Sabarimala Row: Can Sentiment Be Placed Above Constitutional Morals?

The constitutional bench overturned the Kerala High Court verdict that had banned the entry of women aged 10-50 since 1991. The majority view held that Ayyappa was not a religion or religious denomination under Articles 25 and 26 of the Constitution and, therefore, the practice of restricting the entry of menstruating women was violative of Article 14 (equality) and Article 15-1 (non-discrimination).

The protesters are followers of Ayyappa, whose lawyers failed to satisfy the three-point test for constitutional protection of the practice. The first req­uirement is that the sect in question is a religion or religious denomination; second, that the practice seeking protection must be an essential practice of that religion/religious denomination; and third, that it is not in derogation of public morality, safety or health.

The protests are on shaky legal ground. All the lawyers and jurists Outlook spoke with concurred that a Supreme Court judgment is universally binding. Constitutional expert Arvind Datar points out that contempt action requires a complaint and the 바카라�contemnor바카라� must be clearly identified. 바카라�I don바카라�t know if there is wilful disobedience of the Supreme Court바카라�s order here and that is a sweeping statement to make. Besides, 200-300 women have also ­applied for passes already. There are ­several instances when SC orders are not complied with such as in the Cauvery river water-sharing case, but these are not discussed so widely in the press,바카라� says Datar, who appears for the Maharaja of Pandalam, the 바카라�foster ­father바카라� of Ayyappa and a party to the Supreme Court case.

바카라�The Supreme Court바카라�s decisions are enforced under Article 141 and Article 144, and all authorities must come to the aid of the court in enforcing its verdict,바카라� says Congress leader and senior lawyer Manish Tewari. 바카라�When there is a conflict between the law and established customs and practices that predate legalities by centuries, there is bound to be some tension.바카라�

The Kerala government has tried to enforce the order and keep the protesters at bay, some of whom have been ­arr­ested. The Supreme Court has not backed down against the wave of popular sentiment against its verdict. It has passed an order specifically stating that there is no stay order against the verdict while it hears a petition to review it.

바카라�The fact that your or my view or that of the judge is at variance with a ­religious practice is irrelevant under Articles 25 and 26 (freedom of relig­ion),바카라� says Congress leader and Rajya Sabha MP Abhishek Manu Singhvi, who was lead senior counsel for the Travancore Devaswom Board. 바카라�Once it is established that the practice belongs to an identifiable religion or religious denomination, the second test is the ess­entiality test바카라�whether that practice is an essential part of the religious den­omination. Once these tests are satisfied, Articles 25 and 26 require the courts to have a hands-off approach. We produced a surfeit of material to show that Ayyappa constituted a distinct religious denomination. Secondly, the Sabarimala deity is a unique Ayyappa temple, out of more than 1,500 Ayyappa temples, which worship a naishtik brahmachari on the basis of excluding certain persons within an age bracket. Thirdly, the exclusion was not gender-based, but an intrinsic part of the beliefs and practices attaching ­intrinsically to the deity himself. These three tests haven바카라�t been correctly ­answered by the court.바카라�

In its verdict, the Supreme Court found otherwise, except for the lone dissenting opinion of Justice Indu Malhotra, who agreed that Ayya­ppa is a separate religious den­omination. In his judgment, Justice D.Y. Chandrachud wrote: 바카라�The social exclusion of women, based on menstrual status, is but a form of untouchability, which is an anathema to constitutional values.바카라� That seems to have struck a discordant note with popular sentiment. The debate around the verdict has also examined whether the ban on the entry of menstruating women creates an inequality.

바카라�Malhotra바카라�s judgment doesn바카라�t have a point,바카라� says lawyer and scholar Kalp­ana Kannabiran. 바카라�Some said you can바카라�t use Article 17 (proscribing untouchability) to talk about women바카라�s entry. But if there is an unreasonable proscription based on the ­ideology of purity and pollution, there is a form of untouchability. You cannot justify denial of entry using this purity-pollution because that gives a front-door entry to Brahminism.바카라�

The timing of the verdict and of the proposed review is also being quest­ioned, coming ahead of the Lok Sabha elections next year. 바카라�Though the Supr­eme Court hadn바카라�t expected this kind of response, the verdict바카라�s timing was wrong,바카라� says lawyer Flavia Agnes.  바카라�It could have been postponed for some more time.바카라�  There has been quite a bit of political upheaval since the protests in Kerala. 바카라�What has followed the verdict is no different from what is happening in Pakistan in the Aasia Bibi case, where all the fundamen­talists are trying to overturn the judg­ment in the name of religion, causing mayhem,바카라� says CPI(M) leader Brinda Karat. 바카라�The RSS and the BJP are doing the same thing by defying the Sup­r­eme Court. And Shashi Tharoor, who claims to be a liberal intellectual, uses the same argument as the RSS and says religion is higher than the court. In Kerala, Amit Shah seems to be the leader of the Congress.바카라�

Shah, the BJP national president, has backed the protesters, as have several Congress leaders, surprising many. 바카라�Invariably, all issues of constitutional law ultimately end up in politics,바카라� says Singhvi. 바카라�There is no question of any coordinated convergence between the BJP and the Congress, nor indeed among any of the Left parties in that state. It just happens that there is a strong feeling that the judgment is wrong, and it may be shared by a few parties despite being on opposite sides of the political spectrum. Equally, it may not be shared among parties that may otherwise be on the same side of the spectrum. This is pure coincidence.바카라�

바카라�The Supreme Court decision should have been accepted by all political parties,바카라� says former Union minister Yashwant Sinha. 바카라�The worst case is of the Congress, where Rahul Gandhi talks one language and his local unit another language. The BJP is ind­ulging in cheap politics in Kerala by inciting ­people against the court. Prime Mini­ster Narendra Modi is quiet about this issue, though he had welcomed the Triple Talaq verdict바카라�this shows his liberalism is only for Muslim women, not for Hindu women. However unpalatable the court order is, we should accept it. This is in preparation for the future, for instance, Ayodhya바카라�it is a dry run for the Ramjanmabhoomi.바카라�

Others point out that the Sabarimala issue is one of its kind바카라�unlike the Ayodhya dispute over land title bet­ween Hindu groups and Muslims, or the Triple Talaq judgment and bill add­ressed a gender imbalance within the Muslim community couched within a regressive practice. 바카라�Amit Shah was waiting for a judgment like this to enter Kerala,바카라� says sociologist Shiv Visva­nathan. 바카라�The Supreme Court should have postponed this judgment by at least six months, and followed it up by a dialogue with Hindus. Some judgments need legal panchayats for the community to get used to them.바카라�

Clearly, few issues involving gender have gripped public debate as much as Sabarimala. Several feminist scholars have taken a stand in favour of the Supreme Court verdict, vocally so since the protests that followed. Many feel popular sentiment cannot be placed above constitutional morals, and that it would amount to turning back the clock on the progressive stand taken by the Supreme Court.

바카라�The protests are openly political in motivation, though thinly disguised as an expression of people바카라�s faith,바카라� says publisher Ritu Menon. 바카라�There is false contradiction posed between faith and adhering to the law, as if you cannot be faithful if you uphold the law. This is patently absurd. There are thousands of women, in Kerala and outside, who do not support the protests, and thousands who wish to pray at the temple바카라�are they all unfaithful? Not religious? In my view, they are the silent majority, and the Supreme Court has ruled ­correctly, because it has upheld everyone바카라�s right to worship.바카라�

바카라�The gates are actually breached,바카라� says Kannibaran. 바카라�The time for Saba­rimala should have come long before, but it has finally come. You need to keep pushing. Governments can only lift the ban on entry. People have to find the courage to go there.바카라�

By Preetha Nair and Ushinor Majumdar