A Supreme Court bench is hearing the Sabarimala temple case regarding women’s entry to the shrine. A five-member bench presided by CJI Deepak Mishra and comprising of Justices Rohinton Nariman, Indu Malhotra, AM Khanwaliker and DY Chandrachud is hearing the matter. Senior advocate Abhishek Manu Singhvi is representing the Travancore Devaswom Board on the case.
In the hearing, Dr Singhvi presented to the court the history of the temple and the rituals associated with it, highlighting the 41-day vow to be observed before visiting the temple. He stated that every devotee observing the vow is called ‘swami’ and is considered a representation of the deity himself, in the line with the concept of ‘Tat Tvam Asi’ in Hindu philosophy.
Replying to Justice Nariman’s query over reasons of excluding women, Singhvi submitted that the object is not to exclude women but they get excluded due to physiological reasons and anybody with the same physiological reasons will get excluded.
It is notable here that devotees of Ayyappa swami go through a strict 41-day period of abstinence and rituals before visiting the shrine every year. Women of reproductive age are barred from it because menstruation within the 41 day period does not allow them to complete the vow.
Upon Justice Chandrachud’s observation that how can the court start with the unconstitutional observation that women of reproductive age can not complete the 41-day penance, Dr Singhvi replied that the test under the law is not whether one can exclude women. The test is what is prescribed by the practice. He also pointed it out that no woman is allowed inside any mosque in India, regardless of whether she is menstruating or not.
Dr Singhvi further submitted that the Ayyappa devotees constitute a religious denomination and the test is whether the practice is essential to their belief. He added that the test is whether the practice is long established and is bonafide.
Upon Justice Chandrachud’s remark that after 1950, everything is subject to constitutional ethos, Dr Singhvi replied that constitutional ethos requires the court to apply the essentiality test. Justice Nariman reportedly agreed that the bar of entry of woman into mosques will too fall within this inquiry.
Upon the CJI’s observation that whether the restriction of women of reproductive age constitutes an essential part of the religious practice of the Sabarimala temple. Dr Singhvi reportedly presented the documents to the court detailing the various aspects of the vow undertaken by the devotees through the 41-day penance. Justice Nariman reportedly agreed that neither the state of Kerala nor the temple board has stated in their affidavits that the restrictions are based on any notion of impurities associated with menstruation. He also noted that the Kerala High Court had held the Ayyappa devotees as a religious denomination. Dr Singhiv submitted before the court that a time-bound six-month trial should be conducted so that all parties in the case can present evidence on it being a religious practice on the basis of belief.
Referring to the Srirur Mutt judgement, Dr Singhvi argued to the court on what constitutes an essential religious practice and what constitutes a religious denomination.
Dr Singhvi also argued that if the law protects dietary prescriptions based on religion, it certainly protects religious practices related to entry to the temple and worshipping the deity. He submitted that it is not for the court to comment on the rationality of the religious beliefs. The fact that the beliefs exist since centuries and have been practised is sufficient to merit for protection under article 25. He also submitted that there are temples in India which restrict the entry of men. He submitted that these practices are based on age-old traditions and not on misogyny.
Mr Parasaran, who represents the Nair Service Society pointed out the petitioners in the case are not claiming the right to worship, they have raised it as a social issue and they cannot even assert article 25. Dr Singhvi cited examples from many diverse traditions of Hindu culture and asserted that if any reform is suggested it has to come from within the community. He also added that the women understand the traditions and it is not a practice imposed on women by patriarchal men.
On 24th and 25th July, 90-year-old Mr Parasaran argued in representation to the Nair Service Society. He submitted to the court that Kerala is a very educated society and 96% of women are educated. He added that in Kerala, many families are matrilineal and the allegation that the practices of the Sabarimala temple are patriarchal is baseless. He added even it cannot be compared to other negative customs like Sati because Sati per se, was never connected to Hindu faith and widows in Mahabharata and Ramayana did not commit Sati after the deaths of their husbands. He asserted that the practices at Sabarimala should not be attributed to patriarchy.
Parasaran also referred to the Srirur Mutt judgement like his peer Mr Singhvi the day before and stated that democracies must protect religions. He added that Hinduism respects merit and wisdom and while the court should listen to the voices of activists it must also listen to the voices of people seeking to protect their traditions. Asserting that Lord Ayyappa’s ‘Naisthika Bramhachari’ status is protected by the constitution, Parasaran argued that the temple traditions are not patriarchal but designed to protect the character of the deity as a ‘Brahmachari’.
He refuted the claims of the death of a woman before she reaches the age of 50 as an excuse to enter the temple by stating that death is a fate and people in the shrine also register for Padi pujas to continue long after their death. Asserting that the basis of the tradition is not misogyny, he stated that the need is celibacy and the ritual of 41-day penance, he stated that it cannot be achieved when the women are menstruating and when the men are travelling with them. Referring to article 25, he stated that while the article applies to social reforms, it still does not apply to the matters of religion covered by the article 26 (b). He submitted that while the article 25 (2) deals with secular aspects and rights of entry for social classes, it does not cover rights of entry based on gender. Justice Nariman agreed with Parasaran that article 25(2) cannot be applicable in this case. Parasaran submitted that by using article 25(2), the court would risk reforming a religion out of its identity and it will also affect the rights of devotees under article 25(1).
Citing the Travancore Cochin Hindu Religious Institutions Act 1951, Parasaran submitted that the Travancore Devaswom Board is mandated to follow and preserve the traditional practices of the temples under its administration. Asserting that the laws on caste and religion based untouchability do not apply in the matter he submitted that the age restriction is a matter of temple traditions and not of discrimination against women.
In today’s hearing, advocate Mr K Radhakrishnan, appearing for the Padalam Royal family, the designated family of Lord Ayyappa is arguing in front of the 5-member bench headed by CJI Deepak Mishra. He has explained the rituals and traditions of the Sabarimala temple and discussed the religious significance of the 41-day penance and other rituals associated with the journey to the temple. He drew the court’s attention to the fact that the petitioner in the case neither represents the devotees of the temple nor does share the faith. He added that the petitioner is operating with the motive of destroying a facet of the Hindu faith.
Representing the Tanthri of the temple, advocate V Giri submitted that the deity at the Sabarimala temple should be worshipped in accordance with the shashtras and citing the affidavit submitted by the Tanthri, he asserted that strict adherence to rituals is required to preserve the temple’s integrity and spirituality among its devotees.
It is notable here that the women’s group People for Dharma is participating in the case in support of the practice of age restriction on the entry of women. It is also promoting a campaign called ‘Ready to wait’ where hundreds of female devotees have come forward to claim they are ready to wait until menopause for making the holy journey to the temple in adherence to the centuries-old tradition.
J Sai Deepak, representing the group People for Dharma argued before the bench that if the deity of the Sabarimala shrine can be taxed as a juristic person, he also has rights under articles 21, 25 and 26. He added that the deity’s right to remain a ‘Naisthika Bramhachari’ comes under article 25. Deepak further added that the case is not men vs women, but it is men vs men and women vs women. Sai Deepak asserted that if they allow dismissal of age-restrictions for women, tomorrow even men can seek exemptions from the 41-day ritual.
He further added that the denominational character of the temple as per article 26 is independent of the right of the temple to allow entry. He further added that the Ayyappa devotes constitute the denomination. He asserted that denomination is not decided based on the background of the devotees’ faith but on whether the devotee believes in what is an essential characteristic of the temple deity and the status of the denomination is not bestowed by the court. Sai Deepak also stated that the public character of an institution does not take away the very identity of an institution. He also added that ‘Naisthika Brahmacharya is, not a men-only practice and hence the rituals associated cannot be regarded as patriarchal.
CJI Deepak Mishra has remarked that Deepak’s argument was very impressive. In defence of the practice, he stated that “Not every exclusion is discrimination.”