Prohibition of women’s entry to the shrine solely on the basis of womanhood is derogatory
Kaleeswaram Raj
The Supreme Court of India has repeatedly struck down discriminatory religious practices, the latest of which is the triple talaq (in Shayara Bano v. Union of India , 2017). Reference of the Sabarimala entry row to a five-member Constitution Bench is in itself a radical judicial move. Preventing women’s entry to the Sabarimala temple with an irrational and obsolete notion of “purity” clearly offends the equality clauses in the Constitution. It denotes a patriarchal and partisan approach. The entry prohibition takes away the woman’s right against discrimination guaranteed under Article 15(1) of the Constitution. It curtails her religious freedom assured by Article 25(1). Prohibition of women’s entry to the shrine 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 classification based on age is, in essence, an act of discrimination based on sex.
A fragile judgment
There is no unanimity on whether the Sabarimala temple bar is ‘age-old.’ The practice rests on a fragile rule and an equally fragile judgment of the Kerala High Court ( S. Mahendran v. The Secretary, Travancore Devaswom Board , 1991). The very purpose of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is to ensure entry of all Hindus to temples without being discriminatory. Rule 3(b), which instigates obstruction to women’s entry on the ground of menstruation, apparently runs counter to the very object of the parent enactment and is therefore untenable. The High Court, in its verdict, relied too much on the Tantri ’s (chief priest) opinion without a deeper analysis of the competing claims.
B.R. Ambedkar famously said that public temples, like public roads and schools, are places meant for public access and so the question of entry is, essentially, a question of equality. The managerial rights of religious authorities under Article 26(b) of the Constitution cannot override the individual woman’s religious freedom guaranteed under Article 25(1). The former is intended to safeguard, not annihilate, the latter. Liberty is tested at the individual level, for individuals alone can constitute the public in a republic. The ethical autonomy of women and the intrinsic value of womanhood need to be asserted in the realm of spirituality. In S.R. Bommai (1994), the Supreme Court said that “secularism operates as a bridge” for the country to move on from “tradition to modernity.” As American jurist Ronald Dworkin opined, political morality is to be brought into the heart of constitutional law.
Idea of individual liberty
It is erroneous to conceive of the issue only as one involving a fissure between individual freedom and gender justice on the one hand and religious practice on the other. More importantly, it also reflects a conflict among believers themselves. Therefore, it is essential to prevent monopolisation of religious rights by a few under the guise of management of religious institutions. Those at the helm of affairs can only manage the institutions in a lawful and fair manner and they cannot be permitted to manage others’ freedom. Any other interpretation of Articles 25 and 26 would damage the very idea of individual liberty.
Article 25(2)(b) enables the state “(to provide) for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of the Hindus.” Viewed so, a legislation to put an end to the objectionable practice ought to have been attempted much earlier. However, as it has happened in independent India, religious reform has predominantly been a judicial task. There is reason for optimism for religious liberals aspiring for a fairer temple ambience.
Kaleeswaram Raj is a lawyer practising in the Supreme Court and the Kerala High Court.
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Sabarimala has some unique customs and systems. The uniqueness is the soul of every temple
Rahul Easwar
The “Sabarimala young women entry case” has been referred to a five-member Constitution Bench. With the senior-most advocates and Constitution experts on both sides, the case may even go a higher Bench. This case has, in effect, become somewhat like the celebrated Kesavananda Bharati case (1973), where the ‘basic structure’ of Articles 25, 26 will be redefined while being compared and contrasted with with Article 14 (right to equality).
Story of the temple
The case has constitutional as well as cultural dimensions. Displaying great cultural sensitivity, a division Bench of the Kerala High Court had, back in 1991, pointed out that “age regulation” in Sabarimala is not unconstitutional. Along with the legal paradigm, let us see the cultural and historical reasons for the “young women entry regulation” in Sabarimala. The Sabarimala temple is centuries-old and the ancient deity, Sastha, is the main Prathishta (idol) of the temple. Around AD 1100, Manikanta was born and he became Ayyappa when he forged a consensus and unified the fighting Vaishnavite and Shaivite forces.
In fact, the very name Ayyappa was given to Manikanta as a title that combined Ayya (Vishnu) and Appa (Shiva). Manikanta had a Nair army and also took into confidence the Muslim population in the then Kerala, led by Bavar (called Vavar in Malayalam). Sabarimala’s uniqueness, as we have pointed out before the Supreme Court, is that it’s a symbol of the secular ethos and pluralism in south India. Manikanta had a love interest who is consecrated as Malikapurathamma, who belonged to the Ezhava community, an intermediate caste of the time. Legend has it that Manikanta told her that he was observing Naishtika Brahmacharya (celibacy) for his land and dharma, and that he would marry her after fulfilling his mission. Legends may be a part of folklore and belief, but several Supreme Court orders have recognised that deity is a legal entity with specific rights.
In Sabarimala, the deity is worshipped in the form of Naishtika Brahmachari or a celibate, as pointed out by the Kerala High Court. The deity has got certain rights which the courts are bound to uphold. This particular deity system is Tantric in nature and not Vedic. While examining our submission, the Supreme Court had asked us, “Where in Vedas or Gita is this written?” and we have humbly pointed out that although we accept Vedas as a great source of knowledge, our system is Tantric and is different. In the Tantric system, the temple is not a prayer hall but an energy centre; the deity is not God who is omnipresent, but a source of energy ( chaithanya ) in a particular spiritual space. There are other Ayyappa (Sastha) temples which allow women to enter and worship, but the Prathishta Sankalpa (the core concept of the idol) and the moolmantra at Sabarimala are different.
Respecting diversity
The media and society would do well not to politicise or bring any ‘-ism’ or ideology to the temple. This is not a debate about the left or right for feminism. Just like the Attukal Devi temple, hailed as a ‘women’s Sabarimala’, which has found a place in the Guinness Book of World Records as a temple that attracts the largest congregation of women, Sabarimala too has some unique customs and systems. Uniqueness is the soul of every temple. Lakhs of women congregate in Sabarimala every year. There is only one caveat: they should not be between 10 and 50, because of the specific nature of the Prathishta (idol) and the vow celibacy associated with the idol. Let us respect these diversities as India is the land of pluralism and multiple paths to the divine reality.
Rahul Easwar is the president of Ayyappa Dharma Sena, an intervenor before the Supreme Court along with the Travancore Devaswom Board, which is the respondent
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While standing up for gender equality, a democracy must uphold more important values
Madhu Purnima Kishwar
Taking the Sabarimala temple to court for restricting the entry of women of a certain age group is akin to meat-eaters suing vegetarian restaurants for discriminating against non-vegetarians by refusing to serve meat. Common sense response would be to say: “Go find a non-veg restaurant, of which there are plenty.” Tomorrow, self-styled, ill-informed reformers might demand that Durga-Kali worship be stopped because it legitimises violence, or declare the worship of Shiv lingam as “obscene.” This is not far-fetched because politically motivated groups have been decrying Durga as a whore and Krishna as a womaniser. Therefore, they declare, these deities are not worthy of reverence.
Different beliefs
In any civilised society, gender equality is to be treated as one of the core values. There are many more important values a democracy must uphold while standing up for gender equality — certainly not make a fetish of women’s rights. Other core values of our democracy and Indic civilisation are respect for diversity among the enormous range of communities cohabiting in India with substantial differences (as well as commonalities) in matters of faith, cultural practices, value systems, family structure, dress codes, food habits and ways of relating to the world as well as the divine. While the leftist-feminist reformers have no difficulty in respecting the rights of “religious minorities” — namely, Muslims and Christians — to live by their own cherished cultural and faith traditions, when it comes to diverse Hindu groups, they consider it their divine right to dictate terms.
Even the most conservative among Hindus don’t insist on uniformity of beliefs and practices. This spontaneous, mutual respect for differences in ways of being, worship, singing, dancing, clothing, cooking, and so on is what enabled the rich diversity of India to survive through millennia.
Traditional Hindu temples are run by different sects with each choosing a particular deity in a particular form as their Isht dev or devi. They’re not meant as tourist spots for all to come and go as they please. If you don’t respect the unique temperament of that deity, or find beliefs of a particular sect offensive, you are free to opt for the devata or devi that suits your taste.
As far as the issue of gender justice is concerned, the Hindu faith can hardly be considered anti-women, considering it is the only faith that worships the feminine as Shakti — the mighty force that moves the universe. Male deities are powerless without feminine Shakti from whom various devatas derive their strength.
When I find the case against Sabarimala frivolous, it is not to suggest that Hindu faith traditions are writ in stone and unchanging. That is how we have countless rewritings of Ramayanas in different ages with each interpreting Ram in its own way and many even improving upon Valmiki’s depiction of Ram’s conduct in various ways, especially his abandoning Ma Sita even after she had gone through an uncalled-for agni pariksha or the deceit involved in the killing of Baliraja.
Motivated by outsiders
It is ironical that the Supreme Court has entertained this petition at a time when Hindu groups are already in the apex court demanding that Hindu temples be freed from state control whereby ruling parties in every State have the power to appoint their political flunkeys as well as favoured bureaucrats and politicians to management boards of all major shrines and dharmasthans.
While delivering its judgment, the Supreme Court should keep in mind that none among the devotees of Sabarimala have come to court demanding changed rules. It’s only hostile and motivated outsiders who are using the fig leaf of gender equality to push their partisan agendas.
Madhu Purnima Kishwar is ICSSR Maulana Azad National Professor and founder of ‘Manushi’
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