The Ayodhya verdict, which many view as a fine balancing act, could offer a clue to the Supreme Court's thinking on the Sabarimala verdict review.
In Ayodhya, the highest court has demonstrated great sympathy for the Sangh Parivar cause – a Ram temple will rise on the very spot where the Babri Masjid once stood. At the same time, it has made it amply clear that equality of religions is non-negotiable.
It could be puzzling that the court called the Babri Masjid demolition “an egregious violation of the rule of law” and yet decided the title suit in favour of the very forces that committed the violation. Even then, the Supreme Court's reaffirmation of secular values is a message to the Sangh Parivar forces to forget their claims on Gyanvapi Mosque in Kashi and Shahi Idgah mosque in Mathura, both in Uttar Pradesh.
In Ayodhya, it was a balance between Sangh Parivar aspirations and the constitutional ideal of secularism. In Sabarimala, too, the court has to contend with two apparently conflicting demands. The aspirations of the faithful on one side and, on the other, the need to establish yet another constitutional ideal: gender equality.
The Supreme Court's majority ruling (4-1) on September 28 was heavily loaded in favour of gender equality. Chief Minister Pinarayi Vijayan's seemingly aggressive stance on implementing the court order triggered widespread social unrest in the state. There was unprecedented polarisation in Kerala on what looked like progressive and conservative lines. Eventually, all of this culminated in the severe walloping the LDF suffered in the Lok Sabha polls in May.
Most legal experts Onmanorama talked to said the Supreme Court would strive for a better balance while disposing of the Sabarimala review petitions. It is expected that the court, like it has said on September 28, will once again reassert that women cannot be discriminated against in matters of faith. But even while batting for gender equality, the court could, without sounding contradictory, allow the restrictions on women in Sabarimala to continue.
This is easier said than done. It is like asking someone to adopt an impossibly flexible yogic posture and make it look graceful.
The court cannot budge an inch from the constitutional mandate of gender equality. It has become all the more important for the Supreme Court to stand up for women's rights after what happened in Sabarimala on January 2. On that day, the Sabarimala tantri shut down the temple for 'shuddhi kriya' or purification rituals after two women of menstruating age (Bindu Ammini and Kanaka Durga) entered its sanctum sanctorum.
This was widely seen as a telling example of how faith classifies menstruating women as impure, a practice the Supreme Court had found revolting. The court had seen it as a remnant of untouchability.
This is what Justice D Y Chandrachud said in his judgement on September 28. “The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values,” he said, and added: “Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, in any form.”
Right to bleed
Since the court finds such notions of impurity a form of savagery, it can be said with a high degree of certainty that it would retain its earlier decision to strike down Rule 3 (b) of Kerala Places of Public Worship (Authorization of Entry) Act, 1965.
The 1965 Act states that no Hindu, of whichever class or caste, should be prohibited from entering a place of worship. However, the rules (Rule 3) framed under the Act listed out seven types of people who can be prevented from entering a temple.
(a)Non-Hindus (b)Women at such time during which they are not by custom and usage allowed to enter a place of public worship (c) Persons under pollution arising out of birth or death in their families (d) Drunken or disorderly persons (e) Persons suffering from any loathsome or contagious disease (f) Persons of unsound mind (g) Professional beggars.
Menstruating women, in other words, were equated with drunkards, beggars and lepers, and legally prohibited from entering any temple in the state. On September 28, this was struck down as unconstitutional.
Though this aspect of the Supreme Court verdict was not given much prominence, since September 28 last year menstruating women were legally free to enter the sanctum sanctorum of temples even when they are bleeding. The court will once again insist that the constitutional morality of equality will prevail over primitive and blind notions of faith.
The verdict on the review petition is also expected to contain some tough words for the Sabarimala chief priest, like the Ayodhya verdict had for those who had pulled down the Babri Masjid.
Camel through a needle hole
Now, how is the Supreme Court going to exempt Sabarimala from such a constitutional requirement, especially after what the 'tantri' has done to slight the verdict. Also, the apex court would not want to be seen as giving into the demands of the aggressive among the faithful. Justice Chandrachud had himself revealed that he had received “vile threats and abuse” in the social media after the Sabarimala verdict.
The Ayodhya verdict has shown that the Sangh Parivar had publicly proclaimed its disregard for the law during its agitation for the temple could be both censured (for destroying the masjid) and rewarded (temple on disputed land).
Similarly, the Sabarimala priests could be rebuked and still be allowed to have their way. The faithful and the priests can be rewarded if the court decides to view Sabarimala devotees as a separate sect or a 'religious denomination' and the restriction on women between the age of 10 and 50 as “essential practice” integral to the practise of the faith.
Celibate deity's advantage
The Supreme Court itself had, in its earlier orders, laid down two conditions for a sect or sub-sect to be called a 'religious denomination'. One, it must be a collection of individuals who have a system of beliefs or customs. Two, there should be a designation by a distinctive name.
Ayyappa devotees satisfy both. The 'Naishtik Brahmachari' or the celibate deity belief, the 41-day abstinence from intimacy to meat and liquor, the dip in the Pampa river, the bare-footed walk up the hills, and then the ascending of the 18 steps are all seen as unique to Sabarimala faith.
They also have unique designations, unlike the faithful visiting other temples. The men are called 'Ayyappa swamis' and the women devotees (those below 10 and above 50) are called 'malikappurams'.
It is the nature of the deity that makes Sabarimala different from other Ayyappa temples. There are over thousand of Ayyappa temples in Kerala where such restrictions are not in place. It is in Sabarimala alone, where the deity is a Naishtik Brahmachari, that such a bar exists.
Test of antiquity
Now the 'essential practice' test. The Supreme Court in its various rulings had said that a religious practice is essential or integral to the faith if it had existed from time immemorial.
The High Court, in the S Mahendran vs TDB case in 1991, had ruled that the practice was prevalent from time immemorial. The High Court had then considered the testimonies of three persons who had intimate knowledge about the customs, practices and beliefs of the temple; the tantri whose knowledge extended back to half a century, the secretary of Ayyappa Seva Sanghom who had been a devotee for over 60 years, and a senior member of the Pandalam royal family that had constructed the temple.
For further proof of the long existence of the ban on women of a certain age, there is the 19th century British work 'Memoir of the Survey of the Travancore and Cochin States'.
Here is what Benjamin Swain Ward and Peter Eyre Conner, lieutenants of the Madras Infantry, say about Sabarimala in the two-volume work that was published in 1893 and 1901. “Old women and young girls may approach the temple, but those who have attained the age of puberty and to a certain time of life are forbid to approach as all sexual intercourse in that vicinity is averse to this deity.” Ward and Connor had completed their survey in 1820, long before the volumes were published.
So, if the Supreme Court sticks to its Ayodhya formula, there is a chance that it would insist on the rights of menstruating women but would still consider their ban in Sabarimala an “essential practice” that can be persisted with.