The core of ‘Dharma’ is neither gender-biased nor caste-specific. To argue this in a court of law is not easy. However, this is the crux of former Attorney General for India Mr. K. Parasaran’s argument before the apex court, when he put forward the concept of Dharma, citing Lord Ayyappa’s unique nature as a ‘Yogi’, which he argued is “not misogyny.” “Courts cannot reform a religious faith out of its own identity. Doing this will infringe the rights of devotees under Article 25(1),” he said. He had also argued that Article 25(2) deals only with secular aspects, not religious practices and that the custom is protected under Rule 3(b) the 1965 Rules. Meanwhile, the deity’s legal right as a juristic person formed the crux of counsel Mr. J. Sai Deepak’s argument. He referred to the Supreme Court judgment in Bishwanath and others vs Thakur Radhaballabhji & Others, 1967 AIR 1044, where the apex court held as follows: “An idol is in the position of a minor, when the person representing it leaves it in a lurch, the person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.” The apex court had then held in this judgment, “An idol is a juristic person in whom the title to the properties of the endowment vests.”
Women’s Entry into Sabarimala: Arguments pertaining to Article 17 of the Constitution of India
A pertinent point in Justice Indu Malhotra’s dissenting judgment is that no aggrieved devotee approached the apex court against the practice. She cautioned courts from allowing ”interlopers” to file PILs challenging religious practices.She has also stated that in matters pertaining to religious practices, Article 14 can be invoked only by those persons belonging to the same sect, faith and creed, not at the behest of individuals who do not follow the faith. Further, Justice Malhotra also rejected the arguments linking ‘untouchability’ to women’s exclusion on the grounds that, “all forms of exclusion would not tantamount to untouchability.
Article 17 pertains to untouchability based on caste prejudice, Literally or historically, untouchability was never understood to apply to women as a class…also relevant to mention that the counsel for the State of Kerala did not support this submission. The analogy sought to be drawn by comparing rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable.” Justice Malhotra added that not even one precedent has been shown by the petitioners to interpret Article 17 in the manner that they have contended.
Given the juristic aspect of the deity’s personality which is accepted in Indian law, the question is: what makes a temple such as Sabarimala unique in terms of the exclusion it stipulates for women belonging to a certain age group? The only way to determine the “Essential practices test” before a court would be with reference to the practices followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practice in a particular temple can be traced to antiquity, and is integral to the temple, it is to be taken as an essential religious practice. However, Justice DY Chandrachud stated in his concurring judgment, referring to the values of dignity, liberty and equality,that practices or beliefs which detract from these foundational values cannot claim legitimacy. In his judgment, he also stated that excluding a woman from the right to worship is at odds with constitutional values.
From a constitutional and academic perspective, we have examined some legal precedents in the context of religious customs and practices. Next, let us understand this from another school of thinking – Dharma, which is an accepted concept in Indian law.
Sabarimala temple row: Treatment of ‘purity’ and ‘impurity’ in scriptural references
Any custom of the Hindu religion is deemed to stand the test of time only when it is deemed to be “essential” and vouched for by the saints and sages that interpreted the religion’s scriptures such as the Puranas, the Itihasas, the Dharma Shastras and when it is followed for centuries by the followers of the religion.
A closer look at the treatment of ‘purity’ and ‘impurity’ in scriptural references warrants a detailed legal analysis to probe whether these are practices essential to the religion. For instance, ‘menstruation’ and the religious practices have the authority of the Vedas. Yet, various scriptures refer to menstruation as merely one aspect or category pertaining to ‘purity’ and ‘impurity’. There are many other categories pertaining to ‘purity’ that apply to men as well. For instance, in the event of a death in the family, the period of ‘impurity’ applies to men and women but the actual period of ‘impurity’ depends on the individual’s relationship with the deceased, irrespective of gender. The authority of the Vedas is relevant in law because it is deemed to embody ‘Dharma.’
This brings forth another question from a legal and academic perspective: What is Dharma and how is it relevant to the debate on women’s entry?
Read: Former Chief Justice of India Dipak Misra had to say on “What is Dharma?” and Hats off to K. Parasaran’s profound knowledge of Constitution and Dharma, says N Venkataraman, Senior Advocate
Women’s Entry into Sabarimala Temple: What is a ‘Vratha’?
The Sabarimala Temple’s presiding deity is worshipped as a ‘Yogi’ and ‘Naisthika Bramhachari’. To undertake the pilgrimage to the shrine, a 41 day vratha is prescribed. For the layperson, a ‘Vratha” is defined in the Vedas as follows: “Acts that generate punya (spiritual merit/religious merit) for the individual.” A ‘Vratha’ also includes “upavasa”, which means the individual has to abstain from various enjoyments and the time spent in such a manner is referred to as ‘upavasa.’ The principle of ‘vratha’ applies to menstruating women and it also comes into effect in terms of the exclusionary aspect in scriptural references. Another essential aspect is the concept of ‘Apana’ that has detailed references and commentaries, not only in the Vedas and Upanishads but also in the ‘Ashtanga Hridayam’ of the Ayurveda. Simply put, the concept of ‘Apana’ refers to bodily functions that cause matter to be pushed out from inside the body such as urination, excretion, menstruation, delivery of a child. A detailed commentary on the importance of ‘Apana’ and its link with maintaining internal and external purity is comprehensively covered in well-known texts such as the Kashyapa Samhita, Sushrutha Samhita, Charaka Samhita, Shargadhara Samhita and Ashtanga Hridya.
Referring to the landmark case of Shirur Mutt 1954 SCR 1005, Justice Indu Malhotra in her dissenting judgment on women’s entry into Sabarimala temple ,
cited the above mentioned case and the apex court judgment as follows, ” What constitutes an essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” She also cited the apex court judgment in Ratilal Panachand Gandhi vs The State of Bombay, 1954 SCR 1055, where it is stated that no outside authority has any right to say these are not the essential parts of religion and it is not open to the the state to restrict or prohibit in any manner they like under the guise of administering.
According to Justice Malhotra, Article 14 (equality) can be invoked in religious matters only by persons who are similarly situated, that means those persons who are belonging to the same faith, creed or sect. She also says that the right to practice one’s religion is a fundamental right guaranteed to citizens as per Part III of the Constitution, without reference to whether religion or the religious practices are rational or not.
However, according to Justice DY Chandrachud’s concurring judgment in the Sabarimala case, a practice that is claimed to be essential must be such that the nature of the religion is altered in the absence of that practice.
Read: Sabarimala Temple Case: Legislature is Bramha, Executive is Vishnu and Shiva is Judiciary, says K Parasaran
Technical details of the apex court judgment in Ratilal Panachand Gandhi vs The State of Bombay has also been elaborated in Justice RF Nariman’s concurring judgment in the Sabarimala case. He has stated that in this particular case pertaining to Sabarimala, “Reasons that have been given for barring entry of menstruating women are considered by worshippers and Thanthris alike, to be an essential facet of their belief.”
Also Read: Sabarimala temple: 560 women devotees register online for prayers as hill shrine reopens on November 17
Further, he has dwelt upon the findings of the famous Mulki case, namely, Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors.,1958 SCR 895, where the apex court laid emphasis on the fact that as per the ceremonial laws that pertain to temples, those who are entitled to enter for worship and where they are entitled to stand and worship as well as how to worship are matters of religion. Referring to paragraph 66 of the judgment pertaining to customs followed at Kamkhya temple in Riju Prasad Sarma and Ors. v. State of Assam and Ors, (2015) 9 SCC 461, Justice RF Nariman points out as follows in his concurring judgment pertaining to Sabarimala, “However, social reform legislation, as has been seen above, may go to the extent of trumping religious practice, if so found on the facts of a given case.”
To conclude, it can be stated that a perusal of various precedents and landmark judgments compel us to look at different legal, constitutional and religious aspects that pertain to the Sabarimala temple row. With review petitions coming up before the apex court next week, many challenges emerge for members of the Bar and the Bench in terms of the challenges in the interpretation of law while ascertaining the scope and legitimacy of religious practices and customs that have been synonymous since time immemorial with religion and as an essential component of religious worship.