This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author has discussed, the history and inception of the Sabarimala issue, the court’s verdict on the case, the controversy involving the temple and its constitutional validity.

Sabarimala Temple- Background and Inception

The Sabarimala Temple is known to be one of the most renowned Hindu temples in India. It is located in the Pathanamthitta district of Kerala, at the mountain ranges of Western Ghats and is at an altitude of 914 meters above the sea level and is accessible to the devotees only by foot from Pamba which is 4 kilometres away. The management of the temple is further undertaken by the Travancore Devaswom Board. As per the temple history, the Sastha temple at Sabarimala is one of the five Sastha which was founded by Lord Parashurama. The temple was mostly unreachable for about 3 centuries even after it was built. It was in the 12th Century that Manikandan, the prince of Pandalam dynasty rediscovered its original path.

The shrine which is at Sabarimala is dedicated to the ancient god Ayyappa, who is also known as Sasta and Dharmasastra. People of all caste and creed are allowed in the temple except for women from the age of 10 to 50 years. Lord Ayyappa is popularly celebrated as “Naishtika Brahmachari” which means a celibate for life and hence, regarding this, there was a notification issued by the Devaswom Board which banned the entry of women of menstruating age.

Another requirement for the devotees visiting Sabarimala is to observe ‘Vratham’- which is maintaining an austerity period during which the devotees are needed to follow strict celibacy during this period, intake only vegetarian food, should not indulge in violence or arguments and should lead a modest way of life. The temple has a footfall of over 2 crore devotees every year.

How did the Sabarimala issue arise?

It was in 1991 that the Kerala High Court banned the entry of women from the age of 10 to 50 from entering the shrine. It was mentioned by the High court in its verdict that the ban on women entering the temple had existed from time immemorial and in the olden days it was only the priests who had the power to decide on matters relating to tradition.

However, following this, the ban was challenged by a group of lawyers on the ground that the following ban violates the principles of the right to equality, places a restriction on religious freedom and that it was discriminatory.

It was in 2016, that the case reached the Supreme Court, after filling of a Public Interest Litigation (PIL) by the Indian Young Lawyers Association. Following this, the case was referred to the five-judge Constitution bench which was led by the then Chief Justice of India Deepak Misra. The bench comprised of R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

It was in 2018, the Supreme Court delivered the much-debated judgment which lifted the ban on women entry to the Sabarimala Shrine. The court ruled that women of all ages could enter the shrine. The judgment was delivered with a majority of 4:1 and the bench ruled that the temple’s practice violates the right of Hindu Women and promotes gender discrimination.

Temple’s stance on barring women from entering the Shrine

The Travancore temple management contended in the court that they had every right to frame rules for the temple without the interference of the state and this right existed according to them as Ayyappa swami’s devotees form a denomination which comprises of a body with a definite identifiable number. They further laid down that the practice followed at Sabarimala was not discriminatory in nature as the tradition was born out of the belief that the deity is an Eternal Celibate.

At the same time, the women devotees ran a campaign named #Readytowait. They emphasized that only women of a certain age were barred from entering the temple and hence, it is okay to wait till 50 years of age to enter the temple. In addition to this, they even argued that the petitioners were confusing diversity of Hinduism with Discrimination.

Kerala Government’s stance

The Kerala Government in 2016 opposed the entry of Women in the shrine, but it further said the Supreme Court in 2019 that it would be in favour of entry of women in the shrine. The state government stood in favour of allowing the women to pray at the temple. Advocate Jaideep Gupta representing the state government said that they would support the entry of women of all ages to the temple.

Debates and discussions on the Supreme Court’s verdict on Sabarimala

While delivering the judgment, the then Chief Justice of India held that devotion cannot be subject to discrimination and also patriarchal notion cannot be allowed to pound over equality. Justice Nariman and Chandrachud agreed in line with the decision of the Chief Justice, Justice Indu Malhotra gave a dissenting opinion.

The court observed a class of women cannot be disallowed merely due to the physiological reason for menstruation. Justice Indu Malhotra, the sole woman judge on the bench in her dissenting opinion laid down that the deep-rooted religious connotations should not be subject to changes and not doing so would further help in maintaining an amicable secular atmosphere in the state.

The Supreme Court’s verdict was that the hill shrine of Sabarimala should be open to women of all ages, and this should be viewed as another victory for the very cause of gender equality.

Views supporting Womens’ Entry

Following were the views put forth by those arguing in support of entry of women in Sabarimala:

• Preventing women from entering places of worship like the temple of Sabarimala would go against Articles 14, 15 19 and 25 of the Indian Constitution. These articles deal with Right to Equality, Right against Discrimination based on Gender, Freedom of Movement and Freedom of Religion.
• Refraining the entry of women into the religious shrines lead to one of the several ways of imposing partiality, and these restrictions are usually based on patriarchy and not on religious grounds.
• The restricted women claimed that barring them access to inner sanctum sanatorium stands in violation of their fundamental Right to worship which is guaranteed to every citizen under Article 25 of the Indian Constitution.
• The right to manage its own religious affairs under Section-26 cannot override the right to practice religion itself, and this provision has been guaranteed by the Indian Constitution.
• Banning women’s entry in the shrine is discriminatory, as it stands against the very ideology that everyone is equal before God.
• From the abolition of Sati, the abolition of untouchability to reforms regarding women and proclamation of entry of women in the temples have been judicial and legislative.

Views opposing Womens’ Entry

Following are the views put forth by the masses in support of women entry to Sabarimala.

• Sabarimala was never a case of caste or colour based oppression or ostracizing of any particular community.  
• Sabarimala is built on a story. A story which has linkages with faiths foretells that the main deity is a celibate and the presence of a menstruating woman would cause hindrance to his meditation. Women outside this age group can enter the shrine and it has been always allowed.
• Sabarimala was not created by any Act of Kerala State Assembly, Parliament or any Order of the Court but is based on faith and if this faith is not respected then it would not be the same Sabarimala today.
• The Supreme Court can, of course, pass an order to let the women enter the shrine but this would further cause ridicule to the very faith of people for whom the temple of worship matters.
• Sabarimala has been one of the most liberal institutions of the country, as it does not differentiate between people of different religion, anyone is allowed to enter the shrine there is no discrimination between upper caste and lower caste and even the restriction regarding women is not based on Act of Oppression, but it is seen as the willingness of female devotees to respect the deity.
• Referring to the presiding deity Lord Ayyappa as Naishtika Brahmachari, several people point out that it is the celibate nature of the deity which prevents the entry of women into the temple and not misogyny.
• Article 15 of the constitution does not apply to religious institutions. Article 15(2) provides the citizens with the right to access places such as hotels, shops and etc. but nowhere does it mention public temples.
• Some who oppose the entry of women into the temple argue that their actions are protected by the Article 25(1) of the Indian Constitution, where article 25(1) of the constitution lays down that-”Subject to public order, morality and health and other provisions of this part, all persons are equally entitled to freedom of conscience and right to freely profess and practice any religion of one’s own choice”.
• Article 25(2) pertains only to secular aspects, and along with this it also includes social issues under its ambit but doesn’t deal with gender or religious-based issues.

Does the court or state have a right to determine the validity of religious claims?

The issue regarding the Sabarimala shrine highlights the tensions between tradition on one hand and reformist impulse of the constitution on the other hand. Taking into consideration our constitutional history with regard to religious issues it can be said that courts have intervened in religious matters backed by Article 25(2) of the Indian constitution for over years.

An important view to be taken note of at this point is that the courts have laid down what is known as “essential practices” test in order to decide on a variety of cases. The court mainly uses this case to decide on which religious practices are eligible for constitutional protection. The following issues were taken into consideration by the bench while determining the issue of Sabarimala by the way of application of Essential Practices Test:

The requirement of unhindered continuity

The CJI Deepak Misra took into account, the proximate evolution and continuity in practice as a question in practice and while dealing with this and there was prominence given to Anand Marga Pracharaka Sangha v. Commission Of Income Tax, where it was held that the public performance of Tandava Dance was never an essential part of the religion of the Anand Marga Sect even though it was specifically set down as such in their holy book. Regarding the Sabarimala Case, the CJI concluded that the practice of exclusion of women was never a continued existence and it began only after enactment of the subordinate legislation. This was true as female members from the family of Travancore Devaswom Board were allowed to enter the temple in the olden times.

Equal Right to Worship

The opinion put forth by Justice Nariman enters a detailed discussion on the prohibition of women from entering the religious shrine solely on the notion of impurity attached to menstruation, based on this he finally arrived at the conclusion that the fundamental right which is claimed by the worshippers based on custom and its usage under article 25(1) must necessarily yield to the fundamental rights of such women as they are equally entitled to right to practice religion.

Hence, these two aspects were taken note of in the Sabarimala case by the 5 Judge bench while delivering their verdict on it.

Parallel between Sabarimala and Shani Shingnapur controversy

The Shani Shingnapur temple located in Ahmednagar of Maharashtra had the age-old tradition of barring women from the entry into the sanctum sanctorum of the temple complex. It was on January 26, 2016, that Activist Trupti Desai came forward to break the age-old practice and tried to storm into the temple complex with other female activists, but they were stopped by the police 70 km away from the temple.

When the case reached the Bombay High Court followed by the petition filed by Dabholkar’s associates Vidya Bal and Nimila Varta. The High court while deciding the case laid down that entering a temple is a fundamental right of every citizen and it cannot be denied to women. Following the order by the Bombay High Court, the temple trust finally allowed the entry of women in the Sanctum Sanctorum of the temple on April 8th 2016.

The significant point to be taken into consideration here is the reason behind disallowing the entry of women in the case of Shani Shingnapur and that of Sabarimala. In the temple of Shani Shingnapur which is dedicated to Shani, forms a belief that in certain temples in India there is the emancipation of energy and radiations. And the bar on entry of women was based on this simple fact that these high energies may cause internal problems to women, as women are more susceptible to them when compared to men. Hence, the court rightly laid down that if a woman wants to enter the temple, she cannot be denied the same as it is violates her fundamental rights.

The Sabarimala Case, on the other hand, has a very broader view on disallowing the women and forms its basis on the very nature of the presiding deity who is believed to be an eternal celibate. And allowing of women into the shrine is considered to be going against the faith of a number of devotees of Lord Ayyappa. Hence, there is a requirement of more attention to be given to the Sabarimala case, in order to arrive at a proper conclusion.

Conclusion

The issue of Sabarimala stands as an excellent opportunity for the courts in India to re-access and review the age-old traditions with regard to discrimination to certain sections of the society. The court will have to look beyond just denial of freedom to worship for women, by taking into account the faith the devotees have in the deity of Sabarimala. This will further lay a foundation stone for the radical re-reading of the constitution. At the same time, it becomes essential for the judiciary in India to device out a methodology to deal with instances like that of Sabarimala in order to curb violence which may erupt as a consequence of such judicial decisions.