Currently, the Supreme Court of India is hearing a PIL filed by India Young Lawyers Association and Others regarding the ancient practice at the Sabarimala Swamy Ayyappa temple in Kerala wherein women aged between 10 and 50 are disallowed from entering the shrine. The petitioners of this case claim that not allowing women into this temple is tantamount to discrimination against them and therefore violative of their Constitutional rights.
As of July 2018, the PIL has reached the final stages where in the parties involved are submitting their arguments before the 5-judges bench hearing the petition. The primary respondent to the PIL is the State of Kerala. A number of individuals and organizations have entered this case as intervenors as they are interested parties in the matter due to one reason or the other. The Tanthri of the Sabarimala temple, the chief archaka, has entered as a respondent. Nair Service Society, an NGO has similarly intervened in this petition. Two organizations – People for Dharma and Chetana – also intervened in the petition. The Advocates representing these two organizations are Sri J Sai Deepak and Sri M S Suvidutt.
After the hearing of the arguments by the Petitioners who have engaged some stalwart senior Advocates such as Indira Jaising, the Supreme Court initially heard the arguments of the Advocate for the Travancore Devasom Board – Mr Abhishek Manu Singhvi – and the senior Advocate for Nair Service Society – Sri K Parasaran. Both these senior and experienced Advocates made powerful and compelling submissions to the bench urging them to dismiss the PIL and ensure continuance of the prevailing tradition.
On the 26th of July, after initial submissions by Advocate K Radhakrishnan, who appeared for the Kerala Pandalam royal family, the family into which Swamy Ayyappa himself was born, and the submissions of Advocate Giri who appeared for the Tanthri, the bench heard the arguments of Advocate Sai Deepak appearing for People For Dharma and Chetana. Sai Deepak made multiple compelling and logical arguments, supported by numerous evidences and backed up indisputable facts. Sai Deepak answered every question posed by the bench with convincing responses. At the end, the Chief Justice of India – Justice Dipak Misra – showered high praise on Sai Deepak and thanked him for educating the bench on numerous facts related to the temple, the tradition and the practice in question. Justice Nariman also profusely thanked Sai Deepak for highlighting numerous relevant facts of the case.
Along with the verbal arguments, People For Dharma also submitted written evidences to the bench. The arguments made orally have been well documented in the written submissions. In addition, a number of references from the agama scriptures, relevant proclamations of the Travancore Devaswom Board and material highlighting the campaign in favour of the practice by thousands of Hindu women were also placed on record before the bench.
This article attempts to summarize the arguments made by People For Dharma, and also makes an attempt to understand the background into the arguments. The focus of this article is to highlight the submissions and the written arguments in as much a non-legal way as possible so that readers without a strong legal background may also understand the extra-ordinary arguments put forth by Sai Deepak and Suvidutt M S. The arguments will be summarized in the order given in the written documents submitted to the bench. In addition, the contents of the live-tweets put out by People For Dharma during the course of the arguments on the 26th of July will be heavily relied upon.
Questioning the locus standi of the Petitioners vs People For Dharma
The arguments initially focus on the fact that the organization that filed the PIL seeking to remove the practice has no evident connection with Hindu dharma or rituals, and even less so with the Sabarimala temple. The Petitioners have no regard for the traditions of the temple, it was stated. On the other hand, People For Dharma (PFD), the intervenors, has the backing of thousands and thousands of temple-going, traditional Hindu, and even Christian women, who strongly believe in Swamy Ayyappa and specifically in the practices of the Sabarimala temple. The arguments draw attention to the ‘Ready To Wait’ campaign run by the intervenor, in which thousands of women participated and declared their readiness to firmly abide by the current tradition. Videos, photos and other forms of messages were issued by the participant women in which they declared their support for the restriction on entry of women of certain age. The Advocates for PFD submitted relevant newspaper and social media reports related to the success of the campaign as an annexure to the submissions.
Thus the fact that the tradition enjoys immense ground support from women who are directly affected by the practice and the fact that those opposing the practice were just a handful of prejudiced activists with no ‘skin in the game’ was clearly articulated to the bench.
PFD then submitted that the correctness, or otherwise, of the prevalent practice cannot be decided by the claimed popularity or political correctness of a view. Otherwise, every practice or tradition would stand the risk of being revisited through a public poll! Advocate Sai Deepak submitted that in order for the right answers to be obtained for the 5 questions framed for the Constitution Bench, the following would be the key question that would have to be answered.
If the practice is indeed an essential part of the tradition of the temple, can it be deprived of the protection it gets from
- Rule 3(b) of the Kerala Hindu Places of Worship Rules 1965
- Proviso to Section 3 of the Kerala Hindu Places of Worship Act 1965
- Article 26(b) of the Indian Constitution
Sai Deepak categorized the arguments to arrive at the right answer to the above question into 8 sub-questions and argued under each of the sub-questions.
- Is the practice in question an essential part of the tradition of the Temple? What is its basis? Is the practice based on notions of impurity of women during menstruation (as alleged by the petitioners)?
It was submitted that the petitioners, through their esteemed counsel, had made absolutely no efforts to highlight to the bench whether or not the practice was an essential one. The focus of the petitioners should have been to prove that the practice was not essential. Instead, their arguments revolved around academic discussions of Constitutional provisions. Sai Deepak cited several Supreme Court judgements, such as the Shirur Mutt case, the Sardar Syadna Taher case and the Tilkayat Shri Govindaji Maharaj case to establish that it is imperative on the part of the court, while deliberating over such issues, to establish whether or not the practice in question is an essential one. Sai Deepak brought to the notice of the bench how, in the adjudication of the very same issues, the Kerala High Court had summoned the Tanthri of the Sabarimala temple to establish the essentiality of the practice. The copy of the 1991 Kerala High Court judgement in this issue was submitted as an annexure.
The following were the key points highlighted by Sai Deepak by copious citing of the above judgements.
- It is the Tanthri of the temple who has primacy in deciding matters related to tradition, customs and rituals and NOT the Devaswom Board, which is just managing the temple.
- On many tricky issues, even the Tanthri is not in a position to ascertain the way forward. In all such situations, a ‘devaprashnam’ must be resorted to (an astrological instrument). The Kerala High Court judgement specifically accepts the legality of this method.
- The practice in question has been based on ancient Hindu scriptures such as the ‘Tantrasamuccharya’ which provides explicit guidance on rules and rituals in Kerala temples.
- The ‘sthala purana’ or local history of the Sabarimala is available in a work called Bhoothanatha Upakhyam. This reference declares that the deity at Sabarimala is the celibate form of Ayyappa. Hence there is a need to maintain extreme celibacy even in the rituals of worship of this form of the deity.
- The practice of women not being allowed inside is derived on this requirement of the deity who is a ‘naishtika brahmachari’ and is in NO way based on notions of impurity of women during menstruation.
- There are other Ayyappa temples in Kerala itself – such as the ones in inAchankovil, Aryankavu and Kulathupuzha – where the deity is not in a celibate form and therefore there are no restrictions on women.
Sai Deepak specifically highlighted how the petitioners ignore these critical facts, accepted by the Kerala High Court, which clearly establish that the primary driver for the practice has been the celibate nature of the deity. The attempt of the petitioners to misguide the bench by bringing in unwarranted focus on impurity related reasons, it was explained, was possibly an attempt to misguide.
A number of scriptural evidences, including relevant extracts of Sri Sridhara Swami’s commentary on the Srimadbhagavatam and passages explaining the requirements of celibacy from various Dharmasutras were submitted to the bench. In addition, Sai Deepak pointed out that the concept of celibacy is applicable to women too and such women, who are known as ‘Brahmacharinis’, are required to keep distance from men just like how Brahmacharis are expected to do so. This fact totally demolishes the allegations of misogyny hinted by the petitioners.
It was then brought to the notice of the bench that even the men who visit Sabarimala have to undertake a 41 day ‘vrata’ which includes abstinence during the entire period. Sai Deepak summarized for the benefit of the bench that the practice therefore is rooted in scriptural prescriptions, which were different for different genders but applicable to both. Therefore these sorts of conditions were perfectly reasonable and certainly not unequal. “Difference is not discrimination and is certainly not amount to inequality”.
Since the practice is based completely on the celibate nature of the deity, it is an absolutely essential part of the temple’s fundamental charter of faith and constitution.
- Agamas are to be accorded primacy in religious matters involving tradition and rituals in Hindu temples.
- The rights accorded under Articles 25 and 26 of the Indian Constitution extend to religious practices also.
- Are there examples of Hindu institutions restricting men from entry due to local customs? Therefore if the relief sought by the petitioners were to be granted, would it end up destroying the religious diversity of the country?
Sai Deepak addressed this question by submitting numerous references available from online sources that clearly establish the fact that men are prevented from entering temples in many cases. Examples of the Chengannur Mahadeva Kshetram and the Kamakhya Temple in Assam were provided to substantiate this claim. The example of the Panchubarahi in Odisha was cited to show how men have not been allowed access to the temple for nearly 400 years now (except for one occasion).
Thus it was summarized that a one-size-fits-all approach in the case of Hindu denominational institutions can only cause grave injustice to the religious diversity of Hindu religious practices.
- Does the Sabarimala temple fall under the category of a religious ‘denomination’ thereby attracting the protection of Article 26 of our Constitution? Just because the temple is ‘public’ in nature, can these rights be deprived to the institution?
Sai Deepak placed reliance on the Kerala High Court judgement in the related matter to prove that the Sabarimala temple is indeed a religious denomination under Article 26. The section of the judgement which explicitly acknowledges such a character of the Temple was reproduced in the submission.
Further, a huge number of previous Supreme Court judgements were cited to show how the Kerala High Court findings are in perfect sync with Constitutional principles. Some of the judgements cited were Shirur Mutt case, Sri Venkataramana Devaru case, Durgah Committee Ajmer case, Sardar Syedna Taher case, Tilkayat Shri Govindlalji case, Shri Sajjanlal Panjawat case, Acharya JagadishwaranandAvadhuta case, Nallor Marthandam Vellalar case, Dr Subramanian Swamy case and the Adi Saiva Shivachariyargal case.
Sai Deepak further argued that the denominational nature of the Temple is not damaged by the fact that the institution is public in nature. The rights available via Article 26 are not dependent upon whether or not the Temple is a public one. At this juncture, during the oral submissions, the Chief Justice of India posed several questions trying to understand the submissions of Sai Deepak. The questions revolved around how Ayyappa devotees would constitute a denomination when there was no ‘sect’ and also because the devotees come from different faiths and even religions. Sai Deepak argued strongly that the denominational character of an institution is not something a court bestows. The status comes from within the community. Sai Deepak’s submissions to prove this point were chiefly the following
- All of the Ayyappa devotees place immense faith in the deity
- The devotees comply with the traditions and beliefs of the place
- The chief priests of Sabarimala follow a tradition informed by the deity
- The vow undertaken before the visit, the dress worn, the rituals performed are all distinct markers of the identity of the denomination.
- The owner of the Temple is the deity. The presence of the deity, sourced from the prana-prathistha ritual, is not influenced by the public nature of the place.
Hence, it is established that Sabarimala Temple is a religious denomination qualifying for protection under Article 26.
Sai Deepak argued, with strong logic, on how a rigid test for denomination by connecting it with public status would deprive almost every other religious institution also of their status, such as for example even the Ajmer Chisti Dargah. Sai Deepak concluded this section of the arguments by stating that even if it was insisted that Sabarimala Temple would not qualify as a religious denomination, the rights under Article 25(1) of the Constitution itself would be sufficient to protect it, on the premise of the nature of the deity that was laid out earlier. The CJI agreed to this submission!
- Does the presiding deity of Sabarimala – Swamy Ayyappa have rights under the Constitution? If yes, does the deity’s right trump the rights of the devotees?
Sai Deepak made a strong argument that the deity of Sabarimala was indeed a legal entity, and ought to be considered as such in the present petition. He produced relevant extracts from various time periods in our legal jurisprudence to show how Indian courts have always recognized deities as legal entities. Some of the citations produced were from the Pramatha Nath Mullick vs Pradyumna Kumar Mullick case of 1925, the Yogendra Nath Naskar case and the Ram Jankiji Deities case.
The crux of Sai Deepak’s arguments under this question were as follows
- The deity at Sabarimala is indeed a legal person, as evidenced by the citations.
- The deity, therefore, enjoys Constitutional rights under Articles 25(1), 26 and 21.
- Article 21 gives the right of privacy to the deity, under which the deity’s right to undertake the vow of celibacy and maintain a strict form of it as ‘naishtika brahmachari’ is guaranteed.
- The traditions of the Temple, through these practices, are nothing but the attempt to preserve the will of the deity (which is to observe naishtika brahmacharya).
- The State is bound to protect these rights of the deity.
- Therefore, the rights of the devotees are naturally subservient to the rights of the deity.
At this junction, an interesting argument was put forward – by citing the Shri Thakur Radhaballabji case, that it is mandated upon the caretakers of any Temple to protect its traditions and rituals. In the event of the management (the Shebait) failing to do so, the devotees have the right to take legal action for protecting the deity’s rights. It is this precise right that People For Dharma have exercised and become intervenors in the present case!
- Can anyone assert their own rights under Article 25(1) to ensure the traditions protected under Article 26(b) are ignored?
The religious rights guaranteed under our Constitution can be summarized, at a high level, as follows
Article 25(1) – Individual rights
Article 26 – Denominational rights
Article 25(2)(b) – Leeway to the State to bring about social welfare and reform of Hindu Temples
Sai Deepak argued convincingly that the rights under Article 26 have to be necessarily viewed as carrying more weightage than Article 25(1). Otherwise, the State could use its privilege under Article 25(2)(b) to reform any denominational institution out of existence. This in turn completely neutralizes the very purpose of granting denominational rights.
Both in the written arguments, and during oral submissions, Sai Deepak gave examples of some extreme possibilities that may arise if individual religious rights are given primacy over denominational rights. A person may demand that he be allowed to offer a non-vegetarian ‘prasad’ to a deity since it is his personal preference. Similarly a Muslim may want to offer non-halal food as Tabarruk and a Sikh may want to offer tobacco-laced or non-jhatka meat. Thus, the distortions that can be brought about have the potential to completely destroy the identity of the denominational institution.
At this stage, the arguments of the petitioners that not allowing women amounted to untouchability was also dismissed with evidence. Sai Deepak showed how untouchability only applied in cases of caste and religion based discrimination and the present case simply did not qualify.
- Can the Supreme Court, or the State via the Places of Worship (Special Provisions) Act, alter the identity of any religious denomination on the pretext of ‘reform’ and gender equality?
Sai Deepak placed reliance on the excellent judgement in the Sardar Syadna Taher case to show that there is no provision for either the courts or the State to alter the identity of a religious denomination. In the quoted case, the Supreme Court upheld the power of excommunication that a community like the Dawoodi Bohra sect can wield – stating that there was no provision to strike down such provisions which are in vogue to preserve the nature and identity of the Bohras.
Similarly, in the present case, since the deity shall no longer remain a naishtika brahmachari if women were allowed inside, the identity of the denomination Temple is bound to be altered. Hence neither the court nor the State could mandate such a change.
- Is the Travancore Devaswom Board a part of the ‘State’? Even if yes, would it deprive the temple of its rights under Article 26?
Sai Deepak placed reliance on the historical developments that led to the ‘State’ taking over management of the Sabarimala, and certain other, temples. The princely state of Travancore had, prior to Independence, taken over these temples in return for a perpetual annuity to be paid. During Independence, the princely state of Travancore merged with India, and its obligations got transferred to the Indian State. Therefore, it is not a grant being made by the State but an obligation being fulfilled. Even otherwise, as argued earlier, the denominational nature of an institution cannot be taken away by the State merely because it is funding the same.
- Can the language of the Travancore Devaswom Board notification be used as an excuse to strike down Rule 3(b) of the Kerala Hindu Places of Worship Rules 1965 and conclude that the practice is discriminatory?
Sai Deepak highlighted the following facts under this sub-question.
- The practice of not allowing women inside was based on the deity’s preferences.
- The practice was backed by scriptural mandate.
- Rule 3(b) of the Kerala Hindu Places of Worship Rules 1965 only put the tradition in vogue in writing in the form of a rule.
- The notification by the Kerala Government was only intended to give effect to the rule
The notification mentioned ages 10 and 50 as the cutoff limit on either side of a woman’s age when entry is permitted. While agreeing that this notification may not have been worded well, given that some girls may enter menarche even before 10 years and some women can continue to be reproductive after 50, the notification can appear to be discriminatory. However, even at best, it is only the notification which is wrong – and not the rule – which is based on tradition. Mere wrong or insensitive wording does not dissolve the fact that the restriction is chiefly derived out of the deity’s wishes. The right approach to correct this issue is to have the Board re-issue the notification and make it better-worded!
Thus a number of arguments were placed before the Supreme Court 5-judge bench by the Advocates of People For Dharma. The arguments were logical and full of rhetoric, yet based on facts and evidence. In the end, the bench was left very impressed with the acumen of Sai Deepak and Suvidutt M S, as expressed by the CJI and Justice Nariman on more than one occasion.
In a few weeks’ time, the judgement in this case is likely to be delivered. One can only pray to Swamy Ayyappa that he blesses the efforts of People For Dharma, and their Advocates, and ensures a favorable verdict!