Sabrimala Sree Dharma Sastha Temple , dedicated to Lord Ayyappa , is the most famous and prominent among all the Sastha temples in Kerala . It is believed that the deity worshiped in this temple happens to be celibate . In 1991, the Kerela High court restricted entry of women above 10 years and below 50 from Sabrimala temples as they were at menstruation age .This restriction became controversial with the understanding that it violated the principle of Equality and it establishes gender discrimination. 27 years later the Supreme court overruled the ban and held that discrimination against women on any grounds, even religion is unconstitutional. Fundamental issue has been the inability to strike a distinction between diversity and discrimination, between uniformity and equality.The entry of Sabrimala temple is continuously compared with Untouchability, Sati pratha , gender discrimination etc. Even after the presence of religious aspects this came intro controversy which had got judiciary to interfere and interpret. It is important to understand that the place of worship is not Secular by defination it is a religious place .When it comes to Hindu faith it believes in diversity of spaces there are specific species which are dedicated to a specific form of energy and there are specific species which are open to everyone if this particular faith diversity is finished through the weaponised form of equality which is nothing but standardization there by it will result in loosing the originality of Hindu faith which will be against Article 25 and 26 . This paper will elaborately explain about the Historical background of Sabrimala temple followed with its . Further it will be explained that exclusion is not discrimination followed by the genesis of the controversy. Subsequently the debate on restriction of women which lead to judicial intervention in the famous case of (Young Lawyers Association & Ors. vs. The State of Kerala & Ors) will be focused further it will focus on the important concern that is exclusion is not discrimination.
HISTORICAL BACKGROUND
The Sabarimala temple is known to be one of the most renowned Hindu temples in India. The shrine which is at Sabarimala is dedicated to the ancient god Ayyappa, who is also known as Sasta and Dharmasastra. Sabarimala Sree Dharma Sastha Temple, dedicated to Lord Ayyappa, is the most famous and prominent among all the Sastha temples in Kerala. The temple is located on a hilltop, about 3000 feet above sea level, named Sabarimala inside the Periyar Tiger Reserve in perinard village, Pathanamthitta district, Kerala,India and is unique. People of all faiths can enter the temple. Ayyappa Swamy is one of the gods of Hinduism, who is mainly worshiped in different parts of southern India. He is also considered as one of the forms of lord Kartikeya and is also worshiped by the names such as Sastavu, Hariharasudhan and Manikanth. Ayyappa Swamy has many famous temples in south India but the most famous and recognized temple is Sabarimala temple. In ancient time when caste discrimination was very evident . The Management of the temple is further undertaken by the Travancore Devasom Board Sabarimala temple had no trace of such discrimination. People of all caste and creed are allowed in the temple except for women from the age of 10 to 50 years. It is believed that lord Ayyappa is popularly celebrated as “Naishtika Brahmachari” which means a celibate for life and hence , regarding this there was the notification issued by the Devaswom Board which banned the entry of women of the particular age group.
Religious matter should not be made secular
Every temple has a tradition with respect to the mythology it subscribes, to the history it subscribes, from where the tradition flows. In this case the deity of Sabarimala , lord Ayyappa has taken up on himself, the vow of Nastika Brahmachariya. It is equally a tradition which is observed by lot of Sadhus, who are not meant to come in touch of women . It is not based on Misogyny. There could be the reciprocal rules with respect to women and their contact with men. It’s not something that is entirely directed at women based on discrimination. This is the worst possible myth that somehow these people have managed to put it out in public domain. The rule of that school require that you do not come in contact with women who still have reproductive capabilities. Now they have twisted this entire argument into hindus hatred or stigma associated with mensuration. There are temples in this country which worshipped the physical process of mensuration. The Kamakhya temple. Therefore using particular instance, that too with truncated knowledge of the history of the particular temple, to brand the entire institution and use it as the launch pad for banding the entire community is unfair.
Supreme court mentioned citing Article 165 of the Indian constitution, with respect to appointment of priest in the Madurai Meenakshi temple saying that “ Respect the Agama or scriptures, that apply to a temple as long as they are not negativity discriminatory. It means that you are entitled to select a few people in terms of Ingress and egress , on positive attributes. But if they say this person of this caste shall not enter the particular place, that tradition has no business being in modern India , constitutional India. But if it says no women is allowed in a particular place which is a religious institution however it gave its reason behind which was faith and practice, it has given an age group and it follows certain tradition based on certain aspects , which most of the people may not believe in , or even if they believe they would not want to say that they believe in it. Tradition of Devaprasana which is actually followed in Sabarimala ,where the tradition is that the chief priest will have a dialogue with the deity and people are selected based on several consideration like horoscope etc. so such practices are followed since the beginning which shall not be compared to the feminism and discrimination or any other aspects . This is clearly a practice of religious belief which has to be respected as it is the fundamental rights under Article 25 and 26 of the Indian constitution.
Genesis of the controversy
Most of the people assume that this is a relatively recent developments which started in 2016 but the fact is that there was the judgement of division bench of Kerala High court which was delivered in 1991in the case of S. Mahendran V The Secretary, Travancore (1991).This was the first time the issue attained the fair amount of attention. Issues raised was that temple board and government were violating the tradition and practice of the temple by accommodating a lot of VVIPs and breaking the custom with respect to the entry of women of a certain age group as far as that particular temple is concerned. It is in that context that the judgement was passed and it’s a fairly detailed judgement where there was representation from women’s group including women lawyers who were part of particular decision and therefore very same issue which were discussed before the supreme court had already been adjudicated in detail by the Kerala high court in 1991. So, the court had actually come up with the clear findings with respect to whether Ayyappa devotees constitutes a religious denomination under Article 26 then what is the basis of this practice? Is it a complete negative discrimination or is it a restriction based on Nexus with mensuration or nexus with the celibacy nature of the deity.After this judgement for 16 years there were no protests of women’s rights or any trace of discrimination with respect to the restriction of entry . There was no subsequent appeal from the Judgement of Kerala High court.
Later the writ petition of 373 of 2006 was filed before the supreme court by the Indian young lawyer association while this is not technically an appeal from the judgement of division bench of Kerala .It is almost a different set of petitioner and a different set of parties who were not parties to the proceedings before the Kerala high court. They choose to go the supreme court directly accelerating this issue in that writ petition effectively raising the same set of issues. However, the critical distinction is that in this particular petition they challenged rule 3b provision. Which is rule 3b of the temple entry rules of 1965 which places near on the entry of women from the certain age group depending on the custom. Now that rule of restriction does not only apply to Sabarimala temple. Those rules were issued in 1965 codifying the pre-existing practices of all temple in Kerala, therefore this rule complied on all temples of Kerala which have the same tantrik basis. So, they challenged this particular rule especially in the context in its application to Sabarimala Temple and apart from this there was also prayers seeking for the gender equality at all places of worship. It was not limited to any single place.
It was in 2016, that the case reached the supreme court after filling of a public interest litigation by the Indian young lawyer association.
Background of Case
In 1990, the petition was filed in the Kerela High court by S. Mahendran where he demanded the ban on the entry of women (10-50 age) into the temple because the god Ayyappa is present in the temple and he is Brahmachari (Celibate).
S. Mahendran V The Secretary, Travancore (1991)
In this case, the verdict came in the favour of the petitioner and this verdict restricted the entry of women (10-50) into a temple.The High Court stated that this verdict of restriction is based on the old traditional rituals and it doesn’t violate articles 14,15,25 &26 of the Indian constitution, and also it doesn’t violate the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. And also stated that there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple .while the ben is only in respect of women of a particular age group and not women as a class.
Indian young lawyer association v. the State of Kerala
After the decision of the high court, In 2006 The Indian young lawyer Association Filed a PIL in the Supreme court and re challenging the practice of excluding women in Sabarimala temple.The appellant (Association) claimed that:
The temple violates the fundamental rights of women that is Articles 14, 15, 17, and 25 of our constitution.
Ø Article 15 said that “prohibition on the basis of religion, race, caste, sex or place of birth”.
Ø Article 25 said that “freedom of conscience and free profession, propagation and practices of religion
Ø Article 26 said that “freedom to manage religious affairs”.
And the respondent (State) contended that:
The Temple’s priest or The Travancore Devaswom Board has the legal authority to Regulate the Sabrimala Temple’s Administration,
Article 26 of the constitution, guarantees a religious denomination has the right to manage its internal religious affairs. And, the exclusion is also governed by Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965, (Public worship rules) The rule allowed the exclusion of women from public places of worship if the exclusion was based on custom.
Rule 3(B)
It is provided that in the case of a place of public worship founded for the benefit of a particular religious denomination or section thereof, the provisions of this section shall be subject to the rights of that particular denomination or section, as the case may be, to manage its affairs in religious matters.
Then, On 7th March 2008, the case was overlooked by 3 judges bench that was Mr. Raju Ramachandran and Mr. K. Ramamoorthy, Senior Counsel( Amicus Curiae). They analyze the case and framed fundamental questions for reference to the Constitution Bench:-
- Does the ban of women to enter in temple violates the right to equality, right against untouchability & the right against discrimination.?
- Does the prohibition of women at Sabarimala was an ‘essential religious practice’ and who decided that it is a essential relegious practice and what is the reason behind it?
- Does the Ayyappa temple is ‘relegious denomination’ or it is a subgroup under any religious organization?
- Does the public worship act allow a prohibition on women?
Then the case was referred to the constitutional bench.
Constitutional Bench’s Judgement
For this case, the bench consisted of 5 judges that were Dipak Misra(CJ), Nariman (J), Chandrachud(J), Khanwilkar (J). and Malhotra(J).On 28th September 2018, the 4:1 majority gave the verdict that the restriction of women is unconstitutional and that Rule 3(b) of Kerala Hindu Places of Public Worship(Authorization of Entry) Act 1965, (Public worship rules) is also unconstitutional.
CJI Deepak Mishra stated that Unlike other temples in India, Sabarimala temple is not affiliated with anyone’s religious denomination, so there will be no barriers to prevent anyone from entering. Since it is funded by the consolidated fund of India, Sabarimala temple is a public place.
Whereas Justice Indu Malhotra dissented. In her dissent, she stated that The court should not normally interfere with deep religious sentiments. The Sabarimala shrine and its deity are protected by Article 25 of India’s Constitution, and religious practices cannot be tested solely through Article 14. In his opinion, it is the religious community’s responsibility to determine what constitutes essential religious practice, not the court. India is a diverse country where constitutional morality would allow everyone to practice their beliefs. The court should not intervene unless there is a person aggrieved by that section or religion.
Sabarimala Review Petition
In the same year, more than 40 petitions seeking a review of the given judgment were filed by several organizations like the National Ayyappa devotees association, All kerela brahmin’s Association, etc.
On 13th October 2018, the Supreme Court reviewed the petition and the chief justice was Justice Ranjan gangoi. and after one year on 14th November 2019, the 3:2 majority of the bench gave the judgment to keep review petitions pending and the Supreme court also stated that the 2018 judgment would be enforced until the review petition was decided.
EXCLUSION IS NOT DISCRIMINATION.
Privacy of the deity . If the Devotees have rights, doesn’t the deity himself must have the rights. For instance any company have the fundamental rights they are not even natural persons in the eye of the devotees the deity is a natural person. He exists then why shouldn’t the deity have rights. It is important to note that the temple is of religious context based on religious believe and practice. the deity worshiped is a celibacy in nature. Thereby the rights and privacy of the deity and the belief of the devotees should be respected rather than implementing secular thoughts practices in religious matters and involving the judiciary in the religious matters.
The issue arises when this religious belief is questioned which has nothing to do with any equality and discrimination but only belief.Kamakhya Temple in Guwahati celebrates Ambubachi Mela which is organised where we celebrate the Devi’s Mensuration. In Orissa, Raja festival is celebrated in Odisha. It is a three-day festival dedicated to womanhood and marked by the belief that Mother Earth experiences menstruation, similar to women. The festival is also known as Raja Parba or Mithuna Sankranti and is celebrated during the Odia month of Asadha, which falls in June. In Kerela there are approx 20 thousand Ayyappas temple among which the 5 temples are called as Panchshastra . In all these temples Ayyappa is only the deity . Among these 5 temples , only the one that is Sabarimala temple restricts women from entering however the other 4 is open to all . The one temple which is of the Sabarimala temple is restricted to certain age group of women because the deity happens to be Nastika Brahmachariya. So if one believes in Ayyappa then she may go to any 4 of the other temples where the deity is same. Also there are two lady sabarimala temples, namely Attukal Temple is widely known as the “Sabarimala of Women” due to the massive annual Attukal Pongala festival, which is a major event for women. Mala Ayyappan Temple, though not as widely known, also celebrates Pongala during the Makaravilakku festival, which is held at the same time as the Sabarimala festival.Where millions of women comes to practice and no men are allowed . They practice Pongala which is mentioned in the Guinness world record . For the largest congreation of women but no one mentioned about this. They address the banning of women in Sabarimala temple as discrimination calling the belief as misogynistic then what would they say about the lady sabarimala temples where men are not allowed. This has never became an issue but the restriction of entry of women in one temple became an national issue where the judiciary has to interfere. It’s just the same where a man goes in a women’s college for the admission as if they can only get right to education by getting into that particular college.
The deity is out of the town and advised that those who wants to meet him they shall come to his place with following the regulations so why should we impose our personal will . There are many Hindu women’s from kerela who has no issues with this regulation then why is it an issue for those people who are not even the devotees or the believers. Their personal will and interests cannot be imposed on any religious institution.
In the judgement of Sabarimala the dessenting judge justice Indu Malhotra said “ Notion of Rationality cannot be invoked in matter of Religion “. We must put the logic and science out when we enter any religious place . Also the Sabarimala temple issue is referred to untouchability and sati pratha however it has no clarity about diversity and discrimination.
A secular progressive state that removes discrimination as was in the case of Sabarimala temple in Hindu religion but was silent when it comes to another religion is not a sign of a secular progressive state. They are Muslim Women who cannot enter Mosque. So why this removing discrimination against one women.
The original reaction in the Hajiali case was that we don’t want to get into this because this is a religious issue ,it has been implemented? Because the statement made by the board of Hajiali was that entry of women is a sin for women to come in touch of even be in the proximity Dargha or mosque because it is impure. No one representative of Travancore Devaswam board to make this statement, they will not because this is not the truth . Still they has to face the consequences of getting questioned for their belief and protecting the sanity of their deity . Is this secular or is this even constitutional? No not at all . Violating religious belief just because a group of women cannot enter and letting other religions do utter discrimination without any explanation is fair but restriction of women of certain age group also stated with proper explanation is unfair .
CONCLUSION
Article 25 which provides freedom of conscience and free profession, practice and propagation of religion. And Article 26 that provides with the freedom to manage religious affairs. Both are present in part 3 of the Indian constitution which provides with the Fundamental rights. Interface of judiciary in these matters and held the practice of devotees of Sabarimala temple is unfair. The restriction behind the entry of the women has a valid reason that is the deity happens to practice celibacy. The deity is believed to be alive asper the devotees so he has the rights to privacy also his temple is out of the modern city where the people who has belief in him can go and visit him asper the regulations. The Hindu women in Kerala has no objection in this restriction then why the non believers oppose the practice violating the Article 25 and 26 of the constitution. The propoganda raised is that Hindu religion is Misogynistic as they had banned the entry of women due to mensuration . But it’s just a false propaganda that has been spreeded in order to be a secular progressive state that removes discrimination.
Then why is it only with the Hindu religion and this progressive state is not with other religion. Any belief or any practice of religion cannot be questioned or interfered by the State. This has to be understood that the religion is only the personal affair of the believers and not the secular matter. Thereby this article elaborately explained about the concept that exclusion is not discrimination and this issue of Sabarimala should not be compared with the Untouchability and Sati pratha. Also explained the historical background of the Sabarimala temple and the reason behind the restriction of women of certain age is that the deity in Sabarimala temple has taken the vow of Nastika Brahmachariya and everyone should respect the belief and sentiments of this religion also as they respect the others.
Author: Ripika Singh
Juris Centre 