Worship at Sabarimala: SC allows entry of women

 Supreme Court allows entry of women of all ages to worship at Sabarimala

A five-judge Constitution Bench of the Supreme Court, in a majority judgment, on Friday upheld the right of women of all ages to worship at Sabarimala and in places of their choice. This verdict will pave the way for the famed temple of Lord Ayyappa in Sabarimala, Kerala, to open its doors to women in the menstruation age also.

A 1951 judgment finds mention

In his judgment, Justice D.Y. Chandrachud said any customs or rituals that contradict with the fundamental rights of citizens must be quashed. This is in contradiction with the famous Narasu Appa Mali case judgement. What is the 1951 judgment of the Bombay High Court in the State of Bombay v. Narasu Appa Mali case?

Related imageIn this case, Justices Chagla and Gajendragadkar held that uncodified personal laws may not be scrutinised for fundamental rights violations. They did so on the technical reasoning that Article 13 of the Constitution subjected only “laws” and “laws in force” to the scrutiny of fundamental rights, and that “personal laws” are neither “laws” for this purpose, nor “laws in force”.

Ever since the Narasu Appa Mali case, there has been a domain of law — i.e., uncodified personal law — that has simply been deemed to be beyond the realm of the Constitution, and beyond the scrutiny of constitutional norms such as equality, freedom of conscience, and the right to personal liberty.

Justice Indu Malhotra dissents

In her judgment Justice Malhotra says the  issues raised have impact not just with respect to Sabarimala but other places of worship too.

Religious practices cannot be solely tested on the basis of Article 14, she states. Justice Chandrachud, in his judgment mentioned Article 14, went one step further, and held that any customs or usages in personal law that are derogatory to fundamental rights should be quashed.

“What is essential practice in a religion is for the religion to decide. A matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational customs,” Justice Malhotra says in her judgment. Observing that the notion of rationality should not be seen in matters of religion, she also says Ayyappa devotees can be considered as a separate religious denomination. She also says the temple gets funds from Devaswom Board and not the Consolidated Fund.

‘Right to worship equally available to men and women’

Chief Justice of India, Dipak Misra continues his observations. He terms the selective ban on women as religious patriarchy.

The Rule 3 (B) of Kerala Temple Entry Act which excludes women between 10 and 50 violates freedom of a Hindu religiom to worship, the CJI and Justice Khanwilkar’s judgment states. “Right to worship equally available to men and women,” it says.

Justice R. Nariman concurs with the judgment and adds:  “Ayyappa devotees do not form a denomination but only a part of Hindu worship.”  He strikes down Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

Justice D.Y. Chandrachud also concurs. “To treat women as the children of a lesser God is to blink at the Constitution,” his judgment says.

“The ban says presence of women deviates from celibacy. This is placing the burden of a men’s celibacy on women. Stigmatises them, stereotypes them.” Justice Chandrachud says.  He also says the ban was actually a form of untouchability.

First reaction

The Kerala government has welcomed the verdict even as the reading of judgment is underway. Kerala Public Works Minister G. Sudhakaran says he welcomes it.

Shazhikumar Varma, representative of the former Pandalam Royal family, terms the verdict as disappointing. Chief Justice of India Dipak Misra begins reading his judgment on behalf of himself and Justice AM Khanwilkar. Ayyappa do not constitute separate religious denomination, the Chief Justice mentions in his judgment.

Exclusion of women of certain age in Sabarimala is not an “essential part” of religion, says the judgment. The judgment upholds women’s right to worship Lord Ayyappa in Sabarimala.  With this, the centuries’ old practice of prohibiting menstruating women from the temple becomes unconstitutional.

“Exclusion on grounds of biological, physiological features like menstruation are unconstitutional and discriminatory,” the apex court declares. Justices D.Y. Chandrachud and R. Nariman concur, while the lone woman judge in the Bench Justice Indu Malhotra dissents.

Kerala government’s stand

The Kerala government, over the years, changed its stance on the temple entry issue several times. The current LDF government favours temple entry. But the erstwhile UDF government  had argued that the prohibition was ingrained in the minds of devotees for centuries.

In 2007,  the then LDF government had filed an affidavit saying “it is not fair to deny a section of women from entering Sabarimala temple and making worship”.

Travancore Devaswom Board’s argument

Senior advocate Abhishek Manu Singhvi represented Travancore Devaswom Board, which maintains the temple, in the Supreme Court. He argued that Sabarimala does not practice exclusion, nor the restrictions have got anything to do with patriarchy. He submitted that it was “physiologically impossible for women to observe the 41-day penance” before the pilgrimage.

The Nair Service Society, another petitioner against allowing women, argued that prohibition was not based on misogyny but the celibate nature of the deity.

Five questions before the Constitution Bench

A three-judge Bench comprising Chief Justice of India Dipak Misra, Justices R. Banumathi and Ashok Bhushan, during a hearing on the restrictions imposed on women in Sabarimala temple referred the issue to a Constitution Bench with these questions.

  • Can the fundamental right of a person to pray at the place of their choice can be discriminated based on gender or biolological factor?
  • Whether the practice of excluding mestruating women constitutes an “essential religious practice”?
  • Whether Travancore Devaswom Board, a statutory board financed out of the Consolidated Fund of Kerala and Tamil Nadu “can indulge in practices violating constitutional principles/ morality”?
  • Does the ban qualify as an “essential religious practice” of the Hindu faith, over which the court has no jurisdiction?
  • Do Ayyappa devotees form a separate religious denomination by themselves?

1991 Kerala High Court judgment

A Division Bench of the Kerala High Court had, on April 5, 1991, upheld the restriction on women of a particular age group offering worship at the shrine.

The HC Bench of Justices K. Paripoornan and K.B. Marar held that the prohibition imposed by the Travancore Devaswom Board was not violative of Articles 15, 25 and 26 of the Constitution. Neither was it violative of the provisions of the Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as the prohibition was only in respect of women of a particular age group and not women as a class.

The backstory
SC allows entry of women of all ages to worship at Sabarimala, other places of their choice| Live updates

It all started with The Indian Young Lawyers Association and five women lawyers approaching the Supreme Court seeking a direction to allow entry of women into the Lord Ayyappa temple without age restrictions.

The temple restricts women aged between 10 and 50 from taking the pilgrimage to Sabarimala – which means women are banned from even making the arduous trek to the shrine.

The restriction finds its source in the legend that the Sabarimala temple deity – Swami Ayyappa – is a ‘Naishtika Brahmachari’ – and should not be disturbed. A 1991 Kerala High Court judgment supports the restriction imposed on women devotees. It had found that the restriction was in place since time immemorial and not discriminatory to the Constitution.

The Sabarimala temple, located in the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta District of Kerala, has lakhs of pilgrims thronging it every year for darshan. Pilgrims trek the Neelimala to reach the shrine, which has 18 sacred steps, to worship Lord Ayyapa after observing strict abstinence vows for 48 days.

The temple is also prominent for another reason — the selective ban on women entering it.

Women aged between 10 and 50, that is those who are in menstruating age, are barred from entering the temple. While there is no restriction on women to worship Lord Ayyappa in any other temple, their entry is prohibited in this temple.

The Indian Young Lawyers Association and five women lawyers approached the Supreme Court seeking a direction to allow entry of women into the temple without age restrictions. Another group of women, part of the “Happy to Bleed” campaign, has also sought the court’s direction on whether society should continue to bear with “menstrual discrimination.”

Their petition contended that discrimination in matters of entry into temples was neither a ritual nor a ceremony associated with Hindu religion and that such discrimination was anti-Hindu. The religious denomination could only restrict entry into the sanctum sanctorum and could not ban entry into the temple, making a discrimination on the basis of sex.

The Travancore Devasom Board, which maintains the temple, had replied that the ban was in accordance to the centuries-old tradition. Lord Ayyappa, being a Naishtika Brahmmachari (one who has vowed to remain celibate). Another argument put forth by the temple authorities is that it is not possible for women to put up with the physical hardship, austerity and days of celibacy like men.

The 1991 judgment

The ongoing trial in the Supreme Court has also put the spotlight on a 1991 Kerala High Court judgment, which held that the restriction was in accordance with a usage from time immemorial and not discriminatory under the Constitution.

Upholding the restrictions, the High Court, in its judgment, said: “According to him [The Sabarimala Thanthri], these customs and usages had to be followed for the welfare of the temple. He said only persons who had observed penance and followed the customs are eligible to enter the temple and it is not proper for young women to do so.”

Twenty-five years after this judgment, the Supreme Court has questioned the “logic” behind the restriction, even wondering whether there was any proof that women did not enter the sanctum sanctorum 1,500 years ago.

Earlier instances

The Sabarimala Temple tantri would perform a “purification ceremony” at the 18-sacred steps that lead to the sanctum sanctorum, whenever the rules are violated. The last ceremony took place in December 2011, after a 35-year-old woman managed to climb the “pathinettam padi”.

In 2006, astrologer P. Unnikrishna Panicker conducted a “devaprasnam” at the temple and ‘found’ that there were signs of a woman having entered the sanctum sanctorum. Soon after this, yesteryear Kannada actor Jayamala said she had entered the temple and even touched the idol in 1987, when she was shooting for a movie.

Amidst outrage, the Kerala police filed a report, stating the entire episode was “orchestrated to gain publicity.” The case is pending in the Kerala High Court.

Though, courts have generally not interfered in the traditions and practices followed in religious place, it has never failed to uphold equality whenever discrimination was reported. In this conflict of worshipping rights versus customs, all eyes are now on the Supreme Court.

Will Sabarimala temple open its doors to women?

The Sabarimala temple, located in the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta District of Kerala, has lakhs of pilgrims thronging it every year for darshan. Pilgrims trek the Neelimala to reach the shrine, which has 18 sacred steps, to worship Lord Ayyapa after observing strict abstinence vows for 48 days.

The temple is also prominent for another reason — the selective ban on women entering it.

Women aged between 10 and 50, that is those who are in menstruating age, are barred from entering the temple. While there is no restriction on women to worship Lord Ayyappa in any other temple, their entry is prohibited in this temple.

The Indian Young Lawyers Association and five women lawyers approached the Supreme Court seeking a direction to allow entry of women into the temple without age restrictions. Another group of women, part of the “Happy to Bleed” campaign, has also sought the court’s direction on whether society should continue to bear with “menstrual discrimination.”

Their petition contended that discrimination in matters of entry into temples was neither a ritual nor a ceremony associated with Hindu religion and that such discrimination was anti-Hindu. The religious denomination could only restrict entry into the sanctum sanctorum and could not ban entry into the temple, making a discrimination on the basis of sex.

The Travancore Devasom Board, which maintains the temple, had replied that the ban was in accordance to the centuries-old tradition. Lord Ayyappa, being a Naishtika Brahmmachari (one who has vowed to remain celibate). Another argument put forth by the temple authorities is that it is not possible for women to put up with the physical hardship, austerity and days of celibacy like men.

The 1991 judgment

The ongoing trial in the Supreme Court has also put the spotlight on a 1991 Kerala High Court judgment, which held that the restriction was in accordance with a usage from time immemorial and not discriminatory under the Constitution.

Upholding the restrictions, the High Court, in its judgment, said: “According to him [The Sabarimala Thanthri], these customs and usages had to be followed for the welfare of the temple. He said only persons who had observed penance and followed the customs are eligible to enter the temple and it is not proper for young women to do so.”

Twenty-five years after this judgment, the Supreme Court has questioned the “logic” behind the restriction, even wondering whether there was any proof that women did not enter the sanctum sanctorum 1,500 years ago.

Earlier instances

The Sabarimala Temple tantri would perform a “purification ceremony” at the 18-sacred steps that lead to the sanctum sanctorum, whenever the rules are violated. The last ceremony took place in December 2011, after a 35-year-old woman managed to climb the “pathinettam padi”.

In 2006, astrologer P. Unnikrishna Panicker conducted a “devaprasnam” at the temple and ‘found’ that there were signs of a woman having entered the sanctum sanctorum. Soon after this, yesteryear Kannada actor Jayamala said she had entered the temple and even touched the idol in 1987, when she was shooting for a movie.

Amidst outrage, the Kerala police filed a report, stating the entire episode was “orchestrated to gain publicity.” The case is pending in the Kerala High Court.

Though, courts have generally not interfered in the traditions and practices followed in religious place, it has never failed to uphold equality whenever discrimination was reported. In this conflict of worshipping rights versus customs, all eyes are now on the Supreme Court.

-SEPTEMBER 28, 2018