Supplementing Existing Legal Arguments on Sabarimala

Supplementing Existing Legal Arguments on Sabarimala

Despite all witty-weighty arguments of lawyers in the defense of Sabarimala tradition, on 28 September 2019 the Hon’ble Supreme Court by 4:1 majority lifted the ban on women of a certain age/menstrual age from entering the Sabarimala temple. However recently, while dealing with 56 review petitions along with a few fresh petitions on this subject, the Apex court had indicated a willingness to revisit its previous position and had referred the matter to a larger bench of 7 judges. Today a 9-judges bench of the Supreme Court has commenced hearing on issues related to discrimination against women in various religions and at religious places including Sabarimala Temple.

It is therefore high time that those in favour of upholding Indian traditions, introspect and reflect upon the arguments which till date have been pushed in defense of the Sabarimala tradition. Since that September court verdict, the only voice that has gathered much public attention on this issue is that of Advocate Jai Sai Deepak’s. His voice propagates the dominant discourse on the subject. Well to be honest, as a pro-traditionalist, I am moved by these arguments in defense of the Sabarimala tradition. However, recently when I came across Advocate Anand Prasad’s observations on the Sabarimala issue while he was delivering a lecture on Srijan Talks. This compelled me to revisit the ongoing debate in favour of Sabarimala tradition, and analyse aspects that are missing from the current debate.

Now to understand why the observations of Adv. Anand Prasad on Sabarimala issue are attractive and to appreciate why the arguments put forth in favour of Sabarimala tradition, so far, have not delivered the desired results, I have made a comparison between the dominant legal narrative and the narrative advanced by Adv. Anand Prasad on this subject. But before I begin to draw the comparison, let me be very clear that this comparison is only meant to highlight those areas which are missed out from the dominant discourse. So, having said that, let’s try and understand the observations put forth from both perspectives in favour of the Sabarimala tradition.

Summary of comparison:

 Arguments made in court as on date – the dominant discourse Possible additional arguments from a rational perspective – nuanced reasoned perspective
1   Right to freedom of Religion – must be equally available to all citizens, the minorities s well as the majority communities Why Muslim traditions, such as at the Haji Ali dargah do not come in question, though it is outrightly discriminatory.   Hinduism is not one monolithic religion – it is by law defined by exclusion, i.e. not being any of the other identified religions. It could be said to be a collection of different traditions (devotional, spiritual and scientific), and hence needs to be reviewed with a different yardstick. Hinduism cannot be said to have any single essential feature. The moment someone brings other religion arguments to defend its own practices he/she already lost the premise of the argument. Plus it compels court to interpret tradition negatively, i.e. not from a religious perspective – since the Indian state does not have a religion.
  2 Tradition of Sabarimala Temple must be viewed from the perspective of its origin, scriptural basis and reason for the existence of this tradition. Those who are opposing this tradition have no idea of its origin, scriptural basis and reason for the existence of this tradition. Those that challenge the restriction on entry of woman ‘may’ have a justifiable position when viewed from their perspective, i.e. the popular/dominant scientific perspective (Dominant Rationality). However, the arguments in support of the restriction ought not to be brushed away simply because they might appear poorly in the popular/dominant scientific perspective (Traditional Rationality). Courts need to accept (a) the existence of both perspectives, and (b) appreciate nuances of Traditional Rationality. If there exists a possibility that the traditional explanation could be true, the court must withdraw from interfering in such a religious debate. An example of the simultaneous existence of two truths is in the scientific concept of relativity — say for example, a man sitting in a moving train, throwing ball up and down, would perceive the ball as moving in a straight line. However, another man standing on the platform, observing the ball in the train would actually see the ball moving in a parabola. So two truths can exist at the same time. Sabarimala issue should be viewed from that perspective. As such, Dominant Rationality can exist simultaneously with Traditional Rationality, the truth of each dependent on placement of the observer, and there being no absolute one truth for both observers. Hence, only in a case where the court is convinced that an argument made in favor of tradition is completely irrational and unacceptable, that it should interfere with religious tradition.
  3 Viewing Sabarimala tradition from the prism of women menstruation is not correct rather it has to be viewed from the construct of celibate character of the deity itself. Moreover, reading out process of women menstruation as impure in the belief system of Hindus is also flawed because Hindus in some of their temples like Maa Kamakhya Temple used to worship that very process of “menstruation”. So the concept of impurity sounds completely off the beat in that context.   The Tantric tradition holds itself out as a scientific tradition, not in the bhakti mode, and one of rational explanation. Ayyappa at Sabarimala is consecrated in the Kerala Tantric tradition. The process of consecration in an idol is achieved by infusing a specific energy in nature into the idol. Consecrations like that of Ayyappa at Sabarimala are for specific purposes – in this case to act function as a catalyst for the process of spiritual upliftment. The rituals and processes are meant to preserve the energy of the shrine, for only then would a pilgrimage to this temple be of benefit to the pilgrim. A failure to perform the specific rituals and or observe tenets of the shrine would result in a dilution of the energy consecrated in the idol and ultimately could result is total loss of such energy. Since the Deity at Sabarimala is the manifestation of intense ascetic/ celibate energy, the ancient prescribed tenet is for it to be approached only by those pilgrims whose personal energies are harmonious with the Deity’s energy. Any violation of this basic tenet would lead to an adverse impact for both the non-conforming pilgrim and the Deity itself. Hence prospective pilgrims are required to observe a 41 days Vratham for the purpose to transform their energies and make them harmonious with the energy flow of the Deity. Both men (called Ayappans) and women (called Malikapurnams) can undertake the pilgrimage after completion of the 41 day Vratham. Any break in the Vratham by either man or woman, whether for voluntary or involuntary reasons, disqualifies the individual from undertaking the pilgrimage.  
4   Temple tradition needs to be protected in the name of diversity. Every exclusion is not necessarily meant to promote caste and gender discrimination. Certain religious spaces are exclusively meant for men while some are exclusively meant for women. For example: In the famous Kamakhya temple of Guwahati, the Kamakhya Peetham in Visakhapatnam, where ‘creative divinity’ of women is worshipped, too denies entry to men for some days in every month.   Restrictions on entry of women in the Sabarimala tradition is not women specific and is not discriminatory under Article 14. It is based on the readiness of energy levels in each individual pilgrim – which is achieved by undertaking the 41 day Vratham. In the context of breaking of the Vratham on account of involuntary events, it must be noted that events like death or birth in the family would also break a Vratham. Similarly, menstruation would also break the Vratham. While birth and death would affect both men and woman, menstruation only impacts a woman’s ability to be energy ready to undertake the pilgrimage. The requirement to be energy ready to undertake a pilgrimage is one of the basic tenets of the Sabarimala Deity/pilgrimage. In the context of the “rare entry” of woman in the Sabarimala temple until the 1950’s the following needs to be considered: 1. Women that entered the shrine in those days only did so for the first rice eating ceremony of new-born children. Further they entered the shrine through the northern entrance (not climbing the sacred 18 steps, which is a preserve of pilgrims that have undertaken the 41 day Vratham). 2. The shrine has two entrances, one the main entrance by climbing the sacred 18 steps and the northern entrance, which does not require climbing of 18 sacred steps. 3. Moreover, the Devaswom board’s view is that the restriction on women (of menstruation age) was only during Mandalapooja (around 15 Nov. to 26 Dec), i.e. the main pilgrimage period. The restriction did not apply on other days when the temple was open, i.e. (a) Makravilakku (14 January), (b) Vishu (14 April), and or (c) the first 5 days of each Malayalam month. 4. Since these instances were rare, they did not significantly affect energy of the Deity. Further, since this did not involve climbing the sacred 18 steps, it was not viewed as being significantly disruptive. However, these rare exceptions from the past ought not to be made the rule, since that would cause significant disruption to the Deity’s energy and render the Deity ineffective for accelerating the spiritual upliftment of all pilgrims.  
  5 The Deity itself taken a vow of “Nastikya Bramcharya” which essentially requires that women should not come in touch with the deity because it will then erode the celibate character of the deity. To come up with arguments like Deity has taken a vow and his celibacy is an oversimplified argument, made in the ancient/medieval past to explain the principles to the simple mind of the common man of those times and cause adherence to this basic tenet. Forcefully making this argument in a sophisticated court of law, to the exclusion of the Traditional Rationality argument, has been counterproductive. It carries with it an irritational suggestion that a Deity is capable of seduction by the presence of a mortal women of menstrual age. As a consequence, the court gets pushed into judging the restriction from the prism of women discrimination and a patriarchal mindset (the idea of men trying to preserve celibacy by staying away from women).  
6 There are Supreme Court rulings which categorically lays down that agamas and scriptures of the temple must be respected as long as they are not negatively discriminatory. The scriptural basis of temple traditions is derived from “Sthala Purana” which prescribes that temples have their own traditions and must need to be protected and preserved. “Bhootnath Upakayama” is the scriptural basis of Sabarimala tradition, in which there is a practice of “Dev Prashnam” in temple, where Chief priest is suppose to have dialogue with the deity based on several parameters like astrology, horoscopes etc to know the will of the deity. The Supreme Court has, in more than one judgement, recognized the role of rituals in keeping temple deities preserved and going. Hence, there is good legal basis to make the argument that a certain energy is consecrated in the Deity at Sabarimala and that the same needs to be preserved by adherence to the rituals and tenets prescribed in relation to that Deity since time immemorial.  
7 Lord Ayappa in Sabarimala is a juristic person therefore it posses certain rights in his favour which includes right to preserve its Celibate character. Moreover the abode of Lord Ayappa in Sabarimala is house of deity and therefore the preposition that needs to be put in place is “domus mea et praecepta mea absit inuria” ie., my house my rules. So in Sabarimala case Court has to address the following fundamental rights: Rights of devotees to pray in Sabarimala temple who have faith in the celibate character of the deity. Rights of the deity as a juristic person, who wants to maintain celibate character.   Let’s presume for a moment that the tradition is discriminatory. Now the next question that needs to be addressed is whether such discrimination is permissible under Constitution. If it constitutes the essential part of religion, then that discrimination is allowed under the Constitution. Also, as flagged briefly above, to address the question of “essential practices” in terms of Hinduism three questions needs to be addressed first : What is Hinduism. What are the essential features of Hinduism. And can it be destroyed or altered. Definition of Hinduism is by exclusion under Indian Law. And the term “Hindus” primarily denotes geographical boundaries rather than some religious ideology. But Europeans continued with this nomenclature for Native Indians as some religious identity. Hinduism is the conglomeration of multiple traditions/theologies which are not necessarily vedic in construct. Like- Asthik, Nasthik traditions; kriya, Bhakti traditions; Shaivites, Vaishnavite and Shakta traditions; Advaita, Dwaita, Visishth-Advaita traditions. With the passage of time certain schools (especially vedic) got prominence but that doesn’t mean that other traditions lost relevance. In many parts of India, these traditions hold prominence and Sabarimala is one among them, which is essentially based on Tantrik tradition. So, to address this issue with monolithic construct is outrightly flawed. And therefore this “doctrine of essential practises” is impractical in terms of judging these traditions which are based on entirely different theological construct. Tantrik tradition in particular does’t not believe in God rather it beholds certain rules which if followed exactly as prescribed bound to give specific results. Hence the premise on which Sabarimala tradition was judged by the court is entirely flawed and if this ruling remains, it will end up destroying the essence of this specific shrine.  
8 Other arguments: If today we allow people to violate the Celibate character of the deity in the name of whatever reason then next question that confronts us is how far we will extend this logic. Take for example if tomorrow some person wants to offer “Chicken/Non-veg food” as an offering to Lord Hanuman in the name of religious freedom. Then where this will end ? So the Apex court has to view this practice in that context also. Other arguments: Sabarimala Temple was rebuilt in 1950 after instances of arson and vandalism and the earlier desecrated idol was replaced with the new one. Under Indian practices re-consecration of idol (after every 12 years) is a quite common practise and it should be seen in furtherance of the original consecration and not as new consecration. This aspect may have confused the Supreme Court which viewed human intervention adversely.

Before summing up this article let me again emphasize on the necessity of drawing this comparison. The Apex court’s decision to review its previous decision through a larger 9 judge bench survives out of a very narrow consensus of Judges, two out of five judges still hold that their previous stand on Sabarimala is correct and the tradition in question is outrightly discriminatory against women. Therefore, in order to avoid any adverse consequences in future court proceedings it is the most ripe time for all pro-traditionalists to consider and analyse all possible perspectives on this issue. The observations of Advocate Anand Prasad becomes more relevant in that context for the reason that he not only pointed out loopholes in the arguments of pro-traditionalists but also highlights several issues that are completely missed out from the floor of the debate. And in the light of the above comparison it would not be an exaggeration to say that the line of arguments from the dominant discourse is prone pushing the Court into interpreting the tradition from the prism of women discrimination and a play in patriarchy.

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Avinash Vasishth

Legal Associate at Srijan Foundation