SC Should Not Draw False Equivalence Between Haji Ali And Sabarimala Issues

That the Sabarimala temple case has become a political football-cum-ego-battle is increasingly apparent. None of the parties involved – the state government, the Travancore Devaswom Board, or the three-judge Supreme Court bench hearing the case – has been consistent or even coherent on the issue.

The bench, headed by Justice Dipak Misra, and comprising Justices R Banumathi and Ashok Bhushan, was told yesterday (7 November) that the Kerala government had yet again changed its stand, the fourth change in nine years on the issue. This time it is favouring the entry of women aged 10-50, currently barred. This was the original stand of the government in 2007, when the Left was in power; the UDF government that intervened, went with the Devaswom Board’s stand, that “the restriction on women between the age of 10 and 50 has been prevailing in Sabarimala from time immemorial. This is in keeping with the unique 'pratishta sankalp' or idol concept of the temple.”

The LDF has changed its stance probably because it knows that the larger issue of triple talaq and uniform civil code (UCC) will come up for a judicial decision some time next year. It is hoping to look even-handed by throwing the Sabarimala issue into the pot. The unstated reality is this: if the bench upholds the Devaswom board’s arguments and allows it to restrict the entry of women, the Left and “secular” forces can then use this precedent to argue against banning triple talaq or introducing UCC.

But this is false equivalence. The temple does not allow menstruating women to enter the sanctum sanctorum due to the tradition of seeing Lord Ayyappa as an eternal celibate. The entry ban in the 10-50 year age group is related to the assumption that this is the normal span during which women menstruate.

The Devaswom Board, instead of merely explaining the tradition as unique and unrelated to gender injustice, did not cover itself with glory last year when its chief, Prayar Gopalakrishnan, made a silly remark. He said the day a machine to detect menstruation is invented, the board would give up its 10-50 ban. He did his case no favours by making such crude statement. This is not only unscientific, but also rubbish. Menstruation is related to a woman’s child-bearing capacity, while celibacy is about abstinence from marriage or sexual relationships altogether. The two are not one and the same thing.

And then we had the court itself mixing up issues. According to The Economic Times, the bench sees the Haji Ali Dargah case and Sabarimala in the same way. The Dargah allowed women to enter the sanctum sanctorum a few weeks ago, and this precedent could be used to deal with Sabarimala too.

The Supreme Court bench had this observation to make about Sabarimala on Monday: “A temple is a public religious place. You cannot refuse entry to a woman who comes there ... It violates the rights of women.”

This is debatable. First there is false equivalence between the Haji Ali Dargah’s restrictions on women entering the sanctum sanctorum and Sabarimala. The restrictions on menstruating women are age-old; in the case of Haji Ali, says this report, the ban was a recent imposition dating to 2012. Two reasons have been adduced for this: one was a belated recognition that Islamic tradition does not allow women to visit graveyards or mazhars; another reason was said to be occasional inappropriate dressing by women.

In the case of Sabarimala, there is no real issue of gender justice involved, for the ban does not affect all women, only those who are menstruating. While this is still a form of discrimination, it can be justified by references to traditions involving the celibate deity. Lord Ayyappa is not just any deity, and the restrictions placed on women in the 10-50 age group are not applicable in any other temple in Kerala. The intention is not discrimination, When a temple is created with a specific aim, to bring gender justice into the argument is needless meddling in tradition.

Consider a parallel situation: if a club is created for promoting the interests of and/or bonding of women, it is not an issue of gender justice for men to demand an entry. The same applies to an association created for a specific purpose – say vegetarianism – which can bar non-vegetarians from being its members.

The court’s assumption that all temples are public places is fine in theory, but when public places are created for specific purposes, they become public-private places, ruled by the traditions that dictated its creation in the first place. As long as a discriminatory law is not added as an after-thought, as was the case with Haji Ali, the constitutional principle of allowing cultural and religious groups to maintain their own traditions and practices is sacrosanct.

It is high pretence to assume that gender justice is merely about allowing women entry rights to Sabarimala or Shani Shingnapur in Maharashtra. In our patriarchy, gender injustice is so deeply ingrained in public attitudes and religious practices, that true equality is a distant reality.

The discrimination against women runs deep in all religious denominations, whether Hindu, Sikh, Buddhist, Christian, or Muslim. For example, no religion favours women priests. This is clear and simple prejudice and discrimination. How many women bishops do we have in the Roman Catholic Church? Why are there absolutely no women among the ulema? In Hinduism, there are at last attempts to end this discrimination, with some groups in Pune commissioning women priests to officiate at ceremonies.

Sabarimala is a distraction, where women may be sold a pup. Let’s say the Supreme Court allows women in the 10-50 age group to enter Lord Ayyappa’s abode. It will be hailed as a huge gain for women’s empowerment, when it is nothing of the kind. It will be used as a sop to deny women the more material equality that they truly desire in all spheres of activity.

As for the Supreme Court taking a position on gender justice using Sabarimala as scapegoat, it must ask itself a simple question: how has it implemented gender justice in its own backyard?

Not very well, one must state. Of the 26 sitting judges in the court, there is only one woman judge, Justice R Banumathi (who is part of this bench). And this is not something you can blame anybody else for but the collegium itself. Higher court judges are selected and decided by the collegium, and if there are not enough women judges, they themselves are at fault.

It is possible to claim that women don’t find the judiciary an enticing career opportunity, but how is it possible to ensure diversity of opinion when there is only one woman judge?

(Personal Note: My views on Sabarimala are not the same as the constitutional position I have outlined above. I fully support the right of entry to all women devotees of the Lord, but this is a matter to be decided within the community of worshippers of Lord Ayyappa. I believe in the constitutional provision that allows every religious denomination to carry on its age-old practices without state meddling).