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TOPIC- THE SABRIMALA DISPUTE: INCITING THE ‘VOLK’ OF THE ‘GEIST’


Introduction

“We naturally like what we have been accustomed to, and are attracted towards it. The same is the case with those opinions of man to which he has been accustomed from his youth, he likes them, defends them, and shuns the opposite views.” 1 This was quoted by Maimonides in his book, the guide for the perplexed.


A five judge bench of the SC lifted the ban on the entry of women between the age group of 10 to 50 years in the Sabrimala Temple on September 28, 2018. Even after the revocation of the ban people have vehemently opposed the entry of women in the shrine. It is going to be two years since the ban was lifted yet the number of women that have actually entered the premises is a handful.

Hence, is becomes important to understand how this custom became an intrinsic part of the spirit of the people that led to the belief that menstruating women are impure and must refrain from being in the vicinity of lord Ayyappa. What is the reason for the people to agitate and off the bat disregard the judgment passed by the SC of India? 2This analysis can be understood with the help of the various schools of laws. They help us in understanding the origin, formulation and the philosophy behind the enactment of a law. Also, to comprehend how the various schools have helped in molding the beliefs and customs.


The Historical School Of Law

Being an interdisciplinary school of law this school focuses on the conglomeration of law and history. Savigny, the father of this school describes law as originating from customs. Customs are codified into laws. He stated that laws are manmade and do not have a divine inspiration. He propounded the ‘volk geist’ theory which meant that law is nothing but the will of the people. This school compared law with language and stated that it grows with the growth of the nation and falls with it.


There are various legends associated with Lord Ayyappa one of which is that he was a prince who saved his kingdom from an Arab invader named Vavar. He later became Lord Ayyappa’s devotee and also has a temple near Sabrimala. It is believed that after this battle Lord Ayyappa decided to renounce all desires of temporal nature including women. The various religious texts and thesis conclude that Lord Ayyappa is a celibate or a Bramhachari but nowhere the texts have expressly prohibited the entry of women. 3

It was the customs which were crystallized into laws in 1991. It is important to note however that there is an inconsistency between the customs. Before the injunction of the High Court of Kerala there have been various instances where women of all age group have entered the Sabrimala Temple. It was only later, that the priests and the religious ombudsmen have construed the texts in such a manner to relate the menstruation as a taboo and associate it with ‘impurity’. The people also started accepting the same and thus it became the ‘geist’ of the ‘folk’. Hence, even today people including women are opposing the idea of entry of women in the Sabrimala Temple. This is the reason why Journalist Kavitha Jagdal and Rehana Fatima had to face such a predicament and eventually had to return back after a stand- off of devotees blocked their way4.


The Natural and the Positive School of Law

The natural school of law talks about the divine origin of law and that law has originated from God or a supreme source. Laws are not made by men but only discovered by him. When we talk about the religious texts with respect to the Sabrimala Case it can be conjectured that nowhere the texts have expressly indicated the prohibition of the entry of women or that ‘impure’ women can block or obstruct the practice of celibacy of Lord Ayyappa.


Whereas, on the other hand, the positive school of law as the name suggests, talks about the law posited or imposed on the people. It is the command of the sovereign backed by sanction. In the given conundrum the sovereign is the priests and the religious superiors who have construed the religious texts in such a way to prohibit the entry of women. The priests have advanced their religious vendetta and the common misconception of the time about a menstruating woman being “impure”. The ban also furthers the existing patriarchy in the society by shunning women and discriminating them on the basis of a biological process.


The judgment and the aftermath

The then CJI Dipak Misra speaking on behalf of Khanwilkar J and himself observed in his judgment that religion is a way of life and that barring the entry of women between the age group of 10 to 50 years is against their fundamental freedom to practice and profess any religion. It was also deduced that the prohibition of entry of women does not form the part an ‘essential religious practice.’5


Justice Nariman said that the worshippers of Lord Ayyappa do not constitute a distinct religious denomination and are Hindus. Whereas, Justice DY Chandrachud held that the exclusion of women between the age group of 10 to 50 years is contrary to the constitutional morality and the practice cannot erode the Fundamental Rights enshrined in the constitution. He further said that menstruation can have no significance on the entitlement guaranteed in the constitution.6


The state government went on to state that up to 51 women falling in the age of menstruating women have entered the Sabrimala temple ever since the judgment has been passed but the opposition suggests that the numbers are exaggerated and that the ruling party is steering clear from the stark reality7. In February 2019, the state government retracted from its claim and conceded that only 2 women have entered the premises so far8. The numbers are very less in contrast to the thousands of male counterparts entering the temple this is because of the acceptance and the spirit of the people still believes in the custom that was posited to them by the religious superiors. This is the reason why even after a year’s span women have refrained from entering the premises of the temple. This custom is internalized in the people, even the women believe that they should refrain from entering the temple as this is what the Lord would have accepted.


Current Situation


The Sabrimala verdict, pronounced over two years ago, is subject to a batch of several voluminous review petitions and has been referred to a seven-judge bench of the Supreme Court. This review petition was accepted in the case of Kantaru Rajeevaru v. India Young Lawyers Association & Ors.9 Not many people even today accept the judicial pronouncement by the Supreme Court and believe that this is an interference with their religious belief. The Sabrimala judgment sets a bold and unabashed narrative. The Supreme Court has adopted a reformist approach by upholding human dignity and equality of all people to practice religion. This judgment has also set boundaries for what can be protected under the essential religious practices and what is discriminatory and violative of Article 14 of the Indian Constitution. The judgment also emphasized on the fact that the constitution is transformative in nature and is a living document. A living constitution is necessary to prevent the dead hand of the past to stifle the growth of the present. Law cannot stand still because change is constant and thus, it must also change with the changing values and concepts of the society. Popular social norms should not act as a diktat over the constitutional freedoms. Therefore, judiciary acts as a necessary push to act as an agent of social changes and progress. Thus, judicial decisions of today must be such that help in steering forward, help us achieve an egalitarian society and help us obliterate the differences between genders.




Case Cited- Indian Young Lawyer’s Association & ors. v. The State of Kerala & ors. Writ Petition (Civil) No 373 of 2006


Bibliography

  1. https://www.goodreads.com/work/quotes/748018-moreh-nevukhim

  2. https://www.hindustantimes.com/analysis/the-sabarimala-verdict-establishes-the-supremacy-of-constitutional-morality/story-1m5sKtQrCHGe8iI46DZLGP.html

  3. https://www.bbc.com/news/world-asia-india-45901014

  4. https://www.hindustantimes.com/analysis/the-sabarimala-verdict-establishes-the-supremacy-of-constitutional-morality/story-1m5sKtQrCHGe8iI46DZLGP.html

  5. https://www.scconline.com/

  6. https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68

  7. https://www.huffingtonpost.in/entry/sabarimala-supreme-court-kerala-women_in_5d8e40d9e4b0019647a82ac6

  8. https://www.hindustantimes.com/india-news/not-51-only-two-women-entered-sabarimala-kerala-government-concedes/story-AiyKlK2uR5rokNZmBESG3J.html

  9. https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/


DESIGNATION- 4th YEAR LAW STUDENT

UNIVERSITY- UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN

AUTHOR- VAISHALI GAURHA

COURSE- BA LLB (CRIMINAL LAW)

CONTACT NO. – 9630207222

EMAIL ID- v.gaurha1999@gmail.com

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