The Supreme Court's Sabarimala Judgment

The temple town of Sabarimala, nestled in the forests and hills of Pathanamthitta District in Kerala, is home to one of the most popular and most frequented sites of Ayyappan worship in South India. The popularity of the Ayyappan tradition has spread in recent years but continues to remain a mostly South Indian affair; the tradition identifies Ayyappan, also known as Hariharaputra, as the son of Shiva and Vishnu’s incarnation as Mohini but as recent scholarship points out, Ayyappan most likely emerged as an important tribal god was who was gradually incorporated into the Sansktritic, Puranic pantheon.

Ayyappan is worshipped by devotees as a celibate deity (naisthik brahmachari) and on this basis women of menstruating age have been prohibited from entering the temple for centuries.  The legends vary but most devotees agree that these restrictions were put in place by Ayyappan himself. An important point here is that one does not need to accept the veracity of these legends to note that Ayyappa’s celibacy and the accompanying restrictions on women of reproductive age entering the temple form an important of the temple tradition and devotees’ faith in Ayyappan.

As most readers will be aware, on 28 September 2018, a five-judge bench of the Supreme Court of India ruled that the centuries-old custom of preventing women of menstruating age from entering the Sabarimala temple violated the equality and freedom of religion provisions of the Indian Constitution. The Court ruled that: “such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship”. The Court added that: “any exception placed on women because of biological differences violates the Constitution”. Justice Indu Malhotra, the only woman on the bench, offered a dissenting judgment noting that issues of deep religious sentiments should not see the Court’s interference.

I think that the Supreme Court’s judgment in this case is flawed and deeply problematic. While liberals champion the verdict as an important step forward in the fight against gender discrimination, they lose sight of the proper role that court’s ought to play in adjudicating issues of faith and belief. This judgment opens up a pandora’s box for the Court and it will be interesting to see what the road the Court takes in future rights-based challenges to gender discrimination in religion.

Why do I think the Court is wrong? The Court’s judgment, a naked act of social engineering, seeks to mould faith and custom to the demands of modernity but by doing so pays insufficient regard to the right for religious communities to shape their own norms and religious practices in ways that are otherwise not inconsistent with the spirit of the Indian constitution. Viewing Sabarimala through the prism of gender discrimination is problematic; there are hundreds of Ayyappa temples where restrictions on women entry do not apply. That the vast majority of women devotees of Ayyappan do not agree with the Supreme Court verdict (as evidenced in the widespread #PreparedToWait campaign) speaks volumes.

Those defending the Court’s judgment draw analogies with efforts to eradicate restrictions on Dalit entry into temples. The analogy, as Justice Indu Malhotra noted, is misconceived and inappropriate: first, there was widespread support amongst Dalits for entry into temples; second, there was a growing consensus amongst the upper-caste (thanks to Gandhi and other Hindu reformers) that restrictions on Dalit entry into temples were wrong and ought to be removed. We have no similar consensus here; millions of devotees of the Ayyappa tradition, including women, do not support unrestricted entry to the shrine.

 The Court’s ‘essential practices’ doctrine holds that courts should identify essential and thus constitutionally protected religious practices with reference to the internal prescriptions of the religions themselves. Justice Malhotra, in her dissenting judgment, noted that the restriction on women of reproductive age entering the Sabarimala temple ‘was in pursuance of an essential religious practice’ and therefore constitutionally protected. In its majority judgment, the Court failed to address the issue of whether the restriction on entry formed an essential religious practice; in doing so, it treated as peripheral and trivial an issue that the Ayyappan tradition regards as central and to their faith and belief.

Shashi Tharoor’s recent piece on Sabarimala brings to attention the cynical role played by the Communist state government in Kerala. By smuggling two women into the shrine through a side-entrance, the state government is actively fomenting religious tension with the view to securing support in the upcoming elections. Tharoor is alive to the role faith plays in the lives of his constituents and to his duty as a parliamentarian in representing them.

The Supreme Court’s verdict has opened up a pandora’s box which will now be hard to close. Will the Court now rule that the gender equality provisions of the Indian Constitution require that the Catholic Church ordain women as priests and bishops? Or that restrictions on women entering Mosques should be removed? What about restrictions on men worshipping the Goddess at the Kumari Amman Temple in Kanyakumari? Should these restrictions also be removed in the name of gender equality. Sooner or later, the Court will have to address these questions and it will be interesting to see how the Court navigates its way out of this mess.