Analyzing the dissenting opinion in the Sabarimala judgment using the feminist perspective along with existing feminist theories.

The 5-judge bench, which gave the judgment on the Indian Young Lawyers Association v State of Kerala, popularized as the Sabarimala verdict, declared their verdict with a 4-1 consensus where the dissenting opinion was given by Justice Indu Malhotra. The case was mainly around the tussle between Article 14 (Equality before law) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution. Along with that Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) Article 17 (Abolition of Untouchability) and Article 26 (Freedom to manage religious affairs) also have important roles.

Sabarimala Temple in Kerala is one of the most famous temples of Lord Ayyappa, referred to as Naishtika Brahmachari i.e. celibate for life. The Devaswom Board which manages the temple, had banned the entry of women in the menstruating age category in the temple through a notification. In 1991, the Kerala HC had upheld the restriction and held that the Devaswom Board prohibition does not violate the Constitution or any law under the Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965.[1]

This petition filed by the Indian Young Lawyers Association in 2016 raises the questions that whether the custom of banning women of menstrual age from entering the temple violates Article 14 and 15(3) of the constitution. Whether such a practice can be deemed as an essential religious practices, whether a religious institution can claim to assert his right to manage affairs under Article 26. Also, whether the excluding of women due to physiological differences for a religious purpose amounts to discrimination and whether the Temple can claim the denomination status as given under Article 26.

Historical Background of The Custom

The Sabrimala Temple has been a very special and sacred place for the devotees of the Lord Ayyappa. According to the mythology and folklore, Lord Ayyappa had himself explained the manner in which the holy pilgrimage to the Sabrimala temple has to be undertaken after the 41 day Vratham has been completed.

The whole process of the pilgrimage is undertaken to replicate the journey of Lord Ayyappa. The process of undertaking the Vratham also include the separation from the womenfolk of the house. This penance includes staying away from anything thats intoxicating, forsaking all physical relationship with ones spouse, living in an isolated room or building away from the family, refraining all interactions with women, etc. In her book, Radhika Sekar has written all about this custom and its intricacies,

The rule of celibacy is taken very seriously and includes celibacy in thought and action. Ayyappas are advised to look upon all women older than them as mothers and those younger as daughters or sisters. Menstrual taboos are now strictly imposed…. Sexual cohabitation is also forbidden. During the vratam, Ayyappas not only insist on these taboos being rigidly followed but they go a step further and insist on physical separation. It is not uncommon for a wife, daughter or sister to be sent away during her menses if a male member of the household has taken the vratam….[2]

The term Naishtika Brahmachari is used to refer to the deity in the Sabarimala temple. This is what makes this temple different than the other temples of Lord Ayyappa and also inaccessible to the women in their reproductive age. According to the folklore, Lord Ayyappa had manifested in the form of a Naishtika Brahmachari, with the technical meaning of the word Brahmachari being self-restraint, particularly mastery of perfect control over the sexual organ or freedom from lust in thought, word and deed.

Strict abstinence is not merely from sexual intercourse, but also from auto-erotic manifestations, from homosexual acts and from all perverse sexual practices. It must further involve a permanent abstention from indulgence in erotic imagination and voluptuous reverie. This form of manifestation of Lord Ayyappa is the reason behind the restriction of women of certain ages as the restriction aims to protect and preserve the identity of the Lord in this form.

Articles in Play

Article 14

In Justice Malhotras opinion, Article 14 must be viewed differently in the matters of religion and religious beliefs and that it has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practices which are found to be oppressive or pernicious.[3] Public Interest Litigations being permitted in religious matters would give an open path to interlopers questioning various religious beliefs and customs even though they are not a part of the said religion.

Here when we actually think about the term PIL i.e. Public Interest Litigation, the reasoning given by Justice Malhotra seems very narrow in its definition of a PIL as a PIL is basically something where the public at large has some kind of interest and think that their legal rights are getting violated. Interest of the community is shared in the matters of local, state and national government. Also, in this the main issue is the violation of the fundamental rights of women and not just any religious matter.

Article 15

This article prohibits any discrimination on the basis of religion, race, caste, sex or place of birth.

The fact that Sabarimala temple and temples in general are within the ambit of Article 15(2)(b) here is in question. Referring to the constituent assembly debate Article 9 which corresponds with Article 15,
9. Prohibition of discrimination on grounds of religion, race, caste or sex-The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them

1. In particular, no citizen shall, on grounds only of religion, race, caste, sex or any of them, be subject to any disability, liability, restriction or condition with regard to-
   a. access to shops, public restaurants, hotels and places of public entertainments, or
   b. the use of wells, tanks, roads and places of public resort maintained wholly or partly out of the revenues of the State or dedicated to the use of the general public.
   
   
2. Nothing in this article shall prevent the State from making any special provision for women and children.[4]
   

Talking about the constituent assembly debates, it was reasoned that even at that stage an amendment was proposed by the Vice President to include places of worship after places of public entertainment which was voted and subsequently rejected by the constituent assembly as the assembly did not think that place of worship and temple are fit to be read within this category.

The exclusion of these terms at the stage of amendment of the draft article 9 of the constitution is given the foremost consideration and is used to reject the fact that temples and places of worship would fall under the ambit of Article 15(2)(b).

Article 17

The petitioners argument that the restriction imposed on the entry of women of the notified age group amounts to a form of untouchability was rejected. Here the opinion was that all forms of exclusion do not tantamount to untouchability as Article 17 was primarily to focus on the untouchability stemming from caste prejudice.

Such as the Dalits asserting their rights in the temple entry movement resulting in the Temple Entry Proclamation in 1936. In this case, women in a certain age group cannot be taken as a class and that its based upon religious beliefs and not on social exclusion. Along with that Article 17 must be read with Untouchables (Offences) Act, 1955, which punishes all the crimes and offences committed in relation to a member of the Scheduled Caste. With reference to the constituent assembly debate on Article 11 of the Draft constitution, which corresponds to article 17,

…Sir, under the device of caste distinction, a certain section of people have been brought under the rope of untouchability, who have been suffering for ages under tyranny of so-called caste Hindus, and all those people who style themselves as landlords and zamindars, and were thus not allowed the ordinary rudimentary facilities required for a human being… I am sure, Sir, by adoption of this clause, many a Hindu who is a Harijan, who is a scheduled class man will feel that he has been elevated in society and has now got a place in society…

Dr. Monomohan Das, quotes Mahatma Gandhi while undeniably accepting the meaning of Untouchability as intended under the Constitution:
…Gandhiji said I do not want to be reborn, but if I am reborn, I wish that I should be born as a Harijan, as an untouchable, so that I may lead a continuous struggle, a life-long struggle against the oppressions and indignities that have been heaped upon these classes of people.[5]

The Honble Judge stated that the debate provided clarity on the fact that untouchability referred to the caste-based discrimination faced by Harijans.

Interpretation of Article 15 and 17

The way in which both the articles have been interpreted by Justice Malhotra, there is a definitive pattern of originalist approach or originalism as the method of constitutional interpretation applied.

Also known as the original intent approach, it is based on the intent of the original framers of the constitution at the time when they drafted the text. Adopting such an approach can be dangerous because any and all laws will be interpreted by the said judge in the way, in which they seem to be convinced about the framers intent. Such an approach is too rigid and inflexible for the dynamic world. In the case of B.C Vehicle Motor Reference, the Canadian Supreme Court rejected the idea of originalism as that would mean ...the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs.[6]

While the living tree doctrine, involves understanding the Constitution to be an evolving and organic instrument. For the living tree theorists, it matters little what the intentions were at the time of Constitution making. What matters the most is how the Constitution can be interpreted to contain rights in their broadest realm.[7] Looking at Article 17 through the lens of the living tree approach, as even it suggests a broader perspective and interpretation of the article.

The application of such an approach allows the court to adopt an interpretation, where the women of menstrual age who have been barred entry inside Sabarimala, can be said to be a distinct class, being discriminated against. When comparing it to discrimination against specific castes, it would not be wrong to say that the discrimination was based on the impurity of these castes. Similarly, the exclusion of women of the specified age group based on their impurity i.e. menstruation should also be considered discrimination as the effect of exclusion remains the same in both the instances.

Article 25 and Article 26

Article 25 provides every individual the right to freely profess, practice and propagate their religion. The Honorable Judge here believes that even though Article 25 in its clause (2)(b) provides for interference by the state in the matter of social welfare and reform, it should be read with the constitutional morality underlying the texts drafted and doing so will ascertain that the true meaning and the intent of the Constitution. Since, constitutional morality in a secular polity would enable a person to freely practice their faith, it would be irrelevant for the court to judge the rationality of certain practices.

By stating that the court need not delve into the rationality of religious practices sets a very dangerous precedent as it is through judicial activism that the rigid societal structure has been molded to inculcate the needs of the changing times.

The Court also has provided protection to the essential religious practices under Article 25 which was formulated in the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[8], where the Court held that protection is provided to the acts done in pursuance of religion and not just the freedom of religious beliefs.

The Court had also reiterated the test for essential religious practices, in the case of Ratilal Panachand Gandhi v. The State of Bombay, that no outside authority can have the right to judge and declare certain practices as non- essential to the religion, even the secular authority of the court restrict or prohibit them.

If this is the belief of the community thus observed the learned judge, and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favor of what he believes to be the advancement of the religion and the welfare of his community or mankind. These observations do in our opinion afford an indication of the measure of protection that is given by Article 26(b) of our Constitution.[9]

Thereby, Justice Malhotra agreed with the judgement in S. Mahendran v The Secretary, Travancore Devaswom Board case[10] where the Court held the practice of restricting women to be a part of essential religious practices as the only way to determine the importance of the practice is to see if the said practices are considered to be integral in the specific religious community and can be said to have been followed since time immemorial.

To prove that, the testimonies of three people - the Tanthri of the Temple who could testify about the practices of the temple with his personal knowledge of 40 years, the Secretary of Ayyappa Seva Sangham who had been a regular pilgrim for 60 years, a senior member of the Pandalam Palace also testified and therefore the Court held that the testimonies given by the three people establishes the fact that the custom had been followed since the past several centuries.

The other argument under Article 26 was that whether the Ayyappan's constitute as a religious denomination under the provision of Article 26 through which they will be able to manage their own affairs in the matters of religion. This right is given subject to public order, morality and health, but unlike Article 25 not to the provisions of Part III of the Constitution. Justice Malhotra believes that the Respondents had made a strong case to prove the denominational nature of the devotees of Ayyappa.

The conditions laid down by the case of S.P. Mittal v. Union of India, given below, need to be satisfied to gain the denominational status:

1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
2. common organization; and
3. designation by a distinctive name.[11]

And in this case, the worshippers of Lord Ayyappa at Sabarimala Temple, can be said to constitute a religious denomination or sect, by virtue of them following the Ayyappan Dharma. With the male devotees known as Ayyappans, female devotees outside the age group of 10-50 years old being called Mallikapurnams.
 

The devotees follow a certain set of beliefs, customs and code of conduct, which have been in practice for a very long time and are founded in common faith. The Sabarimala Temple had also owned large landed properties, which were taken over by the state and when the State of Travancore merged with the Union of India, the obligation of paying annuities to the Temple was shifted the Government of India.

Justice Malhotra though believes in the strong case put forth by the Respondents, also thinks that the question whether Sabarimala Temple constitutes as a religious denomination should not be decided in writ proceedings as the proper platform to decide on this would be the civil court where both the parties would get the opportunity to establish their case but takes a liberal interpretation an accords the Ayyappans the status of a religious denomination.

Existing Theories of Feminism and Their Perspectives

Liberal Feminism

This is a theory of feminism where the focus is on the individual womans ability to make her choices and the actions performed in the quest to maintain their equality. The major spotlight is on the reforms through the political and legal systems which would help in reaching the point of equality and being at par with the men. According to the liberal feminists "female subordination is rooted in a set of customary and legal constraints that blocks women's entrance to and success in the so-called public world". They strive for sexual equality via political and legal reform.[12]

In the case of Sabarimala Temple, it the verdict of the majority Judges which showcases the view and idea of the liberal feminism. By the lifting the ban on entry of women of menstrual age (ages 10 - 50 years old) into the temple, the Court aimed at bringing by a social reform through the legal system and giving a legal right to the said women and upholding their right to equality.

The verdict was supposed to the seen as a milestone for the women but the ban was just lifted theoretically as one of the two women who entered the temple after the verdict was announced, despite threats by the right wing, was beaten up by her own in laws as she had entered the shrine in spite of the opposition of her in laws and her family. Apart from that the numbers of protests and the attacks by the protestors did not allow a large number of women from entering the temple. Even the head priest, after the entry of these women decided to close the sanctum sanctorum to perform a purification ceremony.[13]

Marxist Feminism

The theory of Marxist Feminism is basically a variant of feminism with an added concept of Marxism. It is based around the concept that women are oppressed through the systems of private property and capitalism, with the belief that dismantling capitalism will lead to the liberation of women. This theory is majorly focusing on the fact that economic inequality, dependence and political confusion is the root of the oppression in the current scenario.

Radical Feminism

The Radical Feminism theory analyses the structures of power in play when talking about the oppression of women. It is based on the fact that the women as a biological class are oppressed by men, as a biological class. The belief is that the male power is maintained by the institutions and customs created by them and therefore seek to strengthen male superiority by reinforcing female inferiority.[14]

The structure and power play in the concept of patriarchy along with the internalization of patriarchy by the society, women as well can be clearly seen after the announcement of the verdict. The women on the streets, protesting against the entry of other women arguing the fact that religion does not require logic is appalling.[15]

Conclusion
The opinion given by Justice Malhotra can be seen as problematic. The fact that the restriction on the entry of women is because of the menstrual age and the taboo around menstruation and the idea of women being seen as impure beings is the basis of the restriction which is not being highlighted but instead being internalized.

This is what radical feminists speak about, the distinction of biological classes and the paramountcy of men as the superior biological class. The outrage after the verdict is all about women and men who are against the decision, talking about how the culture and the values are more important than taking a step towards gender equality. Even after the verdict, the incidents where the women who dared to enter the shrine were either heckled and harassed at the base camps or in the case of the women who actually went inside, were disowned by their own family.

This can be seen as the difference between liberal feminism and radical feminism or Marxist feminism as even though changes are being brought around in the way of political and legal reforms, nothing has really changed at the ground level and unless a there is change in the structure of the society itself, it will be difficult to implement these reforms, bringing us back to square one.


End-Notes:

1. S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram and othrs,1991 SCC Online Ker 43: AIR 1993 Ker 42
2. Radhika Sekar, The Śabarimalai pilgrimage and Ayyappan cults (Motilal Canarias Publishers) (1992)
3. Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC Online SC 1690
4. Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC Online SC 1690
5. Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC Online SC 1690
6. Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486
7. Ways to read the Constitution the Hindu, https://www.thehindu.com/opinion/op-ed/ways-to-read-the-constitution/article24794977.ece (last visited Apr 27, 2019)
8. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282
9. Ratilal Panachand Gandhi v. The State of Bombay, 1952 SCC Online Bom 86, AIR 1953 Bom 242
10. S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram and othrs,1991 SCC Online Ker 43: AIR 1993 Ker 42
11. S.P. Mittal Etc. v. Union of India And Others (1982) 1983 AIR, 1 1983 SCR (1) 729
12. Tong, R. (1989). Feminist Thought: A Comprehensive Introduction. 1st ed. Oxon, United Kingdom: Routledge, Introduction.
13. Pioneer, T. (2019). Woman who entered Sabarimala temple beaten up by mother-in-law. [online] The Pioneer. Available at: https://www.dailypioneer.com/2019/top-stories/woman-who-entered-sabarimala-temple-beaten-up-by-mother-in-law.html [Accessed 29 Apr. 2019].
14. RadFem Collective. (2019). what is radical feminism? — RadFem Collective. [online] Available at: http://www.radfemcollective.org/what-is-radical-feminism [Accessed 29 Apr. 2019].
15. verdict, W. (2019). Women make a capital protest against Sabarimala verdict. [online] The New Indian Express. Available at: http://www.newindianexpress.com/cities/thiruvananthapuram/2018/oct/12/women-make-a-capital-protest-against-sabarimala-verdict-1884268.html [Accessed 29 Apr. 2019].