The Supreme Court last week, by 3:2 majority, decided to keep the review petitions in Sabarimala matter pending until a larger bench determines questions related to essential religious practices. The majority of CJI Ranjan Gogoi, Justice Khanwilkar and Indu Malhotra expressed that the issue whether Court can interfere in essential practises of religion needed examination by larger bench. Justices Chandrachud and Nariman dissented.

There is no stay of the September 28, 2018 judgment which allowed entry of women of all age groups to the Sabarimala temple, but the Apex Court said, the same issue arises in respect of cases concerning entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is also a case pending regarding the legality of practice of Female Genital Mutilation in Dawoodi Bohra community.

A reversal of the Apex Court decision permitting women in Sabarimala Temple would amount to effacement of advancements made in socio-cultural evolution achieved through sacrifices of great reformists in Kerala since early years of the 20th Century.

The last year’s agitation following the September 2018 judgment was, in fact, ill-motivated and well contrived. It was spearheaded by retrogressive forces of patriarchy and de-spiritualized Hindu priestocracy dismayed progressive Keralites everywhere.The image of Kerala society that assimilated and concretized a collective mindset of modernism received an irreparable setback due to the extreme unruly behaviour of those resorting to violence, intimidation and obstruction of young women devotees, who proceeded to Sabarimala Temple following the Apex Court verdict last year.

Champions of Brahminical casteism – varna vyavastha, being disillusioned by LDF government’s decision to appoint eligible Hindus of all castes in priestly assignments in government administered temples – endeavoured to divinize all obscurant traditions and practices, contrary to the letter, spirit and ethos of the Constitution of India, enshrined in the Preamble, Fundamental Rights and Fundamental Duties.

RB Sreekumar

The post Sabarimala: Male devotee nurturing unholy thoughts is ‘unfit’ to visit Lord Ayyappa shrine appeared first on SabrangIndia.

 
The National Commission for Women and the Network of Women in Media, India (NWMI) reacted to the threats women journalists were facing before the gates of Sabarimala were scheduled to re-open. Women journalists were hit, heckled, and the cars they were travelling in destroyed. TNM’s Saritha Balan, Republic TV’s Pooja Prasanna, India Today’s Mausami Singh, CNN News18’s Radhika Ramaswamy and NDTV’s Sneha Koshy were either attacked or heckled. 
 
NCW Chairperson Rekha Sharma asked Kerala DGP Loknath Behera to take appropriate action.
 
NWMI rejected the interference by Sabarimala Karma Samithi when it came to assigning work to women journalists. On Nov 3, the Samithi had written to editor’s news media owners asking them to refrain from deputing women of certain age groups from reporting on Sabarimala on Nov 5, when a special puja was to take place.
 
“NWMI requests all media houses to refuse to entertain such misogyny and to deploy the best journalist for the job, not limiting the choice to men. We also demand the state and the police should give sufficient protection to every reporter, of all gender identities,” it said in a statement.
 
They also stated that the Samithi had no right to interfere with the media and prevent journalists who happen to be women from doing their jobs.
 
Full text of their statement:
 
NWMI Firmly Rejects Interference by Sabarimala Karma Samithi in Assigning Work to Women Journalists
 
The Network of Women in Media, India (NWMI) strongly objects to the statement issued by the Sabarimala Karma Samithi on November 3, 2018, to editors and decision-makers in the news media, requesting them to refrain from deputing women journalists of a particular age group to Sabarimala to cover the reopening of the temple for a special puja on Monday (November 5).  We believe this is an unjustified and unacceptable interference in the functioning of the media and an unfair obstacle in the way of journalists –who happen to be women– who wish to cover an important story of public interest.
 
When the temple opened for monthly puja for five days in October – the first time it was opening after the Supreme Court order lifting the ban on the entry of girls and women in the age group of 10-50 – women reporters attempting to cover the historic occasion were heckled, and both they and their vehicles were attacked, by protesters opposing any change in the status quo. Female devotees in the hitherto proscribed age group were also subjected to harassment and forced to abandon their efforts to reach the temple to pray.
 
While claiming to recognise the media’s right to support or oppose the stand of devotees on this issue, the Samithi requests the media “to take a sympathetic approach to the feelings and aspirations of crores of devotees” and “refrain from deputing women journalists of the above-mentioned age group to Sabarimala.” It is significant that it places the onus of “maintaining peace and harmony at the Holy Shrine of Sabarimala” and not aggravating the situation on the media. As a joint platform made up of organisations opposing the entry of women and trying to ensure that the Supreme Court’s judgement cannot be implemented, it is they who are in a position to ensure that the protest remains peaceful and violates neither the fundamental rights of female devotees who wish to worship at the temple and nor of female reporters who wish to cover the story.
 
We believe the Samithi’s stand amounts to depriving women journalists of their right to respond to the call of professional duty and responsibility. It also goes against the freedom of expression and right to information that are fundamental rights to which all citizens are entitled. The Samithi and others who oppose the Supreme Court’s verdict are welcome to make use of the legal options available to them to pursue their goals. They have no right to interfere with the media and prevent journalists who happen to be women from doing their jobs. Worse, in effect, it amounts to an open threat from the Samithi to women journalists.
 
We believe editors must not allow veiled threats from various organisations to determine how the media goes about its duty to report on events and processes about which citizens have a right to know.
 
NWMI requests all media houses to refuse to entertain such misogyny and to deploy the best journalist for the job, not limiting the choice to men.
 
We also demand the state and the police should give sufficient protection to every reporter, of all gender identities.
 
Network of Women in Media, India
November 4, 2018
 

The post NWMI rejects Sabarimala Samithi’s interference in assigning women journalists work appeared first on SabrangIndia.

Image Courtesy: Live Mint

That these contrasting viewpoints have great social import is visible in the heated, and sometimes violent, nature of the disputes on the Sabarimala question. The violent agitations by a section of the Sabarimala devotees have been an important subject of public discussion over the last few days. The ideological conflict has implications for the basic character of our polity as well. It involves fundamental questions about the kind of constitutional democracy we aspire to have. The essence of this ideological dispute can be seen in the individual judgments delivered on 28^th September. The five-judge bench delivered four separate judgments: three ruling in favour of women’s entry and one ruling against. Of the four, two judgments in particular stand out in so far as they present starkly contrasting constitutional visions. The majority opinion of Justice D Y Chandrachud and the dissenting view of Justice Indu Malhotra are important statements within the ongoing ideological debate.

The main issue which divides the two constitutional visions is the centrality of individual rights within constitutional democracy. Justice Chandrachud’s entire judgment is based on the premise that individual dignity lies at the core of liberal constitutionalism. The Indian constitution, on his view, recognizes this centrality by enumerating justice, liberty, equality and fraternity as overarching political ideals in its preamble. All constitutional provisions including the freedom of religion, therefore, must be interpreted in view of this larger objective. Individual dignity must serve as the principal value guiding the public life of the country.     

This emphasis enables Justice Chandrachud to identify a deep connection between constitutional interpretation and tasks of social transformation. Drawing on the commitment of towering Constituent Assembly members like B.R. Ambedkar to objectives of social change, he argues that constitutional governance in India must be centrally concerned with ending caste and gender-based discrimination. Constitutional morality, in other words, partly consists in enabling society to break out of the shackles of oppressive and unequal social institutions.

In line with this understanding of constitutional morality, Justice Chandrachud interprets Article 25 of the Constitution as fundamentally dealing with the individual’s freedom of religion. On the basis of this interpretation, he is able to argue that entering the Sabarimala shrine is a part of the individual woman’s fundamental right “to profess, practice and propagate religion”. Within the history of judicial pronouncements on the right to freedom of religion under Articles 25 and 26, this marks a significant change. The bulk of the litigation under these articles has resulted from religious groups and institutions challenging state intervention in their practices. Freedom of religion under the Indian constitution has acquired, as a consequence, the character of group entitlement vis-à-vis the state. This is despite the fact that Article 25, particularly in its second clause, does provide ample scope for intervention by the state.

Justice Chandrachud breaks from this trend by arguing that freedom of religion under Article 25 also empowers individuals to make claims against groups. Thus, denial of rights to worship to any particular section within a religion or denomination could amount to a violation of Article 25. Prohibiting women between the ages of ten and fifty from entering Sabarimala, therefore, amounts to a violation of their freedom of religion. This interpretation of freedom of religion under Article 25 transforms in one fell swoop a provision which has often been used by religious groups to preserve unjust discriminatory practices into a weapon of reform and transformation. Through a simple interpretive innovation, equality and individual dignity as yardsticks which religious practices can be judged by.
This shift in interpretation is related to another striking argument by Justice Chandrachud. Through a long and complex history of judicial interventions, the Supreme Court has set up a requirement that practices must belong to the essence of a religion in order for them to enjoy protection under Articles 25 and 26. This “essential practices” doctrine obviously raises the question of how the essence of a religion is to be determined, an issue which has received much judicial deliberation. Early on, in cases like Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954), judges adopted a cautious approach leaving it to the followers of a religion to determine what its essential practices were. Over the next few decades, however, the judiciary came to adopt a more rigorous standard. In Durgah Committee, Ajmer v. Syed Hussain Ali (1962), for instance, Justice Gajendragadkar held that the judiciary needed to rigorously study the history and doctrine of a religious group to determine what the latter’s essential practices were.

The “essential practices” doctrine has provided the judiciary an opportunity for religious reform. By holding regressive and discriminatory practices to be inessential to the basic tenets of specific religions, the judiciary has deprived many such practices of constitutional protection. It must be remembered that a number of these cases, like Sri Venkataramana Devaru v. State of Mysore (1958), have been concerned with the entry of Dalits and other oppressed sections into public temples. Justice Chandrachud points out that there have been, nevertheless, two basic problems with the doctrine. First, as means of reform it allows an assessment of religious practice only in terms of religion itself. Thus, as long as a practice is understood to be essential to a religion or denomination, it would pass judicial muster no matter how oppressive or discriminatory. Second, it puts the court in the position of a theological arbiter using theological standards, rather than a custodian of the constitution using constitutional standards of assessment. In effect, it puts religion outside the pale of assessment in terms of its compatibility with the constitutional values of individual dignity and equality. Justice Chandrachud proposes, instead, an “anti-exclusion” principle, wherein the judiciary does not judge a religious practice in terms of essentiality, but rather only enquires into its relationship with the range of freedoms that underpin the constitutional framework. A religious practice, thus, would be bereft of constitutional protection if it simply fell afoul of core constitutional values. Again, it must be noted that this shift from “essential practices” to “anti-exclusion” is premised on the centrality of individual dignity, equality and social transformation to the constitutional project.

As against this pervasive stress on individual dignity, Justice Indu Malhotra keeps group entitlement at the centre of constitutional morality. Laying stress on “secularism” rather than justice and equality, she argues for an overall attitude of judicial non-intervention in religious matters. Constitutional morality, in her account, is not geared to a transformative project. Articles 25 and 26, therefore, continue to be seen as “secular” bulwarks affording protection to religious groups and their practice. The individual freedom of religion under Article 25 is given short shrift.

This constitutional vision is reflected in Justice Malhotra’s treatment of the “essential practices” doctrine. While for Justices Chandrachud, Mishra and Khanwilkar, the exclusion of women from entering Sabarimala fails the test of essential practice, and Justice Nariman remains ambivalent on the question, Justice Malhotra categorically sees the practice as an essential one. One of the chief reasons behind Justice Malhotra’s opinion on this point is that in interpreting the “essential practices” doctrine she goes back to the judgment in the Shirur Mutt case which granted almost “complete autonomy” to the members of a religious community in defining its practices, thereby ignoring decades of jurisprudential development on this question. Through this she denies in effect any independent role for the judiciary in ascertaining the essential doctrine of a religious group. This amounts to an acceptance, in other words, of all the problematic features of the “essential practices” doctrine while rejecting whatever little scope for reform it afforded.

Why would Justice Malhotra ignore an entire series of landmark judgments in understanding the “essential practices” doctrine? Why would she take the word of representatives of a religious community in defining what the latter’s practices are? Given the overall character of her judgment, one can plausibly seek answers in the centrality of group entitlement, as against individual dignity, in her conception of constitutional morality and secularism. It must be remembered that self-proclaimed representatives of a religious community or denomination, in litigations or otherwise, often represent the most powerful and influential sections of that community. Identification of essential religious practice can square very neatly then with the blanket preservation of tradition no matter how inegalitarian elements of the latter may be. The idea underlying Justice Malhotra’s position seems to be that uncritical reverence is the only permissible attitude that the constitutional framework can have towards religious groups. Reform and change are none of the constitution’s business.

It is interesting to note that proponents of women’s entry into Sabarimala, from Left activists to leaders of women’s groups, have explicitly characterized the entry ban and its supporters as “communal”. In doing so, they have invoked a notion of secularism and constitutional morality that unambiguously gives a central place to individual dignity and equality. Rejection of age-old prejudice and removal of discrimination seem to be a vital part of this secular ideal. Caste and patriarchy are openly identified as the antithesis of constitutional values.

In a sense, Amit Shah’s recent statement that “courts should only pass judgments that can be implemented” captures the core of the ideological conflict. While he was referring to courts and their powers, he might as well have talked about the constitution.

 Arjun Sengupta teaches at the Tata Institute of Social Sciences, Hyderabad.

Courtesy: Indian Cultural Forum

The post The Sabarimala Verdict: Whose Morality, Whose Freedom? appeared first on SabrangIndia.

 

The post Why Can’t Sabarimala Take A Cue From Haji Ali Dargah? appeared first on SabrangIndia.

The post Sabarimala and the Brahminisation of an Adivasi deity: Caravan appeared first on SabrangIndia.

 
Ban on menstruating women entering the Sabarimala Ayyappa temple is a violation of core Indian Spiritual values and the Constitution of India.

 
Perverted practioners of status-quoist traditionalism have been opposing the entry of menstruating women for worship in the Sabarimala Ayyappa temple in Kerala. This ban effectively seeks to curtail entry of the largest denomination of its devotees annually. It is a step that violates, knowingly or unknowingly, the core values of Hindu Spiritualism, postulated in the fundamental, foundational scripture of Hinduism, the Rig Veda (1500 BC). Apart from the transcendent text, the basic ideals of the Constitution of India, the Fundamental Rights, Duties and the Preamble contained within it, have also been violated by this ban imposed on women devotees.
 
Hindu scholars and devotees of the various Hindu sects have been unanimous in emphasizing the imperative of adhering to the lofty ideals contained in the Vedas. The Rig Veda states that the Earth is upheld by the truth while the Heaven is upheld by the Sun (X-85-1).
 
All those opposing the entry of females in Sabarimala temple are obviously going against the truth and logic of Biology. All phenomena of nature are expressions of God’s will; so is the menstruation cycle in women. Holding this as a ground for not allowing women to have Darshan (direct vision) of Lord Ayyappa is a cruel contradiction, limiting both the act of worship and the form of Divinity to a male action and vision. Lord Ayyappa, a symbol of the omniscient, omnipotent and omnipresent God Almighty Mythology manifest in the Dharma Sanstha (Lord Ayyappa) goes far beyond this narrow vision.  
 
Lord Ayyappa has the combined divinity from two of the Hindu Triumvirate Gods – Lord Shiva as father and Lord Vishnu in his female form of enchantress, Mohini as mother. How can a woman, who represents the female aspect of sanctity and motherhood be kept away from offering their pious devotion and spiritual aspirations to Lord Ayappa? The Lord is called Hari (Vishnu) Hara (Shiva) Suta (son).  
 
The restriction of women from visiting Sabarimala Shrine may have initially stemmed from the poor infrastructure and inaccessible roads leading up to the shrine during its inception in the 8^th century AE. Ayyappa worship was started after the advent of Islam in Kerala, in the 7th century, and the deity’s close friend was a Muslim trader – Baber, addressed as Vavar Swamy in Malayalam, whose temple / Dargah is adjacent to the Sanctum sanctorum, the Garbha Griha, of Lord Ayyappa.
 
The Rig Veda exhorts all for being receptive to knowledge. “Let noble thoughts come to us from everywhere (I 89 – 1).”

Science and technology has, over the centuries improved access to the Shrine of Sabarimala. Sabrimala has millions of visiting devotees who return for the worship at the Shrine with overwhelming devotion. Preventing women devotees from offering prayers to Lord Ayyappa on grounds of their feeble physico-mental conditions and citing insufficient safety and security in the Sabarimala hills is utterly baseless.

How can the biological fluids from a women’s body be anathema, while the male devotees voluntarily discharging semen due to pressure of testosterone (night emissions/wet dreams) during their stay in Sabarimala temple premises, be allowed? Are males superior biologically, spiritually and from a religions perspective?
 
If the posturing against women devotees arises from apprehensions that the young women devotees will become objects of temptation for male worshippers, then any male devotee nurturing such unholy thoughts is ineligible and unfit to visit Sabarimala shrine. It is not the women, but the men who need to be restrained.
 
A reference to a widely quoted advice in “Hitopadesha” (Gems of friendly advice) epitomising the essence of Hinduism is relevant. The sloka proclaims “A truly knowledgeable person is one who treats other mans’ property as mere clod, perceives other women to be like one’s mother and realizes that his own soul (Atma) is permeating in all living beings.” Are women inferior to men in the eyes of the spiritual Lord? History does not testify to such a contention.
 
Pure and ideal Hinduism, as explained in the Vedas and Upanishads, as opposed to the condemnable lop-sided sub-scriptures of Smrutis by Manu, Parasara, Yajnavalka and so on and the Epics of Ramayana and Mahabharata, have no incompatibility with post Renaissance modern values of democracy, liberalism, equality, fraternity, dignity and human rights. Non-intrusive Hinduism allows its followers to choose any God and accepts that there could be multiple paths, all equally divine, leading to God. In fact, the brigands who demolished Babri Masjid in 1992 had indulged in a sacrilegious un-Hindu crime.
 
Moreover, it does not specify any dress code, language or prescribed food for worshippers. Non-vegetarianism is acceptable and Lord Ram, Krishna, Saint Rama Krishna, Swami Vivekananda and so on were all non-vegetarians. Hinduism is even accommodative and flexible to Atheism as a view and as a legitimate intellectual pursuit. Atheist religions of Buddhism and Jainism flourished for many centuries in India. There were no serious objections in declaring Lord Buddha as one of the incarnations of Lord Vishnu, by replacing Lord Balram, the cousin of Lord Krishna.
 
The unequivocal spiritual destination of Hinduism is the utilisation of every moment of life towards one’s self through divine realisation, enlightenment, empowerment and value–addition. Simultaneous efforts to deepen and enhance empathy towards all living beings by enhancing their welfare and well-being are initiated in this religion. The goal of life is not denied to women by the Hindu scriptures. So by denying them the right to worship in the Ayyappa temple, the traditionalists are negating Hindus spiritual laws.
 
The methodology of pursuit of knowledge (Jnana Yoga) paths of self–less action (Karma Yoga) and deep devotion by sacrificing ones ego (Bhakti Yoga) are tools for self-realisation. Many women have proved their merit in all these fields. Avvyar (2^nd Century BCE in Tamil Nadu), Merabai (Rajasthan) Mata Amrutananda May (Kerala) are illustrative instances. The perversions of present day Hinduism is from the exclusivist, pseudo-fundamentalist radical fringe elements, acting as foot-soldiers of the Sangh Parivar and subverting the quintessential Hindus spiritualism, through unethical and even violent means.
 
Similar elements among the followers of Islam, like ISIS, Al Queda and Taliban are de-spiritualising the holy religion preached by Muhammed the Prophet (pbuh) Salallahou Alayhe Wasallam
 
The human physico-mental personality, in the ascending order, is categorized by Bhagavad Gita, as
1. Body 2. Five Senses 3. Mind-centre of emotions 4. Intellect and the Atma (Soul). Bhagavad Gita, Sloka 42 of chapter 3 says “The senses are said to be superior to the body; the mind is superior to the senses, the intellect is superior to the mind; and what is superior to the intellect is Atma.” So the body condition of a devotee is not relevant for his/her seeking self-realisation or divine grace through visits to the temple or any of three yogas.
 
Misplaced sensitivity displaced by sexist, misogynist Hindu orthodox groups, stressing on self-created, ill-founded unscientific menstrual taboos, for preventing women visiting Sabarimala temple is in total violation of the spirit of the Bhagavad Gita.
 
How can the biological fluids from a women’s body can be anathema, while the male devotees voluntarily discharging semen due to pressure of testosterone (night emissions/wet dreams) during their stay in Sabarimala temple premises; be allowed? Are males superior biologically, spiritually and from a religions perspective?
 
No ban has been imposed on the entry of menstruating animals near the shrine of Sabarimala.

In a Bhagavati temple in Kerala – Chenganoor/Alleppy District – as well as in Kamakhya temple (Assam), red spots appear once a year on the robes of the Godess to this date”. So when Mother Godess, in all her physical disposition is worshipped, by what logic and scriptural or religious authority, can women in a similar condition, be deprived of their inalienable right to worship before the Sabarimala shrine?

 
Significantly in “Tripura Sundari Ashtakam”, an invocation of Mother Godess, authored by Adi Shankaracharya, the deity is portrayed as a menstruating woman. The website of Kamakodi Mandala (www.kamakodimandala.com) interpreted the 6^th Sloka of this Ashtakam as follows “The Devi is described as being habituated in a blue sari with red spots, as the first menstrual flow, shows itself when a woman is ready to bear, so on the blue welkin (sky or heaven), the Devi’s raiment (clothing), signs appear, heralding creation.
 
In a Bhagavati temple in Kerala – Chenganoor/Alleppy District – as well as in Kamakhya temple (Assam), red spots appear once a year in the robes of the Godess to this date”. So when Mother Godess, in all her physical disposition is worshipped, by what logic and scriptural or religious authority, can women in similar condition, be deprived of their inalienable right to worship before the Sabarimala shrine?
 
We should endorse a proposal to send the Kerala Temple authorities for a crash course on the basics of Hindu Spiritualism, Tantric worship and attributes of a true devotee (Bhakta) as per Narada Bhakti Sutra. In Chengannor Devi temple, the Godess in menstrual cycle is offered special poojas by devotees.
 
At the entrance of Sabarimala temple, the Upanishadic dictum “Tat Twam Asi – That Art Thou – one of the four Mahavakyas of Hinduism – is prominently displayed. These words from Chandogya Upanishad (6-8-7) tells the devotee that “what you are seeking is within yourself” in the form of Atma (Soul). This also would establish the senselessness in giving any importance to the bodily condition of a devotee, though there are no regulations in fixing the standards of physical hygiene, clothings etc (all within individual control) as a condition for appearing before the deity.
 
Inexorably, the sole imperative attribute of a true devotee is the purity of the heart, as testified by Rig Veda thus, “If the heart is impure and malicious, then the God’s worship will also be unfruitful. Therefore God’s worship must be carried out with a ‘nishpap’ (sinless) heart. “VIII/61/11) Jesus Christ in his Sermon on the Mount declares” Blessed are the pure in heart, for they shall see God! (Bible, ST Mathew 5-8)
 
The famous Sanskrit aphorism, Sa Vidya Ya Vimuktayae, was adopted by Mahatma Gandhi, as motto of the Gujarat Vidyapith, Ahmedabad. Kerala temple managers should opt for liberating women from ‘spiritual slavery’ imposed by male chauvinism for perpetuation of their domination.
 
The above delineated scriptural ethos does not sanction, support or justify any ban on women of productive age from the worship of Lord Ayyappa in the sanctum sanctorum of the Sabarimala temple. Further, the Constitution of India in Article 13, declared illegal all laws including Ordinances, customs, useage, rule, regulation, order and notification, which are inconsistent with the provisions of Part III (Fundamental Rights).
 
Let us hope that the Apex Court will accept the valid grounds advanced by petitioners seeking entry of woman devotees in Sabarimala temple at par with men. Simultaneously “true Hindus” should campaign for removing gender prejudice and the purposeful implementation of the Vedic vision as noted below.
 
“Come together, all of you, speak in one voice, know with one mind, even like the Gods, who, of yore knew with one mind and together had their share of enjoyment”.
 
“Together may they utter the mantra, may they unite together, may their mind be one and their consciousness mingle. I utter the same mantra with you all, ‘with you all equally I make the offering.”
 
“May your yearning be one, may your heart be one, may your mind be one, so that your union may be perfect. (Rig Veda X – 191-23)

(R.B. Sreekumar, Former Director General of Police, Gujarat)

The post Unholy and Unconstitutional: the ban of women from Sabarimala appeared first on SabrangIndia.

The Kerala government has changed its stance, once again, in the case before the Supreme Court of India relating to entry of women of all ages in Sabarimala temple. The state government told the court on November 7 that it is ready to allow women, irrespective of their age, inside the temple. This is the second time the State is changing its stance in the case.

Soon after elections in the state that resulted in the Left Front government coming to power, a controversy had erupted when Kerala’s new Devaswom Minister, Kadakampally Surendran, then in office for little more than a week, had indicated that the government would reverse the UDF government stance opposing women’s entry. When the matter came up for hearing on Monday before Justices Dipak Misra, Ashok Bhushan and R Banumathi, the Judges sought a clarification from the lawyer for Kerala, Senior Advocate Jaydeep Gupta,to unequivocally state Kerala’s stance in the matter. Gupta’s response to the query was that it supported the entry of women into the temple. The petition challenging the ban on women between the age group 10-50 in the temple shrine was filed in Supreme Court in 2006. The LDF government, which was in power in Kerala at that time, had chosen not to oppose the petition and had filed an affidavit supporting the entry of women to the temple.

The case was then referred to a 3-judge Bench and went into cold storage for nearly 8 years before it was finally listed for hearing in 2016. By then the UDF was in power in the State and various factors including a change in the political equations in the State made the Congress government re-think the stance of the government. At this stage the Congress-led UDF government proceeded to file an affidavit changing it’s earlier stance. Claiming that the government had made a mistake in 2007 and had omitted to consider certain facts, the affidavit stated that women cannot be permitted in the temple since the practice flows from the temple deity’s celibacy vows.

The UDF government claimed that the practice is,“an essential and integral part of the right of practice of religion of a devotee and comes under the protective guarantee of the Constitution under Articles 25 and 26 which have been held to contain guarantee for rituals, observances, ceremonies and modes of worship which are an integral part of religion.”

However, with the Left Front returning to power in May 2016, there were expectations on a fresh look at the issue. Contrary to these expectations, the LDF government had, on July 11, submitted in the Supreme Court that it stood by the stance taken by the UDF government. However, finally on November 7, it has stated that it stands by the progressive position.The case is now posted for hearing on February 20 next year. The Court will also consider various intervention applications on that date.

Interestingly, however—in a move to possibly delay the issue further–the Travancore Devaswom Board suggested at the last hearing that the matter should be referred to a Constitution Bench. Senior Advocate KK Venugopal, who appeared for the Devaswom Board, put forth the suggestion but Justice Dipak Misra quipped in a lighter vein that, “We’ll hear it first, otherwise it’s an insult to our intelligence”. The Devaswom Board is making this suggestion for the second time. It had sought the same during the hearing of the case on July 11.

Another similar litigation relating to entry of women in Haji Ali Dargah had just concluded in the Supreme Court. In that matter, it was the Bombay High Court had decided that women should be allowed into the shrine. The Durgah trust had inexplicably stopped entry there in 2011. Until then women had entered! This was challenged by the Haji Ali Dargah Trust in Supreme Court. But subsequently the Trust had chosen not to contest the matter and had told the Supreme Court that it will implement the decision of the High Court.

Sabrangindia has been consistently carrying articles on this issue. A critical piece by former Director General of Police (DGP) RB Sreekumar on the issue sheds light on the crucial issue of faith and constitutional first principles.

Also Read: Unholy and Unconstitutional: the ban of women from Sabarimala

Issues at Stake
Judicial scrutiny will be on how far can a gender discriminatory custom be allowed under the guise of it being an essential religious custom?

Can the individual right to religion (Article 25) be completely overshadowed and abrogated by a denominational right to manage internal affairs [Article 26(b)]?

Does preventing entry of ‘menstruating women’ in temples qualify as discrimination under Article 15?

Individual and group rights, their understanding and counter-balancing will be adjudged.
 
Genesis
Initially, the ban on ‘menstruating women’ was enforced under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship”. It is as distressing an irony as any that these rules were made under a legislation, Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, meant to attack discrimination and facilitate temple entry. In 1991, the Kerala high court upheld the ban in the S. Mahendran v the Secretary, Travancore case and directed the Devasom Board to implement it. The judgment went unchallenged for 15 years until the India Young Lawyers Association revived the issue in Supreme Court through a PIL contending that Rule 3(b) violates constitutional guarantees of equality, non-discrimination and religious freedom (Articles 14, 15 and 25). The PIL, filed in 2006, has seen many delays. The Kerala high court in 1991 held that the Sabarimala temple was within its rights to decide what were essential practices and to that extent, the custom of disallowing menstruating women into temple enjoyed constitutional sanction. It further held that the restriction on menstruating women was a restriction based on age and not ‘women’ as a class. Para 22 of the judgment, the high court is significant in as much as it read:

“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.”
 
Article 26(b) of the constitution reads: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion”. The challenge before the Supreme Court pointed out that the high court erred grievously in interpreting the limitations on the exercise of Article 26(b). For the custom of disallowing menstruating women to pass constitutional muster, it must have satisfied two tests – (i) the custom should have formed part of ‘essential religious practice’, and then examined on the touchstone of  ‘public order, health and morality’. Besides, the denominational right to manage internal affairs must not be interpreted so widely as to totally abrogate the individual right of religion for women. 

 
Twin Concerns: Essence of Religious Practice and Constitutional Paradigms
 
The constitution guarantees individual rights [Article 25(1)], as well as group rights [Article 26(b)], but these guarantees are for ‘religious practices’ and not for all practices associated with religion. Over the years, the Supreme Court has developed a questionable, if not controversial doctrine of ‘essential religious practices’ to determine which religious practices enjoy constitutional protection and which do not. As with other such issues in developing jurisprudence, the Court has not taken a consistent view and judgements have been marked by a changing gaze on what constitutes essential religious practices and what not.
 
For quite some time now, the high threshold under this doctrine requires the denomination to demonstrate a contested practice as so central that its absence will change the nature of the religion fundamentally (Ananda Margi II case, Haji Ali case). So while the “non-entry” of women can be a religious tenet, in this case, it cannot be readily presumed that its regulation will fundamentally and irreversibly challenge the existence of the sect and its core belief system.
 
RB Sreekumar’s seminal article for Sabrangindia shows how, in fact the issue of mensturation is contested and complexes, faith actually even worshipping deities shown in this menstrual cycle.
In the landmark judgments of Naz Foundation and Shreya Singhal, ‘morality’ has been interpreted as ‘constitutional morality’ and not popular or individual morality. Constitutional morality may be understood as the core framework of values and principles like equality, non-discrimination, dignity, rule of law etc., that characterises and justifies the constitution. In the Sabarimala case, there is a very strong presumption that the controversial custom of restricting women offends the value of ‘non-discrimination’ which is the central pillar of that constitutional morality.
 
Custom and Equality
 
Article 15 of the constitution only prohibits the state from discriminating against any citizen on the grounds of religion, race, caste, sex and place of birth. When reminded of this provision, the Kerala high court said,
“Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not women as a class.”
 
The challenge demonstrates how the high court merely mechanically interpreted the discrimination between menstruating and non-menstruating women to be “reasonable classification” without engaging with the legitimacy of the classification. Why classify between those menstruating and those not in the first place? The discrimination is based on two levels – it targets women as a group at first instance and then employs an age filter to exclude menstruating women. If the classification was not based on sex, it should not have excluded women only. But the obvious fact is that classifying on the basis of menstruation will end up being a default classification on the basis of sex. Additionally, the objective of differentiation itself is constitutionally suspect and illegitimate. The objective of menstruating women is disallowed because they are seen as “incapable of being celibate” or “impure”. This is a refined way of saying they are impure because they can menstruate and they can reproduce. Purity is not and cannot be a constitutional ideal, especially since the measures of purity are defined by and sculpted from vicious structures and wellsprings of casteism and patriarchy.
 
The Critical Balance: Individual and Group Rights
When confronted with the question of the relationship between individual and denominational rights, the high court took the literal route and reasoned,
“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.”

This means that if there is a conflict between individual claims of religious freedom and denominational claims of management of religious affairs, the denominational claims can completely abrogate the rights of the whole group such as women, Dalits and dissidents. No attempt was made to balance these rights or even harmonise them. This is constitutionally questionable, even regressive for various reasons. The court failed to consider if a group right makes sense independently on its own without the individual right to practise religion.
 
Deserting the mandate of social reform
According to Article 25(2) (b), the state has the overriding power to bring a legislation to provide for social reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. This power can be used to reform all retrograde aspects of religious practice and customs, especially in matters of temple entry. Article 25(2) (b) is living proof that the constitution-makers were quite wary of unfair, discriminatory practises within religious customs and committed to purging them. The claims of sacrosanctity of religious customs are belied by the history of legislative interventions banning customs relating to Sati, child marriage, Devadasis and untouchability.
 
The controversial Kerala Hindu places of Public Worship (Authorisation of Entry) Act 1965 was born out of this very constitutional prerogative. Section 3 of the Act provides that no Hindu, of whatever section or class, shall in any manner be prevented, obstructed or discouraged from entering such place of public worship (meant for Hindus), or from worshipping or offering prayer, there at, or performing any religious service. Though Section 3 of the Act prohibits discrimination against any class in temple-entry, Rule 3(b) goes on to do exactly that by preventing women who were customarily prohibited from entering or worshipping at any place of public worship. It is an established and fundamental rule of statutory interpretation that ‘rule making’, which is delegated legislation, cannot be interpreted in a way to supplant the provisions of the enabling Act but only to supplement it. The state cannot claim rule-making power for the objective of facilitating temple entry and proceed to achieve exactly the opposite goal. There is more than a mistake here – Rule 3(b) has the odour of bad faith and all the trappings of a concealed constitution scandal. The rule cannot be allowed to swallow the whole edifice of the social reform legislation itself and therefore must be struck down. 
 
Where will this end ?
The Sabrimala Case has traversed a decade. The Sabarimala case represents not just the hopes of devout women seeking entry into the temple, but also those who wish a strong, cogent constitutional precedent be established for the future. The battle for gender justice, individual rights and non-discrimination cannot be waged on only observations, interim orders of the court. This case is an opportunity for the court to give us a precedent that firmly entrenches constitutional morality in our political vocabulary and liberates individual rights from the choking hold of group rights. How the Supreme Court navigates through these invisible fault lines of religious and constitutional morality will tell us if ten years were too short.
 

The post Flip Flop Flip: Kerala Govt is Now for Women’s Entry into Sabarimala appeared first on SabrangIndia.

Source: shanidev.com Police on Tuesday, January 26, 2016, foiled the women march toward Shani Shingnapur temple and detained many activists including Bhumata …

Six busloads of members of the Pune-based, Bhumata Brigade who sought entry into the Shani Shingnapur temple in Ahmednagar in Maharashtra, to secure for themselves a right enshrined in the Indian Constitution – that there shall be no discrimination on grounds of religion, race, caste, sex or place of birth were arrested this Republic Day. Trupti Desai, a leader of the brigade had announced that, if they were refused entry, they would persist with their programme, albeit unconventionally, in a helicopter descent. But the police also thwarted this. Earlier, the Hindu Janjagruti Samiti (HJS) had issued a call for the mobilisation of Hindu men to ‘protect’ religious tradition.
 
The Bhumata Brigade, which came into being in 2007, has taken up a number of other issues. News reports detail its support for the Anna Hazare-led anti-corruption movement, farmers’ agitations on crop-loans, the Ajit Bank's multi-crore scam, etc. On January 11, rattled by its announcement to take on the temple, the Shani Shingnapur Temple Trust appointed a woman, Anita Shetye, as its chairperson, and another woman, Shalini Lande, on its board of trustees. 
 
The storm the Bhumata Brigade has kicked up over the entry of women to this temple is matched, perhaps in a more muted fashion in the legal arena, with discussions of the right of women to two other places of worship – the Sabarimala Temple in Kerala and the Haji Ali dargah in Mumbai. In all these places, women of these faiths are demanding the Constitutional right to practice their faith and worship alongside men, without any discrimination.
 
Last year, the Bharatiya Muslim Mahila Andolan filed a writ petition before the Bombay High Court to demand the right to enter the mazaar of the Haji Ali dargah and the Indian Young Lawyers' Association (IYLA) filed a writ petition to seek the entry of pre-menopausal women and post-puberty girls into the Sabarimala temple in Kerala.
 
In both petitions, significant aspects of constitutional rights are at stake, though the trustees of these places of worship have proffered different reasons for restricting or banning the entry of women. While Article 15 of the Constitution of India prohibits any discrimination on grounds of religion, race, caste, sex or place of birth, the IYLA petition has challenged the ban under Art 14 (equality before law) and Arts 25 and 26 (freedom of religion) of the Constitution. The ban on the (Sabarimala) temple itself is enforced under rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

There has been much debate on the myths and the reasoning behind the restrictions (including the arduous trek to the shrine through forests that used to be populated by wild animals) but the Travancore Devaswom Board, which manages the Samarimala Temple, maintains that the restriction is necessary because the presence of women of reproductive age would disturb the celibate god. (See https://sabrangindia.in/article/unholy-and-unconstitutional-ban-women-sabarimala)

The Shani temple does not specify any clear reason why women are not allowed into what is called the ‘foundation’ – the raised granite wall which encloses the idol. Pictures and information of the Shani idol on the website of the temple (a tri-lingual one – available in English, Marathi and Hindi) clear show the foundation was added later on the donation of a local trader. Interestingly, the HJS site says that prohibitions on women is a matter of ‘spiritual science’ and quotes the Sanatan Prabhat to say that a movement must be started to protect religious traditions!

The Haji Ali DargahTrust proffers more prosaic administrative reasons. Here, women were allowed till as recently as 2012, when a decision was taken to prohibit the entry of women on grounds of their safety and security!

While the hearings on the Sabarimala temple entry are on, the Bombay High Court has decided to wait for the Supreme Court’s decision before giving its verdict on the BMMA’s petition on entry into the Haji Ali dargah.

      
 
For several years now, women have been trying to push the ossified frameworks that govern religious practice. There are instances of daughters of the Hindu faith who performed the funeral rites of their parents (the latest being Mallika Sarabai who lit the funeral pyre of her mother and celebrated danseuse Mrinalini Sarabai just last week). There are less publicised instances of Hindu widows who participate in the weddings of their children. Hindu women have chanted the Vedas and other Sanskrit shlokas and some of them also conduct religious ceremonies.
 
Hitherto, these attempts to push the envelope were seen as private acts that impacted family or friends and the immediate community. Even when women worshippers tried to enter the Sabarimala shrine or the Shani Shingnapur temple, they were seen as stray rebels or worshippers who entered the forbidden area by mistake and elaborate purification rituals were undertaken to ‘restore’ the sanctity of the shrines.
 
But now, it is clear these efforts have entered the more public realm of organised religion, especially with trusts that command a lot of influence and manage substantial funds. The trusts are accountable to the laws of the land and do have state and political patronage, either in the form of long leases on the land they occupy or in the composition of and appointment of the trustees and administration.
 
Granted, the struggle to seek their rightful place before their gods is a fundamental expression of the faith of these women. But the edifice of religious practice is not merely a question of faith. When women confront these structures, as they have done and are continuing to do in matters of personal law, matrimony, maintenance, child custody, property and inheritance rights, they have had to wage protracted battles to secure the most minimal of rights. The restrictions on the entry of women into places of worship are only one manifestation of the patriarchy and misogyny that marks much of organized religion. Much more than mere tradition is at stake here.
 
 (This writer is a senior and independent journalist)
 

The post The Right to Worship my God appeared first on SabrangIndia.