This article is written by Shobhit Dixit a Shobhit Dixit, a 4th Year Law student studying at the University of Lucknow. The article deals thoroughly about the shabrimala temple and issues as well as verdict regarding shabrimala temple.
Introduction
The apex court ruling on September 28, 2018 in the matter of Indian Young Lawyers Association Vs State of Kerela1 case, overturned long-standing practice preventing woman of reproductive age from visiting Sabrimala shrine. The dictum was widely criticized among masses, Lord Ayappa, who maintains perpetual celibacy, is believed to reside in the temple.
HISTORY OF ORIGINS OF TEMPLE
Once an ascetic informed King Rajasekara about actual identity and divinity associated with his son’s birth namely, Manikandan. In due course when Manikandan get back after getting tigress milk in order to cure his mother illness, then king bowed and ask for forgiveness. Before his departure Manikandan (Lord Ayyappa) asked to construct a temple in his memory. Subsequently, King Rajasekara laid the cornerstone for the Sabarimala shrine on the suggestion of Saint Agasthya.
Devotees are expected to follow a style of life similar to that of a Brahmachari, Lord Manikandan had emphasized that he would only provide blessings to those who offer Darshan after observing forty-one days of penance or Vrtha that requires severe abstinence from family cravings and tastes. They dress themselves in three-eyed coconuts and place food/Aantha garlands on their heads as they climb the steep slopes of Sabarimala. They imitate Lord Ayyappa, who bathed in the River Pampa while chanting the Saranam mantra, and climb the 18 steps to receive the blessings, symbolic of the pilgrimage where he sought tigress milk from the forest.2
COURT FAILED TO LOOK INTO SCRIPTURES WHICH FORMS THE BASIS OF IMPUGNED PRACTICE
It can be ascertained during the course of arguments and public debates those who actually opposing the particular practice tends to misalign its foundational structure, using arguments rooted in misogyny, patriarchy, gender inequality. As such, this is anathema and warrants more calibrated public discourse. The central reasons behind such practice flows from birth of lord Ayappa itself. The Objective of Birth of lord Ayyappa is to slay the demon Mahishi, whose curse only be lifted upon her death.3 After Ayappa killed mahishi, a beautiful woman emerged and requested him to get married. However, Ayyappa refused, stating that he would marry only when the “kanni swamis” (pilgrims who undertake the journey for the first time) stopped coming for the pilgrimage. This woman, who is revered as Malikapurathamma, continued to wait in the shrine near the main temple, worshipping Lord Ayyappa. The resistance from woman of reproductive age is to preserve the sanctity and the nature of the deity, embodying empathy towards her eternal wait. Additionally, before embarking on the pilgrimage, devotees are required to observe vow or vratha of 41 days, which can be considered challenging from physiological standpoint and affect sexual heath of woman. 4
Science and Temples
In Hinduism, temples were constructed in areas possess high-magnetic field. Apana Vayu is a subtype of Vata dosha, a bio-energy governing the human body, responsible for elimination of waste i.e. excretion and menstrual flow. Spiritual activities aim to uplift energy upwards, and disruptions in its downward flow can impact bodily functions. It is highly advised to women to avoid practices which push Apana Vayu upward, such as visiting temples or doing inverted yogasanas which may discomfort and disruption in menstrual cycle. Additionally, the concept of Bhramacharya in men involves transform sexual fluids into subtle energies called Ojas and Tejas. If woman engage in similar practices, it could reduce menstrual flow and eventually cessation of ovulation, impacting their
reproductive ability. 5
Only Sabrimala, not other Sastha temples
Other Sastha temples sitiuated in Achankovil, Aryankavu, and Kulathupuzha do not impose any restriction on woman having reproductive abilities. The primary reason behind such practice the deity in aforesaid temples are represented in different forms. Eventually, Travancore Devaswom Board, contended that God in Sabarimala is in the form of a Naisthik Bramchari which is the sole reason behind such embargo6. Even in Achankovil temple, Lord Ayyappa leads the Grihastha Ashrama life here – he is depicted as a family man or leads married life here. He is depicted along with his two wives – Purna and Pushkala.7 It can be ascertained from the abovestated facts the very basis of entry ban of menstruating women in sabrimala temple is Celibate nature of Lord Ayyyappa and the central attribute of brahmacharya is abstinence from women and impugned practice has nothing to do with mensturation.6
Whether impugned practice violative of Part III of Constitution
Deity and devotees enjoys right under Article 26 of constitution8, as rights of deity are well-recognized under the constitution as a Juristic person as same as Ram Lala in Ram Janam Bhoomi Case. Article 26 emphatically at the very outset states ‘Subject to public order, health and morality…’ means Article 26 only ceased to exist if it against Public order, morality or health. It is quite apparent article 26 is not subjected to any other fundamental right guaranteed under Part
III. Now the question arises here how Sabrimala is Religious Denomination under article 26, will deal this aspect later under this Article.
K. Prasaana while opposing violation of article 17, emphatically citing constituent assembly debates argued article 17 has no application with regards to entry ban, citing the legislative behind Article 17 is to eradicate the untouchability based on caste. Followed by Shree J Sai Deepak before the apex court the same grounds and similar arguments were placed with certain modifications and alterations. This cavalier application of law is wholly
misplaced and misconceived, comparing grapes with oranges and somehow equating culpability of the person who use to practice untouchability with historical practice which was based on scriptures and wish of the deity.
Article 15(2)(a) and (b) does not include ‘Place of worship’ or ‘temple’.9 However, during course of arguments it has been wrongly assailed that ‘Place of public Resort’ under Article 15(2)(b) includes Place of Worship. In this Regard referring to Constitutent Assembly Debate, wherein Mr. Tajamul Hussain proposed for inclusion of: “places of worship”, “Dharamshalas, and Musafirkhanas” at the end of sub-clause (a).10 All these proposals were voted upon, and rejected by the Constituent Assembly. The Assembly considered it is not appropriate to include ‘places of worship’ or ‘temples’.11
Whether Impugned Practice Is In Blatant Defiance To Constitutional Safeguards Under Article 25(2)(B)
It is apparent from the bare perusal of Art. 25(2)(b) of constitution12, clearly forthwith that (sub-clause b) was incorporated to address the caste-based- discrimination, particularly regarding the access of temples. This provision is the reflection of historical reality of caste-based exclusion that Dalits faced.
It is crucial to extract the relevant part,…. “to all classes and sections of hindus” women between the age group of 10-50 are specifically exempted which does not for a specific class or section within the broader hindu community. Conversely, the age group of specific gender may form a sub-category or sub class within the female community.
Unequivocal obsession with Article 14, 15 and 25
The fundamental arguments from petitioner side were based on academic discussions which revolves around equality, discrimination so and so forth. Even the court not attempted to delve into historical origins of the temple and the basis of tradations of the temple.
Initially, constitutionality with respect to impugned practice was challenged in
High Court of Kerela in the year 1991, then hon’ble high court summoned a Chief thantri in order to ascertain the basis of practice in Sabrimala temple. Also laid down chief tantri and other trimukhyas are only entitled to decide on religious aspect of temple.
The head of the Devaswom Department is responsible for the proper conduct of the temple affairs but his authority is confined to the administrative side; the spiritual questions being decided by the Thanthris and other man of religion. The office is generally hereditary. Even high court of kerela also emphasized the importance of devprsanam – “There were instances where Thanthries also were unable to take a decision pertaining to some religious practices and in such cases the Thanthri used to suggest that it can be resolved by a Devaprasnam”.
Even it is stated position under law of evidence, when the court has to form an opinion on usages, tenets of any religious foundation or with respect to custom, then the opinions of person with knowledge become relevant.13
Is kerela Place of Worship 1965 is applicable to Sabrimala Temple
The word ‘Hindu’ under section 2(a) of said act, includes Buddhist, Sikh, Jaina. This act is only applicable to broader framework of hindu place of public worship. It is crucial to state herein that the said act is only applicable to hindu places of worship. However, it can be traced from historical scriptures and literature that sabrimala temple has historically pilgrimage that attracts devotees from all the sections of the society including muslim and Christians. Additionaly, site consist of sreekoil or sanctum sanctorum of lord Ayappa which has been specifically exempted under the definition of ‘Place of Public Worship’.
Interplay Between Article 25(2)(B) and Article 17
The phrase ‘throwing open of hindu religious institution of public institution…….to all classes of hindus’ was intended to eradicate the social evil of caste discrimination, read with article 17 of constitution which was solely incorporated, eradicate the untouchability based on caste. It is evident from the course of arguments and public debates, several attempts to defile the origin and
basis of practice has been made to venture sensitization of the issue and shift the public perception.
Dissenting Judgement revolves around Question of Religiousity and Religious practice are not subjected to Article 14
Justice Malhotra’s dissent focuses on central issues pertaining to the maintainability of petitions related to religious practices under Article 32 and the application of Article 14 in such cases. She unequivocally questions the use of public interest litigations (PILs) in matters concerning religious faith and differentiates between general PILs and those involving religious sentiments. She argues that allowing such PILs may inundate the court with cases brought by individuals who are not part of the religion or faith in question, asserting that such individuals cannot be considered aggrieved parties. 14
What is Dharma with respect to Article 25
Drawing from Constituent assembly debates, HV kamath on 6th Dec, 1948 stated “The real meaning of religion, I assert that `Dharma’ in the most comprehensive sense should be interpreted to mean the true values of religion or of the spirit. The religious right is the right of a person believing in a particular faith to practice it, preach it and profess it’. 15
The deity in Sabarimala temple is in the form of a Yogi or a Bramchari particularly ‘Naisthik Bramchari’, slightest deviation from celibacy and austerity may relinquish its originality. Additionally, allowing women of particular age group is contrary to the will of the deity which essentially forms the basis of the temple, has a tendency to universalize the practice across the board.16
In that the deity in Sabarimala temple is in the form of a Yogi or a Bramchari particularly ‘NaisthikBramchari’ and that is the reason why young women are not permitted to offer prayers in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.17
Also placing reliance upon, Shri A S Narayana Deekshitulu v State Of Andhra Pradesh observed. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe.”18
Radhika Sekar in his thesis observed …The rule of celibacy is taken very seriously and includes celibacy in thought and action…….Ayyappas not only insist on these taboos being rigidly followed but they go a step further and insist on physical separation. It is not uncommon for a wife, daughter or sister to be sent away during her menses if a male member of the household has taken the vratam.
In the Memoir of the Survey of the Travancore and Cochin States written by Lieutenants Ward and Conner, reference has been made regarding the custom and usage prevalent at Sabarimala Temple. The Memoir of the Survey was originally published in two parts in 1893 and 1901 giving details of the statistical and geographical “…old women and young girls, may approach the temple, but those who have attained puberty and to a certain time of life are forbid to approach, as all sexual intercourse in that vicinity is averse to this deity…”.19
Evidence is necessary in order to ascertain Religious Practice
High court of Kerela in S. Mahendran vs The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Others, 199120 placed reliance on the decision of Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, (1964), the Supreme Court held that the question will always have to be decided by the Court and in doing so the Court may have to enquire whether the practice in question is religious in character whether it can be regarded as an integral or essential part of the religion and the finding on the question on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.
Whether Sabrimala and the deity enjoys rights under Article 26
The Constitution Bench in S.P. Mittal v. Union of India, 198321, The words “religious denomination” under Article 26 of the Constitution must take their colour from the word “religion” and if this be so, the expression “religious denomination” must also satisfy three conditions:
- It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
- common organisation; and
- designation by a distinctive name.
Even Dissenting view of Justice Indu Malhotra asserted that worshippers of lord Ayyappa constitute a religious denomination and the worshippers of the shrine called as ‘Ayyapans’. Additionally, notification issued by Travancore Dewasorm Borad as ‘Ayyapans’. Sabrimala possessed an inclusive form of religious denomination mean to say person from any community or class can join but the only criteria is 41 days of vow and other associated activites thereto.
Conclusion
Hinduism possess diverse array of cultures and practices, varying from geographical diversity and ethnicity, numerous attempts to misalign hindu religion has been made from the period Nehruvian dispensation followed by incorporation of word ‘secular’ in preamble and the same has been continuing till date. If this faith diversity misconceived with the weaponized form of equality which may result unwarranted colonization of hindu faith.
