In a landmark judgment on 28 Septemeber 2018, the Supreme Court granted women’s entry to Kerala’s  Sabarimala temple irrespective of their age.

Following the judgment, the state witnessed a huge protest #SaveSabarimala organised across the state, under the banner of Sabarimala Samrakshna Samiti. When the shrine of Lord Ayappa was opened for five days in October, it witnessed a huge number of protesters against women’s entry to the temple. Even though many women attempted to enter the temple, their entry was stopped by a huge crowd of male “believers”, who also attacked the police forces deployed in Pamba.  Journalists who tried to cover the situation in Pamba and nearby, also faced assault in the hands of the #SaveSabarimala group. It is for the first time in the history of Kerala that the state is witnessing an anti-women movement. The Indian Cultural Forum spoke to different writers and activists on this issue. Here is what they have to say:

Image Courtesy: The Pioneer

K Satchidanandan, Poet
Sabarimala to me is more an issue of gender equality than of religious freedom. Those who oppose the entry of women there do not even have the backing of custom as the ban on women of a particular age in the temple only goes back to the High Court judgement of 1992, and even after that there is enough proof to show that young women have entered the temple with the full knowledge of the Tantric, the chief priest. The custom, if at all it exists, militates against the gender equality guaranteed by the Constitution and hence needs to be discontinued. The real battle is between the regressive feudal forces that stand for Brahmin hegemony and royal power and the progressive forces of democratic equality. This temple is a major source of income for the so-called called “kings” of Pandalam— that had long ago become a part of the Travancore Kingdom and later of democratic Kerala—as also for the Tantri. They do not want to be deprived of it. Historical records show Ayyappan as a tribal god worshipped by the Malayalam tribe. Clearly it was later brahminised and the legends were rewritten for the purpose. Sastha, the other name of Ayyappan, is a synonym of the Buddha and the Sarana chanting of the pilgrims is also Buddhist. The fact is that the whole issue is being politically manipulated by the right-wing that is unhappy about Kerala’s rejection of its Hindutva ideology. I completely support the decision of the Supreme Court and the Kerala Government’s efforts to implement it which is its constitutional obligation.

Meera Velayudhan, Academic and activist
It’s all about constitutional right for women. Even in the judgement, the clauses that they site are from the constitution. The first point that it mentions is about freedom, the second on non-discrimination, while the third is equality. The whole question of non-discrimination corresponds to untouchability – purity. It’s the fundamental right that underlines the judgement on women.

An altered narrative, underlying a whole range of political agenda has been presented by media after the Sabarimala verdict. The whole narrative that is echoed today consists of three constitutional forces coming together—the royals royalty, the princely section, and the Nair Service Society along with who they represent. This agenda is propagated by the right-wing and this is for the first time in the history of Kerala that people are promoting an anti-women agenda. We can see the elite, patriarchal and brahminical sections of society coming together and projecting themselves as the “Hindus” protecting the temple. Recently, the adivasi section had also come up with a historical evidence of how Sabarimala- a tribal temple, had been taken away by the upper caste. Mainstream narratives such as these are also shrinking the space for a democratic dialogue. We need to create a democratic space to discuss such issues rather than lashing out and as an attempt to achieve the same, we have formed Samam, a forum for gender equality which consists of people from various fields.

NS Madhavan, Writer
The protests against women’s entry in the Sabarimala temple were mostly marked by violence and meticulous planning. It was an attempt to fasten Kerala to some parts of India, which are inclined to Hindutva ideology. It was an assault on the idea of Kerala that is founded on secularism, pluralism and peaceful coexistence. It is unlikely that the situation will resolve so easily.

Courtesy: Indian Cultural Forum

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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

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