Here is why Sabarimala verdict is a perfect case for review

By looking at the heroic celebration, prima facie, it seems that recent Sabarimala verdict by Supreme Court of India where the women between the ages of 10 and 50 are allowed to enter Sabarimala temple is a kind of victory over bad by good backed by overdose of modern values. But the moment you will land on reality after this philosophical journey, you will see a blunder in making. Now, people’s reaction to Sabarimala verdict shows that Supreme Court should upheld the faith of Ayyapans. Even the women devotees of Lord Ayyapa are opposing this verdict and ready to die for the cause. This shows the kind of devotion they have towards the deity.

Since, the case represented as a case where reason has triumphed over prejudice. It has become mandatory to well verse with the facts, and so we need to start with the history of temple. In the 12th century, Manikandan, a prince of Pandalam dynasty meditated at the Sabarimala temple and became one with the divine. It has been believed that Manikandan was an avatar of Ayyappan and belief is the deity is a ‘Naishtika Brahmachari’ which means an eternal celibate, the one who practices strict penance, and the severest form of celibacy.

To be a part of the Sabarimala pilgrimage it is required to undertake 41 days of religious penance known as ‘Vratham’, barring the women of the age between 10 and 50. This practice had prevailed from centuries based on a belief that Lord Ayyappa was a ‘Naishtik Brahmachari’. Here it is important to mention that in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram, AIR 1993 Kerala 42, this practice was termed as an essential practice of the Sabarimala temple by the Kerala High Court.

In the present case of Indian Young Lawyers Association and others v. State of Kerala and others, petitioner challenged the rule 3(b) of the Kerala Places of Public Worship (Authorization of entry) Rules, 1965. Wherein, Hon’ble Supreme court said that exclusion of women in the age group of 10 and 50 from the Sabarimala temple represented a conflict between the group rights of the temple authorities in enforcing the presiding deity’s strict celibate status and the individual rights of women to offer worship there.

Principal defense from the side of managing authorities of the temple was that the Sabarimala devotees have constitutionally protected denominational rights that they were entitled to prevent the entry of women to preserve the strict celibate nature of the deity, and that allowing women would interfere with an essential religious practice.

Earlier, Hon’ble Supreme Court in Shirur Mutt Case, 1954 SCR 1005, held that the essential practice test and the only way to determine the essential practice test would be with reference to the practices prevailing since time immemorial, which may had scripted in religious texts. In the context of Lord Ayyappa, the practice of celibacy and austerity is the unique characteristic of the deity and as Hindu deities have both physical/temporal and philosophical form. Similarly, deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and all persons worship not all forms.

We have more than 1000 temples dedicated to the worship of Lord Ayyappa, where the deity is not in the form of a ‘Naishtik Brahmachari’. Since the deity has manifested himself in a different form, there is no similar restriction on the entry of women in the other Temples of Lord Ayyappa because those temples have a different “Pratishta” concept. Let’s take an example of Attukal Pongala, it is the female version of the Sabarimala pilgrimage and it has even mentioned in the Guinness book of world records for being the largest gathering of women on earth with over 3 million women offering Pongala to the Attukal Devi, a goddess worshiped in Kerala. Here, only women enjoy this privilege and it has not given to male.

In Hindu tradition, the basic reason or logic behind the places of worship is to create a ‘specific spiritual experience’. It is because of this ‘specific spiritual experience’, the rules & regulations of temples or pilgrimages differs from temple to temple and are solely based on who the reigning deity is. Every temple has choice of a particular aspect of a particular deity for worship as per “Pratishta Sankalpa”. Preventive restrictions are in place only for those women who are aged between 10 and 50 and this is primarily due to “Naishtika Brahmacharya Pratishta” wherein the reigning deity of the Sabarimala shrine is an absolute celibate. Also on the question whether Lord Ayyappa constitutes a religious denomination, one has to see the fact that who follow the ‘Ayyappan Dharma’, where all male devotees are called ‘Ayyappans’ and all female devotees below 10 years and above 50 years of age are known as ‘Malikapurams’. A devotee has to abide by the customs and usages of this Temple, if he has to mount the ‘Pathinettu Padikal’ and to enter into the Sabarimala Temple. This set of beliefs and faiths of the ‘Ayyappaswamis’, and the organization of the worshippers of Lord Ayyappa constitute a distinct religious denomination.

At the end of the day while ignoring the ground realities, court demolished the principal defense and said that the devotees of Lord Ayyappa do not constitute a separate religious denomination and that the prohibition on women is not an essential part of Hindu religion. In case of individual rights versus group rights, individual rights will prevail over group rights.

In the same line, the court, did not address the issue of exclusion as an “essential religious practice” and concluded that it was a mere exaggeration. Further, by applying the test of rationality implicitly held that Lord Ayyapa’s “Naishtika Brahmacharya Pratishta” was too abstruse to compromise with the absolute principles of the constitution. Thus, ignoring the deity’s seclusion from fertile women, which is an integral part of the Ayyappan tradition and accepted by all devotees including women, primacy attached to the academic objections by non-devotees.

Justice Indu Malhotra in her dissenting view said that issues of deep religious sentiments should not be ordinarily be interfered by the courts. Held that sabarimala shrine, and deity, is protected under Article 26 of the constitution of India. Religious practices cannot be solely tested on the basis of Article 14 (Equality before law) because it would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practices, which would be outside the ken of the Courts. Because protection provided under Art 25 would only get protected by the protection of essential beliefs and practices of any religion. Thus, the notions of rationality cannot invoke in religion, what constitutes essential religious practice is for the religious communities to decide, not for the court. Further, she added that India is a diverse country and constitutional morality would allow all to practice their beliefs. The court should not interfere unless if there is any aggrieved person from that section of religion.

It is quite interesting to notice that the petitioners were not the devotees of Sabarimala temple. By a self-driven propaganda, they have exploited the belief of the devotees and as a by-product opened a pandora box of litigation on religious issues. Now, for someone it is obvious to ask question about mosques where in theory there is no bar to women going to mosques, but in practice, they have to pray at home. There are thousands of religious places in India, many with their own rituals and practices. There are some of them do not permit entry to women, and some to men. Should courts now start interfering in all these? In addition, it is not limited to one religion it existed in all the different kinds of religion. Whether court now intended to interfere with all the religious rituals & make them in conformity with the constitutional morality.

One has to bear in mind that our constitution provides the freedom of religion and not freedom from religion. Religion is a matter of faith, and all religious beliefs held to be sacred by those who shared the same faith. Faith and belief are internal, while expression and worship are external manifestations thereof. In the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’, which has to be conserved since it is a fundamental right provided under Art 25 &26 of the Constitution. In the end, it cannot be denied that freedom of religion is the inalienable and sacred of human rights, which is provided by our constitution as a fundamental right.

*written by Alok Kumar Singh & Shobhit Awasthi student of law at Dr RML National Law University, Lucknow.

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