It is a good eighty-two years since the benevolent Temple Entry Proclamation of 1936 which allowed all castes to enter temples in the erstwhile State of Travancore. And it is unfortunate that today when the world is celebrating International Women’s Day, in India we are still debating on whether women should be allowed to enter places of worship where Gods dwell. We are contemplating on the purity of a woman and of her body, all because she menstruates. And this happens to be in God’s own country, where this beautiful temple adorns the hill named Sabarimala situated amidst thick forest. Ironically, this hill which owes its name to Sabari, a woman hermit who is believed to have lived there awaiting Lord Rama, is now a ‘No-Entry Zone’ for women aged 10-50 via a rule of prohibition made by Travancore Devaswom Board.
The legend goes that since the deity is in the form of a Naisthik Brahmachari, young women should not enter temple so that not even a slightest deviation from the celibacy observed by the deity is caused by the presence of such women. And interestingly all of us in Kerala born post 1970s know of this legend solely from a movie titled ‘Swamy Ayyappan’ which was released in 1975. Whatever it may be, the legend reflects an age old prejudice against women, where a woman was seen as a taboo for spiritual and religious sanctity. She was seen as a potential spell that would any time snatch away the celibacy of men, and mind you celibacy alone rendered those men powerful in matters of God. In such a backdrop she had to be ousted from the divine spaces.
The Ayyappa temple at Sabarimala is administered by the Travancore Devaswom Board, however religious matters are decided by the main priest or Thanthri of the temple. As per the religious prescriptions, the devotees shall take a penance for 41 days during which period, non-vegetarian food, alcohol, women and such vices were forbidden for them. This practice is very much Manu Smrithian, as Manu says: “A Bramchari should control his senses. He has to observe certain rules of conduct which include refraining from indulging in gambling with dice, idle gossips, scandal, falsehood, embracing, and casting lustful eyes on females, and doing injury to others.(Manu Smriti Chapter II, Sloka 179, as cited in Mahendran, para 39)
Now the entire issue here is whether young women can be prohibited from entering and worshipping in the temple on religious grounds. The Kerala High Court in S.Mahendran v. Secretary, Travancore Devaswom Board ruled against women entry and buttressed its finding on the religious penance of 41 days which every pilgrim is supposed to undertake before entering Sabarimala. The Court categorically stated that woman of the 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, woman after menarche up to menopause are not entitled toenter the temple and offer prayers there at any time of the year.”
This judgment supports and stands by the historically and systematically conveyed hatred towards women and proclaims that a woman is unholy and impure to enter the scared shrines as long as she is of menstruating age. And all this is done in the name of the constitutional guarantee of right to freedom of religion and right of religious denominations to manage its own religious affairs.
Thus the Devasom Board was thereby directed to enforce Rule 3 of the Kerala Hindu Places Of Public Worship (Authorisation Of Entry) Rules 1965 that disallow women at such time during which they are not by custom and usage allowed to enter a place of public worship, and apply the rule in its entirely in Sabarimala at all times of the year.
It is this rule that is challenged before the Supreme Court in Indian Young Lawyers Association v. State of Kerala. The decision would be one of immense consequence to the status of women and their dignity on one hand and the scope of freedom of religious denominations to manage matters of their religion on the other hand.
On the legal side, the issues would be whether the rule is ultra vires the parent Act? If not, is the Act ultra vires the Constitution? Here is a situation where fundamental rights are argued for from both sides. On one side is the freedom of religious denominations to decide who should enter or not enter their temples. On the other side is the right to equality of the women. So it looks to be a question of prioritizing rights.
Invariably our Courts in the past had strolled past Article 14 without a glance of it when it comes to matters of religion and personal law. This is true even in the Triple Talaq case, where answers that would have ascertained the status of women were untouched and Articles 14 and 15 were not even referred to. Whenever Court had not protected the claims under Article 25 it had termed the claim as not being an “essential part of religion”, and hence found it devoid of constitutional guarantee from state interference.
Away from the legal jargon, the social issue is certainly one of availability of right to equality and dignity to the women of this country. When the letters of Article 25 is clear enough that freedom of religion is subject to other fundamental rights, what would sustain a rule that emboldens any discriminatory practice, whether it is integral part of religion or not?
Religious practices are not to be legalized at the cost of a living Constitution. Our country had seen shunning of practices like Sati and untouchability, and upholding of an equal share in the property for daughters too. When will it be judicially affirmed that women are not ‘untouchables’ just because they menstruate and that they have an equal right to enter in public places of worship? How can it be that misogyny would be allowed to rule in the name of freedom of religion?
It is a disgrace to womanhood itself when we steal away the valuable fundamental right to equality and uphold beliefs, practices and personal law that consider women as unsuitable to be present in holy places or which consider women as inferior to men in matters of family. Freedom of religion is just one of the many fundamental rights and it is specifically made subject to other fundamental rights.
How long can judiciary escape the main questions, under the garb of doctrines like the ‘essential part of religion’ test? Suppose an essential religious practice prescribes human sacrifice, mutilation of a child or any such inhuman practice, would the court hesitate to call it as unconstitutional? Similarly, even if we assume that entry of women in Sabarimala temple is barred by an ‘essential religious practice’, does that mean that the rights guaranteed to women under Articles 14 and 15 yield to the right of denominations under Article 26?
Religions and philosophies have a long history of hatred towards women, which is not just confined to India. The acclaimed Aristotle himself had placed women lower in hierarchy and higher only to slaves. Should all the religious prescriptions be saved under freedom of religion? But then the essential practices test has never led matters to be decided on the question of priority among the fundamental rights. The opening words of Article 25, “Subject to public order, health and morality and to the other provisions of this Part…” stay unexplored and whether freedom of religion under Articles 25 and 26 is subject to other fundamental rights including equality and dignity remains to be interpreted.
The forward-thinking people of our country who believe in constitutional values can only hope that in the years to come, our country would see a social change through dynamic legislations and judgments upholding the rights of women as against the patriarchal regressive misogynic ‘religious’ prescriptions, whether it is Sabarimala or Nikah Halala.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]