July 05, 2020
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Sabarimala Row: Can Sentiment Be Placed Above Constitutional Morals?

Rarely has gender been so central to a political battle

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Sabarimala Row: Can Sentiment Be Placed Above Constitutional Morals?
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Sabarimala Row: Can Sentiment Be Placed Above Constitutional Morals?

The majority verdict on a practice at the Ayyappa temple at Sabarimala—delivered by the constitutional bench of the Supreme Court—has triggered a big debate. While the CPI(M)-led Kerala government, backed by the party’s leaders, has been implementing the court’s orders, the judgm­ent’s impact has been at several levels. On one hand is the situation on the ground (see ‘The Other Mandir’), where a protest is raging to continue the ban on entry of women aged 10-50 into the temple, which the court held to be in violation of the fundamental right to equality. The RSS had initially welcomed the judgment, but later changed its stand—and the BJP led protests against the verdict along with its main rival, the Congress.

The constitutional bench overturned the Kerala High Court verdict that had banned the entry of women aged 10-50 since 1991. The majority view held that Ayyappa was not a religion or religious denomination under Articles 25 and 26 of the Constitution and, therefore, the practice of restricting the entry of menstruating women was violative of Article 14 (equality) and Article 15-1 (non-discrimination).

“I will not allow the Sangh parivar to turn Sabarimala into another Ayodhya. BJP leaders and ministers are queuing up before Sabarimala to exploit the issue.”
Pinarayi Vijayan, Kerala chief minister

The protesters are followers of Ayyappa, whose lawyers failed to satisfy the three-point test for constitutional protection of the practice. The first req­uirement is that the sect in question is a religion or religious denomination; second, that the practice seeking protection must be an essential practice of that religion/religious denomination; and third, that it is not in derogation of public morality, safety or health.

The protests are on shaky legal ground. All the lawyers and jurists Outlook spoke with concurred that a Supreme Court judgment is universally binding. Constitutional expert Arvind Datar points out that contempt action requires a complaint and the ‘contemnor’ must be clearly identified. “I don’t know if there is wilful disobedience of the Supreme Court’s order here and that is a sweeping statement to make. Besides, 200-300 women have also ­applied for passes already. There are ­several instances when SC orders are not complied with such as in the Cauvery river water-sharing case, but these are not discussed so widely in the press,” says Datar, who appears for the Maharaja of Pandalam, the ‘foster ­father’ of Ayyappa and a party to the Supreme Court case.

“The Supreme Court’s decisions are enforced under Article 141 and Article 144, and all authorities must come to the aid of the court in enforcing its verdict,” says Congress leader and senior lawyer Manish Tewari. “When there is a conflict between the law and established customs and practices that predate legalities by centuries, there is bound to be some tension.”

The Kerala government has tried to enforce the order and keep the protesters at bay, some of whom have been ­arr­ested. The Supreme Court has not backed down against the wave of popular sentiment against its verdict. It has passed an order specifically stating that there is no stay order against the verdict while it hears a petition to review it.

“The fact that your or my view or that of the judge is at variance with a ­religious practice is irrelevant under Articles 25 and 26 (freedom of relig­ion),” says Congress leader and Rajya Sabha MP Abhishek Manu Singhvi, who was lead senior counsel for the Travancore Devaswom Board. “Once it is established that the practice belongs to an identifiable religion or religious denomination, the second test is the ess­entiality test—whether that practice is an essential part of the religious den­omination. Once these tests are satisfied, Articles 25 and 26 require the courts to have a hands-off approach. We produced a surfeit of material to show that Ayyappa constituted a distinct religious denomination. Secondly, the Sabarimala deity is a unique Ayyappa temple, out of more than 1,500 Ayyappa temples, which worship a naishtik brahmachari on the basis of excluding certain persons within an age bracket. Thirdly, the exclusion was not gender-based, but an intrinsic part of the beliefs and practices attaching ­intrinsically to the deity himself. These three tests haven’t been correctly ­answered by the court.”

In its verdict, the Supreme Court found otherwise, except for the lone dissenting opinion of Justice Indu Malhotra, who agreed that Ayya­ppa is a separate religious den­omination. In his judgment, Justice D.Y. Chandrachud wrote: “The social exclusion of women, based on menstrual status, is but a form of untouchability, which is an anathema to constitutional values.” That seems to have struck a discordant note with popular sentiment. The debate around the verdict has also examined whether the ban on the entry of menstruating women creates an inequality.

“Malhotra’s judgment doesn’t have a point,” says lawyer and scholar Kalp­ana Kannabiran. “Some said you can’t use Article 17 (proscribing untouchability) to talk about women’s entry. But if there is an unreasonable proscription based on the ­ideology of purity and pollution, there is a form of untouchability. You cannot justify denial of entry using this purity-pollution because that gives a front-door entry to Brahminism.”

The timing of the verdict and of the proposed review is also being quest­ioned, coming ahead of the Lok Sabha elections next year. “Though the Supr­eme Court hadn’t expected this kind of response, the verdict’s timing was wrong,” says lawyer Flavia Agnes.  “It could have been postponed for some more time.”  There has been quite a bit of political upheaval since the protests in Kerala. “What has followed the verdict is no different from what is happening in Pakistan in the Aasia Bibi case, where all the fundamen­talists are trying to overturn the judg­ment in the name of religion, causing mayhem,” says CPI(M) leader Brinda Karat. “The RSS and the BJP are doing the same thing by defying the Sup­r­eme Court. And Shashi Tharoor, who claims to be a liberal intellectual, uses the same argument as the RSS and says religion is higher than the court. In Kerala, Amit Shah seems to be the leader of the Congress.”

Shah, the BJP national president, has backed the protesters, as have several Congress leaders, surprising many. “Invariably, all issues of constitutional law ultimately end up in politics,” says Singhvi. “There is no question of any coordinated convergence between the BJP and the Congress, nor indeed among any of the Left parties in that state. It just happens that there is a strong feeling that the judgment is wrong, and it may be shared by a few parties despite being on opposite sides of the political spectrum. Equally, it may not be shared among parties that may otherwise be on the same side of the spectrum. This is pure coincidence.”

“The Supreme Court decision should have been accepted by all political parties,” says former Union minister Yashwant Sinha. “The worst case is of the Congress, where Rahul Gandhi talks one language and his local unit another language. The BJP is ind­ulging in cheap politics in Kerala by inciting ­people against the court. Prime Mini­ster Narendra Modi is quiet about this issue, though he had welcomed the Triple Talaq verdict—this shows his liberalism is only for Muslim women, not for Hindu women. However unpalatable the court order is, we should accept it. This is in preparation for the future, for instance, Ayodhya—it is a dry run for the Ramjanmabhoomi.”

Others point out that the Sabarimala issue is one of its kind—unlike the Ayodhya dispute over land title bet­ween Hindu groups and Muslims, or the Triple Talaq judgment and bill add­ressed a gender imbalance within the Muslim community couched within a regressive practice. “Amit Shah was waiting for a judgment like this to enter Kerala,” says sociologist Shiv Visva­nathan. “The Supreme Court should have postponed this judgment by at least six months, and followed it up by a dialogue with Hindus. Some judgments need legal panchayats for the community to get used to them.”

Clearly, few issues involving gender have gripped public debate as much as Sabarimala. Several feminist scholars have taken a stand in favour of the Supreme Court verdict, vocally so since the protests that followed. Many feel popular sentiment cannot be placed above constitutional morals, and that it would amount to turning back the clock on the progressive stand taken by the Supreme Court.

“The protests are openly political in motivation, though thinly disguised as an expression of people’s faith,” says publisher Ritu Menon. “There is false contradiction posed between faith and adhering to the law, as if you cannot be faithful if you uphold the law. This is patently absurd. There are thousands of women, in Kerala and outside, who do not support the protests, and thousands who wish to pray at the temple—are they all unfaithful? Not religious? In my view, they are the silent majority, and the Supreme Court has ruled ­correctly, because it has upheld everyone’s right to worship.”

“The gates are actually breached,” says Kannibaran. “The time for Saba­rimala should have come long before, but it has finally come. You need to keep pushing. Governments can only lift the ban on entry. People have to find the courage to go there.”

By Preetha Nair and Ushinor Majumdar

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