In a season of “landmark” judgements, the five judge Constitution Bench of the Supreme Court delivered yet another gender equality verdict. In a 4-1 majority ruling, Chief Justice Dipak Misra and Justices R.F. Nariman, AM Khanwilkar and D Y Chandrachud held that women of all ages should be allowed entry into the famed Sabarimala temple in Kerala. Justice Indu Malhotra, the lone woman on the Bench, gave a dissenting judgement.
Traditionally, women who fall into the menstruating age bracket between 10-50 years, are barred entry into the temple since the deity, Lord Ayyappa, was believed to be a naishtika brahmachari (perennial celibate). However, this discrimination, on the basis of gender, has been challenged in recent times by women seeking the right to worship at Sabarimala.
Delivering a strong verdict against this unfair practice, the Supreme Court ruled that devotion cannot be discriminated on the basis of gender. Chief Justice Dipak Misra, while reading out the judgement noted: “Women are not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith. Religion is basically a way of life however certain practices create incongruities.” He also added that the devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot be treated as such.
The Supreme Court in effect set aside Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which bans the entry of women between 10-50 years of age into the Sabarimala shrine. It also dismissed the 1991 Kerala High Court order that upheld this restriction. The apex court ruled that any such bar was a clear violation of the right of Hindu women to practice religion under Article 25 of the Constitution.
The question of whether women of menstruating age should be allowed into Sabarimala first came into focus when a complaint was filed to Justice K Paripoornan of the Kerala High Court in 1991. It was converted by him into a public interest litigation.
The complainant, S Mahendran, had sought the court’s intervention in the case of a young woman who trekked to Sabarimala and offered prayers at the shrine. He also alleged that wives of VIPs had visited the temple and cited the instance of the daughter of the former Devaswom Board Commissioner, S Chandrika, having visited Sabarimala. This, he pointed out, was in violation of the age-old practice of not allowing women of a particular age group from entering the temple.
A copy of the August 19, 1990 edition of the daily, Janmabhoomi, which carried a photograph of Chandrika with her daughter and relatives at the shrine was enclosed as proof by Mahendran in his complaint.
The High Court, in an attempt to provide clarity on whether women of all ages were allowed or not, issued notices to the Kerala government and the Devaswom Board which administers temples in the state. Several witnesses, including then current and former priests of Sabarimala, were summoned to depose.
The Court in its April 5, 1991 order came to the following conclusion:
- The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
- Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
- Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since 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, whereas the prohibition is only in respect of women of a particular age group and not women as a class.
Chequered fight for gender justice
The matter rested there till 2006 when a Devaprasnam (a ritual to interpret the will/ message of the Gods) by astrologer Parappanangadi Unnikrishnan revealed that the Sabarimala temple had been defiled because a woman had gained entry into the sanctum sanctorum. Soon after Unnikrishnan divined this information, Kannada actress-politician Jayamala revealed that she had indeed entered the temple in April 1987 when she was 28 years of age.
This disclosure created a huge furore in Kerala since it was alleged that she must have gained entry with the full knowledge of the priests. A police enquiry was ordered and in 2010 a case was filed against Jayamala and Unnikrishnan for hatching a conspiracy to hurt religious sentiments.
It was alleged by the police that the actress had passed on information about her temple entry ahead of Unnikrishnan’s sensational divination and that the entire controversy was stage-managed to build his image as a credible astrologer and discredit the temple management. The police case was dismissed two years later by the Kerala High Court.
But by then, the Jayamala controversy had already brought into focus the unfair practice of a section women being barred from entering the temple. Consequently, in 2006, the India Young Lawyers Association, a Delhi-based collective, filed a PIL before the Supreme Court challenging the custom that discriminated on the basis of gender and was violative of Article 25 of the Constitution. Over a decade after the petition was filed and many hearings later, the court finally referred the petition to a Constitutional Bench.
Meanwhile, the Kerala government repeatedly changed its stance on the issue in the apex court. In November 2007, the then Left Democratic Front government took a pro-woman stand in its affidavit. But in February 2016 this was reversed by the Congress-led United Democratic Front which told the court that it stood by the established tradition of restricting entry of women within a particular age group. Nine months later, in November, the present Left Front government, stated that it would go back to the 2007 position and support the entry of all women in the shrine, irrespective of their age.
A mixed reaction
The September 28 Supreme Court judgement has come after much wrangling, debate and political posturing on the issue in Kerala. The news of the verdict has predictably elicited a cautious response from the temple authorities. The head priest, Kandararu Rajeevaru, told reporters that he was “disappointed” and that he would have to discuss the verdict with the state government. On his part the Devaswom Board Chairman, A Padmakumar, said he would make necessary arrangements to implement the order. However, reports from Thiruvananthapuram suggest that the Board might file a review petition against the judgement. So too would Hindu organisations which claim they represent devotees of Lord Ayyappa.
However, but for a few discordant voices, the court verdict has been widely welcomed. The Kerala government, women’s organisations as well as politicians have come out in support. State Devaswom minister, Kadakampally Surendran, described the verdict as an affirmation of the Left Front’s commitment to women’s rights: "We have always stood for gender justice and accordingly we have reversed the previous government’s stand and supported the petition in the Supreme Court.” General Secretary of the All India Democratic Women’s Association, Mariam Dhawalether also welcomed the judgement: “Women have a constitutional right to be able to visit the temple and whoever wishes must be allowed to visit it,” she said.
Congress MP, Shashi Tharoor, called it a progressive step: “We cannot obstruct anyone who would like to visit the place of worship in the name of gender,” he told reporters in Kochi. Union Women and Child Development Minister Maneka Gandhi was effusive in her support: “It’s a wonderful decision! It opens up and brings the way forward for Hinduism to become even more inclusive and not a property of one caste or one sex."
Perhaps the last word belongs to Kavita Krishnan women rights activist and Secretary of the All India Progressive Women's Association (AIPWA). To quote: “In instant Triple Talaq, Haji Ali, and Sabarimala cases, the courts have rightly held that women's equality can't be held hostage to religious practices. Just as it's unconstitutional and discriminatory to debar entry to temples based on caste, it's the same to debar entry based on gender. Also, we project our own values on our gods - and patriarchal values that put the burden of men's celibacy or sexual choices on women are deeply damaging to women in real life."
But the fight is not quite over. Said SJR Kumar, president of the Kerala unit of the VHP holding out a veiled threat: “We accept the apex court verdict and will soon file a review petition. Meanwhile, we will fully abide by the directives of the court and will not obstruct any woman from entering the temple. However, one may not be able to predict the response of Ayyappa devotees to women entering the temple…”
(With agency reports)