The Lone Dissenter
Isn’t it amazing? We’re so bound by customs and rituals. Somebody just has to press my button, this button marked Tradition, and I start responding like a trained monkey. Do I shock you? “
When Sita, one of the two female protagonists in Deepa Mehta’s film ‘Fire (1996)’ expresses her discontentment towards the patriarchy she was subjected to, in her everyday middle class, urban household, bound by strict ties of religion, it draws our attention to the deep internalization of traditions in women by processes of socialization. Women of all section in society fall prey to such conditioning and often tend to defend regressive ideologies. The much debated Sabarimala judgment is a classic example.
On 28th September,18 Justice Indu Malhotra, the lone woman on a five judge constitution bench in Supreme Court dissented with the 4:1 majority verdict, which declared the practice of barring entry to women in Sabarimala temple between the ages of ten and fifty as unconstitutional.
History Of Sabarimala
Lord Ayyappa, the son born out of the union between Lord Shiva and the mythical Mohini, who is also perceived as an avatar of Lord Vishnu, as it is believed by many, was abandoned by his parents on the banks of the Pampa river. He was then adopted by King Rajashekhara, the childless monarch of the Pandalam Dynasty. The king later realized the divinity of his child and decided to build a temple in his honour. The lord shot an arrow at Sabarimala where the temple was constructed by the king.
The deity at the Sabarimala Temple is in the form of a ‘Naishtik Bramhachari’, who practises strict penance and the severest form of celibacy. The devotees of lord Ayyappa undertake a pilgrimage each year in four stages. The pilgrimage starts with a 41 day ‘Vratham’ or periodic fast which is observed by strict codes to ensure mental and physical purity. The later stages include travelling to the pilgrimage site, bathing in the river Pampa and finally ascending the sacred eighteen steps to the shrine for the final ‘darshan’.
The official website (http://sabarimala.kerala.gov.in) which looks over the processes of pilgrimage, states that, “Ayyappa cult gifts much importance for secularism and communal harmony and has turned out to be a model for the whole world; pilgrims whether rich or poor, literate or illiterate are all equal before Lord Ayyappa”
Despite such claims, menstruating women between the age group of 10 to 50 years are, or at least, have been excluded from this imagination of a collective religious solidarity.
The legitimacy of the exclusion of women from the Sabarimala premises was sanctioned by the legislative act of the “Kerala Hindu Places of Worship (Authorisation of Entry Act), 1965”. Rule 3(b) of the act states, “Women who are not by custom and usage allowed to enter a place of public worship, shall not be entitled to enter or offer worship in any place of public worship.” However, this is in contradiction with section 3 of the same act which states that, places of public worship are to be open to all sections and classes of Hindus. The judgment counters the provisions of this act under Articles 14 (equality), 15 (non discrimination), 17 (untouchability), Article 25(1) (freedom of worship) and Article 26 (freedom of religious denominations to regulate their own practices).
While the four judges expressed their views against this practice by pointing out its inherent gender discrimination, Justice Indu Malhotra countered by arguing that the right to equality cannot override the right to worship. This attracted severe criticism from various luminaries.
Arguments And Counter Arguments-
In the following section, an attempt has been made to review the arguments made by Justice Malhotra in defense of her standpoint-
Article 14 states that the State shall not deny to any person equality before the law on grounds of religion, race, caste, sex or place of birth. Malhotra argues that this article can be ‘invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect’; a definition which disqualifies the petitioners for they are conceived of as third party interveners in this case.
Her argument therefore expects people, especially the women belonging to this community to fight for their own cause. However, the deep internalization of patriarchal religious values may restrict them to recognize their own forms of oppression. There is also an attempt to relegate this issue to the realm of internal affairs which is exclusively expected to be taken up within the community. On the prima facie, it appears that she expects the so called ‘third party’ or the petitioners to oversee the issue as mere passive spectators. However, this is not simply a matter pertinent to the community in question. While the temple remains open to all men irrespective of their class, caste, religion or race, it denies access to space to women on grounds of their physiological attributes. This makes it a subject of gender discrimination. Hence, every citizen, regardless of their individual social positions, has the right to question such customary practices that privileges one group while marginalizing the other.
Article 15 2(b) asserts that no citizen on grounds of sex can be subject to any disability, liability, restriction or condition with regard to places of public resort. The appeal of the Amicus Curae to include the temple as a ‘place of public resort’ is invalidated by Justice Malhotra on grounds that there was a “conscious deletion” of “temples” and “places of worship” by the constituent assembly while writing the Indian constitution.
Article 17 abolishes ‘untouchability’ and its practice in any form. Historically, untouchability was never understood to apply to women as a class and was simply understood as untouchability based on caste prejudices. Hence, Justice Malhotra mentions that this particular form of exclusion would not tantamount to untouchabilty.
The counter arguments presented by Justice Malhotra in rejecting the merits of Article 15 and Article 17, comes from a restrictive practice of constitutional interpretation through an ‘originalist approach’ which is based on the intent of the framers of the Constitution at the time of drafting the text. Thulasi K. Raj writes in ‘Ways to read the Constitution’ that over time, originalism as a method of constitutional interpretation has been subjected to serious criticism while the ‘living tree’ doctrine has gained prominence as an evolving and organic instrument to understand the same. This calls for a thorough review of traditional institutions like caste and religion through novel approaches. Therefore, the exclusion of women from religious spaces on the grounds of them menstruating is a specific form of untouchability and social segregation. In this case, women belonging to the restricted age group become a caste category in itself, subordinated by men, within religious dogmas of purity and pollution. Menstruation is viewed as a social taboo which dismantles the ceremonial purity that Ayyappa community tries to preserve. Caste here is not perceived of, as an individual or a social or cultural group, but rather as a tool of oppression to create a sense of hierarchy between genders.
Article 25, states that all persons are equally entitled to freely profess, practice and propagate their religion. Over the years the Supreme Court has developed a doctrine of ‘Essential Religious Practice’ which is protected under this article. Justice Malhotra contradicts the majority judgment and sides with the ‘Travancore Devaswom Board’ for holding exclusion of women as an ‘essential religious practice’, thereby guaranteeing protection to this custom under Article 25. In absence of any scriptural evidence, she solely leaves this determination to the Ayyapan community itself. She further argues that the courts should not delve into the rationality of religious practices thereby trying to determine which practices of a faith are to be struck down, except for the ones which are pernicious, oppressive, or a social evil, like Sati.
Article 26 gives freedom to every religious denomination to establish, maintain and manage its own affairs. As per the S.P. Mittal vs. Union of India & Ors (1982), a religious denomination must be a collection of individuals who have (1) a common faith; (2) common organization; and (3) designation by a distinctive name. It was contended by petitioners that the devotees of Lord Ayyappa do not constitute a religious denomination as they do not have a common faith, or a distinct name. The devotees are not unified on the basis of some distinct set of practices. Every temple in India has its own different set of rituals. It differs from region to region. In contradiction to this view, Justice Indu Malhotra, taking a ‘liberal interpretation’, accords the Ayyapans as a separate religious denomination.
Both these constitutional rights portray the contradiction between individual and collective faith systems. While pre-modern societies were governed by traditional religious bodies in public realms, contemporary societies have its own modern forms of governance, such as the state and judiciary which perceives religion as a private affair giving the individuals freedom to choose and practice their faith. This is not to contend that religion as a governing institution has completely disappeared or that its influence in social, economic or political domains has decreased in impact. Rather it suggests that religion has morphed into different configurations in modern societies and hence we need more holistic approaches to comprehend its complexities.
Justice Malhotra’s understanding of the “essentiality” of religious practices in Ayyappa community is flawed, because they are not formulated in isolation, but rather are influenced by patriarchal structures which establish an ideological hegemony within the religious group. The rationality of any religion or a particular ritual is mostly determined and propagated by the male leaders and members in the group. In order to perpetuate their domination, they tend to devise customs, often by the irresponsible interpretation of traditional texts, which consequently results in the subordination of women.
Further, her argument around demolishing certain social “evils”, while accepting others as “essential”, hierarchises violence and justifies it. Until a woman is burnt alive or experiences violence which is as ‘severe’ as Sati, she is expected to endure other “inferior” forms of violence.
Justice Malhotra sets a dangerous precedence by stating that courts should not delve into the rationality of religious practices. One should not forget that if it were not for the judiciary’s activism, the rigid societal structures would have still clawed on to the unbending orthodoxy.
The arguments put forth by the respondents revolved around the sacrality and strict code of celibacy performed by the deity, Lord Ayyappa. The onus to uphold the man’s sanctity of celibacy henceforth falls on women which is analogous to the popular belief that women should be barred from spaces to pave out opportunities for men to fulfill their ambitions.
Nevertheless, Justice Malhotra’s concerns should not be read in void as they engender the intricate fabric of our religious and societal vulnerabilities. One may argue that, just as the Dowry Prohibition Act and other such progressive judgments still remain largely unheeded, this judgment may as well be reduced to a mere piece of judicial advocacy. The prerequisite of this judgment would have been to find ways to sensitize the community and garner support from the Ayyappans themselves. Unless, the oppressed do not realize their oppression, any reform in their favor will eventually be redundant.
However, such anxieties cannot form sufficient grounds to negate the judgment completely, for it is one thing for women to be given a choice of mobility at their own behest and quite another to put a blanket ban on their freedom to access religious spaces.
Amidst this convoluted debate, history once again establishes that the carriers of both oppression and emancipation are always the men.
By Pragya Roy & Prakhar Singh