September 2018 was a month when a number of remarkable judgments were seen in the history of India and also during the tenure of Former Chief Justice of India (CJI) Dipak Misra. These landmark judgments were of diverse nature, from including decriminalizing homosexuality on September 6 to the judgment on the validity of Aadhaar or decriminalizing adultery on September 27 by striking down the 158-year-old Section 497 of the Indian Penal Code (IPC). Yet another progressive judgment in a line of verdicts that have restored crucial rights to citizens was the Supreme Court’s Verdict delivered on the entry of women in the 800-year-old Sabarimala Temple on September 28.
No doubt, this judgment on Sabarimala Temple is one of the most discussed verdicts till date. This verdict has not only invited praise by giving a boost to gender equality but also received a high amount of criticism from various individuals and organizations. Before stepping in further, first, we need to understand that what is this case exactly? And why is this dispute arising?
As mentioned, on September 28, the Supreme Court of India ended a centuries-old tradition that banned girls and women between the ages of 10 and 50, that are deemed to be the menstrual years, from entering the Sabarimala Temple or also called the Ayyappa Temple in Kerala. Sabarimala is a Hindu temple complex located at the Periyar Tiger Reserve in Kerala. It is the largest annual pilgrimage in the world with an estimated 45-50 million devotees visiting every year. Lord Ayyappa, the deity at Sabarimala, is beloved to be a Naishtika Brahmachari (Eternal Celibate). He abhors the presence of women of “impurity” and like no disturbance to his Brahmacharya. Male devotees on their pilgrimage are also enjoined by custom to practice severe penance including abstinence for 41 days before ascending the 18 steps of Sabarimala to offer their prayers.
In 1991, a division-bench of the Kerala High Court (KHC) had upheld the entry ban saying it is usage prevalent from time immemorial. The rules related to the ban were framed under Section 3 and 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965. The KHC had further held that only the chief priest was empowered to decide on traditions. However, the ban was challenged by a group of women lawyers and in January 2016, the case reached the Supreme Court after a Public Interest Litigation (PIL) was filed by the Indian Young Lawyers Association.
The Apex Court overturned the decision of the Kerala High Court by a five-judge Constitution-bench, headed by the then CJI Dipak Misra. The Bench also comprised Justice RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra. In its 4:1 verdict, the court lifted the ban on entry of women into the temple, saying that it amounted to gender discrimination and it also violates Hindu women’s right to pray and practice religion.
For the Supreme Court, the Sabarimala case was a test of ‘Constitutional Morality’. Justice Chandrachud held that ‘a claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity, and equality. Exclusionary practices are contrary to constitutional morality’. He added it is “a form of untouchability” which should “have no place in a constitutional order”.
It seemed to be an irony that the only woman in the five-judge Constitution-bench, Justice Indu Malhotra, wrote a dissenting judgment, saying that the petition does not deserve to be entertained. She further held, “Issues of deep religious sentiments should not ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and religious practices cannot be solely tested on the basis of Article 14. What constitutes essential religious practice is for the religious community to decide, not for the court”.
But dust is yet to settle on the issue. Though this landmark decision was eulogized by many people of being a major step towards a progressive India, on the other hand, it was highly criticized for the whole another set of reasons. The Sabarimala judgment prioritized Article 14 of the Constitution conferring equality on all citizens over Article 25 giving religious denominations protection of their beliefs, traditions and sacred space, which provoked a great deal of opposition and unease among Hindus all over the country. A number of journalists were threatened and assaulted while they were doing their work, followed by calling off attempts to allow some women activists to enter the temple under police protection.
On November 13, a five-judge Supreme Court bench, led by Chief Justice of India (CJI) Ranjan Gogoi agreed to reconsider its September judgment on the Sabarimala verdict and has fixed January 22, 2019, to take up 49 review petitions called for a reversal of its September 28 judgment.
The Constitution of India is there to break the shackles of injustice, inequities, social hierarchies and entrenched structures that perpetuate discrimination and prejudice. But we have to ponder upon another thought as well and see the other side of the coin. If we are commending the decision taken by the Supreme Court and considering it as a step towards equality, then where is equality for men? There are many temples in India and especially in Kerala where men are not allowed like Attukal Temple where women are regarded as the dominant force or Chakkulathukavu Temple or the Temple of Lord Brahma at Pushkar where married men are not allowed to enter in the temple.
The Hindu way of life involves a blend of the ‘great’ and ‘little’ traditions that are not prone to codification. It is also important to note that women devotees of Lord Ayyappa seem to feel that faith demand that they wait until they have crossed the age of 50 before entering the temple.
The crux of this matter is faith versus the law. Although faith has no rationale and also its relevance cannot be tested against man-made laws but it is supreme in human affairs, and it becomes quite difficult for people to change with the times. It is not discrimination rather it is just exclusion. There are shrines dedicated exclusively to trans genders, to men, and to women as well. Everyone has the right to question and protest, but what you gain in that has to be bigger than the fight. The coming days will tell us whether this judgment would be beneficial or prove to be futile for our country.
Written by: - RASHMEET KAUR.