In my last article as part of this series, I had discussed in some detail the constitutional validity of the position of the Travancore Devaswom Board (TDB) on the issue of entry of women aged between 10 and 50 years into the Sabarimala Temple. Subsequently, I also wrote a piece in OpIndia narrating my experience of taking part in a debate on NDTV on the issue. In this piece, I will discuss the reasoning of a Division Bench of the Kerala High Court in its judgment dated April 5, 1991 on the same issue. A discussion on this judgment is important because:
- The Supreme Court is likely to refer to it during the course of the hearings (which are expected to resume on February 8, 2016) in the PIL filed by the India Young Lawyers Association (IYLA); and
- Those who are peremptorily calling upon the TDB to allow entry of women aged between 10 and 50 years into the Temple are asking the Board to defy the directions issued by a Constitutional Court in a reasoned decision.
Here are the conclusions of the High Court and the directions issued by it to the TDB:
“44. Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
(3) 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 whereas the prohibition is only in respect of women of a particular age group and not women as a class.
45. In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”
To the best of my knowledge, the judgment of the High Court has neither been stayed nor set aside by the Supreme Court since 1991. Therefore, it continues to apply to the TDB. But what led to the issuance of these directions in the first place?
The directions were issued by the High Court in a writ petition filed by an individual, S.M.Mahendran, who complained that much against the rules which govern the religious practices of the Sabarimala Temple, young women were being allowed to trek the Sabarimala Hills and enter the Shrine, and that ‘V.I.Ps’ were being accorded special treatment. One such ‘V.I.P’ was the former commissioner of the TDB herself, Ms.S.Chandrika, from whom an explanation was sought by the High Court in the hearings in the petition. The Kerala branch of the Indian Federation of Women Lawyers too was allowed to take part in the proceedings so that its views could be heard on the right of women to enter the Temple.
The position of the TDB in its response to the petition makes for a very interesting read and might come as a surprise to “spokespersons” of women’s rights as well as devotees. The Board took the position that women between the ages of 10 and 50 were not allowed in the Temple only during the Mandalam, Makaravilakku and Vishu seasons and that women of all ages were allowed entry in all other months.
The Board, in fact, was of the view that being a statutory authority, it could not violate the rights of any worshipper to enter the Temple. In a nutshell, while the Petitioner contended that women between the ages of 10 and 50 could not trek the Hills or enter the Temple in any month or season, the TDB argued that such women were barred from entry only during the Mandalam, Makaravilakku and Vishu seasons.
The High Court accordingly framed the following questions for its determination:
(1) Whether women between the ages of 10 and 50 could be permitted to enter the Sabarimala Temple at any period of the year or during any of the festivals or poojas conducted in the Temple?
(2) Whether the denial of entry of that class of women amounts to discrimination and is violative of Articles 15, 25 and 26 of the Constitution of India? and
(3) Whether directions can be issued by the High Court to the Devaswom Board and the Government of Kerala to restrict the entry of such women into the temple?
“22. The position that emerges is that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion. No outside authority has any jurisdiction to interfere with the decision of such religious denomination. Article 26(b) gives complete freedom to the religious denomination to manage its own affairs in matters of religion. The only restriction imposed by that article is that the exercise of the right is subject to public order, morality and health. The freedom of conscience and freedom to speak, profess and propagate religion guaranteed under Article 25 of the Constitution is subject not only to public order, morality and health, but also subject to the other provisions of Chapter III. It necessarily implies that the right to freedom of religion guaranteed under Article 25 is subject to the freedom to manage religious affairs guaranteed under Article 26(b) of the Constitution.”
As discussed in the second part of this series, this has been the position of the law since 1957. I had also written that a religious practice of a religious institution is subject only to public order, morality, health and the power of the State under Article 25(2) to pass a law abolishing the practice to (a) advance the cause of social welfare or reform or (b) to throw open a Hindu religious institution of a public character to all classes and sections of Hindus. In the absence of such a law, and unless the practice is struck down by a Court for being contrary to public order, morality or health, there is no ground under the Constitution for interference with the practice by a Court, even the Supreme Court.
Having thus recognized the fundamental rights of religious denominations to manage their religious affairs, the High Court also observed that the TDB had a statutory duty to enforce the customs of the Temple and had no right to alter or modify them since the religious rules that apply to a Temple (Agamas) have to be strictly observed under the Travancore-Cochin Religious Endowments Act as well as the Constitution.
In other words, according to the Court, even the TDB was not above the religious rules that applied to the Sabarimala Shrine. Critically, in these times of frequent unwarranted interference by State Governments with the functioning of Temple Boards, paragraph 28 of the High Court’s judgment is worth reading because, citing a decision of the Supreme Court, the High Court held as follows:
“…in matters of religion the right of management given to a religious body is a guaranteed fundamental right which no legislature can take away. We have serious doubts whether the State can impose restrictions on the powers of the Travancore Devaswom Board in the matter of regulating its affairs.
Given that the issue of entry of women related to the religious practice of the Temple, the High Court considered the testimony of Shri Neelakandaru who had served as the Thanthri (Priest) of the Temple for over half a century. It needs to be understood that this is the way to give effect to the religious rights of an institution under Article 26 of the Constitution. Had the issue related to a Mosque or a Dargah, the testimony of the religious head of that institution would have been equally critical to the Court’s analysis.
According to the Thanthri, although the Temple was open to people of all castes and genders, women between the ages of 10 and 50 were prohibited from entering the Temple throughout the year even before and at least since 1950, which established the prevalence of the rule for a significant period of time. As for the basis of the custom, it was submitted to the Court that unlike its forms in other Temples at Achankovil, Aryankavu and Kulathupuzha, the deity in the Sabarimala Temple was in the form of a “Naisthika Brahmachari” i.e. a perpetual student who never wished to take upon himself the duties of a householder.
Since there was no element of discrimination against women or misogyny in the basis for the practice, the High Court held that the bar on entry of women between the ages of 10 and 50 was not violative of the fundamental rights of women on the Constitution, and directed that the bar must be observed strictly by the TDB throughout the year.
At the risk of repetition, to anyone who reads the reasoned and detailed decision of the High Court with an open mind, it would be evident that the restriction on entry of women of a particular age group into the Sabarimala Temple has nothing to do with the so-called “impurity of menstruation” or “misogyny”, which is unfortunate for the Left and flag-bearers of feminism.
What the Left also does not wish to acknowledge is that in stark contrast to the blanket stance of the trustees of the Haji Ali Dargah that the presence of any woman without exception in close proximity to the grave of a Muslim male saint is a grievous sin in Islam, the position of the Sabarimala Shrine is balanced, reasonable and is not rooted in contempt for women.
That apart, since the Left is so fond of waxing eloquent on upholding the Constitution and the rule of law, is it not guilty of engineering violation of the Constitution by instigating misguided individuals to breach the fundamental rights of Hindu religious institutions alone? Not to mention, in the process trampling upon the religious beliefs of scores of Hindus (including women) who want the religious practices of the Sabarimala Temple upheld and observed.
After all, thus far, the Left has not sponsored a group of women to enter the Haji Ali Dargah against the Dargah’s beliefs and customs. But then, the double standards of the Left is old news. What is important is for people to understand that it is not possible to strictly “rationalize” religion and spirituality in the idiom of modern day secularism and liberalism and dare I say, it shall never be possible because faith is just that- faith. This was recognized by the Supreme Court in the following words, which holds true of all religions:
“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”
I am not for a moment suggesting that brazenly regressive and discriminatory practices be either revived or preserved for eternity. However, as the Supreme Court noted in yet another decision, 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”. This must be borne even by those who genuinely seek reform. It would also help if such individuals invested efforts in understanding the basis of a religious practice before parroting the Left’s narrative of class hatred and patriarchy.
Surely it is possible to advocate reform without making sweeping allegations against a faith and an entire community. Isn’t this the standard expected of a discourse in relation to Islam and Muslims? Then why should Hinduism and Hindus be exceptions to this standard when the Hindu society has shown an innate propensity for reform from within?
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.