In a recent judgement, the Supreme Court of India had in a 4-1 majority judgement decided to remove the ban on entry of women aged 10 – 50 into the famed Lord Ayyappa Temple at Sabarimala in South India.
The case had generated a lot of interest – during the hearings as well as post judgement – all around the world. It is indeed a significant judgement since, with the stroke of their pens, four judges reversed a practice that has been going on at the temple since time immemorial.
Justice Indu Malhotra has firmly concluded that the said writ petition “does not deserve to be entertained and the grievances raised are non-justiciable.
The four judges have averred that the practice “significantly denudes women of their right to worship”. Justice Chandrachud termed the custom as a form of “untouchability” which cannot be allowed under the Constitution of India.
Justice Indu Malhotra, the lone lady member of the bench, has attracted a lot of attention and admiration. As a member of this five-judge bench, she wrote her dissenting judgement. She has provided some profound reasoning for her dissent that certainly deserves examination. Former Supreme Court of India judge MarkandeyKatju has complimented her for “the balance and restraint required of a judge of a superior court”.
Judge Malhotra has pointed out that that “the petitioners were not directly affected and were not devotees” themselves and hence she found it “odd that the court was deciding on the entry of women into the temple at the behest of persons who do not subscribe to this faith”. This is an important observation and has not missed the attention of millions of Hindus in the country.
She has further strongly argued for “heterogeneity in religion that allows diverse forms of worship, even if it were irrational”. Very pointedly she states that “in a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts.”
Continuing her telling observations, Malhotra has said that permitting such public interest litigations (PILs) “in religious matters would open the floodgates to interlopers who are not followers of that faith, to question its beliefs and practices” since it would be a matter of grave concern, especially for minority communities. She has firmly concluded that the said writ petition “does not deserve to be entertained and the grievances raised are non-justiciable”.
The Supreme Court has opened the possibility of internecine litigations between religious faiths where one practitioner is now free to question and seek the quashing of practices of another religion.
But the majority of judges thought otherwise. Their reasoning for the majority judgement seems to be a reiteration that the practice of forbidding women in the said age group was “a form of untouchability which cannot be allowed under the Constitution.” But many legal experts have already argued that this case cannot be viewed through the limited vision lens of gender equality and a broader view of Hindu religious practices was imperative in judging the case.
It is not that these points of law were not brought before the court during the hearings. In fact, J Sai Deepak, who appeared before the Supreme Court in this case on behalf of the intervener organization People for Dharma, too had presented succinct arguments. For example, he had argued that “Lord Ayyappa has rights under articles 21, 25 and 26 of the Constitution of India, and his right to remain a naisthika bramhachari- or a perpetual celibate – falls under Article 25 and hence, women’s entry to the temple should continue to be restricted”.
Thus, restricting entry of women into the abode of a Lord who is a naisthika bramhachari- or a perpetual celibate – may not tantamount to gender inequality or discrimination against women, when viewed through a broader lens. Be as it may, the other four judges, in their wisdom have obviously not been convinced by these arguments and hence their opinions have prevailed and the judgement is there for all to see.
The impact of the judgement is expected to be felt far and wide. From breaking its own restraint in not entering into the domain of religious beliefs and practices that are not pernicious, the Supreme Court has opened the possibility of internecine litigations between religious faiths where one practitioner is now free to question and seek the quashing of practices of another religion. The outcome could be a judicial nightmare which could easily lead to bloodshed on the streets.
Many Ayyappa Sangams – groups or forums of Ayyappa devotees – do expect the usual suspects – activist women who have a track record of protesting against Hindu practices – to visit the temple.
In multiple discussions I had with Hindu women, particularly millennials in Tamil Nadu, I got a sense of their disbelief. Many did say that they were suspicious of the motives of the petitioners since they themselves would never have approached the courts on such a matter. Many felt violated since Hindu women had traditionally revered the practice of naisthika bramhacharya vratam of Lord Ayyappa. They pointed out that the unprecedented heavy rains and consequent damage to life and property in Kerala as a sign of Lord Ayyappa’s anger.
Plural societies like India have diverse groups and interest and by definition have differing identities and belief systems which have to be celebrated. But they also have large and vulnerable underbellies that have to carefully nurtured and protected, not exploited. But in India, we seem to be witnessing the opposite.
But if the average Hindu, particularly the women, feel outraged, they cannot be faulted for, here is a judgement that nullifies a centuries-old practice that they did not ask for. The certainly avoidable outcome is that a growing number of reasonable Indians now think that the judiciary appears to have abandoned all shreds of caution and sensitivity when treading on matters of religious faith, however irrational they may appear.
Over the ages, Hindu social memory has been burdened with a lot of baggage – from flawed to gross miscarriages of justice – more than what many other social systems have experienced. But they have been absorbed and digested in the sands of time. So too this will be.
Despite the judgement, out of reverence for Lord Ayyappa, Hindu women have not come forward to visit the temple. And they are steadfast in their resolve. Nonetheless, many Ayyappa Sangams – groups or forums of Ayyappa devotees – do expect the usual suspects – activist women who have a track record of protesting against Hindu practices – to visit the temple. But like always, most of them will be a flash in the pan.
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.