Sabarimala verdict opens Pandora's box; angry women question court judgment

First Published 10, Oct 2018, 10:07 AM IST
Sabarimala verdict Supreme Court Kerala Lord Ayyappa Devotees women menstruating
Highlights

Agreeing with the majority verdict, Justice Chandrachud noted how the judiciary has entered into a "maze while deciding what is or is not essential to religion," in his separate opinion, he proposed a new method on how courts should deal with ecclesiastical matters of religion and faith

Expressing that the issue is critical to various religions, Justice Malhotra said while there should be no transgression on anyone's religious practices, "the Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article  14...Notions of rationality cannot be invoked in matters of religion...What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere, unless if there is any aggrieved person from that section or religion. Religious practices can’t solely be tested on the basis of the right to equality. It’s up to the worshippers, not the court, to decide what’s religion’s essential practice." 

Agreeing with the majority verdict, Justice Chandrachud noted how the judiciary has entered into a "maze while deciding what is or is not essential to religion," in his separate opinion, he proposed a new method on how courts should deal with ecclesiastical matters of religion and faith. He observed that courts should adopt a deferential attitude to such cases, touching on religious matters and deem the practices under scanner as “essential”, but nevertheless investigate whether such customs, beliefs or usages violate fundamental rights of an individual. He, however, took on the "imposition of the burden of a man's celibacy on a woman" which is atrociously used to deny her access to spaces to which she is perfectly entitled. 

Devotees saddled with 'unwanted reforms'   

Here, a larger question remains: Can the courts chase the preferences of human conscience and force individuals to accept "unwanted" things and practices through judicial interventions on the alibi of bringing in social reforms? The court order, viewed in various quarters, including a large section of the media, as "religious reform" is certainly not a reform running parallel to such path-breaking reforms as enforcing right to equality on the social plateau and banishing social evils like untouchability, little or no education for girls, domestic violence, female infanticide, prostitution, dowry, practice of 'sati', etc., against which Raja Ram Mohan Roy passionately fought in the 19th century India. It's a different matter if these evils still persist in our society with little or no curbs in the 21st century. In Sabarimala's case, devotees clearly want no 'gender equality reform'. 

Slew of substantive review petitions

Following the massive protests by women at various places in the country, review petitions have been filed by Nair Service Society (NSS--respondent No. 6 in the original matter), Shylaja Vijayan, President of the National Ayyappa Devotees Association, People for Dharma, and Chetana Conscience of Women, a Delhi-based NGO working for empowering women and society in general. NSS draws the apex court's attention to the fact that a large number of women devotees have joined in the protest against its September 28 judgment which "wrongly" allowed the menstruating women to worship in the historic temple. It alleges that the court "exceeded its brief, when it was supposed to address the question of law that formed part of the reference in the petition on which the verdict was passed, after going into the questions of 'fact'...The Constitution Bench, both by operation of Article 145(3) and the order of reference, will have to decide only the substantial questions of law…the judgment, therefore, suffers from an error of law on the face of the record in going into questions of  fact…” It further contends that the court wrongly held the practice of not allowing women between the ages of 10 and 50 into the temple as "exclusionary". The review petitioner not only feels shocked that its "submissions find no mention in the judgment", but also questions the locus standi of the original petitioners who are not even Ayyappa worshippers.

SC verdict called 'legally invalid'

The review petition filed by Shylaja Vijayan notes that the court’s verdict has “sent shock waves among millions of Ayyappa devotees and is an interference with the faith and belief of millions of devotees of Lord Ayyappa, which the court is not empowered to do and certainly not without notice to them and without hearing them...The judgment is, therefore, one rendered void ab initio (invalid from the beginning)…It's a gross abuse of a procedure named Public Interest Litigation”. It goes on to criticize the manner in which the "court has exercised its jurisdiction, making reference to the NJAC judgment, the Jallikattu verdict, and the judgment by which the court diluted the provisions of the SC/ST Atrocities Act." In fact, "the writ petitioner, Indian Young Lawyers’ Association, an inanimate entity, cannot plead any fundamental right; only a human being, an animate entity, can claim a fundamental right", asserts Shylaja, adding that "the devotees themselves had no opportunity to state their case before the Bench. 

Therefore, Shylaja stressed that the decision "is in violation of the first principle of natural justice, namely audi alteram partem (the right to be heard) ...If this hon’ble court was told that the women devotees themselves are in support of the custom prevalent, founded on the belief that Lord Ayyappa is a Naishtika Brahmachari and desires not to be visited by fertile women, it could have immediately dismissed the so-called PIL.” His petition further states that the court should not confine itself to the grounds under which a judgment can be reviewed, because, “…in the instant case, the petitioners, so too the millions of devotees, whose fundamental right of belief and faith are infringed, have had no opportunity in the adjudication of the above case. For them, the review is the first opportunity to plead, to assert their rights and seek enforcement thereof.”

'Wrong precedent' for times to come 

Another review petition filed by NGO Chetana Conscience of Women states that the Supreme Court should not have entertained the petitions seeking entry of women into Sabarimala, as it would facilitate intervention in religious practices of different faiths. Review of the Sabarimala verdict has been sought on the grounds that the majority opinion of the Supreme Court: 1) "erred in not considering the evidence placed on record which demonstrates that the practice of the temple is a direct consequence of the celibate form of the deity and the rules of Naishthika Brahmacharya which apply to the deity", 2) "erred in concluding that in all circumstances, the right of an individual must prevail over the rights of other individuals in a public place of worship", 3) "erred in concluding that the devotees of Lord Ayyappa do not constitute a religious  denomination within the meaning of Article 26", and finally 4) "erred in concluding that the practice of the  temple amounts to untouchability under Article 17."
 
A casually delivered verdict?

On the judgment delivered by then Chief Justice Dipak Misra and Justice AM Khanwilkar, the petition regrets that though from the Shirur Mutt decision to the Shayara Bano judgment, the apex court has undertaken a  detailed and rigorous analysis of the applicable scripture or text in examining the essentiality of a religious practice to either a faith or a religious institution, no such examination has been undertaken in this case "to deny the status of a religious denomination to the Sabarimala temple and the devotees of Lord Ayyappa, merely because they do not conform to Abrahamic notions of religious denominations, is to defeat the very object of the absence of a definition and to Abrahamize the core of the Hindu faith, which is unconstitutional.”

On Justice Chandrachud’s observations, the review petition comes very harsh : “Critically, to treat individual liberty as the shining star of all fundamental rights even in the context of public places of worship which have  a right to preserve their traditions and practices, is to completely render rights under Article 25(1) subservient  to the whim of an individual…To view religious practices and traditions which enjoy the protection of Article 25(1) entirely through the prism of the individual would lead to excessive statist interference with religious  beliefs which goes against the grain of the Constitution…”

Celibacy tradition, rigorous penance  

Because of the long-standing ban on the 'women of puberty' entering Sabarimala premises and touching the holy idol of god, the shrine has been in controversy for decades. People of all castes are equal before Lord Ayyappa, even the deity and the devotee are known by the same name, either Ayyappa or Swamy. The temple has a tradition that only girls before attaining puberty, i.e., below the age of 10 and ladies above the age of 50, are permitted to climb up the hills to Sabarimala is the practice that has been followed, in respect of pilgrimage.  Women between 10 years and 50 years are not allowed in the temple premises as they are under their periodic cycle. The journey to the top of the hill involves 41 days of celibacy, cooking one's own food, wearing all black, not wearing footwear, not trimming or shaving body hair, nails and wearing the sacred garland. 

Standard secular practices

The observation of strict reparation, fasting, and continence, one learns to control his senses. He gives up his lust and other human desires. One restricts self to attain self-realization. Women in menstrual cycles are kept away from Lord Ayyappa, a 'Nitya Brahmachari', because, women bleed their impurity in those 4-5 days.  Temples consider it unclean and they won't be able to abide by the rituals of 41 days of fasting before putting their foot towards the shrine. Though women of productive age are barred, all believers are welcome here. Lord Ayyappa’s favourite disciple Vavar Swami was a Muslim and devotees have to offer prayers at a mosque dedicated to him before proceeding to the hilltop. The Sabarimala temple and the pilgrimage are often cited as a symbol of secularism. There were two major stampedes around the temple that claimed over 200 lives in the past, one in January 1999, on the foothills of Sabarimala and the other in January 2011 on Makara Jyothi Day at Pullumedu near Sabarimala.

Wikipedia describes the Sabarimala shrine as an ancient temple of Ayyappa, also known as Sasta and Dharmasasta. In the 12th century, Manikandan, a prince of Pandalam dynasty, meditated at Sabarimala temple and became one with the divine. Manikandan was an avatar of Ayyappa. Sabarimala is linked to pilgrimage predominantly undertaken by Hindus. Its pilgrims wear a black or blue dress. Ayyappa is the Hindu god of growth, particularly popular in Kerala and the rest of South India. He is a synthetic deity, the son of Shiva and Mohini – the female avatar of Vishnu. Ayyappa is also referred to as Ayyappa, Sastavu, Hariharaputra, Manikanta, Shasta or Dharma Shasta.
Meanwhile, Sabarimala devotees now await a revised court order, pushing the earlier one away from the statutory records!

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