When Arunachalam Muruganantham, on whom the Bollywood movie ‘ Pad Man ’ is based, was asked what the most difficult part of his job was, he said it was the superstitions surrounding menstruation in India. “Women in rural India have the strangest beliefs surrounding the monthly period.” He recalls a story of how the girls in the Nilgiris worried about using sanitary towels, as they believed their eyes would be pulled out by the deity. 1
It is in this backdrop that the judgement of the Supreme Court in Indian Young Lawyers Association v. State of Kerala , also called the ‘Sabarimala judgement’, is a reformative one.
Background of the Case
The Sabarimala case arose out of a petition filed in public interest by a registered association of young lawyers, challenging the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala temple. These Rules were framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. This Act was enacted to make provisions for entry of all classes and sections of Hindus into places of public worship. Section 3 of the Act read as follows:
“Section 3: Places of public worship to open to all sections and classes of Hindus:- Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:
Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in the matter of religion.”
The State of Kerala framed Rules under this Act. Rule 3 read as follows:
“Rule 3: The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situated within or outside precincts thereof, or any sacred place including a hill or hillock, or a road, street or pathways which is requisite for obtaining access to the place of public worship-
(a) Persons who are not Hindus.
(b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship.
(c) Persons under pollution arising out of birth or death in their families.
(d) Drunken or disorderly persons.
(e) Persons suffering from any loathsome or contagious disease.
(f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned.
(g) Professional beggars when their entry is solely for the purpose of begging.”
The Travancore Devaswom Board issued two notifications in 1955 which read as follows:
“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi . But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple.”
Though the notification stated that the ages between 10 and 55 were to be excluded, it was recorded by the Kerala High Court that in practice the ages between the age of 10 and 50 were being excluded. The case before the Supreme Court of India was that Rule 3(b) was ultra vires of Section 3 of the Act and that women of any age could not be excluded from the temple.
This same issue had been considered by a Division bench of the Kerala High Court in 1992 in a public interest litigation filed by one S.Mahendran 2 . The Kerala High Court had found that the exclusion of women between the ages of 10 and 50 from Sabarimala was in accordance with the usage prevalent from time immemorial and was, therefore, upheld. Fourteen years later, this issue was raised again; this time in the Supreme Court, leading to the judgment under discussion, wherein by a 4:1 majority the Supreme Court struck down the exclusion of women of any age group from entry to Sabarimala as unconstitutional.
India’s Evolving Jurisprudence on Religious Rights
Much of Indian jurisprudence on religion has evolved around what constitutes an essential religious practice. The two relevant Constitutional provisions under the head Right to Freedom of Religion are:
Article 25: (1) - Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law –
a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus;
Article 26: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
Indian jurisprudence has arisen over the years in cases where governments have passed laws to regulate what they see as secular activity, though it is associated with religious practice. The religious bodies have objected to government action on the ground that the activity is religious and not secular. In order to get the special rights under Article 26, most cases involved an attempt by groups to show themselves as a distinct religious denomination. The same was attempted in the Sabarimala case too. Though the dissenting judgement of Justice Malhotra gave the Ayyappans denominational status, the majority judgement held that the Ayyappans were not a separate religious denomination, but were Hindus. Thereafter, it was for the Court to find out if the practice of excluding women of a certain age from Sabarimala was an essential feature of Hinduism or not.
Indian jurisprudence has arisen over the years in cases where governments have passed laws to regulate what they see as secular activity, though it is associated with religious practice.
It is interesting to see the evolution of Indian jurisprudence through attempts by Indian Courts to distinguish between what is a “matter of religion” and what is not, in several cases over the decades. This exercise is also desirable so that readers understand that the jurisprudence applied by the Supreme Court in the Sabarimala case is consistent with the principles that have evolved over decades and in relation to all religions uniformly.
One of the earliest cases arose when the Madras Hindu Religious and Charitable Endowments Act, 1951 was enacted to empower a statutory commissioner to intervene if they had ‘reason to believe’ that a religious institution was mismanaging funds. This Act was challenged by the Mathadhipathi of the Shirur Mutt who claimed that the law interfered with his right to manage the religious affairs of the Mutt. 3 The Supreme Court examined the question, “Where is the line to be drawn between what are matters of religion and what are not?” The Court held:
“What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
This meant that the views of the followers of the religion were crucial to determine what constituted the essential aspects of a religion.
There were two other cases of the late 1950’s that contributed to the evolution of this essential practices doctrine. In one, the trustees of the temple of Sri Venkataramana of Moolky, who were managing the temple on behalf of the Gowda Saraswat Brahmins, challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple to the Harijans . 4 The Gowda Saraswat Brahmins claimed a right to exclude other communities from entering their temple as a matter of religion. Justice Venkatarama Iyer J, did not give the religious denomination complete autonomy in the matter of deciding what rights and ceremonies are essential to its religion. Instead, the Court examined scripture, ancient literature, the practice of Hindus and the role of temples and recognised that the exclusion was under the ceremonial law of the Hindus and was, therefore, an essential practice. This methodology had the inherent disability of attempting to make the Supreme Court a theological expert!
In the other case, the Qureshi Muslims of Bihar petitioned the Supreme Court challenging the ban on cow slaughter on the ground that it infringed on their fundamental right to religion as they were compelled by their religion to sacrifice cows on Bakrid. 5 The Court, looking into the Islamic religious texts, found that there was no evidence to show that sacrifice of cows on Bakrid was an essential practice for the Qureshi Muslims. Again the “time immemorial” argument was put forth. (It is, after all, the easiest argument in a country built on an ancient civilisation!) The court looked at the texts and scriptures of that community to conclude that the practice claimed to be essential was not supported by religious tenets.
After the Gowda Saraswat and the Qureshi Muslims cases, Indian Courts found that they were doing the job of trying to be experts in theology and determine what is essentially religious. This was not an easy job to do as “scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory function.” 6
Soon thereafter, a claim by the Chadims of the tomb of Hazrat Khwaja Moin–Ud-Din Chisthi of Ajmer over the offerings from pilgrims to the Dargah reached the Supreme Court through a challenge to a Rajasthan Government legislation which constituted a committee to manage the Dargah 7 . P.B. Gajendragadkar J, while dismissing the case of the Chadims, warned that claims for protection under Article 26 may have to be carefully scrutinised. Otherwise “… even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.”
Very relevant to the present discussion are Gajendragadkar J’s warnings: “similarly, even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself… In other words, the protection under Article 26 must be confined to such religious practices as are an essential and an integral part of it and no other.”
Thus, we find the Court making the distinction between religious practices and superstitious beliefs. Mere superstitious beliefs should not be given constitutional protection in the garb of religious belief or practice. Thus, the essential practices test got one more element of “careful scrutiny” to keep imposter beliefs out.
Thus, we find the Court making the distinction between religious practices and superstitious beliefs. Mere superstitious beliefs should not be given constitutional protection in the garb of religious belief or practice. Thus, the essential practices test got one more element of “careful scrutiny” to keep imposter beliefs out.
In another case, the religious head of the Dawoodi Bohra community challenged the constitutional validity of the Bombay Prevention of Excommunication Act, 1949 8 which provided that “Notwithstanding anything contained in any law, custom or usage … no excommunication of a member of any community shall be valid”. The majority of the Judges struck down the Excommunication Act as violating Article 25 and 26. However, the Bohra case is relevant for the lone dissent beautifully articulated by Chief Justice Sinha.
“… It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Art. 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience. ………
The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc. A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus, though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs. He has been guaranteed the right to practice and propagate his religion, subject to the limitations aforesaid. His right to practice his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the legislature has declared to be of a penal character. Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the wellbeing of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as may be determined by common consent, that is to say, by a competent legislature. It was on such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a God to function as a devadasi , or of ostracizing a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.”
Chief Justice Sinha’s dissent articulated a view in favour of individual liberty, in the face of group religious claims. An appeal from the judgment in this case is pending consideration before a larger Bench in the Supreme Court.
An important deviation from the Shirur Mutt formula came to be articulated by Justice Gajendragadkar in 1964 in Tilkayat’s case, 9 where he recognised that it is not possible to find solutions from within the community tenets, when conflicting evidence is produced in respect of rival contentions. The principle of letting the community decide its essential practices would break down when there was more than one voice for the community.
Thus, from the mid-1960’s, it was clear that the Courts would have to decide what the essential practices of a religion were.
Again in a case where a temple was thrown open to Dalits, the Swaminarayan sect challenged the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 and sought rights to be exclusionary as they were a different denomination. 10 Again Justice Gajendragadkar held:
“It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.”
Thus Courts began to look at practices from a pro-reform and anti-discrimination manner perspective.
The Ananda Margis were a group who claimed that one of their religious rites was the tandava dance which was to be performed with a skull, a small knife, trishul (trident) and a damaroo (pellet drum) and at intervals processions were intended to be taken out in public places accompanied by the dance. The police rejected their application for permission to take out a procession in the public streets. The Supreme Court held that the tandava dance was not an essential religious rite of the Ananda Margis, was of recent origin and even conceding that the dance was prescribed as a religious right for every Ananda Margi, it was not necessary to be performed in public. 11
In a challenge to the Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983, which entrusted the management of the temple with the State, the Supreme Court again cautioned that “sometimes practices, religious or secular, are inextricably mixed up” 12 .
A question arose before the Court whether the Travancore Devaswom Board could appoint a non-Malayalee brahmin as priest of the Kongorpilli Neerikodu Shiva temple. 13 It was held:
“Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament . No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”
The Ananda Margis tandava dance again came into consideration before Court when their religious book was revised to prescribe the tandava dance as an essential religious practice. 14
“Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices .”
Even when texts expressly stated a practice as an essential practice of the relatively new religion, Courts looked into whether the absence of the practice would make a fundamental change to the religion. Thus, a distinction was drawn between ‘the core of a religion’ and ‘mere embellishments’.
Again, the Court applied the test of constitutional legitimacy in a case where a Government Order which permitted “any qualified Hindu” to be an Archaka of a temple was challenged as violative of the petitioners’ right to appoint Archakas from their own denomination in accordance with the Agamas. The Court held that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices.” 15
The courts were now emboldened to place constitutional values, dignity of individuals and social equality on a higher pedestal than religious claims.
When the practice of Triple Talak was challenged, the Court examined whether it was an essential practice to the Hanafi school of Muslims. 16 The Court looked into Islamic jurisprudence and held that Triple Talak was not an essential practice. The Court observed that a practice does not acquire the sanction of religion simply because it is permitted and merely because a practice has continued for long; that by itself cannot make it valid.
Thus, over the decades, Indian Courts have played an important role in deciding what is or is not essential to a religion; and what practices are mere superstitions and beliefs couched in a religious colour. In a colourful country like India, with its myriad practices, beliefs and superstitions, the Courts have periodically been called upon to decide whether a practice was to be protected or not under the Right to Religious Freedom. The sieving process has been a difficult one often, but not one that the courts have shied away from. The Sabarimala case is one such where the court has boldly examined a deep-rooted belief that pervades Indian society at multiple levels — from our homes to our places of worship. This judgement takes the bull by the horns, refusing to find a way out from discussing the taboos of menstruation.
Exclusion of Women Was Not a Uniform Practice
Applying the essential practices test, the majority opinion of the Court finds that the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple is not an essential part of the religion. The religious texts and tenets relied on by the Respondents did not indicate such an essential practice. At best, these documents indicate the celibate nature of Lord Ayyappa at the Sabarimala temple but do not establish a connection between the Lord’s celibate nature and exclusion of women. The Supreme Court noted the observations of the Kerala High Court in Mahendran’s case 17 that even when old customs prevailed, women were allowed to visit the temple.
Applying the essential practices test, the majority opinion of the Court finds that the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple is not an essential part of the religion.
The Kerala High Court had noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the temple in 1115 ME. The High Court, while examining evidence, had noted that the temple had seen the presence of women worshippers of all ages for the first rice-feeding ceremony of their children. The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years. A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas, but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons. 18 The Supreme Court takes note of these observations by the Kerala High Court collected by evidence, to hold that the practice of excluding women from the temple was not a uniform practice. This also shows that denial of constitutional protection to the exclusionary practice will not result in a fundamental change in the character of the religion. 19
So how did the Kerala High Court and the Supreme Court arrive at opposite conclusions on the same set of facts?
Thus the Supreme Court reiterated that it was not enough merely to go on the basis of the knowledge base of those who claim to be the ‘keepers of the religion’. Courts must carefully scrutinise so that practices that are not essential to the religion but simply don the colour of the religion are not given Constitutional protection.
The Supreme Court finds that the Kerala HC was incorrect in its conclusions in Mahendran’s case as it followed only the dictum in the Shirur Mutt case 20 and did not take note of the jurisprudence that evolved thereafter. The Kerala HC relied completely on the testimonies of the thanthris without an enquiry into its basis in religious texts or its essentiality to religion. 21 Thus the Supreme Court reiterated that it was not enough merely to go on the basis of the knowledge base of those who claim to be the ‘keepers of the religion’. Courts must carefully scrutinise so that practices that are not essential to the religion but simply don the colour of the religion are not given Constitutional protection. The High Court had, in fact, given a direction to the Kerala government to provide Police assistance to enforce the ban on women between the ages of ten and fifty. The Supreme Court, through the Sabarimala judgement, refused such constitutional protection to the ban.
The Real Reasons for the Exclusion
Another impressive feature of the Sabarimala judgement is the readiness shown by the Supreme Court to dive deep into the reasons given for the exclusion of women of a certain age. The Kerala High Court’s reason of the “arduous nature of the journey” which could not be completed by women for physiological reasons is rejected by the Supreme Court as it is not even a religious reason to claim constitutional protection. This reason is also too paternalistic, and must be left to the individual choice of the devotee to decide whether she can take the arduous nature of the journey or not. The Court cannot promote such stereotypes and must lean in favour of interpretations of equality.
Breaking Free of Stereotypes
The Supreme Court looks at one more argument given to explain the exclusionary practice — the naisthika brahmacharya nature of Lord Ayyappa, and that celibacy is an important part of the 41-day vratham for the followers. It was stated that the presence of women distracts the devotees. While dismissing this reason, the Court frowns upon the attempt to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation. This argument is then employed to deny her access to spaces which she is entitled. Again the Court refuses to perpetrate stereotypes of a woman being too weak to keep the vratham . “The equality of human beings entails being free from the restrictive and dehumanising effect of stereotypes.” 22
This reminds one of the inter-generational dialogues within our families. Concerned about women’s safety, many a parent can be heard advising young girls to “dress modestly lest the men are provoked”. The youngsters shoot back with “these fellows rape babies and old women; women in sarees and burkhas too. It isn’t what we wear. It is what is in their heads.”
It is quite interesting to note the manner in which the Court refuses to indulge these fanciful ideas and cute little stories that surrounded the exclusion of women of menstruating age. In everyday life, we are often faced with a score of such arguments that appear charming and quaint in their interpretations to justify something which is apparently unjust. The fanciful arguments narrated as stories capture our fancy, get passed on, and lo and behold, new beliefs or superstitions are created. It is this process that happens when we are told that isolated spaces in our houses are for the benefit of menstruating women so that they can have rest from housework, or menstrual blood is powerful enough to do black magic with and so menstrual cloth must not be dried in the sun, or kumkum must not be offered to a widow, or women without husbands should not attend weddings et cetera. All these arguments of fancy promote beliefs which we may as a society gullibly accept or oppose at the risk of being labeled a rebel or struggle to come to terms with. Either which way, they cannot be given constitutional protection.
The Real Reason — the ‘Purity and Pollution’ Idea
Now, therefore, the other reason cited becomes significant. The fact that only women aged between ten and fifty have been excluded shows that they have been chosen based on a menstruating age. While asking the fundamental question “does the Constitution permit menstruation as a basis for a group to exclude a woman from worship”, all the judges writing the majority judgement held that the physiological features of a woman have no significance to her equal entitlements under the constitution. “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood. The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. Nobody or group can use it as a barrier in a woman’s quest for fulfilment, including in her finding solace in the connect with the creator.” 23
The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated.
Thus, concrete individual rights got a higher status than vague group claims of a right.
With the above articulation, the Supreme Court entered our homes to be part of our everyday conversations. It became the wise old relative who will advise us: “Don’t keep your wives and sisters and daughters away from ceremonies and rituals and auspicious moments during their menstruating days. There is nothing impure about menstruation. Include her.” It also gives the basis on which we can stop giving our girls chemical pills to postpone menstruation when an auspicious event or ceremony is to happen in the family. It gives us the basis on which we can nudge our domestic help to not borrow money to do a song and dance to celebrate the first period of her daughter, and instead put the money into the girl’s college fund.
As we inch forward as a young nation built on ancient civilisational values, change is a heavily-resisted and slow process. We inch forward slowly through legislations, campaigns and court orders to uplift the status of our women. Every once in a while comes along a judgement that gives a big thrust to this slow, inching movement. Whether it was to make our work-spaces safer for our women or whether to recognise her property rights or whether to remove shackles on her choice of life partner, the Courts have accelerated the pace at which women’s lives stood to regain dignity in India. The Sabarimala judgement is one such accelerator. It is about cleaning the cobwebs in our head about menstruation and the ideas of impurity associated with it. It is about letting our girls free on those 60 days in a year without having to think that they are children of a lesser God during those days. It is about shifting the focus of our conversations from menstruation taboos to important issues like menstrual hygiene, better, more-affordable, more long-lasting sanitary protection, keeping access open to education, sports, travel, social life and all regular activities. The Sabarimala judgement is path-breaking to the effect that it becomes a powerful tool in our hands to help us break free of the mental blocks we hold in the name of religion.
‘Purity and Pollution’ Exclusions: a Practice of Untouchability
Another reformative feature of the Sabarimala judgement is the way it interprets ‘untouchability’ in Article 17 of the Constitution.
Article 17 - “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
The Supreme Court in the Sabarimala judgement recognised the practice of excluding women based on ideas of ‘purity and pollution’ as a practice of untouchability.
The term untouchability was left undefined by the framers of the Constitution. Untouchability “in any form” is to cover all kinds. The Supreme Court in the Sabarimala judgement recognised the practice of excluding women based on ideas of ‘purity and pollution’ as a practice of untouchability. The systemic humiliation, exclusion and subjugation faced by women, the social exclusion of women, based on menstrual status, is but a form of untouchability.
This view of untouchability awakens us to gross realities around us — of the ‘two tumbler system’, the exclusion of followers of other religions from some kitchens, the exclusion of widows and unmarried women from rituals, the struggle to get widows remarried, the resistance to inter-caste and inter-religion relationships, and khap panchayats and honour killings, to name just a few social diseases. The judgement provokes us to think about our everyday realities of discrimination. It is left to us to use the judgement as a tool to clean the underlying cobwebs of our minds that promote these social diseases.
Constitutional Guarantee of Dignity
The Indian society is governed by the Constitution of India. Notions of purity and pollution which stigmatise individuals can have no place in a constitutional regime. Regarding menstruation as polluting or impure and, worse still, imposing exclusionary disabilities on the basis of menstrual status is against the dignity of women guaranteed by the Constitution. Dignity as a facet of Article 21 is firmly entrenched in the Constitution after the decision of the Nine Judge Bench in Justice Puttaswamy’s case. 24 Practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices that enforce segregation and exclusion. These practices result in humiliation and a violation of dignity.
Sabarimala: a Symbol for all Religions
The judgement also records that the notions of purity and pollution around menstruation are common across all the older religions. The idea of menstruating women polluting the surroundings has been used to exclude her from social activities in the interpretations of texts in Christianity, Hinduism, Islam, Judaism and Zoroastrianism. However, the more recent religions such as Sikhism and the Bahai Faith encourage their followers to see menstruation as a natural process and do not associate notions of ‘purity and pollution’ around it. 25
Lord Ayyappa is a beloved deity in Kerala and Tamil Nadu. It was stated in Court that Sabarimala is visited by Ayyappa-believers from Muslim and Christian faiths too. It isn’t difficult, therefore, to see this Sabarimala case as representative of a challenge to the ‘purity and pollution’ idea promoted by all religions. This case is not about one particular religion. It is about the ‘purity and pollution’ idea that affects one half of India’s population.
To Develop the Spirit of Reform: a Fundamental Duty
Now read all this in the context of the Fundamental duties:
Article 51 A - It shall be the duty of every citizen of India…
(e) to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;…
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
This judgement is in the spirit of Article 51 A. It develops the spirit of inquiry and reform. It denounces practices derogatory to the dignity of women.
Whatever our standards be, the Supreme Court in the Sabarimala judgement has brought in one unifying moral standard that must be part of our conversations on morality cutting across religious lines — that of Constitutional morality.
We all have notions of morality shaped by our conversations at home. There is no one defining standard. Our religions play an important role in shaping our standards of morality. Some of us believe our standard is “do unto others as you want done unto you”; some believe that Karma dictates and we are but tools; and some believe the prescriptions of the Holy book dictate. Whatever our standards be, the Supreme Court in the Sabarimala judgement has brought in one unifying moral standard that must be part of our conversations on morality cutting across religious lines — that of Constitutional morality.
The Sabarimala judgement is bold — it does not shove difficult discussions under the carpet. It is Empathetic — it looks at a sparsely-discussed subject from the perspective of women who are victims of an entrenched social dictate. It is rooted in our fundamental constitutional values. It is focused — it does not get distracted by the beautiful interpretations and stories that accompany our practices. It is consistent with the jurisprudence that evolved over the decades on how to balance religious group rights and individual rights. It is comprehensive — it reflects in its four different opinions the fears of a country so deeply rooted in religion and fearful of breaking free from religious sanction; the fears of secular interference in our traditions in a pluralistic society and it addresses these fears and gives responsible reasons to break free. It is reformative and disruptive — it places the opportunity to reform in our hands and in our homes. It is empowering — it gives us the strength to challenge discrimination in the space of our personal laws, cutting across religions.
Justice Chandrachud articulates a doctrine that group rights have been recognised in the Fundamental Rights section of the Constitution so that the individuals in the group realise fulfillment and self-determination. Therefore, group rights must be subjected to individual rights.
It is in this backdrop that Justice Chandrachud’s listing of a Constitutional order of priorities is interesting. “While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy.” 26 Thus, Justice Chandrachud articulates a doctrine that group rights have been recognised in the Fundamental Rights section of the Constitution so that the individuals in the group realise fulfillment and self-determination. Therefore, group rights must be subjected to individual rights. If accepted, no practice will be afforded constitutional protection if it violates constitutional values of individual liberty, equality and dignity, even if it is shown to be an essential religious practice. We can find support for this thought in some of the earlier judgements. However, the Learned Judge leaves this doctrine to be tested and concretely articulated another day in a future case but leaves the idea on the table so that our conversations evolve.
In the upcoming Navaratri season, the effect of the Sabarimala judgement will be seen in many houses, where all the girls will be told to attend every Puja and enjoy the Navaratri dancing and festivities on every day, without a concern whether it is that time of her month or not. It will be seen in homes where widows will be invited to join in the festivities and the gift-bags will not have to be divided into groups of ‘with kumkum ’ and ‘without kumkum ’. This pre-festival cleaning of cobwebs is a good way to launch the celebrations.
[ Elizabeth Seshadri practices law in the Madras High Court].
Related Link : Sujatha, R and Gopinath, R. 2018 . " Hype over Pad Man but India's Menstrual Woes Continue ", The Hindu Centre for Politics and Public Policy, March 12.
Resources: " The Supreme Court allows entry of women of all age groups into the Ayyappa temple ".
References:
[All URLs last accessed on October 4, 2018.]
1. Kannadasan, A. 2018 . “ Meet Muruganantham, The Real Pad Man ”, The Hindu, February 05. [https://www.thehindu.com/society/the-real-pad-man-muruganantham-before-the-release-of-pad-man/article22658314.ece].
2. S.Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42.
3. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.
4.Sri Venkataramana Devaru vs State of Mysore, (1958) SCR 895.
5. Mohd Hanif Quareshi vs State of Bihar, (1959) SCR 629.
6. At paragraph 16 of Justice Chandrachud’s judgement in the Sabarimala judgment.
7. Durgah Committee, Ajmer vs Syed Hussain Ali, (1962) 1 SCR 383.
8. Sardar Syedna Taher Saifudeen Sahib vs. State of Bombay, (1962) Supp (2) SCR 496.
9. Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors, (1964) 1 SCR 561.
10. Sastri Yagnapurushadji & other vs. Muldas Brewdardas Vaishya & anr, AIR 1966 1119.
11. Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983) 4 SCC 522.
12. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi vs. State of UP, (1997) 4 SCC 606.
13. N.Adithayan vs. Travancore Devaswom Board, (2002) 8 SCC 106.
14. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770.
15. Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2 SCC 725.
16. Shayara Banu vs Union of India, (2017) 9 SCC 1.
17. S.Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42.
18. At paragraph 51 of Justice Chandrachud’s judgement in the Sabarimala judgment.
19 . Ibid.
20. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.
21. At paragraph 52 of Justice Chandrachud’s judgement in the Sabarimala judgment.
22. At paragraph 56 of Justice Chandrachud’s judgement in the Sabarimala judgment.
23. At paragraph 57 of Justice Chandrachud’s judgement in the Sabarimala judgment.
24. Justice K.S.Puttaswamy & anr vs. Union of India & others, (2017) 10 SCC 1.
25. At paragraph 24 of Justice Nariman’s judgement in the Sabarimala case.
26. At paragraph 49 of Justice Chandrachud’s judgement in the Sabarimala judgment.