This article is written by Teresa Dhar. This article discusses the Supreme Court verdict on Sabarimala case in favor of lifting the restriction of women from entering the Sabarimala shrine.

INTRODUCTION

In a country where serpentine rituals have been indispensable to the ideas of faith and religion, the Supreme Court verdict on Sabarimala come as a blow to the devotees of Lord Ayyappa, both male and female. On 28^th September 2018, the Apex Court ruled in favor of lifting the restriction on women of age group 10-50 years from entering the Sabarimala shrine. The let-down by the SC is great – it has pronounced a judgment fraught with ignorance and fallacy. India has been known for its diverse faiths and beliefs and with a single judgment, not only has the judiciary struck at the essence of our secular nature but has also shown us that overzealous attempts to bring gender-parity and end such bigotry mayn’t be always warranted.

BACKGROUND AND CONTENTIONS

To end a centuries-old discriminatory practice and based on an event where, after a South Indian actress, Jaymala had visited the shrine, a purification ritual was held,ⁱ the petitioners filed this writ petition. The petitioner’s side primarily argued that the ban on entry of women wasn’t a quintessential ritual in practicing this faith. This kind of ban was discriminatory as it didn’t allow women of menstruating age i.e, 10-50 years to enter the shrine – hence, violative of Art.14 of the Indian Constitution.ⁱⁱ They contended that State can make laws under Art.25(2)(b) with respect to not only social but also religious aspects.ⁱⁱⁱ It was also argued that the temple cannot act as an independent religious denomination as it was managed by the Travancore Devaswom Board which is publicly-funded and hence, can’t claim any rights under Art.25 nor can it practice gender-based discrimination in violation of Art.14 and 15 of the Constitution.^iv The petitioner kept harping upon the fact that the idea of menstruating women being considered “impure” was being used as a ground for untouchability prohibited under Art.17 of the Constitution.

On the other hand, respondents pointed out the historical origins resulting in the ban of entry, stating that the practice was based on “bonafide beliefs”.^v The respondent went on to explain that Lord Ayyappa is no misogyny, but a ‘Naishthik Brahmacharya’ or a celibate by nature. To keep away from temptation, women of menstruating age aren’t allowed and the latter, out of respect for the penance taken by Lord Ayyappa, is more than happy to oblige. The ban is defended as intrinsic to the faith involved around Sabarimala, practiced by the all Ayyappa Swamis and it isn’t justified for a secular judge to question the irrationality of the faith if it is harmless. Condemning the petition as an attack on Hindu beliefs and the temple’s repute, the counsels also maintained that the rights of the State as per Article 25(2) don’t apply to religious institutions and constitutional morality can’t prevail over societal and religious morality. It has been pointed out that women physiologically can’t undergo the 41 days penance, which is fundamental to the pilgrimage, due their menstruation cycle.^vi The respondent repeatedly stressed the fact that there was no sexism at play. The deity being a juristic person and having his own legal rights was entitled to stay an eternal celibate and the condition of banning entry of women of a certain age-group was inherent to his nature of penance and the same was protected by the Right to privacy under Art.21.^vii

JUDGMENT

By a 4:1 majority, the SC ruled in favor of lifting the ban on entry of women any age-group. Ironically, the only judge to dissent is the lone woman judge, Indu Malhotra. In the concurring judgments of CJI Mishra, J.Khanwilkar, J.Chandrachud, and J.Nariman, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules,1965 – the provision that forbade the entry of women of 10-50 year age-group were struck down. It was considered ultra vires of the Rules, 1965 and was inconsistent with Art.25 (1) which allowed Hindu women to practice their religion.^viii They maintained that the devotees failed to establish themselves as a “separate religious denomination” as they didn’t have a “common religious tenets peculiar to themselves” which they must consider beneficial for their spiritual health.^ixCiting the case of Shirur Mutt,^x the judgment stated that prohibiting women from entering the temple didn’t constitute as “essential religious practice” protected under Art.25(1) as it didn’t have any scriptural backing and contrary to the right of exclusion.^xi J. Chandrachud asserts that religion can’t overpower women’s right to worship – “To treat women as children of lesser God is to blink at Constitutional morality” and physiological factors shouldn’t be a ground to practice untouchability nor deny women their right to worship.^xii

However, judgment from J. Malhotra bluntly expressed that the petition shouldn’t have been entertained in the first place as none of the petitioners were devotees of Lord Ayyappa, none of their fundamental rights have been violated. This argument forms a crux of the judgment as it isn’t expected that an alien to a faith understand the sentiments behind it. She asserts that rationality needn’t be brought into religion and what constitutes an essential religious practice is for the religious community to decide. She agreed to the fact that Aiyyapa devotees form a distinct section with identifiable characteristics and form a separate denomination.^xiii She pointed out the verdict will have a bearing on other places of worship and what with India having a pluralistic society and secular polity strewn with diverse religion and faith, Constitutional morality can’t prevail over the reasoning behind the tenets of a religion.^xiv J.Malhotra maintained that the belief in the manifestation of the deity in form of a Naishtik Brahmachari is a fundamental right protected by Article 25(1) of the Constitution and imposing the court’s morality on religious faiths would distress one’s freedom to practice the faith.^xv

AN ERRONEOUS JUDGMENT AND THE WAY AHEAD

Amusingly, in a judgment intended to smash patriarchal notions and bridge any gender-disparity, the judiciary with its hyper-activism has only managed to antagonize both male and female devotees of Lord Ayyappa. Perhaps, they weren’t aware of the #ReadyToWait movement, where female devotees of Ayyappa declared that they were ready to wait until they turned 50 years before they visit the shrine. This is done out of respect for Malikapurathamma who is worshipped in a nearby temple. As the popular legend goes, Ayyappa had defeated a demon woman in a battle, who later turned out to be a very beautiful woman. She fell in love with Ayyappa and coaxed him to marry her. However, he refused to do so initially as he had prayers of devotees to answer but on her persistence, he agreed to marry her the day kanni-swamis(new devotees) stop coming to him with prayers. While she went in wait for him, Ayyappa out of respect for her didn’t receive women of the age of reproductive capabilities.^xvi

Nowhere is it implied that Ayyappa was a misogynist or considered menstruation impure. If that is so, then girls below 10 years and women above 50 years who menstruate wouldn’t have been allowed. In fact, men and women from all religion, rich or poor, can pray in harmony in that shrine and in other Ayyappa temples, women of all ages are allowed. In temples of other deities, often men or women aren’t allowed as the faith dictates-shouldn’t those also be questioned? Importantly, the ramifications of the judgment must be considered. As J.Malhotra puts, it would lead us to challenge other crucial rituals. What if the court declared that reading the Namaz five times a day isn’t necessary or that Jains must eat meat? In trying to modernize religion and defining abstract concepts of faith and rituals, the judiciary is overstepping its limits to inflict constitutional morality on religion. When no social evil, like sati, is being practiced, then why should the petitioners, who aren’t even devotees of Ayyappa nor aggrieved parties, file a PIL related to it? This brings us to J.Malhotra’s judgment where she correctly propounds that allowing interlopers to file PILs in the religious matter would give leeway for disaster, especially for religious minorities. It is as good as allowing a Buddhist to challenge rituals of a Christian and hence, such petitions shouldn’t be entertained in the first place.

Interestingly, three out of five petitioners later realized that they were wrong to file this case and didn’t have a clear understanding of the facts of the case.^xvii Based on a lone event, they were in a hurry to see that justice was meted out, realizing their blunder of angering the female devotees. The judiciary on its part failed to provide relief to anyone. However, SC has decided to hear 49 review petitions opposing the verdict on January 22, 2019, although it hasn’t ordered any stay on its September 28 verdict.^xviii

Hopefully, this time judiciary should introspect on whether it is right to act like a busybody in matters as subjective as religion and faith. Even if a certain ritual is not palatable to the law, it is not for Law to decide to do away with it but the practitioners of such ritual. As long as it is not opposed to public health and isn’t as abhorrent and destructive as Sati, the court will do well to not induct rationality into faith. As Swami Vivekananda wisely comments, “Do not try to disturb the faith of any man. If you can give him something better, get hold of a man where he stands and give him a push upwards; do so, but do not destroy what he has”- maybe the judiciary could learn that when it comes to matters of faith, abstract concepts of equality, transformative reforms in religion, gender-disparity are best sidelined, especially when lakhs of female devotees of Ayyappa have taken a vow that they wouldn’t enter the temple before turning 50; that they were ready to wait.

iv Ibid.