Sample these opening lines of a news report in The Hindu on the ongoing hearings before the Supreme Court on the issue of entry of women into the Ayyappa Shrine in Sabarimala:

“Taking a swipe at religious customs and temple entry restrictions violating women’s constitutional rights, the Supreme Court on Monday said no temple or governing body can bar a woman from entering the famous Sabarimala shrine in Kerala where lakhs of devotees throng annually to worship”

“Why can you not let a woman enter? On what basis are you prohibiting women entry… What is your logic? Women may or may not want to go (to worship at Sabarimala), but that is her personal choice,” Justice Dipak Misra, who headed a three-judge Special Bench, pulled up the Travancore Devaswom Board, which manages the shrine.

For a so-called “respectable and credible” news organization, the number of critical flaws in the opening lines alone is mind-boggling:

1. First, the Supreme Court has not yet arrived at a decision on the issue and these questions are merely being asked by the Court during the course of the hearings, which is natural. Although the questions are relevant, they are in no way indicative, let alone conclusive, of what the final outcome may be. Considering the sensibilities involved, this is an important caveat which a responsible news organization ought to have carried with the report instead of giving the false impression that the Supreme Court has made up its mind on the issue.
2. Second, the news report is oblivious to the critical distinction between “fundamental rights” and “constitutional rights”. The rights, whose violation is alleged of by the petitioners, are part of Part III of the Constitution which is titled “Fundamental Rights”. The distinction between a fundamental right and a constitutional right is that the former is deemed to inhere in individuals and the Constitution recognizes such inherence, whereas the latter is not deemed to be inherent, but is provided by the Constitution. This is the reason why fundamental rights are “fundamental” (but not absolute), whereas constitutional rights are not. By terming the rights of the petitioners as “constitutional rights”, the news report in fact dilutes the claim of the petitioners. So much for journalistic due diligence.
3. Third, the rest of the report furthers the impression that the only rights which exist and matter are the rights of the petitioners, while conveniently ignoring the fundamental rights of the Travancore Devaswom Board (which runs the Shrine) under Article 26.

Such blatantly biased news reports, which deftly pit Hindu Temples against women, are to be expected from The Hindu. But what is indeed lamentable is that even otherwise erudite and well-meaning individuals on the Indic Right seem to have unthinkingly bought into this malicious and cockamamie narrative.

Head priest opening the sanctum of the Sabarimala temple.

The popular stance in the discussion on the issue appears to be that the Constitution reigns supreme and therefore no further discussion is warranted on the question of entry into temples. This is a gross over-simplification which could perhaps be partly attributed to lazy research and ignorance, but for the most part must be attributed to this dying need to take a politically correct stand and to pander to the gallery without even attempting to understand the fundamental legal questions involved. After all, the law is not meant only for lawyers and is certainly not beyond the ken of non-lawyers.

The lofty minds spouting free gyaan on the morality and ethics of the issue forget that before a Court of law, the first question that needs to be addressed is whether the position of the Travancore Devaswom Board has a basis in the law, in particular Hindu law and more specifically the Agamas that apply to the Ayyappa Temple. This question is of paramount importance because the Supreme Court has itself held in several decisions that the Constitution gives primacy to religious laws to the extent that they are not based on discrimination or other anti-Constitutional touchstones. In my last three pieces on the rights of Hindu religious institutions, I have demonstrated this position based on the interpretation of Articles 25 and 26 of the Constitution and the latest decision of the Supreme Court on the issue of appointment of Temple Priests which was delivered on December 16, 2015.

“Public Intellectuals” who are eager to comment on the issue and burnish their “progressive” credentials would do well to also read the reasoning of the Supreme Court in Seshammal v. State of Tamil Nadu and N.Adithyan v. The Travancore Devaswom Board. In the former case, while examining the constitutional validity of abolition of hereditary appointment of Priests to Saivaite and Vaishnavaite Temples under the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, the Court upheld the abolition under the Amendment Act on the ground that hereditary appointment of Priests had no basis in the Agamas. In other words, the Supreme Court unequivocally upheld the sanctity and supremacy of Agamas within the Constitutional framework so long as they are not based on discrimination of any kind. Following are excerpts from the Court’s detailed discussion on the significance of Agamas:

“The Agamas contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshipers are to stand and worship. Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the Hindu worshipers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit. The rituals have a two-fold object. One is to attract the lay worshiper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshipers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshiper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes.

 That is a situation which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. According to the Agarnas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine. Worshippers lay great, store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the importance attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatachrlu and others(1) which went up to the Privy Council. The contest was between two denominations of Vaishnava worshippers of South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple and the controversy between them involved the question as to how the invocation was to begin at the time of worship and which should be the concluding benedictory verses. This gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum sanctorum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of any- body else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which Place in the temple are all matters of religion as shown in the above decision of this Court.

 The Agamas have also rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in a temple, of a different denomination’ ………….. None others, however, high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies in important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”

The same position was reiterated in the second case, where the issue before the Court was whether only a Malayali Brahmin may be appointed as a Priest of the Kongorpilly Neerikode Siva Temple in Kerala. Answering the question in the negative, the Court held that since the Petitioner had not led a shred of evidence based on custom/usage/Agamas to support his position, his contention was untenable in law.

Sabarimala Ayyappa Shrine

Therefore, in the context of the Sabarimala Ayyappa Shrine, the question that will need to be examined by the Supremes is whether the bar on entry of women of a certain age group in the Temple is rooted in the history and customs of the Temple and whether such history/custom flows from misogyny. If the Agamas that apply to the Temple reveal that misogyny plays no role in the decision to bar entry of women of a certain age group, and that the bar flows from the edict of the presiding deity of the Temple given the deity’s celibate nature, the bar will have to be upheld because that would be consistent with the Constitutional mandate. Further, given the position of the law on defilement/desecration of the image in a Temple, it is a legitimate and legal question to ask whether the Kannada actor Jaimala ought to have been allowed to enter the sanctum sanctorum of the Sabarimala Temple and touch the image.

While the Supreme Court must be trusted to do justice to the questions before it, the least that can be expected of enlightened members of the Indic Right is that they do not perpetuate the narrative of the Left by attributing misogyny, patriarchy and casteism to Hindu Temples where it is not warranted. Instead, their erudition and standing as “Public Intellectuals” could perhaps be put to better use in the service of the Hindu cause by helping to combat pernicious stereotypes propagated by the Left and its cronies in the media.

If reform is what people wish to usher in, it must be understood that although change is the only constant, reform cannot have the consequence of obliterating the foundations of the faith or altering its core beyond recognition. The Supreme Court itself has held that the essentials of a faith cannot be altered by the Legislature or Courts. Importantly, in Sardar Syedna Taher Saifuddin v. State of Bombay, the Court held that the reformative levers and mechanisms provided to the State in and by the Constitution were “not intended to enable the legislature to “reform” a religion out of existence or identity”. I agree with this position not because these are the words of the Supreme Court, but because this is the right and the balanced position to take in one’s opinion. Simply put, militant progressivism at the expense of the central tenets of a faith or the identity of a religious institution is as bad and abhorrent as religious fanaticism, and therefore deserves the same treatment.

Sai Deepak

J. Sai Deepak is a Delhi-based litigator who practises primarily before the Delhi High Court. Sai writes on economic laws and policy on his blog “The Demanding Mistress” http://thedemandingmistress.blogspot.in/. He is @jsaideepak on Twitter.