The Home of the Celibate

The Home of the Celibate

The supreme court seems to have gained a new enthusiasm in disposing of long pending issues. Starting with the triple talaq bill, it finally put to rest the contentious ram janmabhoomi title dispute after hearing all arguments from 6th August 2019, till it finally declared the verdict on 9th November 2019.

Another issue, often referred to as the ram janmabhoomi of the south, also needs quick and precise disposal by the court. This is the issue of the sabrimala women entry case. Judges have often been back and forth on their views about this petition. Multiple appeals, dissenting judgements and now finally, a review petition is in place, which is to be decided by the court.

The two cases mentioned above provide an issue which is unique to India. For understanding the issue, we need to look at the historical, cultural and legal developments in the country to come at a reasonable conclusion.

What is the sabrimala case?

Sabrimala is a temple of lord Ayyappa in Kerala. The deity is considered to be a "Naishtika Brahmachari"i.e. celibate for life and has been so since thousands of years. The legend goes that Ayyappa had rejected the advances of the evil demoness Mahishasuri, when she turned into a beautiful woman. Consequently, entry of "women of menstruating age", particularly between the ages of 10 to 50, inside the temple has been prohibited. This prohibition has been in existence since thousands of years and has become an integral part of the culture of the temple.

The argument, broadly speaking, has been that the prevalent customs are violative of Article 14 (Equality before the law), Article 15 (Right to profess and practice ones religion) and Article 19 (Right to freedom of speech)

Legal timeline of the case

Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 restricts the entry of women of a particular age into the temple

In 1990, the Kerala high court, on a petition filed by S Mahendran contending that women were visiting the shrine, upheld the restriction in the rules. The court said that the articles mentioned above were not violated since the restriction was not "class based" or based within sections of women who were hindus.

This means, simply put, that the restriction was only for a certain age group, applicable to all sections of women within the hindu society. For eg, if upper caste women were allowed to visit the shrine irrespective of their age, and the dalit women were restricted age wise, then it would have been a violation of Article 14 and 15. Since the restriction was for all women, irrespective of caste or economic status, it was not violative of the law.

The court also directed the police to implement the restrictions

In 2018, responding to a petition by the Indian Young Lawyers Association, the Supreme Court overturned the high court judgement stating that "Devotion cant be subjected to Discrimination" and that all women held the right to pray irrespective of their Age. The judgement was passed 4:1 with the lone dissenting judge being Justice Indu Malhotra.

The judgement essentially means that the supreme court chose to interpret Article 14 in a very wide sense and that right to pray was a constitutional right and that no amount of customs or prevalent traditions should be allowed to exist if the rights of a class of citizens is being violated on mere physiological grounds.

The aggrieved parties chose to file review petitions in the court. The court has admitted all 49 review petitions and referred the case to a larger constitutional bench.

The core questions in this entire matter are -

1. Whether the individual right trumps the collective society's rights?

2. Does the right to worship take precedence of right to privacy of the deity?

3. Whether the deity and the temple have any constitutional rights to protect their traditions and sanctity?

To understand the above, we will need to look at the cultural aspect of India, which is very different from the western ideals.

Cultural Significance

Sanatana Dharma, more commonly referred to as "Hinduism", is a way of life. It is a culture unlike the abrahamic religions of the west. However, decades of misunderstanding has led the entire world to believe that it is a religion, with western theologists and economists desperately trying to fit the Indian cultural mind into the square boxes of abrahamic faiths. Similar is the conundrum facing the supreme court regarding the sabrimala case. They are trying to fit culture and traditions of the land into the constitutional box of rights. It goes much beyond that.

The deities in India are many, varied, immense and changing. Right from the trimurti of Brahma, Vishnu and Mahesh, to Sachin Tendulkar, Amitabh Bacchan, Rajnikant and "Visa Balaji", Indians are ever willing to change their gods, adopt new ones and discard older ones with the changing times.

God, for us, is not an angry insecure man sitting in the sky, handing down commandments and passing judgements, condemning people to eternal hellfire if they do not do his bidding. God is a part of our household. We carry our idols with us when we shift homes. We talk to them, laugh with them, get angry at them and demand explanations if things do not go our way. Almost every Hindu household has posters of Ganesha, Ram, Krishna etc hanging about their house. Paintings, calenders, postcards, clothes - all have Hindu deities. However, we do not worship those, we worship only the gods who have had their "Pran Pratisthapana" done inside their exclusive corner inside our homes.The temple.The idol is not removed from the mandir once it has been settled inside. The temple belongs to the God and once we enter the temple, i.e. the home of the God, we abide by the rules he sets within his temple. We remove our footwear outside, some need heads to be covered, some need you to wear unstitched clothes etc. The rules are not uniform and change with every deity. Some deities house thousands of rats inside their homes, while some accept meat and alcohol as offerings.

Broadly speaking, the culture grants the deity a place to live and decide who is to allowed inside his/her house wearing what clothes and what kind of food. Very similar to who we allow inside our house, with what kind of food and clothing.

Considering the above, the supreme court has granted certain rights to God. God has been considered as a "jusristic person" with legal rights granted viz Right to property, Right to pay taxes and right to Sue. The best example of God using his right to sue, to enforce his right to property has been the Ram Janmabhoomi case. Lord Ram was fighting the case himself, through his shebait. His "next friend".

Also, it is important to note that neither a mosque, nor a church have been granted the status of a juristic person, since they are only places of congregation, and not an object of worship by themselves. 

  

The Visa Balaji Temple at Chilkur

The idol of Sachin Tendulkar

Coming back to the case, Lord Ayyappa has similar rights, that of property and right to sue. However, in the 2018 judgement, the supreme court observed that deities do not have constitutional rights, and the right to pray of a woman is greater than the juristic rights of a deity.

The arguments, both for and against the restriction have been discussed elaborately in the court.

Arguments for the restriction:

The petitioners in this case appealed to the court to consider the traditions and the customs existing for the past thousands of years. They contended that the lord had the fundamental right to privacy under Article 21, which should allow him to restrict the entry of certain sections, that would violate his vow, thus violating his right to privacy.

They also cited the Kerala High court judgement and the fact that there are many temples restricting the entry of men in the country. Also since the devotees of ayappa constitute a separate identifiable group, restrictions can be imposed within the group as a whole. They would satisfy the condition of "reasonable classification" laid down by the supreme court in various judgements. 

Eminent persons like Sri Sri Ravi Shankar, Sadguru Jaggi Vasudev, Activist Rahul Easwar have argued in favour of the restriction. 

Arguments Against the restriction:

The main argument against the restriction is the violation of Article 14, the free right of a woman to pray at a public place. The main contention of this side is that menstruation is not an impure process and that restrictions placed on women using their age as an excuse is violative and discriminatory.

Hon'bl Justice Chandrachud points out categorically that the "Juristic rights of a deity cannot override the constitutional rights of a person". The argument made by J Sai Deepak that the lord also has constitutional rights including the Right to Privacy under Article 21 was set aside.

What next?

The crux of the matter remains unaddressed. The main contention, whether the Indian cultural faith can be fit into the square box of the constitution has been lost in the legal mumble jumble that has been going on since 1991. While it is undeniable that women enjoy consitutional rights and protection, should it override the cultural aspect, which binds us together as a nation. The women, in a vast majority have themselves opposed lifting of the ban and have said that they are willing to wait till they turn 50 to visit the shrine. This is part of their bhakti, which magnifies the beauty of the Indian culture. The Indian invisible hand, unlike Adam Smith's, binds every person voluntarily. 

The Supreme Court, in earlier occasions have specified that the court will not interfere in the faith of the people. Should the court then, direct the Lord as to whom he wishes to entertain? The judges have been back and forth in this matter. Justice Chandrachud, once a champion of women entry, dissented against the judgment at a later stage.  

The court has tried to define, at various points in time, what constitutes "essential practice of religion". The founding fathers were prudent enough to keep the subject broad, by giving each person the freedom to practice and profess religion. The state was to interfere only in case it was expedient to do so. The State as well as the people have shown remarkable restraint, which has paved the way for reform in the decades gone by. Whether the same restraint will be shown in this case? Only time will tell....

गौतम पाटणकर

References:
1. https://en.wikipedia.org/wiki/Entry_of_women_to_Sabarimala
2. https://economictimes.indiatimes.com/news/politics-and-nation/sabarimala-verdict-a-timeline-of-    temple-entry-issue-ahead-of-sc-verdict-today/articleshow/72049026.cms
3. https://en.wikipedia.org/wiki/Chilkoor_Balaji_Temple
4. https://www.indiatoday.in/india/story/sabrimala-temple-women-entry-sc-verdict-1619098-2011-14
5. https://indianexpress.com/article/what-is/what-is-the-sabarimala-case-5376596/