The Sabarimala issue is a tug-of-war between women’s fundamental right to equality under article 14 and the believer’s right to freely practice religion under 24 and 25 of ‘The Constitution of India’. Women have been prohibited from entering the Sanctum sanctorum, this discrimination has been clearly prohibited under the Article 15 of the Constitution of India. There has been petitions filed for the review of the judgement passed last year, this review petition has been referred to a larger bench to re-examine religious issues including the ones which had arisen due to the lifting of the centuries-old ban on women of a certain age group from visiting the shrine. There have been these kinds of prohibitions practised in other parts of the country like the Shani Shingnapur temple and Haji Ali Dargah Mosque are some of the places. Now the question that arises is whether the upcoming bench will concentrate more on the customary ideas or the fundamental rights provided under the Constitution of India.
The Supreme Court has ordered the Government of Kerala to frame a separate law for the management of Sabarimala Temple even though the Court had produced draft amendments in the Travancore-Cochin Hindu Religious Institution Act that was not enough.
The King Rajasekhara wasn’t having a son to inherit his throne. Both the hapless King and his Queen prayed eternally to Lord Shiva for a baby. On one of the hunting trips of king to the forest near River Pampa, he heard an infant’s wails from the forest. Amused, he followed the sounds and came to see a beautiful child furiously kicking its feet and arms. The king wished to take the child to his palace.
While King Rajasekhara saw the kid, a sadhu appeared before him and asked the king to take the baby to his palace. Also, the sadhu said that the child will mitigate his dynasty’s suffering and also stated that when he will turn twelve the king would be aware of his divinity. As the child was wearing a golden chain the sadhu directed the King to name him ‘Manikandan’ which means one with a golden neck. The King explained all the happenings to the Queen and they both felt that they had been blessed by Lord Shiva himself. As a child Manikandan was very intelligent and talented. His guru was surprised by seeing his excellence in martial arts and shastras. The guru also concluded that the boy was a divine being and upon the completion of the studying from the guru, Ayyappan went to his teacher to give guru dakshina and for seeking blessings from him. During this time when the guru as blessing him, guru told Manikandan that Manikandan has a divine power destined for superhuman glory. The guru insisted Manikandan to bless his child who was blind and dumb. When Manikandan placed his divine hands on the Guru’s son, he gained his eyesight and speech. Then after this incident he insisted the Guru not to reveal this miracle to anyone. While these incidents were going on Queen gave birth to a male child and he was named Raja Rajan. But the king decided to crown Ayyappa as the new king considering him as the eldest son.
Everyone except King’s Diwan was happy with this decision and subsequently Diwan tried to influence Queen and hence she agreed to the terms of Diwan that she will pretend to be sick and assured that he would make physician proclaim that the sickness will be cured only by the application of tigress’ milk. Earlier this wily minister, who secretly nursed kingly ambitions, hated Manikandan and devised manifold plots, including poisoning of food to exterminate the divine avatar. Manikandan however had escaped many a times, yet one time he was injured, a bodily injury which can’t be cured by anyone. Thus, at that moment Lord Siva himself cured the young boy. So hence the Queen was sick, Diwan knew that Manikandan would be impelled to go to the forest where he would fall a prey to wild animals, or even if he returned home without accomplishing the task. Due to the profound love towards her own son Queen agreed to accompany Diwan in his cruel intention. The king called upon his physicians and asked for a remedy and eventually the desire of Diwan’s accomplice declared that she would be cured of the malady only if the milk of a lactating tigress were made available. The king proclaimed that he would hand over half his kingdom to anybody who could cure the hapless Queen.
The king in search of the tigress sends a troop of soldiers and they came empty handed. At this point of time Manikandan offered the help, initially the king was unhappy and reluctant to send him in search of the tigress milk. Unwillingly, King Rajasekhara bid farewell to his eldest son and insisted him to take some food for the travel and gave him three-eyed coconut in remembrance and honour of Lord Shiva. The Panchabuthas of Lord Shiva closely followed Manikandan as he entered the forest. But on the way, he chanced to witness the atrocities of the demoness Mahishi in Devaloka. His sense of justice outraged, Manikandan hurled Mahishi onto the earth below; she fell on the banks of the Azhutha River. A bloody battle soon ensued and at the end, Manikandan mounted Mahishi’s chest and commenced a violent dance that reverberated within the earth and the Devaloka. Even the Devas were frightened. Mahishi realized that the divine being on her was the son of Hari and Haran, chastened, she prostrated before the young boy and died. This dance was witnessed by Lord Shiva and Mahavishnu from a place called Kalakatti (It is said that Leela, daughter of Kavalan, a Karamban, with a face of Mahishi and freed herself from the curse and obtained Moksha by the grace of Shri Dharma Sastha, which is described in Sabarimala Temple as Malikapurathu Amma, by which name she has a temple there). Manikandan was reminded of about his lovely father and ailing mother and hence he was given the help of Lord Indran’s in obtaining the priceless tigress milk. Manikandan was back with the tigers and tigress and seeing this villagers panicked. By knowing about the divine nature of Ayyappa the King fell at the lad’s feet and begged for forgiveness. On the day when Manikandan returned from the forest he turned twelve years old.
Sabarimala Temple formation
After the revealing of the divine powers Manikandan reminded his father that as he had accomplished his task for which he was created, he would return to Devaloka and he asked the King to make a wish. Immediately the king asked to construct a temple in memory of Manikandan and Manikandan aimed an arrow which fell at a place called Sabari, where in Sri Rama’s era a Sanyasini called Sabari observed Dhavam. Lod Manikandan told the king to build the temple there and then he disappeared. Saint Agasthya laid the foundation of the temple. Lord Manikandan has stated that he would grace only those devotees who offer Darshan after observing forty-one days’ penance that involves strict abstinence from the family pleasures and should be leading the life like a brahmachari for certain days, by constantly reflecting the goodness of life. While climbing the eighteen steps of the temple they should carry three eyed coconut and foodstuff/Aantha. The devotees take bath in river Pampa, raising slogans of Saranam. The River Pampa is a holy river as River Ganga, Sabarimala is as holy as Kasi – Dharmasastha sent Parasuraman, to Sabarimala; he was the one who carved the figure of Lord Ayyappa and installed it on the day of Makarasankranthi which comes by middle of month January. Every year millions of devotees who comes to Sabarimala seeking the blessings of Ayyappa and to see his sculpture in those days.
Rituals and procedure
The devotees are supposed a vrutham (Vow) of 41 days before the Mandala (the season when the temple is open for 2 months) Pooja. They initiate the vrutham by wearing a Thulasimala or Rudrakshamala with a locket of Lord Ayyappan. The mala (bead garland) is sanctified in a temple or a Pooja room. After wearing the ‘mala’ the pilgrim is addressed as ‘Ayyappan’ till the pilgrim removes that mala on on completion of the pilgrim. Female pilgrims would be addressed as Malikapuram.
Devotee is expected wear black/blue/saffron clothes. Devotees are expected to pray daily in the mornings and evenings after taking bath. The prayer ritual can be performed by going to any temple or in one’s own pooja room. Those devotees who are desirous of worshipping Lord Ayyappa on `Makara Vilakku’ day (January 14) may continue their vrutham till that day. The vrutham continues till the pilgrim returns from his pilgrimage to Sabarimala and removes his `mala’ after breaking a coconut and offering prayers.
A pilgrim cannot climb the Holy 18 Steps without a proper Vrutham or a ‘irumudi kettu’ it is a sacrilege to visit the temple or climb the Holly 18 steps. A vrutham of at least 41 days must be undertaken so that necessary physical fitness and mental conditioning are achieved before the arduous trek. No pilgrim, except the Royal Family of Pandalam, is permitted to ascend the `Pathinettam Padi’ without carrying an Irumudi on the head. Those without Irumudis can only enter the temple precincts through the side entrance. Prior to leaving home for Sabarimala, the Irumudi is filled at the temple or in one’s own pooja room. The ceremony is conducted with the assistance of the periaswamy amidst chanting of ‘Saranam Ayyappa’. Irumudi is carried on the head with due reverence.
The Sabarimala temple entry issue: A brief timeline
A brief timeline on the Sabarimala entry issue, from 1990 to present day
1990: S. Mahendra filed a petition in the Kerala High Court seeking a ban on entry on of women inside the Sabarimala Temple.
5th April, 1991: The High Court of Kerala upholds the old restriction on women of a certain age-group entering the temple.
4th August 2006: A petition was filed in Supreme Court by the Indian Young Lawyers Association seeking entry of women between the age of 10-50.
11th January, 2016: The Two-Judge Bench of the Supreme Court question the practice of banning entry of women at the temple. The court says this practice does not have a foundation in the constitution of India.
11th April, 2016: SC says gender justice endangered by ban on women.
13th April, 2016: SC says tradition can’t justify ban on women’s entry.
November, 2016: The Kerala government files a fresh affidavit in the Supreme Court favouring the entry of women of all age groups in the temple.
2017: Supreme Court refers the case to a constitutional bench; a plea was filed in the Supreme Court for a gender-equal bench to hear the case.
17th July, 2018: Five-Judge constitution bench starts hearing the matter.
Supreme Court stated that women have fundamental right to enter the temple and questioned the rationale behind the age group distinction. It also stated that the ban on entry of women would be tested on “constitutional ethos”.
28th September, 2018: The Five-Judge Bench of the Supreme Court struck down the entry ban saying banning female’s entry into the shrine is gender discrimination and the practice violates rights of Hindu women.
8th October, 2018: Plea filed in the Supreme Court by the National Ayyappa Devotees seeking review of the judgement.
November 2018: Supreme Court agrees to hear the review pleas in open court on January 2018. It also refused to stay the judgement.
The hearing of the review pleas was postponed till after January 30th as Justice Indu Malhotra goes on medical leave.
31st January, 2019: Supreme Court to hear review pleas on February 6th.
Supreme Court reserves verdict on review plea.
14th November, 2019: Supreme Court refers the review pleas to a larger seven-judge bench for the re-examination of the various religious issues regarding women. Five-judge bench gives 3:2 majority verdicts, keep pending the review pleas.
5th December, 2019: Supreme Court agreed to hear the women activist Bindi Ammini’s plea seeking directions to Kerala government to ensure safe passage of all women to Sabarimala temple.
The Shani Shingnapur Temple
Shani Shingnapur temple situated in Maharashtra prohibited Dalits and women from entering the temple on the grounds of untouchability. The Maharaja of Travancore in his era made the first legal measure guaranteeing the rights of lowerclass people or Dalits to enter into the temple irrespective of the caste system followed among Hindus. This proclamation led the Temple entry Authorisation and Indemnity Act, 1939 which passed in then Madras Presidency. This act was also followed by every other state, which subsequently allowed every class of people to enter the temple. As part of these act Maharashtra also proclaimed the temple entry right to all class of people to access the place of worship equally.
After four months of efforts from the part of women activists and a group of women led by the activist Trupti Desai, the trust of the Shani Shingnapur temple of Maharashtra after a great protest permitted women to enter the temple and pray in the sanctorum which made an end to a 400-year-old custom. The Bombay High Court said in its judgment about the temple entry that the women have the right to enter the worship place according to the Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956. Even if the temple authority had said that the Shani Shingnapur temple was built for a special denomination of Hindus, women would still have a right to enter such temples on the basis of the Maharashtra Temple Entry Law.
As we compare Sabarimala temple entry issue and the Shani Shingnapur temple entry issues these both cases have become the focus of efforts by women seek entry into the religious place of the worship. In both the cases the temples were prohibiting the women from entering the temple from ages. But the Indian constitution explicitly states that the laws makes the throwing open of Hindu religious places of worship to all classes in an exception to any claimed right to religion by a person or denomination, no similar clause right to religious places of worship. The article 15 of the constitution sees every Indian citizen equally and the article 25 & 26 of the constitution allows everyone to follow the religion based on their interests. Shorn of all the legal and religious construction, the justifications offered for denying women entry into place of worship rests on a supposed inferiority of women in matters of the religion.
Legal aspects of Sabarimala issue
The issue revolves around the fundamental right to equality and the right to profess and practice religion. Women have been prohibited from entry the temple for centuries; last year the Supreme Court lifted the ban saying it violated their right to equality and worship. Applicable article under the constitution of India
- Article 14 – provides for equality before the law or equal protection within the territory of India. The State shall not deny to any person equality before the law or equal protection of law within the territory of India.
- Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition
- Article 25 – Freedom of conscience and free profession, practice and propagation of religion. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion
- Article 26 – Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.
- Article 129 – The Supreme Court shall be a court or record and shall have all the powers of such a court including the power to punish for contempt of itself”.
- Article 142(2) – Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
- Article 51A(e) – To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. Applicable sections under the Contempt of Courts Act, 1971:
- Sections 2(b) – wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Applicable sections under Indian Penal Code
- Rioting: Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
- Unlawful assembly: An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is(Second) resist the execution of any law, or of any legal
International treaties for the protection of Women
- Committee on the Elimination of Discrimination against Women
(CEDAW): The CEDAW Committee is a UN body composed by independent experts in charge of reviewing a country’s implementation of the Convention on Elimination of Discrimination against Women, an international human rights treaty containing state’s responsibilities towards women’s human rights. It is important for national advocacy because once a State signs and ratifies it, it becomes national law. During the session, NGOs meet with CEDAW Committee members to provide information and advocate for women’s rights in their area of expertise
National commissions instituted for the protection of women
- The National Policy for Empowerment of Women (NPEW): was formulated in 2001 as the blueprint for the future, with the expressive goal of bringing about the advancement, development and empowerment of women. The NPEW laid down detailed prescriptions to address discrimination against women, strengthen existing institutions which includes the legal system, provide better access to health care and other services, equal opportunities for women’s participation in decision-making and mainstreaming gender concerns in the development process.
- The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 to review the Constitutional and Legal safeguards for women; recommend remedial legislative measures; facilitate redressal of grievances and to advise the Government on all policy matters affecting women. The Commission initiated various steps to improve the status of women and worked for their economic empowerment. It organises consultations, constituted expert committees on economic empowerment of women, conducts workshops and seminars for gender awareness and took up publicity campaign against female foeticide, violence against women, in order to generate awareness in the society against these social evils and human rights of women.
The Sabarimala issue is a conflict between the right to equality and the freedom of profession, practice and propagation of religion along with the right to manage religious affairs. We can say that the right to equality under Article 14 before the law really has an upper hand compared to the right to freely practice religion under the Article 25 and 26 of the Constitution of India. The Hon’ble Supreme Court is yet to hear the review petitions filed by the National Ayyappa Devotees Association (NADA) which had contended that the five –judge Constitutional bench’s verdict lifting the age-old ban on the entry of women in the temple.
The Hon’ble Supreme Court has deferred the review petitions of the Sabarimala case to a larger seven-judge Constitutional bench. The Apex court will assess the verdict passed by the five-judge bench on the 28th of September, 2018. As an age old custom Sabarimala temple entry restrictions were made by the opinions of the then people, so altering such a provision makes a bit chaotic sense in the state. The practices which are performed should be continued without affecting the feelings of people. As and when a new change is brought, ample amount of time is to be ensured for the implementation because societal changes must come in a gradual and perfect manner by which the interests of a particular class of people won’t be hurt.