Prof. T K Thomas

Some years ago an old colleague took over as the head of the radio station in the capital of God’s Own Country. As it was customary at that time, he called on the Chief Minister, an old comrade known for his wit and a ‘sense of humor’. After he was seated the gray haired CM asked him, “So, you are a Brahmin from Karnataka, have you seen all of them?” Taken aback by such a question from the CM, he looked at him quizzically and mumbled, ’who Sir?” “The standing one, the sitting one and the lying one”, the CM answered. He again looked at the CM expecting a clarification. The CM did clarify to the complete dismay of the broadcaster. “The standing one is in Guruvayur; the sitting one in Sabarimala and the lying one is here in Thiruvananthapuram, the CM gave him a hint. As a well informed person he realized that the venerable CM was referring to three Avataras of Maha Vishnu, the three deities of Guruvayur [Sri Krishna in standing position], Sabarimala, Sri Ayyappa in sitting posture and of Thiruvananthpuram, Sri Padmanabha Swamy , Maha Vishnu reclining on Lord Anantha! “See, you are in Kerala and as a Non Malayali Brahmin, so you have to seek the blessings of the three of them to survive here”, the CM added. He suspected a mock reverence in the CM’s voice but smiled off diplomatically. There was no point in reacting to a sworn Marxist Communist, who professed atheism!

Well, that is Kerala and for years the state has been ruled by Communists and Congressmen alternatively. So what is happening in Kerala today under Communist rule has to be viewed from this perspective; can’t expect them to have religious sentiments!

Among the many landmark judgments by the Supreme Court in the month of September one of the verdicts pertained to a sensitive gender issue and it led to widespread protests in Kerala for lifting the ban on entry to a section of women into the Sabarimala temple.

Ours is a country of great contradictions in almost every sphere of activity. We claim to be fastest growing economy, but ground realities may not be in consonance with it. We worship women as a ‘devi’ or goddess but the plight of lot of women in India is not exactly worth writing home about and the indignities heaped on them are reported from all over India. We boast of at least one woman Prime Minister, few women Chief Ministers, a handful of women judges and so on. Is it not a contradiction that while on the one hand we have very liberated and progressive women who fought for entry into certain temples and got a favorable verdict from the apex court; and also tens of thousands of women protesting against a Supreme Court verdict that lifted the ban on some women on the basis of their age group?

Ban on entry to women from the age of 10 to 50 is yet another contradiction. This is a tradition practised in Sabarimala on the ground that the deity is a Naishtika Brahmachari and menstruating women therefore cannot enter the temple. There are many traditions like that in temples all over India. In Kerala itself there is the famous Guruvayurappan temple where you cannot enter wearing a shirt or a kurta. You wear a dhoti and an ‘angavastram’ or a cotton shawl. This is a traditional custom very strictly enforced. Tomorrow someone can question this practice in the name of fundamental right. There is no provision in the Constitution of India that prescribes a dress code for entry into a place of worship. These are traditions and customs practised by individual worshipping places. You cannot enter a Sikh Gurudwara without covering your head. You cannot enter an Orthodox Church with your footwear on. There are many such traditional customs unique to different religions and denominations; some of them can be challenged in the name of rights.

In its verdict on 28th September the five Judge Bench of the Supreme Court in its majority judgment [with one judge dissenting] pronounced that all women can pray at Sabarimala and lifted the ban on entry to women in the age group of 10-50. The Chief Justice noted that the ban is the result of “hegemonic patriarchy” and amounts “to smear on individual dignity of women”. Justice Nariman observed that it was against the fundamental right of women. Justice Chandrachud pointed out that the belief that “women cannot keep the ‘vratham’ is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court must refuse to recognize such claims”. In her dissenting judgment, Justice Indu Malhotra said , ‘’Judicial review of religious practices ought not to be undertaken as the court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and belief. It would amount to rationalizing religion”. She also said that ‘’in a pluralistic society the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion”.

Reactions to the judgment were rather intriguing. The English Press was unanimous in welcoming the judgment. The Times of India editorially commented that, “In a case like Sabarimala where equality conflicts with the right of religious institutions, equality and individual freedom must take precedence”. The Indian Express writes, “The verdict allowing women devotees to enter Sabarimala is a powerful message for gender equality, constitutional morality.” Commenting on Justice Indu Malhotra’s observations, the paper writes, “At a time when the Supreme Court, by its own admission is underlining the very importance of constitutional morality, Justice Malhotra’s words are a cautionary reminder that it may need more than a judicial pronouncement to enable social reform” the paper added. The Hindu wrote that, ”With its Sabarimala verdict , the SC underlines the Constitution’s transformative power”.

Almost all the political parties and the RSS welcomed the verdict. Maverick BJP MP, Subramanian Swamy went to the extent of sending the army to Kerala to enforce the verdict! While major political party leaders have welcomed the verdict, there is a contrary view on ground zero. Congress leader Anand Sharma has said that the local leadership in Kerala is free to pursue their own line of action. The Kerala unit of BJP and the leaders even abuse the Supreme Court judges for lifting the ban on entry of women. In fact at public rallies and television shows the language used by some of them against the judges is almost obnoxious crossing the boundaries of decency. The BJP and the Congress seem to be sometimes comrades in arms and sometimes vying with each other to steal the limelight for their programmes on the temple entry issue. Unprecedented, massive rallies are being organized mostly by women in a very peaceful manner all across the state. Instead of slogans, they chant Ayyappa ‘nama japam’. Not to be outdone the CPM is also planning rival rallies to project what they call their progressive point of view.

The ruling CPI[M] and the left front government maintain that with their faith in communist ideologies, they are all for implementation of the Supreme Court verdict. However, last week, the Kerala government expressed their desire to initiate talks with the main stakeholders, Sabarimala priests and the Pandalam royalty which was rejected by them. The government insists that they will not file a review petition and would ensure that the visit to Sabarimala by women devotees who want to go there will be facilitated. Meantime at least five review petitions have been filed. Only time and the Supreme Court would say what ultimately would happen.

The Supreme Court seems to have gone by the letter of the Constitution and the law in lifting the ban of entry to all women. The spontaneous outpouring of emotions of the Ayyappa devotees into massive street protests may not have been a consideration. That raises a major question. In matters of traditional customs and faith of a region in this vast country where sentiments have a great role to play what should be the approach of law? Of course, if a matter comes before the court for adjudication, emotions and sentiments may take a backseat and the matter may be decided on the Constitution and the law. At the same time popular sentiments, religious customs and practices cannot be overlooked. There is sagacity in the dissenting judgment and the spirit of the constitution and the law were reflected in the judgment of Justice Indu Malhotra. One is of the considered opinion that in dealing with people’s faith and tradition the spirit of law also needs to be considered.

It is worth recalling that in the popular agitation for entry into temples for the lower sections of the society or the so called untouchables in the 1920s the Savarnas or upper castes [especially the Nair Service Society or NSS headed by Mannath Padmanabhan ] joined the Vaikom Satyagraha spearheaded by T K Madhavan and others with the blessings of Shri Narayana Guru, in which Gandhi ji himself had participated. The outcome was the signing of the Temple Entry Proclamation which threw open temples to everyone. Is it not another contradiction that the Sabarimala issue is about lifting of ban on entry to one group of women?

As one completes this piece it is learnt that a three judge Bench of the Supreme Court on Tuesday has declined urgent hearing on plea seeking review of the Sabarimala temple verdict.