[Sabarimala] [ Day 4] Supposed Inability Of Women To Observe 41 Day Penance Due To Impurity A Patriarchal Concept : Justice Nariman

The Sabarimala hearing on Tuesday witnessed some remarks, which could be interpreted as feminist, from the bench, with Justice Chandrachud lamenting how women, from birth, are subject to social conditioning in terms of what they can or cannot do, and how the female is regarded as chattel of her male counterpart.

On Day 4 of the hearing in the Sabarimala Temple Entry case, Senior Counsel Abhishek Manu Singhvi, appearing for Travancore Devaswom Board, elaborated on the significance of the customary practices of the 41 day penance and celibacy attached with Lord Ayyappa, in the light of the history of the temple.

He submitted that in olden days, worshipers visited the temple only after observing the penance or ‘Vrathams’ for 41 days. It was believed that ladies between the age of 10 and 50 will not be physically capable of observing the same, owing to the impurity caused by the monthly menstrual cycle.

On Tuesday, Justice D. Y. Chandrachud observed that abstinence was a state of mind and to restrain women from pursuing their right to worship on physiological grounds would be unconstitutional. Countering Dr. Singhvi’s submissions of historic religious beliefs and customary practices, the judge asserted that after the coming into force of the Constitution, all actions have to be tested on the touchstones of equality and liberty.

The bench observed that while societal morality is dynamic, if the principle of constitutional morality was taken recourse to, the impugned practice would not survive.

Replying that judging matters of religion based on constitutional morality “would open a Pandora’s box”, Dr. Singhvi proceeded to discuss the elements of a valid custom, viz, existence since times immemorial, continuity and reasonableness.

Justice Nariman enquired whether the ban on women entry was prevalent from time immemorial. He referred to the stand of the Travancore Devaswom Board before the Kerala High Court in S. Mahendran v. Secretary, Devaswom Board, where the Board had submitted that the restriction of entry was only during the Mandalam period, Maharavilakku and Vishu days and that temple will be open for all in every month for five days. According to the Board, persons who go to the temple during these days were not expected to observe the penance for any particular period. The Board had further submitted in the High Court that for decades, many female worshippers of the age group of 10 to 50 used to go to the temple during these days for the first rice-feeding ceremony of their children.

“What happens to the celibate nature of Lord Ayyappa in those 5 days? Is it that the idol vanishes on those days?”, inquired the judge rhetorically.

“The questions to be asked are not why, how or when, but if the practice is rooted in the belief of the ardent devotees and has been in existence for a long time”, replied the Senior Advocate.

Justice Nariman also noted that none of the affidavits imputed the ban to a belief of impurity. Justice Chandrachud added that the custom could not be said to satisfy the requirement of being age-old.

Arguing that each religion has its own set of practices, Dr. Singhvi mentioned the norms regarding the entry of women inside mosques in most sects of Islam, regardless of menstruation

Chief Justice Dipak Misra asked how the prohibition on the entry of women in the Sabarimala Temple could be regarded as “essential religious practise” from the Constitutional point of view.

Dr. Singhvi insisted that the custom of excluding women was a well-settled one and its antiquity value could not be questioned under Article 32, and that the same would call for a trial where evidence on factual aspects can be adduced.

The Chief Justice also required the Travancore Devaswom Board to prove how Sabarimala temple constituted a religious denomination for the purpose of Article 26.

To back his submission of the Board constituting a separate denomination under the precipice of the Hindu religion, the Senior Advocate relied on the observations of the Supreme Court seven judge bench in Shirur Mutt (1954).

Moving on, he referred to Subramanian Swamy v. State of Tamil Nadu, where it was held that the Podhu Dikshitars constituted a`religious denomination’ and had the right to administer the Sri Sabhanayagar Temple at Chidambaram which they had been managing for several centuries. Justice Chandrachud distinguished the precedent from the present facts, remarking that the Sabarimala Temple is a public place, unlike the Sabhanayagar Temple where the right to worship was only open to the Dikshitars.

Singhvi also discussed the exclusive authority of the ‘Thanthri’ of the Sabarimala Temple to decide all religious, ritualistic and spiritual controversies pertaining to the denominational temple. The arch-priest of the Temple was examined by the Kerala High Court in upholding the validity of the impugned practice.

The bench also wondered how a Temple which was open to all sects of Hindus and even persons of other religions could be denominational in character.

In response to Justice Nariman, Dr. Singhvi asserted that if the bench was not convinced by the argument of a separate religious denomination, he shall advance submissions in the light of Article 25.

Continuing, the Senior Counsel indicated how access to men in the Attukal Bhagawathy Temple in Kerala is restricted and how in the Lord Brahma Temple at Pushkar, married men are barred from entering. Justice Nariman reflected that the exclusion was not absolute.

Singhvi sought to explain that these customary practices are not aimed at a perpetration of gender discrimination but are observed in furtherance of age-old religious beliefs.

Justice Nariman categorically stated that once it has been contended that there is gender bias in contravention of Articles 14, 15 and 25, the exclusion of women being apparent, the onus of justifying the constitutional maintainability of the impugned practice fell on the respondents.

Highlighting its possible ramifications on the very foundation of religion, faith and belief, Dr. Singhvi urged that the decision on the issue could not be swayed by mere ideas and that the court could not forcefully bring about change. Justice Nariman opined that such questionable practices are relatively more prevalent among the ancient religions, while the comparatively newer faiths are devoid of them.

The hearing on Tuesday witnessed some remarks, which could be interpreted as feminist, from the bench, with Justice Chandrachud lamenting how women, from birth, are subject to social conditioning in terms of what they can or cannot do, and how the female is regarded as chattel of her male counterpart.

The judge noted that the social dominance assumed by men could not justify this restriction on women so far as their communication with God by means of pilgrimage is concerned.

Justice Nariman agreed that the supposed inability of women to observe the 41 day penance on account of impurity is a patriarchal concept. The judge also noted that menstruating women are allowed to offer prayers in numerous other temples.

When Dr. Singhvi objected, saying that such patriarchy is prevalent in several faiths and social setups across the globe, Justice Chandrachud assured that the court shall endeavour to ameliorate the situation as far as their jurisdiction extends.

Chief Justice Misra was also unimpressed by Dr. Singhvi’s submission that women not falling in the 10-50 years age bracket were highly revered among the pilgrims, with a special title dedicated to them. The Chief Justice asked why the same level of respect was not accorded to the menstruating women.

The discussion again veered to whether the impugned practice of exclusion of women amounted to ‘untouchability’ for the purpose of Article 17, as suggested by Amicus Curiae Raju Ramachandran earlier.

Senior Counsel Indira Jaising drew the attention of the bench to former Chief Justice B. P. Sinha’s dissenting opinion in Sardar Sayedna Tahir Saifuddin Saheb (1962), regarding excommunication as being akin to untouchability.
The matter is pending for reconsideration before the Constitution Bench.

While agreeing to that the submission of Jaising that argument based on Article 17 may be kept open, Chief Justice asked her if she was suggesting a reference to a 7 judge bench. When she left the decision to the wisdom of the court, Chief Justice Misra stated that the issue may be dealt with separately.