Sabarimala verdict: a new hop for gender justice
INTRODUCTION
The Sabarimala temple in Kerala had prohibited the entry of women between ages 10 to 50. Women within the aforementioned age bracket were considered to be ‘impure’ because they were menstruating. In the Indian context, discrimination against women is so deeply entrenched that women are forbidden from entering temples, sanctioned by religious scriptures. The reason put forth for such stringent restrictions upon women primarily possess physiological and biological roots. It is essential to tackle such myths in order to establish equality in the society. In earlier times, people were discriminated on the basis of caste. Some were even rendered untouchable, women especially during this time were discriminated on the basis of their gender. In the Sabarimala controversy discrimination against women was based on biological factors. This resulted in treating of women during mensuration as an untouchable, and this was observed through all the caste groups. In addition to this woman were not allowed to study, to do job and their freedoms to a large extent were curtailed. Hence, women were caught within a vicious cycle of patriarchy and discrimination. However, the Sabarimala verdict banned women being discriminated upon the basis of biological differences which were considered to pollute the sanctity of the temple. Therefore, in comparison to the conventional forms of discrimination this was considered to be a different form of discrimination which exacerbated their already vulnerable status of being women in a patriarchal society.
HISTORICAL BACKGROUND
The practice of banning women of a certain age bracket from entering temples is solely confined to the Sabarimala temple. While women are at least allowed to enter other Hindu temples in the country. Hinduism is considered to be a way of life. However, certain sections of the society, primarily the upper caste Brahmins attempt to dictate customs and practices that are covered under the tenets of Hinduism. The restriction imposed on menstruating women from entering the Sabarimala temple is a classic example of the forces of Hindu majoritarianism.
The rationale behind the restriction is based in religious scriptures. Lord Ayyappa is perceived to be a celibate who has abstained from sexual intercourse with women. Allowing the above restricted age group of women would pollute the celibate nature of lord Ayyappa. As a result, women belonging to the aforementioned age group might pollute the celibate nature of Lord Ayyappa.
The rationale behind the ban reflects upon the notion of patriarchy that is deeply entrenched in our society. While delivering the verdict, Chief Justice Deepak Mishra said,” Physiological and biological barriers crated by rigid social dogma have no place in society.” The ban on women from entering temples reflects upon the dualistic nature of the way Hinduism is practiced. On one hand, Hinduism perceives women has goddesses who should be treated with the utmost respect and dignity and on the other, women are not given the freedom to practice and profess their religion.
Religious scriptures state “Every Ayyappa devotee, before he sees the sanctum sanctorum, has to lay his footsteps over 18 sacred steps. The devotees who have to touch their feet on these sacred steps have to observe a strict abstinence vow for 41 days, which is difficult for menstruating women. The vow of abstinence includes the following restrictions-
Strict abstinence from sexual intercourse with any women or your spouse;
Abstinence from intoxicants like alcohol;
Walking bare foot;
Maintaining sanitation by bathing twice in a day;
Cooking one’s own food;
Living in isolation;
Refraining from talking to a woman or any one from your family;
Wearing a black mandu and upper garments;
having one meal a day.”
After the aforementioned principles have been conformed to the devotee is permitted to climb 18 steps. After climbing these steps, the individual will see the word ‘Thathwamasi” which translates into “You are the one whom you are searching for this signifies the potential that humans have.’
Within the space of these 41 days of penance, a woman is considered to become impure because of the bleeding that is caused because of menstruation. The biological process of menstruation forbids the woman from interacting with her own family members, entering her own kitchen or performing any religious duties. in light of these restrictions imposed upon women, the Sabarimala verdict qualifies for a progressive and liberal judgement.
Mala Aryans is a tribal community which resides in the villages surrounding Sabarimala. The tribe used to perform certain rituals in the hills and forests surrounding Sabarimala. A brief history into the Mala Aryan tribe reveals new dimensions into the issue of Sabarimala. Samuel Mateer, a respected historian visited South India in the middle of the 18th century. He documented the history of the Mala Aryans. In his work titled “Native Life in Travancore” which was published in 1883 he narrates the story of a Mala Aryani called Talanani who was the priest in the chief shrine of a tribal god called Lord Ayappan in Sabarimala. Lord Ayappan was described as a young tribal God who used to hunt in the forests surrounding Sabarimala approximately 900 years ago. They claim that Ayappan was brahmanised as a God after the shrine was forcefully taken over by the State of Kerala Board. After the shrine was forcefully taken over from the Board, the tribe was forbidden from practicing a religious ceremony called Makaravilakku. Furthermore, people were evicted from their homes and harassed by the government.
Stories that have been passed on from generation to generation states that there was no practice which forbade menstruating women from entering the Sabarimala shrine. The restriction was confined to the number of days when the woman was actually menstruating. Hence, the roots of discrimination against menstruating women can be dated back to a couple of centuries ago.
The intervention of the state in the nineteenth century and the eventual takeover by the Travancore Board in the 1950s transformed the religious basis of the shrine. After the takeover of the board, the Sabarimala temple was considered to be a shrine of a Brahmin god. the priest of the shrine was always a Brahmin. In certain cases, when a Brahmin priest could not be found within the entire state, a Brahmin priest was brought in from outside the state.
Women who lay outside the age bracket of 10 to 50 years could only enter the temple after the priest performed a purification ceremony to ensure that these women were rid of all their impurities. This ceremony was similar to the Shudhikaran ceremony that was performed on Dalits when they wanted to traverse through caste lines by the process of Sanskritisation.
THE SABARIMALA VERDICT
The debate upon the entry of women into the temple was taken up by the temple authorities in 1991, after the ban on the entry of women was declared constitutional in the case of S. Mahindharan v State of Kerala. In the following case, it was stated that the ban was practiced for certain months which consisted of the “Mandalam- Makaravilakku (November-January) season and during Vishu (April). The court further stated that women without “Irumudikkettu” could enter the shrine through the Northern gate. The proposal presented in front of the Board to allow the entry of women was rejected. The debate and the constitutional validity of the ban primarily revolved around the following constitutional articles and principles-
Article 14- Right to equality
Article 15- Fundamental Right prohibiting discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex and place of birth.
Article 25a- Freedom of religion
The issues framed before the court consisted of the following-
Is the rule3b of Kerala Hindu Places of Worship (Authorisation of Entry) Act violative of constitutional provision??
Can banning women of a particular age group amounts to untouchability?
Does article 26 which gives the right to profess, propagate and practice any religion get curtailed under article 25a??
The matter was brought in front of the court through a public interest litigation. The court held that the banning of menstruating women amounts to untouchability and Article 26 of the Constitution cannot override Article 25a. it was conclusively stated that the ban is unconstitutional.
In response to the question of Rule 3b of the Kerala Hindu Places of Worship (Authorisation of Entry) Act which stated that no one is allowed to enter the temple if the same is dictated by a customary practice even if it held to be in violation of the constitution. However, since the constitution is considered to be the primary and foremost legal document of a country, in the case of contradiction between a statute and the constitution the statute will be held void. Hence, Rule 3b was declared unconstitutional.
The Sabarimala verdict was eventually settled by a constitutional bench of 5 judges and the verdict was passed with a majority of 4:1. The sole dissenting opinion was given by Justice Indu Malhotra who was the only female judge on the bench. She argued that the rationale behind the customary practice of a religion cannot be decided by a court of law. she further said that since the petitioners of the suit are not affected by the verdict of the court they did not have any locus standi to file the suit in the first place.
Justice Malhotra followed the originalist approach of interpreting the constitution while arguing that the ban cannot be declared to be unconstitutional. Through the lens of the originalist approach, the constitution is interpreted keeping in mind the original intention and purpose of the drafters of the constitution in mind. The framers of the constitution did not intend to remove gender biases while drafting article 17 of the constitution which bans untouchability.
However, the originalist approach of reading the constitution is considered to be an outdated approach. The new approach adopted by the courts of law is termed as the ‘living tree’ approach wherein the constitution is read keeping mind the changing times and circumstances. This approach was outdated and cannot be accepted since times have changed. There is a new approach called living tree approach which says that you read constitution according to changing times and circumstances.
In response to the rationale put forth by Justice Malhotra, Chief Justice Deepak Mishra formulated a new test to identify and determine whether a certain practice is essential to the said religion. This test was termed as the Essential Religious Practices (Hereinafter referred to as ‘ERP’) Test. In furtherance of the same, the Chief Justice declared that the ban did not qualify as an ERP and was hence declared unconstitutional.
POLITICAL VIEWPOINT OF THE SABARIMALA VERDICT
The Sabarimala verdict was essential and noteworthy from a political standpoint also. The Kerala faction of the Indian National Congress held a stand which was in contradiction to the verdict delivered by the Supreme Court. This conflict between the national view of the perspective, and the perspective of the state resulted in chaos. Meanwhile, the Bhartiya Janta Party (BJP) whose policies are formulated in conformity to the norms of Hindutva, laid emphasis upon the views of the conservative Hindus. The party president of the BJP went on to say that the Supreme Court should not pass judgements which cannot be followed by the society. The BJP attempted to alleviate the grievances of the people of Kerala in order to gain more votes from the Kerala populous during the Lok Sabha elections. The BJP, and its mother organization, the RSS has focussed on winning elections through the appeasement of the Hindu masses. They further mobilize the masses against the verdict the court in order increase their voter base.
ANALYSIS
A democratic setup will always have multiplicity of opinions and interests. The justification of the Supreme Court was based upon the principles of the constitution whereas the reaction of certain political parties was solely based upon the interests of their voter bases. Despite conflicting opinions, the Sabarimala ban was uplifted and women were allowed to enter the temple. The verdict of the Supreme Court brought about many protests, particularly within the state of Kerala. Women were threatened from entering the temple. This implies that even though a verdict of the Supreme Court can grant rights to a certain section of the society, in order to transform that right into a reality, the minds of the people also need to be changed.
CONCLUSION
Through the course of this paper, I attempted to initially establish the historical context surrounding the Sabarimala temple. Furthermore, the paper discussed the various judgements with the respect to the ban that was put in place. The latter segments of the paper discussed the political viewpoint of the Supreme Court’s verdict and the reaction and backlash brought on by the people. Even though a verdict might not benefit, unless entirely accepted by the people of a state, it is definitely a step in the right direction in order to reform the society and establish parity between the genders.
Reference
Sushma Gajula, Sabarimala Issue: Women’s Entry into Temple, Tata Institute of Social Sciences. - 7 -
Online Sources
V. Bijukumar, When Religious Faith Mutilates Gender Equality: Women Entry in Sabarimal Temple in Kerala, Available at https://journals.sagepub.com/doi/abs/10.1177/2455632719880857 (Last Accessed: 1st April, 2020). - 4 -, - 5 -, - 7 -
V. Bijukumar, When Religious Faith Mutilates Gender Equality: Women Entry in Sabarimal Temple in Kerala, Available at https://journals.sagepub.com/doi/abs/10.1177/2455632719880857 (Last Accessed: 2nd April, 2020). - 3 -
Women's Entry into Sabarimala Temple, Available at www.insightsonindia.com (Last Accessed: 2nd April, 2020). - 4 -
Articles in Journals
Abhilash Thadathil, Adivasi Claims Over Sabarimala Highlight the Importance of Counter-narratives of Tradition, Economic & Political Weekly, Vol. 54, Issue No. 1 (2019). - 6 -
Anant Kumar, Menstruation, Purity & Right to Worship, Economic & Political Weekly, Vol. 51, Issue No. 9 (2016). - 2 -, - 4 -
D D Acevedo, Pause for Thought: Supreme Court’s Verdict on Sabarimala, Vol. 53, issue No. 43 (2018). - 6 -, - 9 -
Prakhar Singh & Pragya Roy, Questioning the Dissenting Voice in the Sabarimala Verdict, Economic & Political Weekly, Vol. 53, Issue No. 44 (2018). - 2 -, - 7 -, - 8 -
Sabarimala Judgment and Its Opponents, Economic and Political Weekly, Vol. 53, Issue No. 44 (2018). - 7 -
Submitted by
Sushanth gajula, second year student of national university of judicial sciences Kolkata (NUJS)