Here is the fundamental question the Supreme Court had asked in the Sabarimala case: was the exclusion of women between the age of 10 and 50 an essential part of the Sabarimala belief. The answer was a firm unequivocal “NO”.
It were not the petitioners, the Indian Young Lawyers' Association or the erstwhile Pandalam royals or the NSS, who provided the court with the reasons. It was offered on a platter by the second respondent, Travancore Devaswom Board, the very body that had mounted the fiercest objection to the entry of women to the hill shrine. The TDB, in a way, had weakened its own case.
What is an 'essential' part of religion?
How to determine the essential part of a religion was already defined in the Seshammal v. State of Tamil Nadu case, 1972. “If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts that is protected by the Constitution.”
It was continuity, the permanence, that the court emphasised. “Nobody can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion.”
This was how in 1995, after referencing Islamic texts, the Supreme Court rejected the argument that cattle slaughter on Bakrid was an essential practice of Mohammedan religion. (The Court had noted that Babar, the first Mughal, himself had prohibited cow slaughter and bid his son Humayun to follow suit.) This was how in 1983 it said that Tandav dance in processions or at public places by the Ananda Margis carrying lethal weapons, live snakes, and human skulls was not essential to the Ananda Marga denomination. This was also how in 2017 the court ruled that triple talaq was not essential to the practice to the Hanafi school of Sunni Muslims.
TDB's hoary confession
So while testing the essentiality of excluding women of certain age, the court pulled out certain references found in the 1993 Kerala High Court divison bench verdict in the S Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, and others case. The division bench verdict had said there was no prohibition for women in Sabarimala. This observation was based on an affidavit filed by the TDB.
The affidavit stated that, even in the early '90s, many female worshippers in the age group of 10 to 50 had gone to the temple for the first rice-feeding ceremony of their children. The Board, in fact, used to issue receipts on such occasions on payment of the prescribed charge. “What happens to the celibate nature of Lord Ayyappa in those 5 days? Is it that the idol vanishes on those days?”, Justice Nariman asked. The prohibition was clamped later, after a 'devaprashnam' was conducted to get a sense of the Lord's mind.
Multiple women sightings up the hill
The High Court division bench found that the ban on women was enforced only during the Mandalam, Makaravilakku, and Vishu seasons. But when the shrine opens for the first five days of every Malayalam month, they were welcome. The TDB even states that devotees who visit the temple during the five days of the Malayalam month are not expected to observe the 41-day penance.
The High Court had listed innumerable instances of women entering the Sabarimala. It noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the Temple in 1115 Malayalam Era. A former Devaswom commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala Temple. The secretary of the Ayyappa Seva Sangham had deposed before the High Court in 1993 that young women were seen in Sabarimala during the previous 10 to 15 years.
Justice Chandrachud in his concurring judgment observed that no new material had been placed before this court to contradict the verdict of the Kerala High Court in the Mahendran case. "The High Court recorded findings on the pilgrimage, the inconsistent practice of prohibiting women between the age group of ten and fifty, and the collection of individuals that offer prayer at the Sabarimala temple," he said.
In other words, the exclusion of women was an afterthought, a late embellishment. Chief Justice Dipak Mishra, writing for himself and the bench, except Justice Indu Malhotra, said: “By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner. It was not the core of Sabarimala belief.”
