes untouchability and forbids its practice.
Individual rights Vs Group rights
Amicus Curaie K Ramamurthy, who was a part of the Supreme Court hearing, stated that this matter falls within the purview of Article 25 of the Constitution of India and cannot be put to the test on judicial parameters. So, the Supreme Court should not be contemplating on a religious practice issue which has been in practice by a religious denomination for years. Senior advocate Raju Ramachandran, another Amicus Curaie contends that it is a matter of violation of fundamental rights of women. This restriction violates women’s right to equality and is discriminatory. The right to freedom of religion for both individuals as well as groups is an essential feature of liberal democracy. These rights are guaranteed in Article 25 and 26. Article 25 grants the right to freedom of conscience and a reason to freely profess, practice and propagate religion. Article 25(2) (b) accords power to the state to make legislation in the interests of social welfare and reform. Article 26 which involves limitations imposed on the grounds of public order, morality and health grants to every religious denomination the right to establish and maintain institutions for religious purposes and to manage their affairs in matters of religion.
The clash here is between temple’s right to decide for itself, how its religious affairs ought to be managed, the viewpoint of devotees in favor of the ban and those women seeking to assert their freedom, to not only enter and pray at the shrine but also to be recognized as equals under the constitution. It is evident from the above facts that the crux of the conflict lies in the assertion of fundamental rights vis-à-vis rights of a religious denomination. It is the individual who makes up the society and as a result, is then governed by the societal rules. However, when an individual from the same society begins to assert their rights and break away from the social norms, the conflict arises.
In a country like India where ideals of liberty and freedom are essential for the functioning of a healthy democracy, both individual and group rights need to be considered and the State must bridge this gap. The Sabarimala case provides the Supreme Court with an opportunity to bridge the gap between constitutional ideals and social reality. It also requires the State to revamp the constitution and look closely at the Articles mentioned above when it comes to protecting the rights of the individuals.
We live in a country that calls itself independent; we aspire for increasing the GDP. However, where we still fail as a society, as a nation is in eradicating the deep-rooted patriarchy in the minds of its citizens. The result of such an ideology continues to exist in all spheres of our life affecting women specifically. Even today women are discriminated on grounds of gender, sex and in the recent case they have been discriminated on grounds of purity and pollution. The feminist movement and other schools of thought that support human rights have come a long way in achieving representation of women across public spaces. However, the psychological and patriarchal mindset continues to rule the majority of the population and it will take continuous reforms and development to achieve a just and equitable society. When we talk of reforms, the law is the ultimate authority which derives its validity from the constitution of India; hence constitutional reforms are essential in societal reforms. In this context, the judgment is radical in its approach to rationalize religious practices prevailing in Indian society. It also ensures individual liberty and protects women’s rights in public places.
Rajagopal, K( 2018, July 18) Where a man can enter, a woman can go’, CJI observes in Sabarimala case. The Hindu. Retrieved from https://www.thehindu.com/news/national/where-a-man-can-enter-a-woman-can-go-cji-observes-in-sabarimala-case/article24452080.ece
Rautray, S. (2018, July 19) Sabarimala temple case: SC backs women, says they have same right as men to enter temple. The Economic Times. Retrieved from https://economictimes.indiatimes.com/news/politics-and-nation/sabarimala-temple-case-sc-backs-women-says-they-have-same-right-as-men-to-enter-temple/articleshow/65039266.cms?
Sivakumar, S (2018, July30) Sabarimala: 'Deity's Will' Cannot Trump the Constitution on Right to Equality. The Wire. Retrieved from https://thewire.in/law/sabarimala-is-temple-entry-a-destination
Yamunan, S ( 2018, July 24) Sabarimala case gives the Supreme Court the chance to set right its inconsistency on personal laws. Scroll.in. Retrieved from https://scroll.in/article/887626/sabarimala-case-gives-the-supreme-court-the-chance-to-set-right-its-inconsistency-on-personal-laws
Image Credit: Sabarimala
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