What Justice Malhotra’s dissenting verdict on Sabarimala gets wrong

Is it really true that the practice of denying entry to women is part of a long-held tradition?

WrittenBy:Anand Kochukudy
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The historic verdict of the Constitution bench of the Supreme Court lifting the ban on women of certain age groups from entering the Sabarimala temple was, more or less, on expected lines. The judgment puts an end to a discriminative practice perpetuated by myths and legends over the years. It’s also significant for gender parity as it comes a day after the judgment decriminalising adultery. However, Justice Indu Malhotra, the only woman judge on the bench, penned a strong dissenting verdict.

The majority verdicts delivered by Chief Justice of India Dipak Misra and Justice AM Khanwilkar and the concurring judgments of Justices RF Nariman and DY Chandrachud were unanimous in their view that the practice barring women of menstruating age from entering the 800-year old temple was unconstitutional, illegal and arbitrary. CJI Misra contended that patriarchal notions cannot be allowed to trump equality in devotion. The clinching factor in the case is the conclusion that devotees of Lord Ayyappa do not constitute a separate denomination.

Justice Indu Malhotra’s dissenting judgment needs careful reading. According to her, “In a secular polity, matters of deep religious faith and sentiment must not be ordinarily interfered with by courts”. Also, the question of a separate denomination cannot be decided without a proper trial as it “is a mixed question of law and fact”. Apart from justifying the discrimination against women by characterising it as a matter of faith and plurality, Justice Malhotra also differed with Justice Chandrachud’s assertion that this practice amounted to untouchability. However, most of her deductions emanate from the idea that the practice of denying entry to women has been followed diligently for centuries and is part of a long-held tradition.

A cursory reading of the 1991 Kerala High Court verdict upholding the ban in the first place would disprove that deduction entirely. The Travancore Devaswom Board (TDB) and the chief secretary (representing the state of Kerala) had been arraigned as respondents in the case and they had defended the presence of the women at the temple. The affidavit of the Devaswom board, which is a matter of public record, said, “For the last 20 years, woman irrespective of their age were allowed to visit the temple when it opened for monthly poojas. They are not permitted to enter the temple during Mandalam – Makaravilakku season (November-January).”  

Rajagopalan Nair, former president of the Devaswom board, says, “There are records to prove that women were admitted in the temple through the years. The Devaswom board had submitted receipts of the first rice-feeding ceremony (choroonu) of children in the court to substantiate this.”  Recently, TKA Nair, Manmohan Singh’s former principal secretary, had written about his rice-feeding ceremony attended by his mother in her youth in the 1940s. There is also recorded evidence of the Queen of Travancore visiting the temple in 1940, accompanied by the Maharaja and Divan. Although there was fewer of women visiting the temple, they did go to Sabarimala over the years. So, one thing is clear—the ban on the entry of women in Sabarimala strictly came into force only after the Kerala High Court verdict of 1991.

According to Nair, vociferous temple spokespersons like Rahul Easwar (grandson of the senior priest Kandararu Maheswararu) cleverly revived the “Naishtik Brahmachari” argument underscoring the celibacy argument of the deity. Nair says, “And what do you mean by Naishtik Brahmachari, literally speaking? As far as I understand, it only means a disciple under apprenticeship who follows the mentor around; it has nothing to do with celibacy. If Ayyappa’s status as a celibate was indeed the issue, then how can the Malikappurathamma temple be part of the same temple complex?”

It looks like the only rationale behind denying women the chance to visit Sabarimala was the “impurity argument” (based on menstruation) as a 41-day observance of penance was mandated for devotees, and women were considered physiologically incapable of achieving it. On realisation that this argument wouldn’t stand the test of Articles 14 and 15 of the Constitution, respondents tweaked it to give prominence to Ayyappa’s status as a celibate.

But Justice Chandrachud had the perfect riposte in his judgment: “The ban says the presence of women deviates from celibacy. This is placing the burden of a man’s celibacy on women. It stigmatises them and stereotypes them.” Moreover, if women of all ages could visit the temple for five days barring the November-January season till 1990, does the celibacy argument hold any relevance?

Justice Malhotra quoted literature to bolster her judgment: “In the present case, the celibate nature of the deity at the Sabarimala Temple has been traced by the respondents to the Sthal Purana of this Temple chronicled in the ‘Bhuthanatha Geetha’. Evidence of these practices are also documented in the Memoir of the Survey of the Travancore and Cochin States written by Lieutenants Ward and Conner published in two parts in 1893 and 1901.” But a case can equally be made of the fact that there is no mention of Sastha or Ayyappa in the major Hindu Puranas or epics. The “Bhutanatha Geetha” is only as old as the 19th century (although the temple is more than 800 years old). But if literature were to be a criterion, then the “Travancore State Manual” also has a record of the Travancore king directing the Nilackal temple priest to do weekly puja at Sabarimala following its abandonment by the Pandalam dynasty in the early 19th century.

In her verdict, Justice Malhotra wrote, “The practice of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple. Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. In the present case, the character of the temple at Sabarimala is unique on the basis of centuries-old religious practices followed to preserve the manifestation of the deity and the worship associated with it. Any interference with the mode and manner of worship of this religious denomination, or sect, would impact the character of the Temple, and affect the beliefs and practises of the worshippers of this Temple.” This conclusion is without sound basis and is merely a reiteration of the plea of the temple Thanthri. Her deduction that the devotees of Sabarimala temple constitute a “religious denomination or sect” is also without any foundation.

An argument can certainly be made about the court’s ambit over religious practices and how far they can go. But then, customs and traditions do change with the times. Justice Malhotra’s argument on the jurisdiction of the petitioners of this case (as opposed to devotees) challenges the legitimacy of PILs in the country as a whole. Moreover, viewing such a blatant discriminative practice through the angle of diversity and pluralism is unacceptable.


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