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Right of Women to Worship

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On 28 September 2018, the Supreme Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 in a 4:1 verdict, paving the way for all women, irrespective of age, to enter the Sabarimala temple. Two similarly worded notifications in 1955 and 1956 had been issued by the Travancore Devaswom Board prohibiting those who did not observe the usual vrithams and women between the ages of 10 and 55 from entering the temple by stepping on to the pathinettampadi. The two notifications were also quashed.

Rule 3(b) of the 1965 rules reads: Women at such time during which they are not by custom and usage allowed to enter a place of worship shall not be entitled to offer worship in any place of public worship.

The irony lies in the fact that the legislation, the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, was meant to challenge discrimination and facilitate temple entry. Section 3 of the 1965 act seeks to protect all sections and classes of Hindus from any discrimination in relation to entering places of public worship. Rule 3(b), however, provided for the exclusion of menstruating women and is, therefore, ultra vires the act. It is also unconstitutional since it violates Article 13 of the fundamental rights, which prohibits states from making any laws, rules or ordinances that abridge the rights conferred by Part III of the Constitution which talks of fundamental rights.

Further, the devotees of Lord Ayyappa at Sabarimala do not constitute a separate religious denomination. Sabarimala is not a denominational temple but a Hindu temple and permits entry to all manner of Hindus. Moreover, in the absence of any textual or scriptural evidence, this exclusionary practice followed at the Sabarimala temple cannot be accorded the status of an essential practice of Hindu religion.

It is interesting to note that rules are normally framed to help in the implementation of an act. It is perhaps rare to see a rule being framed which vitiates the act itself.

Most of what follows in this letter is taken from the judgment itself; in fact, observations of the Supreme Court on gender discrimination have been culled out of the voluminous document, a very useful exercise done by a young advocate J Sandhya, which I have used extensively:

First, it is alleged that young women menstruate and hence pollute the sannidhanam. What is menstruation? Without going into a detailed physiological/ biological account, let me state it in brief: Menstruation is normal vaginal bleeding that occurs as part of a woman’s monthly cycle, which is part of her reproductive role. If no pregnancy occurs, the uterus or womb sheds its lining. The menstrual blood is partly blood and partly tissue from inside the uterus.

How can it be argued to be impure or polluting? It is part of a natural phenomenon among women, essential for procreation, which is the future of humankind. In fact, the 411-page judgment has given very convincing arguments on the widespread existence of prejudice against women based on the notions of impurity and pollution associated with menstruation and how the whole concept of pollution is discriminatory. Such an exclusionary practice denudes women of their right to worship, and amounts to a form of untouchability, a non-caste-based religious–social disability on the basis of alleged social customs that consider menstruating women as impure, which is anathema to constitutional values (Article 17).

The issue of entry in a temple is not so much about the right of menstruating women to practise their right to freedom of religion, as about freedom from societal oppression, which comes from a stigmatised understanding of menstruation, resulting in “untouchability.” Practices that legitimise menstrual taboos, due to notions of “purity and pollution,” limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship, and eventually, their access to the public sphere.

The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible, but can also never pass the muster of constitutionality. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood.

It is a universal truth that faith and religion do not countenance discrimination but religious practices are sometimes seen as perpetuating patriarchy, thereby negating the basic tenets of faith and of gender equality and rights. The societal attitudes, too, revolve around the patriarchal mindset, thereby derogating the status of women in the social and religious milieu. In such a situation it is for the Court to review that the majoritarian impulses rooted in a moralistic tradition do not impinge on individual autonomy.

Second, an argument is made based on the celibacy of the deity in Sabarimala. The respondents had submitted that the deity at Sabarimala is in the form of a Naishtika Brahmachari—Lord Ayyappa—and is a celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of 10 and 55 must not be allowed in Sabarimala. There is an assumption here that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women, which is demanding more exacting standards of purity and chastity solely from women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled.

Further, the argument that women cannot keep the vritham is to stigmatise and stereotype them as being weak and lesser human beings.

To conclude, the Constitution should not become an instrument for the perpetuation of patriarchy. The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destroys liberty and is a denial of the equality of all human beings. Women cannot be barred from going to Sabarimala, but the Supreme Court has not exhorted women to do so and hence is not interfering in customs.

As argued elsewhere (Ashok Kini, “Women Entry in Sabarimala: Past, Present and Future,” Live Law, 2018), by striking off the rule/notification, the statutory protection to an exclusionary practice is taken away by the Court. We are back in the pre-notification of 1955 and 1956 stage. So, if the argument is that women used to voluntarily abstain themselves from entering a temple, they may continue to do so even now; the difference is nobody can stop a woman from entering the temple now. To exclude women is derogatory to an equal citizenship. The majority verdict, therefore, upholds that an indispensable facet of an equal life is the equal participation of women in all spheres of social activity, rejecting all the arguments of the Temple Board. The judgment has given very convincing evidences on how the whole concept of pollution is discriminatory and unfounded, which makes one wonder how the women bhaktas fail to understand these very valid arguments against the notions of impurity and pollution, let alone the newly inducted woman judge. Women are not lesser or inferior to men. The myths surrounding menstruation must go.

Mridul Eapen

Kerala

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