In its decision in Indian Young Lawyers Association Vs State of Kerala, Supreme Court of India lifted the restriction on entry of Women of a certain age in Sabrimala temple in Kerala. In one the most intricate cases which the Hon’ble Court has faced since its inception, the Court ruled to satisfy the perpetually unsatisfied liberal conscience of Constitutional morality by scrutinizing the rationality of a practice based on religious belief on the touchstone of Fundamental rights. A typical Matrilineal society like Kerala is witnessing massive protests after this decision, women of the prohibited age group have themselves come on the streets and are ready to wait to protect the celibacy of their devote God. Unfortunately this sentiment has been completely blacked out by Local and National Media.
A Review Petition has also been filed in the Supreme Court, which the Court has decided to hear after Dusshera. A case which lacked competent petitioners in the form of genuinely aggrieved parties, a case where rationality determined religious practice and a case where Supreme Court assumed immense power to even dictate the dimensions of people’s faith should be urgently scrutinized in the interests of justice for the sake of the consequences which it will have. In that context it becomes pertinent to point out why the Supreme Court is legally wrong in Sabrimala judgement and why it needs to review its decision at the earliest.
Though arguments as to devotees of Ayappa being separate denomination and practice constituting an essential and integral one has already been rejected by the majority judgement of the Court but irrespective of rejecting the protection under Article 25 & 26 of Constitution, the legal arguments forwarded by the majority in this judgement do not substantiate the decision of the Court on the following counts-
1. Petitioners had no Locus Standi in this Case
The Writ petition in this case has been filed by a registered Association of Lawyers which has been followed by Intervenors working around the area of Punjab focusing on issues of gender equality and justice, none of them are devotees of Ayappa, none of them have ever seen where the Sabrimala shrine is and would not even bother to go there after the restriction on entry has been lifted. It is astonishing to know that petitioners in this case have said that they learned about such a restricting practice in Sabrimala by from three newspaper articles, written by Barkha Dutt, Veer Sanghvi and Sharvani Pandit in July 2006. In the absence of any genuine aggrieved petitioner the Writ Petition does not deserve to be entertained for want of standing (locus standi ?) at in the first place. The grievances raised are non-justiciabl ande at the behest of the parties who are not at all devotees of Ayappa, they cannot claim violation of their Freedom of Religion and Right to Practice in a case where they do not believe in the Deity itself at the first place.
2. Plurality of Traditions and not Gender Discrimination
In a culturally diverse Country like India, which revers millions of deities, almost every place of worship has some distinct and diverse beliefs, rituals and practices. This is the beauty of traditional plurality of Hindu religion unlike the Abrahamic ones which have been streamlined under the unified command of One Book, One Prophet and One Religion. In one of 51 Shakti Peeths in India is a typical example of Maa Kamakhya Temple in Assam, where a menstruating Goddess is worshipped as a deity, women are allowed to enter the premises during their menstrual cycle and no men are allowed in this temple. Only female priests or sanyasis maintain the temple where the menstrual cloth of Goddess Sati is considered highly auspicious and is distributed to the devotees. So the whole argument constructed around the notion of menstruation being impure and considered as a polluted state of body where over-enthusiastic petitioners have gone to an extent of comparing it as Untouchability under Article 17 of the Constitution in Sabrimala case is nothing but convenient misconception. There are several Hindu Temples like Attukal Bhagvathi temple in Kerala, Jagat Pita Brahma temple in Puskar, Rajasthan or Bhagvati Maa temple in Kanyakumari which do not allow men to enter into the temple premises but that does not make it a case of “Discrimination based on Sex” prohibited under Article 15 of the Constitution but is a perfect example of “traditional plurality” existing in Hindu modes of worship.
Similarly the restriction in Sabrimala is never intended to perpetuate any gender discrimination or undermine a menstruating women as an impure physical existence of a body. The basic Customary practice mandates a 41 days Vratam to enter into the premises and since women ranging from puberty and menopause cannot observe this Vratam, therefore they are not allowed, even men also who do not observe this cannot be allowed. The logic behind this practice is that since menstruation is a painful time where stringent conduct of Vrithum cannot be observed and since deity himself has appeared in a strict Celibate form cannot be compromised women belonging to a certain age group are not allowed. This is not the case with almost 1000 other temples of Ayappa because the form of the deity there is not celibate. So the intention behind the practice is to necessitate the observance of Vratam, it is believed that Lord Ayappa himself observed this 41 days strict ascetic conduct before he entered into the idol and since the restriction is not on the entire class of women (limited only to a certain age group) it would never amount to gender based discrimination under Article 15 of the Constitution. It is as simple as this.
3. Problems of Essential practices doctrine
Though Court in this case has rejected both the arguments as to separate denominational status of devotees of Ayappa and the practice as being an essential one but contrastingly the very nature of practice is so important to the very existence of the temple that it will be catastrophic to the faith of devotees who believe in the absolute celibacy of Lord Ayappa, for them it would be an end to their faith and devotion in the form of deity. Though Our Supreme Court has always been fond of assuming the role of clergy but the kind of power they have subsumed here is problematic, the decision in Sabrimala has given the power to the Court to decide How Our God should be? They have acquired an unrestricted power to determine belief, faith and forms of worship of an individual and a community by this decision. This might not look so problematic when it comes to Hindu religion which believes in polytheism but we would face serious consequences of this decision when it will come to decide the form of God of other religions. Sabrimala is a perfect case of penetration of State through instrumentality of Courts into people’s life right upto the level of determing the rationality of the faith of the people and subverting freedom of Conscience under artificial conceptions of Constitutional Morality.
We know that this is an Era of Nationalization of Hindu Temples and bravery of Courts in India is limited to Hindus only. They have always been selective in their approach of reforms in Religions. In a very astonishing Case, Supreme Court, in Zoroastrian Co-operative Housing Society Vs District Registrar Co-operative Societies ruled in favour of by-laws of a society registered under a statute which provided that flat owners in the Parsi society can sell their flats only to people belonging to Parsi Religion and nobody else. Now this is a clear violation of Article 15 of Indian Constitution which prohibits discrimination on the ground of religion but Hon’ble Supreme Court went on to upheld it on the flimsy arguments of freedom of contract despite the fact of the public nature of Housing society and such discriminatory practice would give rise to ghettoization in the country perpetuating communal divide. It is sad but true, we are living in an age where Housing Societies in India have more rights than Hindu Temples.
It looks very strange when somebody tells a matrilineal society like Kerala in general and Hindu Culture in particular to treat women equally. Ours is the only cultural in the world which revers female existence as Goddess and if you will look at the entire cabinet of Hindu deities, Finance Ministry belongs to Lakshmi, Education Ministry to Saraswati and defense Ministry to Kaali. We Hope that our Supreme Court would realise that a religion which believes in “Ardhnarishvara Swaroop” of God i.e., synthesis of masculine and feminine energies of the universe and illustrates how Shakti is inseparable from Shiva would never allow Gender discrimination within its sanctorum sanctums. Sabrimala is nothing but a typical example of plurality of ritualistic traditions and beliefs in diverse Hindu ways of worship which must be respected, it has nothing to do with gender based discrimination or artificially crafted notions of pure or polluted body, hopefully Hon’ble Supreme Court in its wisdom considers it in review of its decision.
– Shubham Tiwari
(The writer is a student at NALSAR, Hyderabad)