The Constitutional Bench of the Supreme Court has commenced the hearing into the matter relating to the entry of women to Sabarimala temple this week. While one side of the contention is arguing in support of the age-old traditions and customs of this particular religious denomination, the other side is raising arguments challenging the discriminatory nature of this ban that rests simply on the ‘sex’ of the individuals and the biological process of menstruating.
The ban was formally introduced by the Kerala High Court in its 1991 judgement in ‘S. Mahendran v. Secretary, Travancore Devaswom Board’. The Court held that woman of age group 10 to 50 shall not be permitted to enter the temple “when they are not in a position to observe penance for 41 days due to physiological reasons.” In short, women after menarche (the first occurrence of menstruation) up to menopause are not entitled to enter the temple and offer prayers there at any time of the year.
This judgement went seemingly unchallenged until 2006 when the petitioner ‘Indian Young Lawyer’s Association’ filed a writ petition challenging this along with Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 according to which if as per customs and usages, women at certain time are not being allowed to enter the place of worship then they shall be included in the class of people not entitled to offer worship.
Thus one of the question before the apex court now is whether women will constitute as a ‘section’ or a ‘class’ of Hindus and whether the exclusionary practice simply based on biological factors violates the right to equality under Article 14, anti-discrimination provisions under Article 15 and abolition of untouchability under Article 17 of the Indian Constitution. While the Constitution also guarantees under Article 25 and 26 respectively the right to freely profess a religion and the right to manage religious affairs, these applications cannot be at the cost of an individual’s basic rights being curtailed. In fact, as per clause (ii) under Article 25, this freedom must be exercised in accordance with existing laws. Further, the State has the authority to make new laws for social welfare or for throwing open of religious institutions of a public character to all classes and sections of Hindus. In fact the Parent Act of the ‘Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965’ has been legislated with the intention of making such institutions open to all communities.
The other question that may be raised is a restriction on the grounds of ‘public order, morality and health’ under Article 25. This will require the Court to go into the doctrines of the religion, and adjudicate whether the practice in question is essential, or merely peripheral. The morality aspect here, however, will have to be perceived through constitutional understanding and while keeping gender justice in consonance. In regard of these contentions, the Supreme Court is bound to declare ultra vires the sub clause under this Act, that preaches a vision contrary to that originally envisaged.
Last year itself we witnessed a striking precedent in support of this argument. The Bombay High Court ruling in the Haji Ali case wherein the court held that, “the exclusion of women from the inner sanctum of the Dargah by the Trust violated not only their fundamental right to religious freedom but also their right to equality and non-discrimination under the Indian Constitution.” This is a case with a similar tone where entry had been barred to women on the ground that Islam did not allow them to touch the graves of male saints and that it was hence a sin to enter the inner sanctum where it was located.
The Board’s reason for restricting women is preposterous and reeks of misogynistic notions that tag a woman as unclean and impure for a process that is the genesis of life. In fact, CJI Dipak Misra during the three bench hearing was quoted as saying, “how can menstruation be linked to purity.” This is nothing but a male edified practise that rests on concepts that victimise women. The deity of Lord Ayappa being a celibate who may be deviated from his austerity by the presence of women. The same ideology that is employed to justify cases of sexual abuse; “she was wearing a short dress, she asked for this.”
The other party to this controversy is the Government of Kerala which was supporting the ban until recently. Last year their affidavit read that, “the restriction doesn’t discriminate against women, but simply bars a certain age group from entering.” However now, they have lent their support to the entry. The bench expressed wonder at the frequency with which the State had been changing it’s stand.
It is indeed astonishing to see the support this ban has been receiving. In 2006, a Kannada actress claimed publicly that she had entered the temple and even touched the idol while she was shooting for a film back in 1987. Subsequent to this revelation, a ‘purification ceremony’ was performed by the priests along the temple steps. The uproar this caused among the public, that was furious at the boldness with which this women had defied this age old custom, was so intense that the police finally registered an FIR against her. What kind of religious practise and spirituality is this that is limited only to a certain set of people? The right to pray is a basic fundamental right linked directly to well being of the body and the mind. Such incidences are a witness to the archaic concepts of patriarchy that dwell within our social fabric.
The shackles are so strong, that even those bound by them fail to see the hands that suffocate them. The misconceptions and misogyny are so ingrained that often our biggest battles become the women themselves. It is challenging simply to initiate a discourse around why they should be proud of their ability to bleed, they often look down upon us with fury and disbelief. Almost as if we utter blasphemy. Cases such as these are macro-level battlegrounds on such issues. When positive interventions at such levels are introduced, it opens doors for reforms that otherwise would have been more challenging.
This case is also a mirror reflection of the myriad deep issues that India is battling today. The gender stereotyping exists within all communities with its said roles for women. The notion that women are ‘objects of temptation’ that will sway the brahmachari from his celibacy. The continued misconceptions and rigid understanding around the issue of menstruation so deeply seeped that it is difficult for women to access basic healthcare rights and acquire primary information necessary for their well being.
by Koshika Krishna