Sabarimala temple

End of exclusion

Print edition : October 26, 2018

Devotees waiting to ascend the holy 18 steps leading to the sanctum sanctorum of the Ayyappa temple at Sabarimala. A file picture Photo: Leju Kamal

A view of the “Namajapa Yatra” held under the aegis of the Sabarimala Protection Council in Pandalam on October 2. Photo: LEJU KAMAL

Justice Indu Malhotra. Photo: R.V. Moorthy

The Supreme Court in a 4-1 judgment upholds the right of women of all ages to pray at the Sabarimala temple by overturning an age-old custom that it said violated their fundamental right to worship.

IT is anybody’s guess whether young women devotees will throng the hill shrine of Sabarimala during the main pilgrimage season, beginning on November 17, now that the Supreme Court has ruled that the age-old custom of the temple barring the entry of women in the age group of 10 to 50 is illegal and unconstitutional.

The Sabarimala verdict is a radical departure from many past judgments dealing with the sensitive issue of religious customs and traditions, and it has shaken the very foundation of the belief of the Ayyappa faithful that “the practice of celibacy and austerity is the unique characteristic of the deity at Sabarimala and that it required exclusion of women in the menstruating age from entering the temple or worshipping there”.

In its judgment, lauded by many as “transformative” or described as “historic”, the apex court declared: “We have no hesitation to say that such an exclusionary practice violates the right of women to visit and enter a temple to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship.”

The 4-1 majority judgment of the Constitution Bench, with a dissenting opinion from the lone woman judge in it, caught most stakeholders off guard. While it led to disappointment and widespread agitation by Ayyappa devotees, including large numbers of women, within political parties it resulted in confusion about how they should react to such a fundamental change in the scheme of things at Sabarimala.

The Left Democratic Front (LDF) government wholeheartedly welcomed the judgment, and Chief Minister Pinarayi Vijayan said the State would move ahead immediately to provide more facilities for women pilgrims coming to the forest shrine on the basis of the court verdict. “The Supreme Court’s verdict is now the law. The State government is bound to obey the verdict and make necessary arrangements. The government is not planning to file a review petition,” he said. After hesitating initially, the Travancore Devaswom Board also announced that it had decided against seeking a review of the verdict, “based on the legal advice it had obtained”.

With a major pilgrimage season just around the corner, the government moved quickly to arrange more facilities for women devotees at Sabarimala and the base camps at Nilakkal and other places. The floods in August had already stretched the administration to the limit because the camp facilities at Pamba suffered severe damage or had been washed away. There were also varying estimates of the number of additional pilgrims the verdict would bring to Sabarimala. For the Devaswom Board and government agencies, it is clearly a race against time.

The verdict of the five-judge Constitution Bench was a result of a writ petition filed under Article 32 of the Constitution (for the court’s intervention for enforcement of fundamental rights) by Indian Young Lawyers Association seeking directions to the Government of Kerala, the Travancore Devaswom Board and the Chief Thanthri of Sabarimala temple, among others, to ensure the entry of women devotees between the age group of 10 and 50 years to the Sabarimala temple. The petition had said that the right to enter the temple had been denied to them on the basis of certain customs and usage.

It had also sought the court’s direction to declare Rule 3(b) framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, unconstitutional. Section 3 of the Act required that places of public worship should be opened to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b) however sought to exclude women “at such times during which they are not by custom and usage allowed to enter a place of worship”. The petitioners said this rule was violative of Articles 14 (Right to Equality), 15 (Prohibition of discrimination on the basis of religion, race, caste, sex or place of birth), 25 (Right to Freedom of Religion) and 51A(e) (Fundamental duty to promote harmony and spirit of common brotherhood amongst all the people of India) of the Constitution.

A three-judge bench that first heard the petition considered the arguments and framed a list of five questions and referred them to the Constitution Bench in October 2017.

‘Indefensible’

The five-judge Constitution Bench held, on September 28, that the right to practise religion under Article 25(1), in its broad contour, is “a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. This right has nothing to do with ‘gender’ or, for that matter, certain physiological factors, specifically attributable to women’.” Women of any age group have as much a right as men to visit and enter a temple in order to practise freely a religion as guaranteed under Article 25(1).

“Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality,” Chief Justice Dipak Misra and Justice A.M. Khanwilkar said in their main opinion.

The court said the tenets of the devotees of Lord Ayyappa are no different from those that are common to all in the Hindu religion, and the practice of exclusion of women of the age group of 10 to 50 years followed at the temple—which was formalised on the basis of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965—could not be regarded as an “essential practice” of the religion.

It cannot also be said that the non-observance of such an exclusionary practice will change or alter the nature of the Hindu religion. In the absence of any scriptural or textual evidence, too, the practice cannot be considered an essential practice of the Hindu religion. Moreover, the exclusionary practice has not been observed with “unhindered continuity”, and the Devaswom Board had accepted before the Kerala High Court earlier that female worshippers of the age group of 10 to 50 years used to visit the temple and conduct poojas in every month for five days for the first rice-feeding ceremony of their children.

The court also said even a cursory reading of Rule 3(b) divulged that it was ultra vires both Section 3 and Section 4 of the 1965 Act and that the language of both Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicated that “custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship”.

“Any interpretation to the contrary would annihilate the purpose of the 1965 Act and the fundamental right to practise religion guaranteed under Article 25(1). It is clear as crystal that the provisions of the 1965 Act are liberal in nature so as to allow entry to all sections and classes of Hindus, including Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) of the 1965 Rules under the garb of Section 4(1) would violate the very purpose of the 1965 Act.

“The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion,” Chief Justice Misra and Justice Khanwilkar said, while allowing the writ petition.

Justice R.F. Nariman and Justice D.Y. Chandrachud gave separate but concurring judgments, while Justice Indu Malhotra wrote a dissenting one.

‘Religious denomination’

The majority opinion held that devotees of Lord Ayyappa do not constitute a separate “religious denomination” (which would have given it the freedom to manage its own affairs in matters of religion) as enshrined in Article 26 of the Constitution. This, they said, was because Ayyappa devotees did not pass the judicially enunciated “test” for such a status, which required them to have “a collective common faith, a common organisation which adheres to the said common faith and, last but not the least, designation by a distinctive name—meaning that, the said collection of individuals must be labelled, branded and identified by a distinct name”.

In her dissenting opinion Justice Indu Malhotra, however, said that the judicial definition of a religious denomination, unlike a statutory definition, is a mere explanation. It is not a “straitjacket formula, but a working formula”. It provides “guidance” to ascertain whether a group constitutes a religious denomination or not. According to her, the respondents have made out a plausible case that the worshippers of the Sabarimala temple satisfy the requirements of being a “religious denomination”, or sect thereof, which is entitled to the protection provided by Article 26.

She said: “The issue whether the Sabarimala Temple constitutes a ‘religious denomination’, or a sect thereof, is a mixed question of fact and law. It is trite in law that a question of fact should not be decided in writ proceedings. The proper forum to ascertain whether a certain sect constitutes a religious denomination or not would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.”

“Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts,” she said.

Maintainability of PIL

In her minority, dissenting view, Justice Indu Malhotra also raised another important issue: one of maintainability of the public interest litigation (PIL) petition seeking such a remedy when the petitioners are not devotees whose right to worship has been violated but are outsiders. “In matters of religion and religious practices, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The petitioners do not state that they are devotees of Lord Ayyappa who are aggrieved by the practices followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine who are aggrieved by certain practices which are found to be oppressive or pernicious.”

She also said: “[P]ermitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practices even if the petitioner is not a believer of a particular religion or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.”

Article 25(1) of the Constitution says that “subject to public order, morality and health and to other provisions of this Part [III of the Constitution that deals with fundamental rights], all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.

Justice Indu Malhotra said: “The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.”

She added: “Constitutional morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.”

But the majority view was that the term “morality” occurring in the Article 25(1) “cannot be viewed with a narrow lens” so as to confine the sphere of definition of “morality” to what an individual, a section or religious sect may perceive the term to mean. The term “public morality” in Article 25 has to be appositely understood as being synonymous with “constitutional morality”.

Women’s right

In his concurring judgment, Justice Nariman, said the fundamental right claimed by the thanthris and worshippers of the institution on the basis of custom and usage under Article 25(1) must necessarily yield to the fundamental right of such women under the same Article 25(1) as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa.

Referring to the plea of the respondents that the writ petition, which was in the nature of a PIL petition, was not maintainable because “no woman worshipper has come forward with a plea that she has been discriminated against by not allowing her entry into the temple as she is between the age of 10 and 50”, the judge said the present case raised “grave issues” relating to the exclusion of women in the ages of 10 to 50 from the temple on the grounds of a physiological or biological function—which was common to all women between those ages. “Since this matter raises far-reaching consequences relating to Articles 25 and 26 of the Constitution, we have found it necessary to decide this matter on merits. Consequently, this technical plea cannot stand in the way of a constitutional court applying constitutional principles to the case at hand.”

Constitutional vision

In his separate opinion concurring with the majority, Justice Chandrachud also takes the view that Sabarimala is not just a case about right to worship or a mere religious dispute that agitates a community but one of larger import also to social and public life in India. He said: “The transformative potential of the Constitution lies in recognising its supremacy over all bodies of law and practices that claim the continuation of a past which militates against its vision of a just society. At the heart of transformative constitutionalism is a recognition of change. What transformation in social relations did the Constitution seek to achieve? What vision of society does the Constitution envisage? The answer to these questions lies in the recognition of the individual as the basic unit of the Constitution. This view demands that existing structures and laws be viewed from the prism of individual dignity.”

Pointing out that the individual, as the basic unit, is at the heart of the Constitution and that all rights and guarantees of the Constitution are operationalised and are aimed towards the self-realisation of the individual, he said: “This makes the anti-exclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the source from which a practice claims legitimacy, this principle enjoins the court to deny protection to practices that detract from the constitutional vision of an equal citizenship.”

Justice Chandrachud perhaps provides the dominant rationale for the Supreme Court’s verdict. “The primacy of individual dignity is the wind in the sails of the boat chartered on the constitutional course of a just and egalitarian social order,” he said, arguing that “practices that perpetuate discrimination on the grounds of characteristics that have historically been the basis of discrimination must not be viewed as part of a seemingly neutral legal background. Instead, they have to be used as intrinsic to, and not extraneous to, the interpretive enquiry.”

The Sabarimala case has brought the question before the court on whether it is constitutionally permissible to exclude women between the ages of 10 and 50 from the Sabarimala temple. “In the denial of equal access, the practice denies an equal citizenship and substantive equality under the Constitution,” he said.

A claim for the exclusion of women from religious worship, even if it be founded in religious text, should therefore be subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality. “In any event,” he said, “the practice of excluding women from the temple is not an essential religious practice. The court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of ‘purity and pollution’, which stigmatise individuals, have no place in a constitutional order.”

Justice Chandrachud went on to say that “custom, usages and ‘personal law’” (the latter, especially, so far left largely untouched by the courts based on the 67-year-old verdict of the Bombay High Court in State of Bombay vs Narasu Appa Mali) have a significant impact on the civil status of individuals. “Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunise them from constitutional scrutiny is to deny the primacy of the Constitution.” The decision in the Narasu case, “in immunising uncodified personal law and construing the same as distinct from custom”, deserves detailed reconsideration in an appropriate case in the future, Justice Chandarchud said.

The Sabarimala judgment establishes the primacy of individual rights over group rights, even in matters of religion, and opens up the possibility of a flurry of disputes and litigation, given the incredible diversity of circumstances in India in which it would soon be applicable. In her dissenting opinion, Justice Indu Malhotra said: “The issues raised in the writ petition have far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala but for all places of worship of various religions in this country, which have their own beliefs, practices, customs and usages, which may be considered to be exclusionary in nature.”

At the time of writing, with the State Government and the Devaswom Board, respondents in the case, deciding against filing review petitions, other stakeholders have announced their dismay and their own decision to approach the court independently for a review or an interim stay. This included the Nair Service Society, a prominent respondent in the case, the Sabarimala Ayyappa Seva Samajam, the representatives of the Pandalam Palace and the members of the family of Sabaraimala thantris, among others.

Protest marches

The Congress and the Bharatiya Janata Party (BJP) accused the State government of showing “undue haste” in implementing the court verdict instead of filing a review plea, and of “preventing the Devaswom Board from seeking a review”. However, with the LDF government’s firm decision to go ahead with the implementation of the court order, there was much confusion among the BJP and Rashtriya Swayamsewak Sangh, on the one hand, and the State and Central leadership of the Congress, on the other, about evolving a proper response to the verdict and to the grievance of the devotees that was evident in the protest marches and dharnas organised by Hindu organisations in different parts of the State.

The biggest such rally, a “Namajapa Yatra” chanting bhajans, was held on October 2 at Pandalam, believed to be the birthplace of Lord Ayyappa, under the “Sabarimala Protection Council” and was organised by the Pandalam Palace. The president of the palace managing committee, P.G. Sasikumara Varma, said devotees across the country would come together under the apolitical banner “to protect Ayyappa dharma and age-old customs and ritualistic traditions of the Sabarimala temple”.

The yatra attracted an unprecedented number of women devotees too, and they were holding up signs that read: “Ready to Wait.”

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