This is a guest post by ELSA T OOMMEN
‘For the last 20 years woman irrespective of their age were allowed to visit the temple when it opens for monthly poojas. They were not permitted to enter the temple during Mandalam, Makaravilakku and Vishu seasons’
– (S. Mahendran vs The Secretary, Travancore Devaswom Board and Ors. (1991) (8) [AIR 1993 Ker 42])
The Supreme Court of India will soon be hearing the final arguments on the question of the restriction imposed on women in the reproductive age from entering the Sabarimala temple in Kerala. The court had earlier questioned the constitutional basis of the restriction at the behest of a the public interest litigation (PIL) placed before the apex court of India by the Indian Young Lawyers Association (IYLA) where it called for allowing women of all ages to be allowed entry to the temple.
This case is of prime importance to the democratic setup of India, because of three fundamental pivots.
Firstly, the perpetuation of such discrimination on the basis of women’s natural biological process of menstruation goes against the fundamental rights as guaranteed by the constitution. Prayar Gopalakrishnan, the chief of Travancore Devaswom Board who had remarked that women will only be allowed to enter the temple with the invention of machines to check the purity of women, triggered nationwide debates on the notion of purity of the menstruating woman. It also triggered the viral campaign where thousands of Indian citizens lend their voice to say that they are #happytobleed.
Secondly, the restriction on access to public spaces such as the public roads from Pampa to Sannidhanam (Ayyappa temple) can be viewed as being against the fundamental rights guaranteed to citizens of India irrespective of caste, creed and gender.
And lastly, the petition has also come to the special attention of the court owing to numerous death threats hurled on to the lawyers who gave the petition. A three-judge Special Bench led by Justice Dipak Misra made it clear that “access to justice” was not hostage to any person or authority, and only a court could control it within the parameters of the law.
Let us consider the case history of Sabarimala temple entry of women as it came up during the early 90s. This case, S. Mahendran vs The Secretary, Travancore… (1991) is being cited by those upholding the ban on women entering the Sabarimala temple in Kerala. The full text of the judgement reveals that young women in the reproductive age were not banned from entering the temple except during special periods such as the mandalakalam, makaravilakku and vishu seasons . It was also evident from the former Devaswom (Travancore Devaswom board) commissioner Smt S. Chandrika’s statement that ‘the entry of young ladies in the temple during monthly poojas is not against the customs and practices followed in the temple’. Here she also admits that her granddaughter’s first rice feeding ceremony (choroonu) was held at Sabarimala temple. All these details contained within the details of the above judgement points that young women were free to go to Sabarimala except during the three seasons mentioned above.
So it begs the question, when did the menstruating women become impure enough for Sabarimala to discriminate them at all times? When did the Naishthika Brahmacharya of the deity become relevant enough to stop women from entering Sabarimala for worship? When did the conscience collective of Sabarimala agree to deny women at Sabarimala entirely.
Justice Mishra, while going through the recent PIL submitted by IYLA had asked Travancore Devaswom Board what proof it had to say that women never entered the temple 1500 years ago. The recent statements given by the board in this petition seems to be countering the statements made by former Devaswom Commissioner in 1991 about women having no restriction to enter the temple apart from the three seasons mentioned. As the case proceeded in 1991 with all the respondents, the High Court Bench of Justices K. Paripoornan and K.B. Marar examined the Sabarimala Tanthri since the Travancore State Manual stated that only the Tanthri could authoritatively give answers on such questions. Tanthri Sri Neelakandaru testified that women belonging to the restricted age group of 10 to 50 years were prohibited from entering the temple even before 1950, although the statement made by former Devaswom Commissioner, Chandrika had said that the entry of young ladies in the temple was not against the customs and practices of the temple.
The High court then gave the final order that the restriction on women in the age group of 10-50 is in accordance with the customs of the temple and does not violate Art 15, 25 and 26 of the constitution, weighing heavily towards the Tanthri’s testimony. It is to be remembered that the court order was that the ‘restriction should be imposed on the basis of age and not on the basis of the physical or biological condition of any individual.’
Can the rationale of restricting women in the age group of 10-50 be justified outside the purview of physical and biological condition of menstruation?
It is baffling that the history of women’s access to the temple of Sabarimala was overlooked by the majority of the mainstream media in various debates. It is also important to revisit the case history of 1991 to understand how a partial ban on women’s entry became a complete ban on their bodies if they were of the reproductive age. This is seen to have stemmed from ‘some devotees’ fear that women of menstrual age may defile the temple by their presence’. Kerala Devaswom minister G Sudhakaran had also remarked in 2007 that there is evidence to prove that women had visited the temple and the need to restore a right once enjoyed by women.
Nivedita Menon in her work observes the ‘impossibility of appealing to women as a category unmediated by other identities like religion and caste’. It is in such circumstances that one has to see the vision of the framers of the Indian constitution when they did not go for complete separation of the state and the religion. Dr B. R Ambedkar had remarked that ‘…there is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill’ . The crucial role of law to intervene into the conscience collective to bring about reforms is vital.
The intervention of the state law into the customary practices of the various communities have produced far flung changes in the latter. This is not just a linear process whereby the non-state acquires the elements of the state law, but also a case where the state law or the dominant law also seems to assimilate the elements of the customary law. The courts in India have led social reform agendas in a country that is still largely enveloped by some form of conscience collective which can be oppressive to marginalised groups in the society such as scheduled castes, minorities and women. India has also witnessed murder of social reformers and activists such as Narendra Dabholkar who had fought gender bias in temples and places of worship. Thus, the emancipatory role of the apex court is of utmost importance in fighting such deep rooted biases which exist in the society.
The Supreme Court has rightly cited constitutional guarantees of equality to question the restriction imposed on women in the reproductive age group. “Why can you not let a woman enter? On what basis are you prohibiting women entry? What is your logic? Women may or may not want to go [to worship at Sabarimala], but that is their personal choice,” remarked Justice Dipak Misra, heading a three-member apex court bench on the case, “…you cannot prevent them from worshiping at the shrine”. Former president of Devaswom Board, N. Bhaskaran Nair, had hinted at possible changes when similar demands for women’s entry came up in the early 90s by saying “I respect all the temple conventions but, personally, I think a change is inevitable. Once the lower caste people were denied entry into the temples. The ban on women may also change”.
To conclude, one can see that the total ban of women of age group 10-50 in Sabarimala temple, is neither historical nor entirely based on religion, but merely based on the decisions of an all-male establishment which is free to stipulate rules which discriminate against women on the basis of biological and physical conditions intrinsic to their sexuality and gender. The facts regarding women’s entry to Sabarimala trumps the seemingly justified, yet arbitrary ritualistic and religious argument of women’s entry.
[Elsa T Oommen is a doctoral scholar at the University of Warwick]