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Daughters of Sabarimala

By Ami Thaivalappil | Position Paper

When I was nine years old, I traveled from my home in the state of Maryland to visit the state of Kerala, 8,000 miles away in India. There, nestled in the lush jungles of the Western Ghat mountain range, rests Sabarimala, one of the largest Hindu pilgrimage sites in the world. Considered the home of Lord Ayyappa, the Hindu god of growth, the temple welcomes over 40 million devotees every year from all over the globe, with one notable demographic exception: young women. In honor of its patron deity, the state of Kerala instituted a ban in Sabarimala on women of “menstruating age” in 1965. Specifically, this ban targeted women between the ages of 10 to 50 in order to respect Lord Ayyappa’s vows of celibacy. On my own visit, I was rushed to India at the behest of my grandparents, both devout Hindus, who insisted that I go in order to receive Ayyappa’s blessings. I had been approaching my physiological “deadline,” so, that summer my dad took me on the pilgrimage, guiding me up the beaten dirt paths of the mountain into the gleaming golden temple. Now, a full 32 years before I turn 50, I am suddenly permitted to return to Sabarimala, in the midst of spiraling controversy over the Indian Supreme Court’s ruling to abolish the ban on women of “menstruation age.”

After nearly 12 years of litigation and protests, the Indian Supreme Court declared that Sabarimala’s ban on menstruating women was fundamentally discriminatory and infringed on women’s right to religious freedom. This ruling, passed on September 28th, 2018, was the result of a petition filed by the Indian Young Lawyers Association (IYLA). This case made its way up to the Indian Supreme Court, where the Constitution Bench, led by Chief Justice of India (CJI) Dipak Misra, released a 4 to 1 verdict, declaring that the ban on women was unconstitutional and “lowered [a women’s] dignity” (Sinha). The one dissenting judge, Justice Indu Malhotra, cautioned against legal interference in religious policy, stating that “In a secular polity, issues which are matters of deep religious faith and sentiment must not ordinarily be interfered with by courts” (Rautray). Her words frame the backlash this ruling has faced, from Hindu devotees and citizens alike, who question if the government should have been allowed to intervene in what is considered a religious matter.

In this paper, I intend to demonstrate how the Indian Supreme Court was well within its rights to intervene in the Sabarimala temple’s ban on women, especially since their obligations to uphold equal rights on the basis of gender outweighs the temple's need to sustain this ban as an "essential religious practice." Before I can delve into this issue, I will first establish the background and precedent that lead to this ban, as well as offer the audience a short explanation of Hindu customs and traditions. Once the background of this case is established, I will then substantiate my claim by highlighting the fundamental responsibility of nations to uphold the rights of their citizens, and how this specifically applies to India’s Constitution. I will also rely on precedent set by other social justice rulings in India to further establish the government's right to manage domestic affairs such as the Sabarimala case. Finally, I will refute the idea that this ban exists as an “essential religious practice” and delve into the responsibility of the government and the Travancore board in the management of the Sabarimala temple.

Historically, Sabarimala’s ban on women only existed in an informal capacity. Per Hindu custom, women were discouraged from visiting temples when they could be menstruating, as impure blood was thought to be leaving the body, carrying with it bad energies that could “pollute” whatever space a woman entered (Norris, 16). As such, this cultural stigma heavily deterred women from visiting temples to offer worship, prepare food, or even touch other people, out of fear that they would “taint” them. This stigma also extended to temple-specific rituals, such as the Vratham. Essential to Sabarimala’s pre-pilgrimage ritual, devotees were expected to complete the Vratham, a 41-day penance ritual in which a devotee would purify his body through prayer, diet, and meditation before visiting the temple. But for a woman, her Vratham would be interrupted by the monthly menstruation cycle, rendering her body “impure,” and thus unable to undertake the pilgrimage (Deepa, 2).

However, even though these customs have existed, there was never a clear method of enforcement to prevent menstruating women from entering temples, making compliance sporadic at best. In fact, there are recorded instances of young women entering Sabarimala before 1965, most commonly with mothers coming to perform Choroonu ritual (the first rice eating ceremony for babies) at the temple. Even the Queen of Travancore was recorded to visit Sabarimala in 1939, though it remains unclear if she actually entered the inner sanctum of the temple (Cris). This sporadic implementation ended in 1965, when the state of Kerala  passed the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, making these customs enforceable through law. These rules specifically stipulated 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” (Prasoon).  Suddenly, there were legal repercussions for women entering the temple during the pilgrimage season, with lawsuits brought against supposed violators such as the Indian actress and Karnataka Minister for Women and Child Development, Jayamala Ramachandra (Ananthakrishnan). However, the Authorization of Entry Rules only specified the ban during the annual pilgrimage season, from November to January, and the festival of Vishu in April (Deepa, 6). This was extended to cover the entire year during the 1991 case of S. Mahendran v. The Secretary, Travancore. Mahendran had filed a public interest litigation arguing that having young women visit the temple in its off-season was a violation of Sabarimala’s customs and would be offensive to the deity. In response, the Kerala High Court upheld and even expanded the law to encompass visits year-round, now justifying the ban of women as an “essential religious practice” for the Sabarimala temple (Deepa, 8). It was only in 2006 that the issue was revisited, as the IYLA filed a public interest litigation that called for women of all ages to be permitted entry into the Sabarimala temple.

Returning to the issue at hand, I believe that the Indian Supreme Court was within its authority to overrule the ban. First of all, the primary obligation of any government is to uphold and protect the rights of its citizens. Without this commitment, the social contract that binds government and citizens falls apart. In India, over 79.8% of all citizens are Hindus, making up a clear majority in the country (“Census of India: Religion”). But even though religion may play a role in the day to day affairs of citizens, it cannot be allowed to interfere in the responsibilities of a secular government. In the article “Secular Purpose,” published in the Virginia Law Review, Andrew Koppelman explores the dynamic between a secular government and its legislation. Using the United States as an example, Koppelman notes how laws must “have a secular legislative purpose” (Koppelman, 88). This “secular purpose” obligates governments to maintain and enforce rights and laws without providing special exemptions for religions and their associated institutions. Otherwise, as Koppelman states, the “invocation of religious reasons...[would] override any constitutional constraint” (166). The implication here is that any religious exemption can quickly become a slippery slope to violation of a citizen’s rights. Things condoned by various religions, such as polygamy or obsolete practice like sati (ritual widow burning), could then be justified if non-secular governments choose to allow religious institutions to practice outside of the Constitution. For India, the government cannot allow Sabarimala to act outside of the Constitution, and therefore must hold the temple to the same constitutional standards as any other institution.

Moreover, the Indian government is obligated to uphold the rights of all citizens, as guaranteed by the Indian Constitution. Outlined in Articles 15 and 16, the government has a responsibility to prevent “discrimination on grounds of religion, race, caste, sex, or place of birth” and provide for “equality of opportunity” and “no discrimination” for every citizen (Singh 912). The Sabarimala ban is a clear violation of these constitutional guarantees, as it discriminates on the basis of sex by only targeting women with restrictions and regulations that prevent equality in religious expression. This ban bars women from fully expressing their religious freedoms and infringes on their constitutionally guaranteed rights. As the Indian government has a responsibility to defend these rights, it was clearly the duty of the Indian Supreme Court to intervene and restore equality. Though religious institutions in India are permitted to be independent and manage their own affairs per Article 26 of the Constitution, the article directly preceding that, Article 25, reserves the right of the government to make laws concerning “economic, financial, political or other secular activities which may be associated with religious practice” (Deepa 4). Further stipulated in Subsection B of Article 25, the government is permitted to make these laws for the express purpose of “social welfare and reform” (“Articles 25 and 26”). Constitutionally, it becomes evident that the Indian government had a clear right to intervene, as well as a social obligation to defend the rights of its citizens.

Historically, there also exists a precedent for the Indian government to change traditions that stunt social growth and reform. For over 3,000 years, India used to be divided into a system of caste that separated people into various social groups. Caste was set from birth, with each separate caste afforded different rights and privileges. The entire system was founded on Hindu principles, specifically on that of reincarnation, where people were believed to be born into a certain caste based on virtue in their past life. Therefore, any special privileges or discrimination a person faced as a result of caste was perceived as karmic justice. The lowest of these castes, the Dalits or “untouchables”, faced the worst discrimination, as they were shunned from society. “Untouchables” were banned from entering most public places, such as schools, public markets, and temples, lest they “pollute” the location with their presence. However, in 1950, Article 17 of the Constitution was added to abolish untouchability and its practice “in any form” (Galanter 132). This sort of systematic discrimination was deemed to be such a violation of basic rights that a centuries-old tradition was now forbidden. Returning the present issue of the Sabarimala ban, the systematic exclusion faced by the untouchables in India provides a striking parallel to the exclusion of women at Sabarimala today. Supreme Court Justice Chandrachud even referenced this precedent in his decision on the Sabarimala case, declaring that the Sabarimala ban essentially created a new untouchable caste on the basis of sex. Chandrachud extended the protections of Article 17 to women, noting that the provision “applies untouchability [...] to the systemic humiliation, exclusion and subjugation faced by women” (Rautray). The abolition of caste acts as a monumental example of social reform initiated by the Indian government. If a system such as the caste system, which was once seen as central to Indian society, was deemed discriminatory enough to be overturned, it follows that the Sabarimala ban can be judged in the same way.

Despite this ruling, there remains vehement opposition, with many Hindu devotees adamant that the ban was an “essential religious practice” of the temple, necessary to respect and appease Lord Ayyappa. The “essential religious practice” defense stems from the original S. Mahendran v. The Secretary, Travancore case in 1991, where the ban was first upheld. The Kerala High Court deemed the ban to be an “essential religious practice,” determining that it was “in accordance with the usage prevalent from time immemorial.” (Deepa 8) Even on the Supreme Court, Justice Indu Malhotra, the only woman on the Constitutional Bench, echoed a similar sentiment, stating, “What constitutes essential religious practice is for the religious community to decide, not for the court” (“Sabarimala Verdict”). However, it is important to question if Sabarimala’s ban even falls under that designation. First of all, the ban was only formally initiated by law in 1965, not having existed for a full century, let alone since “time immemorial.” Furthermore, historical records have already shown that while women were heavily discouraged from visiting the temple when they could be menstruating, some did make the pilgrimage. Secondly, even though most devotees cite the ban as an essential tribute to Lord Ayyappa's celibate nature, other temple dedicated to Lord Ayyappa, such as the Sastha Temple or the Achankovil Sree Dharmasastha Temple, also located in Kerala, don’t institute this same blanket prohibition towards women (Prasoon). A practice that is supposedly “essential” for this deity cannot be arbitrarily applied in one temple and ignored at all others. Therefore, if Sabarimala is the only Hindu temple out of the many across India that upholds this custom, it cannot be considered an “essential religious practice.”

In framing this argument, it is important to determine who actually has authority over the Sabarimala temple. Through Sabarimala is located in Kerala, the temple does not fall under the direct management of the Kerala state government. Instead, the Sabarimala temple, and all other Kerala temples, fall under the management of regional Devasworm Boards. Devasworm Board are autonomous bodies that manage the temples and their assets, acting as socio-religious trusts. Following the Travancore Cochin Hindu Religious Institutions Act of 1950, the Travancore Devaswom Board (TDB) was set up to manage the 1,248 temples in the Travancore region, including Sabarimala (Shaju). Dissidents of the decision argue that since the TDB manages the temples separately from the government, this grants Sabarimala the status of a Hindu papal state, similar to Vatican City. The Vatican is considered to be the “State of the Church,” and is a sovereign nation state under the purview of the presiding religious group, the Holy See. Though there are parallels with the function of the Holy See and the TDB, this isn’t enough to grant Sabarimala a similar independent status. For one, Sabarimala is not recognized as sovereign from the state of Kerala, or India in general. It remains intertwined with the Kerala government, which monitors and even nominated members of the TBD, such as the president of the entire board. These actions clearly establish authority in the Indian government to aid in the management of Sabarimala and differentiate it from an independent state.

Currently, Sabarimala opens itself to a new pilgrimage season, now mandated to welcome young women into the shrine. However, the decision remains embroiled in public controversy, with groups protesting at the base of the temple and physically threatening the women who choose to visit. The situation remains precarious, with over 70 violent protestors arrested so far and police escorts required for the women attempting to exercise their newfound rights. On January 22, 2019, over 65 review petitions were filed by public interest groups in an attempt to get the ruling reconsidered or rescinded (“Open Court Hearing”). However, even amongst the controversy, the Indian Supreme Court held steadfast in its decision, reaffirming its original verdict in order to protect the rights of all citizens over a discriminatory ban.

For me, as both an Indian and a Hindu, the Sabarimala verdict comes as a welcome affirmation of progress. My grandmother and mother were both denied their right to worship for forty years, barred from Sabarimala by their state and their religion as a consequence of their gender. Two generations later, their granddaughter and daughter is finally permitted back inside the sacred temple. This ruling also stands testament to something else: the Indian government’s newfound conviction towards women’s rights, as well as an ongoing dismantlement of ingrained religious systems that have constantly excluded and stigmatized women. For progress and growth towards this equality, we can invoke Lord Ayyappa, and for that, we pray.

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