• Law Mentor

SABRIMALA ISSUE.

Introduction


Today we hear the words like women empowerment, feminism, equality etc. all these words are quite famous around the globe, and all are pointing towards solving one issue which is common in this world which is discrimination for females. India has a golden history for women, in Vedic times, women in India used to have equal rights like men. It is evident from the text of our religious texts. Texts like Mahabharat, Ramayan, Geeta shows that India has respect for women from the start. Whenever any person in the history disrespected women, he was demolished by the then law makers and justice givers.


But some people give arguments, which tend to demolish the golden image of India. The evil customs like Balvivah, Sati Pratha, Purdah, Honour Killings (Kangaroo courts), untouchability, castism etc. are the example of such kinds of customs which demolishes the equality in India. But how these practices polluted the basic equality which was there in the roots of the religion, if we look closely many of them are just outdated and were adopted because of their need at that time and for safeguarding Hindu religion. This is not the topic of our article but we will give one example as to how these customs are correct for their respective time being and how they are right to get them abolished in 21st century.


Let’s take the example of Child marriage, i.e. Balvivah. This is a well centered view that Hindus never supported Child Marriage in their ancient times but the situations of invasions on the land, made it obligatory for the parents, to fix the marriages of the girls at very young age to safeguard their girl from devils in the garb of human came from far countries like Mongol, Afghanistan etc. This practice continued for so long in our history that this became a custom which was followed by maximum no. of Indian even in late 20th century. Now as we saw that the adoption of this custom was important when it was adopted but the problem came when people continued to practice it as a custom without knowing the history and reason behind the custom. So the judicial system took an action towards this arbitrary custom and abolished the same.


According to the report published by UNDP India ranked 127 in Gender Inequality Index1, which shows the deteriorating condition of India with respect to Gender Equality. Although Indian government is trying to change the current scenario and bring back gender equality as it used to prevail in early Vedic period but the initiative does not seems to be successful. Gender equality is not a concept that can be achieved in one day or so it requires rigorous effort from both the side government as well as citizens. To achieve equality we need to change our mentality, we need to understand that women are not meant to be the slave of men they are on par with them.


Many cases were established and many of them made a landmark judgement for the equality of women in India. Sabarimala Case can be recorded as one of the most recent uprising for women rights. It is the fight of women against the age old religious principles which according them was exploitative, it prohibit them to enter the premises of the holy Sabarimala Temple situated on Sabarimala hilltop (about 3000 feet above sea level) in Pathanamthitta district of Kerala. This temple is in dispute due to its custom of restricting women of certain age group from entering the temple. This restriction on women was declared unconstitutional by the Supreme Court in the case of Young Lawyers Association & Ors. vs. State of Kerala & Ors. These rules were made under legislation, Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, who knows the customs of the reason of customs related to their region much better than anyone else. It didn’t mean to attack and discriminate the women, there was a reason behind this custom back in the day, which we will enlighten through this article. However, such uprisings against women rights show that achieving gender equality is still a dream to be achieved very soon for the Indian society.


Let’s study the Historical Background to see that what is the reason and origin for this custom which is marketed as arbitrary among Indian Citizen just like Hindu terrorism.


Historical Background of the Sabrimala Custom


As always there are many versions of same legend, according to one of them, Ayyappan, the deity of Sabarimala Temple is a celibate. When he defeated the evil demoness ‘Mahushasuri’, she turned into a beautiful young woman. She had actually been cursed to live the life of a demoness until the child born out of the union of Shiva and Vishnu defeated her in a battle. Ayyappan, being the abandoned son of Shiva and Mohini who was an incarnation of Vishnu, could set her free after defeating her in the battle. He fought the battle according to the legend. After the battle, the young woman proposed to Ayyappan for marriage, but he refused her saying that he had been ordained to go to the forest, live the life of a Brahmachari and answer the prayers of devotees. However, the young woman was persistent, so Ayyappan promised to marry her the day kanni-swamis (new devotees) would stop visiting him at Sabarimala. Unfortunately for the woman, Sabarimala was visited by kanni-swamis every year, and she was not able to marry Ayyappan. The woman is worshiped as goddess Malikappurathamma at a neighboring temple.


According to the "Memoir of the Survey of the Travancore and Cochin States", published in two volumes by the Madras government in the 19th century, women of menstruating age were denied entry into the Sabarimala temple even two centuries ago. This is considered to be the custom of Sabarimala and if we think it from the law perspective it come out as a valid custom as it fulfill are the essential of a valid custom.


The essential of a valid custom is given below:

  • Ancient,

  • Invariability and continuity,

  • Reasonableness,

  • Clarity and unambiguity,

  • Not opposed to public policy

  • Not opposed to express provisions of law,


Now this customs have raised question on the morality and reasonableness of the custom and we could have gathered from the custom it is totally immoral to say that a women after she has attained the menstruality is impure and should not go to sabrimala.


This is one of the various folklores famous about the birth of Lord Ayyappa but what is the exact truth no one is aware of till date. But if we take this one as a truth then there is the wish of a person, not to marry anyone, which is justified under the article 21 of the constitution of India. According to this article he can do whatever he wants to do in his personal life. The decision of not marrying was his personal choice which is completely justified. But if we look into the legend again it says nothing about restriction on women to enter in the temple or the place he was devoting to the deities in his times, but yes he shows strong disagreements to marry any women and forbids the women of certain age to enter into the place as it could terminate his fast to be celibate his entire life.


According to the folklore, he wanted to live as a brahmcharya which means he cannot touch any women in his entire life which gives rise to another question that why he allowed entry to girls of younger age and women of elder age, the answer can be given by the fact that in Hindu religion every girl of smaller age is considered to be the daughter and latter is considered to be mother and they can’t marry him which will keep his Brahmchariyata valid. Only a certain aged women who has the potential to marry him or who can seduce him are restricted to enter in Sabrimala because he wanted to be celibate.


Refusing entry to the girls even at this date is completely inappropriate and opposed to public law as it violates Article 14, 25 and 26 of The Constitution of India, Rule 3(b) of Kerala Hindu places of Public worship (Authorization of entry) Rules, 1965 and is simply arbitrary.


Relevant Facts


A group of five women lawyers has challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorises restriction on women “of menstruating age” to enter in the Temple by saying that it is the last wish if Ayyappa the Deity which they worshipped. They moved to the apex court after the Kerala HC upheld the centuries-old restriction, and ruled that only the “tigmat (priest)” was empowered to decide on traditions.

Senior Advocate Indira Jaising, who represented the petitioners, said the restrictions went against Articles 14, 15 and 17 of the Constitution. She argued that the custom is discriminatory in nature and tigmatized women, and that women should be allowed to pray at the place of their choice.


What Happened in Kerala High Court


In 1990, S Mahendran started a petition, alleging that young women were visiting Sabarimala. The verdict on the petition came in 1991 where Justices K. Paripoornan and K. Balanarayana Marar of the Kerala High Court banned entry of women between ages 10 and 50 from offering worship at Sabarimala, stating that such restriction was in accordance with the usage prevalent for a long time. According to them this was a valid custom and it does not exploit the rights of women as it restricts the women of certain age. In addition, the High court directed the Government of Kerala to use the police force to enforce the order to ban entry of women to the temple.


The court observed thus:

Such restriction (restriction of women entry) imposed by the Devaswom Board is not violative of Articles 14, 15 and 17, 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, like in the case of Shastri v. Muldas, in which the entry of one class of the people is restricted by other class due to the bad customs of untouchability and their region, whereas the prohibition is only in respect of women of a particular age group and not women as a class so, this restriction does not fall under the category of unconstitutional.


Many people protested against the order of Kerala saying that it is just arbitrary of the High court and it should be abolished but no one ever held courage to go in Supreme court for the final verdict.


Despite this judgment many women were reported to enter in the temple before and even after the judgemnet of Kerala High Court came. So many people questioned that why is there only restrictions for common people and not for the persons who are Very Important for the Devaswom board.


The cases in which women entered in the temple are as follows:

The report of “Memoir of the Survey of the Travancore and Cochin States” said, Prior to 1991 when the Kerala High Court forbade the entry of women to Sabarimala, several women had visited the temple sporadically, although mostly for non-religious reasons but that is irrelevant here. There are records of women pilgrims visiting the temple to conduct the first rice-feeding ceremony of their children (Chorounu) at the temple premises. On 13 May 1940, even the Maharani of Tranvancore is recorded to have visited the temple. However, this information lacks verification. In 1986, when young actresses Jayashree, Sudha Chandran, Anu, Vadivukkarasi and Manorama danced near the deity at the pathinettam padi (18 steps) for the Tamil movie named Nambinar Keduvathillai, a fine of Rs. 1000 each was imposed on the actresses and the director of the movie. The Devaswom Board, the board in charge of the maintenance of the temple and premises was also fined Rs. 7500, because it had given the director permission to film at Sabarimala. The point here is that the board allowed them to shoot and dance there. Former Karnataka minister Jayamala has also claimed to have entered Sabarimala at the age of 27 and touched the idol in 1986. After this Judgement came a Daughter of VIP was reported to enter the premises of the Temple to offer her prayers in the temple.


What Happened in Supreme Court


In 2006, six women, members of the Indian Young Lawyers' Association, petitioned the Supreme Court of India to lift the ban against women between the ages of 10 and 50 entering the Sabarimala temple which was imposed by Kerala High Court. They argued that the practice was a violation of their constitutional rights and questioned the validity of provisions in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules act of 1965 which supported it.


In September 2018 the Supreme Court of India ruled that women of all age groups can enter Sabarimala temple. The court ruled thus:

We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship freely.


The verdict was passed with a 4-1 majority where Chief Justice Dipak Misra, and Justices A. M. Khanwilkar, R. F. Nariman, D. Y. Chandrachud favoured permitting women to enter the temple, while Justice Indu Malhotra dissented which was very shoking because she was a woman herself. Indu Malhotra said that every individual should be allowed to practice their faith irrespective of whether the practice is rational or logical because in case of religion the factors like logic etc. do not hold very good. The Supreme Court observed that the custom of barring women was in violation of Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worship. The petition that led to this verdict was filed by the Indian Young Lawyers Association.


Arguments Analysis


In against :


According to the arguments which are in against of Sc verdict says that the restriction is completely right as it is in accordance with the wish of the deity for which the temple was made and they said that Sc should see the Ayyappa as a living person and allow him to have personal liberty of life as given by article 21 of Indian Constitution. They also argued that similar to this there are many restrictions to men as well like in Pushkar, but protests like this never happen in past. Thus the protest happening today and for this particular temple is just the agenda of Hindu haters to make the Hindu Hate their religion and nothing. We should respect what our religion and its customs without any question. There dumbheads also raised this question that why only this question why not the arbitrary practices of Muslims like not letting them enter into the Mosque was raised, this question however have some relevancy here but we have to start somewhere. As we all know that muslims are less liberals and have less education so the change in this religion is quite difficult as compared to the Hindus. But we can’t take the defence of others being wrong so we are right like a child do. If they are doing wrong it does not mean that we should do the same. Prominent Jain Acharya Yugbhushan Suri Maharaj, also known as Pandit Maharaj, has said that sanctity was a religious issue and that it was connected to fundamental religious rights. Commenting on the Sabarimala temple row, Pandit Maharaj told IndiaToday.in, "Whether it is Sabarimala or Jharkhand's Shikharji, the agitations are for sanctity," adding, "Religion talks about inner belief and sanctity. This should be respected. I am not against the judiciary or the Supreme Court, but they should not overlook the belief of the people. As per the belief is concerned, this world does not work with the mindless beliefs, one belief is there in the tribe does not mean that it should be there and it is right. We live in 21stcentury and we can’t take such illiterate defence just to show that it is right.


Others believe that Ayyappan himself placed restrictions on women entering the temple because he wanted to be celibate, and the presence of women of reproductive age group would distract him from this cause. This argument could be a nice argument when Ayyappa was alive but now because how can a person be seduced by anyone who is not alive. Some believe in the taboo that menstruation is impure (thereby making women of menstruating age also impure), and that it is a sin to visit a Hindu god while they are impure. Some people have pointed out the practical difficulties for women in climbing Sabarimala. The Sabarimala temple is situated on the top of a hill surrounded by mountains and dense forests, which some regard as physically challenging to women to navigate. An official of Sabarimala has pointed out that there will be lack of adequate sanitation facilities for women, thus making their journey difficult. Hospital facilities are also sparse. Some argue that women will 'defile temple premises', and 'distract' the pilgrims who follow a 41-day period of strict abstinence from sex. The Travancore Dewaswom Board president said that allowing women to the temple will lead to 'immoral activities' and turn the place into 'a spot for sex tourism like Thailand'. But all these arguments were just irrelevant because the problem they are quoting can be relevant in ancient times not now, because now we have so much technology and sanitary pads which can be used in case of problem if any, and also they can’t have problem all of their life span. And the point of distracting the deity has already been discussed above that how it is not relevant in today’s world.


The biggest hole in their argument was that, they are saying that no women should enter the temple if she is having her menstrual cycle but in the past as we mentioned above, many women were entered in the temple and one time with the permission of board. So there arguments are just arbitrary. They are denying their own argument, it can not be completely banned even if the supreme court had banned their entry so why not it be opened for all the person as it will favour the article 44 and 14 at the same time.


Impact after SC Verdict


Two women aged below 50 walked into the Sabarimala temple in Kerala before daybreak on 2 January 2019, becoming the first to do so since the Supreme Court ordered the end of an 18 year old restriction by the 1991 Kerala high court judgement on women of menstrual age entering the shrine.


Ninety-five days after the Supreme Court lifted restrictions on the entry of women at Sabarimala hill shrine in central Kerala, two activist women, Bindu a resident of Koyilandy in Kozhikode district and Kanagadurga a native of Angadipuram in Malappuram district, both in their mid-40s, entered the temple with the escort of police personnel at around 3:45 am on 2 January 2019 Wednesday. They had previously attempted to climb the hill on 24 December, before being blocked by protesters. According to reports, both women had stayed at a secret location, vowing not to return home until they offered prayers at the temple. But only the rumors are left behind on entry of menstruating women into sabarimala. And none of the proofs were strong enough to suggest that any women have entered. Most of the proofs were found to be Photoshoped or was false. Even the government valued proofs were wrong and fabricated.


This just shows that India has long way to go in terms of the implementation of the verdicts. Not just this many verdicts were there the execution of which is still pending for years, this has to be solved so that the speed of development could be touched in this country.

Kerala Chief Minister Pinarayi Vijayan confirmed the entry of the duo at the temple and underlined that the police force was duty-bound to give protection to anyone who asked for security. On 4 January 2019, a 46-year-old woman from Sri Lanka entered the Sabarimala Ayyappa temple and prayed at the sanctum sanctorum. She became the first woman under the age of 50 to have climbed the 18 holy steps with irumudikkettu (offerings to the deity) since the Supreme Court verdict.


On 8 January 2019, a 36-year-old woman dalit leader claimed to have entered the temple. A Facebook group called 'Navodhana Keralam Sabarimalayilekku' (that translates to Renaissance Kerala to Sabarimala) has posted a series of videos and photos showing the dalit leader at Sabarimala, to prove the claim.


Conclusion


Sabrimala has to be happened some time and this time came now, many other practices are there which needs to be abolished in India and needs to be stoped but the writer is really glad that this has started somewhere.


The fact that not many women have entered the premises of temple have raised a question in the minds of people that if the women were not entering the temples then how could it be the question of women and if not women then who raised this question. That what is the use of this verdict if no one is using it? Some people even contended that this was the agenda of Non- Hindus to demolish the pious Customs of Hinduism which keeps the Hindus and Hinduism very interesting and colourful till date. But then it is said that this verdict was very necessary just to show to the world that India Judiciary is a very Mature Judiciary system and it is above all Customs and religion and that it is really working towards implementing article 44 of the constitution of India.


The question, why not the arbitrary practices of Muslims like not letting them enter into the Mosque was raised, this question however have some relevancy here but we have to start somewhere. As we all know that Muslims are less liberal and have less education so the change in their religion is quite difficult as compared to the Hindus. And if we kept saying that why me first then the last will never come and the objective of article 44 will never be achieved.


Now, it is the time for the people to rise above petty feeling of fundamentalism and work together. Writer is not in consonance with the dissenting opinion of Justice Indu Malhotra. He respect the dissent of her but in current case of Sabarimala it is not just about right to profess religion it is about the women who were discriminated without any reasonable cause and were considered impure due to their biological menstruating feature. He strongly believe that the decision of Supreme Court to allow women to enter Sabarimala was in favour of constitution and beneficial for public at large.


- Submitted by

Manik Dev

SRM University, Sonipat, Delhi NCR

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