The current controversy over access to the Sabarimala temple has significant implications for women’s rights, and the outcome of this case will impact similar controversies including the one currently brewing around the denial of access to women to the Shani Shignapur temple in Maharashtra. On Tuesday, female devotees held a dharna outside the temple complex in Ahmednagar district asserting their right to worship there.
In its plea before the Supreme Court, the Indian Young Lawyers Association has sought entry for all women and girls into the Sabarimala temple in Kerala, which, as a practice, does not allow girls and women between the ages of 10-50 years to enter the premises. The central tension in this case is what happens when what are claimed as “essential practices” of the faith and part of the right to religious liberty by the priests of Sabarimala, come into conflict with the constitutional right to gender equality. Which right trumps? What is unique about this case is that women are refusing the logic that sets up the right to religious liberty in opposition to gender equality. Rather, Hindu women are arguing that it is part of their right to religious liberty to access the temple.
This is not the first time that the case has come to court. In 1991, the Kerala high court upheld the restriction. The case, which was converted into public interest litigation, involved a complaint against young women trekking in the Sabarimala hills and offering prayers at the temple. Using the reasonable classification test, the court held that the prohibition did not discriminate against women as a class, but was only in respect of women of a particular group. Based on the logic of formal equality, where only likes can be treated alike, women between the ages of 10-50 years it seems constituted a distinct category and hence they were ineligible from claiming a violation of the right to equality. The court accepted the views of the head priest who at the time stated that the temple could be accessed only by those who had “observed penance”, meaning purity, for a period of 41 days, that menstruating women were incapable of performing. In accepting this argument and implicitly upholding the equation of menstruation with impurity, the court played a key role in constructing what was claimed to be a legitimate religious practice.
Similar arguments regarding the ineligibility of women are being advanced in the case before the Supreme Court. A key argument is that the central deity is a “Nisthik bramachari” or celibate, and that the presence of menstruating women before such a deity would somehow have a sullying affect on this status. The opponents also claim that the practice has been prevalent since time immemorial, an argument that was accepted in the 1991 decision. The Supreme Court has already questioned whether there is proof that women did not enter the temple 1500 years ago. A further argument is that the pilgrimage to the temple is an arduous one and should not be undertaken by women in the interests of their own safety.
It is not surprising that these arguments have been framed partly in the language of protectionism, in which women are considered as weak, incapable, and in need of protection. Such arguments have been accepted by the courts and the state time and again, and used to justify the denial of women’s rights to property, education and participation in the political space in the past, and today, to block women’s fundamental rights within the domestic sphere, such the right to consensual marital sex. In the Sabarimala case, it is apparently the duty of the temple authority – consisting entirely of Hindu men – to ensure women’s safety. Yet somewhat contradictorily, this same lot considers the prospect of menstruating women entering the premises as terrifying and threatening, and capable of contaminating and corrupting the celibate Lord Ayyappan.
While these self-anointed preservers of Hindu cultural practices operate with rigid gender stereotypes and fixed notions of gender, as man and woman, the legend and lineage of Ayyappan is somewhat more colourful and less rigid and actually includes a fusion between two male gods, who gave birth to his father. Such phobias also disavow the presence of strong outspoken women who have been a part of these traditions, including Gargi, Maitreyi, and Lopamudra.
Judicial discourse on test too
Moreover, while the keepers of the temple insist that the rule against menstruating women has been sacrosanct, this claim appears questionable. Indeed, much of what constitutes the content and substance of Hindu practice has actually been established by the Supreme Court in and through the doctrine of essential practices. The landmark decision of the court in Shirur Mutt (1954) validated legislation that upheld the state’s right to restrict and regulate religious practice under Article 25. The Supreme Court over the years evolved a doctrine of “essential practices” to decide which religious practices and rituals were eligible for constitutional protection and which were not. The historical basis for the “essential practices” test is found in the colonial era where the colonial courts attempted to identify and define religious identities and in the process augment their role in disciplining and managing each community. In the process, they also ended up constructing in law the very religions and religious identities that they were regulating.
Post independence, the “essential practices” test was largely developed by Justice P.B. Gajendragadkar, Chief Justice of India from 1964 to 1966, to expunge “superstitious and irrational elements” from different religions and provide them with a rational basis. In the process of trying to demarcate the line between religion through the essential practices test, as distinct from the secular functions of religious denominations in which the state could interfere, the courts were drawn into inquiring into the contents of religious beliefs and in the process to actually construct the tradition as well as the religious identity. The contest in the Sabrimala case is thus not about an ancient cultural practice and faith, but about a thoroughly modern understanding of religion and the regulation of religious life in and through the right to religious liberty by the courts.
Indian women, and in this instance, Hindu women, are making a powerful claim and in the process challenging a deeply conservative and pernicious mindset that continues to use gender stereotypes to justify exclusion, subjugation, and denial of women’s fundamental rights. In this instance, what is interesting is that women within the community have claimed that gender equality, that is equal treatment with men in terms of access to the temple, is not in conflict with the essential practices of the faith and indeed, is constitutive of and consistent with such practices. In other words, they are pushing back on what comprises Hindu belief and practices, and claiming the terrain as their own.
Ratna Kapur is Professor of Law, Jindal Global Law School