On 1 August, the Supreme Court of India reserved its judgment over the vexed issue of barring entry of women between 10 to 50 years of age into the famous Hindu pilgrimage shrine of Lord Ayappa, located around 1200 metres above sea level in the thick of the Periyar Tiger Reserve, Sabarimala, Kerala.

The contentious issue has been extensively covered by the national media which nudges to offer an easy resolution. Indeed, it is nobody’s case that in today’s date, temples should be open to people of all caste, communities and sex. Yet, when the Supreme Court began adjudicating the matter, it became apparent that the case offers no easy resolution.

So, what exactly changed? How did the intervening respondents manage to offer a formidable defence of the custom that ex facie discriminates against women on the basis of their sex?

To answer these questions we have to indulge in some introspection of our own. But, before that, it would be prudent to briefly highlight the constitutional provisions involved in the matter and the statutory provision under challenge.

Legal context

The provision under challenge is Rule 3(b) of the Kerala Places of Public Worship (Authorisation of Entry) Rules, 1965 enacted under the Kerala Places of Public Worship (Authorisation of Entry) Act, 1965, which prevents women from offering worship as per custom and usage. Under the aforesaid rules, the notification of Travancore Devasom Board stands valid that prevents women between the 10-50 age group from entering Sabarimala Temple due to the Nithya Brahmacharya observed by the deity.

As far as constitutional provisions are concerned, Article 14 calls for equality before the law and renders any action unconstitutional that is arbitrary in nature. It has been argued that the practice violates Article 14 since it bars women alone, and is arbitrary as it is based on just physiological factors.

Further, Article 15 prohibits discrimination on the basis of sex and has specific provisions for ensuring equal and open access to public places maintained out of government funds. Thereafter, Article 21 ensures the dignity of an individual and it is the case of the petitioners that the practice perpetuates the stigma cast on women of being polluted during their menstruation cycle.

The Supreme Court wasn’t convinced on the application of Article 17 pertaining to prohibition of untouchability; therefore, we shall not go into the analysis of its application. Lastly, there are Articles 25 and 26, which govern the matters of faith, religion and conscience. Article 25(2)(a) allows the state to intervene in the interest of public order, morality, and health, and subsection (2)(b) allows the state to impose regulations and restrictions on the secular aspects of religious places and practices. It is the case of the petitioner that such reform is necessitated in Sabarimala Temple as temple entry would be one such secular practice. Finally, there is Article 26(b) that allows for religious denominations to manage their own affairs in the matter of religion.

The constitutional provisions and the arguments allow the flow of some basic questions that demand answers before the scales can be tilted in the favour of one side or the other.

The case of the petitioner heavily borrows from the presumption that the criteria for having this age limit is due to the beginning of the biological process of menstruation, and as the process itself is stigmatised with notions of impurity, it forms the basis of prohibition. The first question, therefore, that needs to be answered is whether the practice of prohibiting women from the temple is based on the skewed perception of menstruation?

Second, for argument’s sake, we assume that the practice is not based on the notions of impurity attached with menstruation; the question remains why can’t the state or the Court still move ahead and remove the restrictions for the sake of simple egalitarianism?

To answer these questions, we also need to further inquire two things: first, is the practice of barring women associated with the secular (non-religious) aspect of the temple, and therefore, can be interfered with? Further, does the Sabarimala temple, devoted to lord Ayyappa, together with its devotees, constitute a religious denomination that has a right to manage their own religious affairs under Article 26(b)?

Finally, in the tussle of the reformist visions under Article 25(2)(a) and (b) and the restrictive provision of Article 26(b), which should be given more weight; and can they possibly be reconciled?

In order to answer these questions, we need to briefly recount a few Supreme Court judgments. In the famous Shirur Mutt case of 1954, the Supreme Court laid down what later came to be known as the ‘essential practice’ doctrine. In this judgment, the court held that the essential part of a religion is primarily to be ascertained with reference to the doctrine of that religion itself. This ‘essential part’ of the religious denomination was constitutionally protected under Article 26(b) and thus granted complete autonomy in the matter of deciding what rites and ceremonies are essential to the religion.

In Sri Venkataramana Devaruand vs The State Of Mysore (1957), the Supreme Court recognised Gowda Saraswat Brahmins as a denomination and in the process, also laid down the parameters for the relationship between Article 25(2) (b) and Article 26(b). It held that if the denominational rights are such that to give effect to them would substantially reduce the rights conferred by Article 25(2) (b), then Article 25(2)(b) would prevail over Article 26(b). However, if something substantial of Article 25(2)(b) is still left after the recognition of denomination rights, then Article 25(2)(b) would be construed to recognise denominational rights under Article 26(b).

In Raja Bira Kishore Deb v. State of Orissa (1958), the Supreme Court held that the identity of a religious denomination consists in the identity of its doctrines, creeds and tenets; and the identity of the religious views are bonds of the union, which binds them together as one community.

In S.P Mittal vs Union of India (1982), more famously known as the Auroville case, the Aurobindo Society contested for itself being a religious denomination. The Supreme Court laid down the conditions for a particular religious entity to be classified as a religious denomination. These consisted of having a system of beliefs or doctrines, which are conducive to their spiritual well-being, common organisation, and designation by a distinctive name.

Finally, in T. Krishnan v. Guruvayoor Devaswom (1977), a five-judge bench held that no tampering with religious rights can be countenanced so long as the constitution stands as it is today.

Tenability of the Ban

It would be prudent to look at the origins and the exact reasoning behind the practice of barring women aged between 10 to 50 years from the Sabarimala Temple in context of the aforementioned decisions by the Supreme Court.

It is important to note that the matter was dealt by the Kerala High Court in its judgment S.Mahendran vs Travancore Devaswom Board (1991), which both sides in the current case have heavily relied on. The Kerala High Court had upheld the practice, finding it not violative of Article 15, 25 and 26. However, in the judgment, the Devaswom Board had submitted that the practice wasn’t a continuous and all-pervasive restriction, and was based on the notion that the penance of 41 days (vartham) observed before the darshan (viewing) of the deity could prove to be impossible for a women till the time she experiences menstruation due to physiological reasons.

This has been cited by the petitioners as the source of the practice based on skewed presumptions about a perfectly biological phenomenon, which in itself doesn’t carry any physical disadvantages as it is presumed.

Further, it was submitted by the Board that the deity, being a ‘Brahmachari’ (celibate), has to observe certain rules of conduct, which include refraining from indulging in gambling with dice, idle gossips, scandal, falsehood, casting lustful eyes on females, and doing injury to others. Thus, young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by such a presence. This perpetuates textbook stereotypes against women as sex objects – presumably, since the stereotypes weren’t mentioned in plea but have been debated in public sphere.

However, there is nothing on record that directly shows that the practice was based on the impurity of the biological process.

The intervening respondents, on the other hand, raised a plea that was accepted by the Kerala Court in its judgment that in the matter of religion, the opinion of the ‘Thantri’ (priest) and not of the Devaswom Board is to be accepted. This is because the Board is responsible only for the administration and management of the temple. The Thantris of Sabarimala and of various temples in Kerala had submitted in front of Kerala High Court that the practice is based on the kind of ‘Brahmacharya’ (celibacy) adopted by the Sabarimala deity, which is Naisthik Brahmachari. The word “Naisthikan” denotes a student who accompanies his guru wherever he goes to learn Vedas from him – in short, it means eternal.

In order to support the contention of it being a religious practice, the origins of the practice were traced back to texts like Sri Bhoothanathan (dialogue with Lord Ayyappa, much like dialogue of Arjun with Lord Krishna from Gita) and Sridhara Swami’s commentary on Srimad Bhagavatam detailing the rules to be observed for an individual subscribing to the ‘Brahmacharya’ (celibate) way of life and living.

Further, they drew the Supreme Court’s emphasis on the relevance of Agamas – instructional texts that guide all the religious aspects of the temples – in Seshammal v State of Tamil Nadu (1972), wherein the court disregarded the contentions of the rituals being superstitious and irrational. Thus, they argued with a certain conviction that the practice was wholly religious and not based on the notions of impurity. Indeed, there was no mention of menstruation related impurity as the basis of denial of the entrance.

The interveners also placed on record various temples that celebrate the process of menstruation like the Kamakhya Temple in Guwahati, Assam and the Chengannur Mahadev Kshetram Temple in Kerala negativing the contention of religious abhorrence to the biological phenomenon of menstruation.

Embed from Getty ImagesBells hanging at the Kamakhya Temple, Guwahati, Assam

This brings us to the second contention that this perpetuates stereotypes of women being sexual objects, this argument would be acceptable if we were not aware of what ‘Brahmacharya’ stands and means in the Hindu way of life. The core reasoning for adoption of ‘Brahmacharya’ is not an abhorrent or moralistic view of sex, but the recognition that it’s merely a worldly pleasure and needs to be renounced in pursuit of a higher consciousness. The rules for ‘Brahmacharya’ are same for any person, whichever gender it may be, and this was also pleaded by the interveners.

Furthermore, the state is barred for interfering in the practice by the virtue of Article 26, which guarantees a protection from the state for a religious denomination to manage its own affairs. So, the Sabarimala Temple, along with its devotees, would have to be deemed to constitute a religious denomination in order to protect its beliefs, faith, and practices. The Kerala High Court citing the aforementioned precedent of Raja Deb treated Sabarimala Temple to be a religious denomination.

It doesn’t seem to be a very obtuse view as the Court has treated Arya Samaj and Ramakrishna Mission in separate judgments to be religious denominations, which have similar characteristics as Sabarimala Temple (with devotees). As argued by the interveners, the devotees have faith and belief in Lord Ayyappa and his way of life together with distinct identity and doctrines.

Petitioner’s concerns

The contention of the petitioner is that the temple has a public character, open to all caste and creed, which removes the denominational character. This seems prima facie untenable as it incentivises the temples to continue their discriminatory history in order to protect its denominational character, defeating the object of law and purpose of Article 26.

However, the Supreme Court would have to evaluate the test laid in the aforementioned S.P Mittal case, though it is unlikely that the Sabarimala temple and its devotees would not be declared as a denomination. The reasons for the practice being a religious one and not the one associated with the secular activities attached to religion have already been mentioned above.

Finally, we judge the practice with the test laid down in the aforementioned Venkataramna Devaru case, which guides the relationship of Article 25(2)(b) with Article 26(b). Does the practice substantially take away the rights under Article 25(2)(b) so as to relent to it?

The practice doesn’t bar women altogether from the temple: the differentiation is intra-women and not women with respect to men. There are prescriptions for men to be followed too. There are also temples where similar restrictions have been placed on men – for instance, men are now allowed at the largest congregation of women in the world for a religious activity at the Attukal Temple in Trivandrum, Kerala.

Further, it is not based on the notions of unhealthy stereotypes, misconceptions of impurity or skewed perceptions of women’s sexuality; but, the nature of the deity. Indeed, if all these are held out to be valid in the court, there is no reason for the conclusion that something substantial of Article 25(2)(b) is left and can be construed to give way to rights under Article 26.

Lastly, there is one novel argument that needs special mention – the deity being a juristic and a legal person has rights of his own under the constitution, including that of privacy under Article 21. This was placed by Advocate Jai Sai Deepak for the intervening organisation called ‘People for Dharma.’ While placing numerous precedents for the same, he argued that the right of the deity to protect his vow of Naisthik Brahmachari deserves equal and countervailing weight.

This was one refreshing perspective brought into the debate that the Chief Justice noticed. Presently, the judgment for the deity and its devotees has been reserved and is eagerly awaited. It has the potential to bring forth a very interesting demonstration of judicial balancing of competing rights.


Anuj Aggarwal

Anuj Aggarwal is a student of law at Delhi University’s Faculty of Law and former spokesperson for the Delhi University Students’ Union (DUSU).

Views expressed here are the author’s own.

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