WOMEN & GOD
Women warriors take on gender bias in religion and society. The apex court’s Sabarimala verdict gives their efforts an impetus
The Deepest Taboo Flavia Agnes (Legal scholar and women’s rights lawyer)
Ending a centuries-old tradition, a fivejudge constitutional bench, headed by Chief Justice of India Dipak Misra, on September 28 struck down the restriction on women in the 10-50 age group from entering the Lord Ayyappa temple at Sabarimala in Kerala. The court ruled that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which laid down the restriction, violated the right of Hindu women to practise religion. While Justices R.F. Nariman and D.Y. Chandrachud gave separate judgments, which concurred with the views of the CJI and Justice A.M. Khanwilkar, Justice Indu Malhotra, the lone woman judge on the bench, gave a dissenting judgment.
The Kerala High Court had upheld the provision barring women from entering the shrine on grounds that only the presiding priest was empowered to decide on traditions. The Indian Young Lawyers Association and others challenged this ruling in the Supreme Court, arguing that the tradition was discriminatory and based on the concept of women’s menstrual impurity. Justice Chandrachud held that such a restriction on women amounts to a violation of their human dignity. It was the duty of the court to uphold the constitutional morality enshrined in the preamble of the constitution, which is based on equality, freedom and human dignity, and declared that barring women’s entry into the Sabarimala shrine is discriminatory.
The judges said the prohibition on women’s entry is due to non-religious reasons and does not form the core essential of Hindu religious practice. On the fine balance between Articles 14 and 15 (equality and non-discrimination) and Articles 25 and 26 (the right of a religious group or sect to lay down its own rituals and forms of worship), Justice Chandrachud held that since judges are not clerics, they should test a custom or practice solely on the basis of constitutional morality.
This judgment established the primacy of individual freedom over group rights and lays down clearly the contours of constitutional adjudication. The state has an overriding duty to uphold freedom, equality and dignity. It makes it clear that practices incompatible with these values should not have the state’s backing. It also minimises the court’s need to get entangled in questions of core essentials of religion and the non-essentials.
While the CJI (with Justice Khanwilkar
concurring) held that devotion cannot be subjected to discrimination and patriarchal norms must change, Justice Nariman held that such discriminatory practices abound in all ancient religions; they deny women dignity and treat them as children of a lesser god.
Justice Malhotra was of the view that it is not for the courts to determine which religious practices are to be struck down, except in issues of social evils like ‘Sati’. “Issues of deep religious sentiments should not ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and religious practices cannot be solely tested on the basis of Article 14,” she said.
“What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would
allow all to practise their beliefs. The court should not interfere unless there is any aggrieved person from that section or religion,” she added.
This dissenting verdict brings up the question of social transformation through court interventions. Practices discriminatory towards women are found everywhere. Recently, Muslim women in Mumbai secured the right to enter the sanctum sanctorum of the historic Haji Ali dargah, on grounds that the restriction is of recent origin and is arbitrary since several dargahs permit women to enter the inner sanctums. The dargah authorities had claimed that if men and women are allowed to mingle, it would distract men and it is also against the tenets of Islam.
Authorities at the Shani Shingnapur temple in Ahmednagar obstructed women’s entry despite a court order on grounds that it will invoke the wrath of God Shani and rape cases will increase. Several temples across India bar women’s entry. Muslim women are barred from offering prayers at some mosques and Roman Catholic women cannot be ordained as priests.
The common thread through these restrictions is patriarchy, which is premised upon the notion of women’s impurity, which then becomes a justification for their subordination. The other connected thread is the perception that women are evil seductresses with the power to tempt men. The recurring motif of Eve, who brought about the fall of mankind by luring Adam into sin and was banished forever from the Garden of Eden, becomes a leitmotif across civilizations and religions. The concept seems to have been introduced during the later period of civilization when patriarchy was taking root, when political power came to be vested in kings, feudal lords and family patriarchs. Private ownership of agricultural land was introduced, overthrowing the earlier civilization of the food-gathering era, with group living and common ownership of land as its main characteristics.
It is during this transition that women appeared to have lost their superior position held at the dawn of civilisation. It was believed that women are possessed with the divine power of reproduction and the embodiment of this power was their menstrual cycle, which coincided with lunar cycles. Hence, the seeds which were sown were mixed with the life giving menstrual blood. Our folklore and mythology are filled with images of strong and powerful women. The woman was the embodiment of strength— Shakti—and could kill demons.
Feminist anthropologists and historians believe patriarchy introduced the notion of women’s impurity to establish male supremacy. Gradually, as patriarchy took root, women were chastised for their power of healing and prophesying, and during the medieval ages, in Europe many healers and midwives were burnt as witches.
We must assess the impact this judgment may have against such deep-seated biases that have prevailed over centuries and are internalised by women themselves. Ironically, the rationalists who sought this remedy are not the ideal ‘devotees’ of Lord Ayyappa and the true devotee may not enforce it, her piety overriding the law. Menstrual taboos are practised within the domestic terrain of urban India in educated upper class households too. However, it is debatable whether changes in religious practices and customs can be brought in by judicial decree. Padma Pillai, spokesperson for the Ready To Wait campaign, was quoted by The News Minute as saying that the verdict will have no impact on the ground: “At the outset, for me personally and devotees like me, the verdict does not change anything. We will not visit Sabarimala till Lord Ayyapa’s permission comes to us.”
The Supreme Court’s decision is based on a notion of rationality which, as the dissenting judge has pointed out, has no place in matters of faith. Justice Chandrachud’s judgment, though sophisticated in its argument, flattens out the diverse strands that form the mosaic of Hinduism.
Pratap Bhanu Mehta has asked a pertinent question: “What should be the threshold of demonstrable harm to someone’s civic standing for the state to intervene? Not every wrong has to be righted by the state. It is discriminatory that a church does not ordain women as priests. But should the state oblige it to do so? Chandrachud’s judgment almost makes it sound as if the state should intervene wherever it encounters any cultural practice that, in the slightest form, reproduces an ideology of inequality.” He concludes that Justice Malhotra was right to caution that this is a recipe for whole-scale statism, in the name of social reform.
This brings to my mind the alarm bells that went out among the Christian community when the chairperson of the National Commission for Women, in the wake of cases of rape by priests and bishops in Kerala, demanded that confessions (considered to be a core essential sacrament among Roman Catholics) be banned.
IT IS DEBATABLE WHETHER THE JUDICIAL DECREE CAN CHANGE RELIGIOUS RITUALS. THE SC’S DECISION IS BASED ON RATIONALITY, WHICH HAS NO PLACE IN MATTERS OF FAITH