SC Refers Sabarimala Case to 7-Judge Bench: All You Need to Know

A clutch of petitions seek re-examination of SC’s decision to allow entry of women of all ages in Sabarimala Temple.

As the gates open, the state and the people wait to see what unfolds.

(Photo Courtesy: India)

On Thursday, 14 November, the Supreme Court referred to a seven-member bench 65 review petitions seeking re-examination of its September 2018 verdict which allowed entry of women of all age groups to Kerala’s Sabarimala Temple. For now, women will continue to be allowed entry to the sanctum.

The SC’s landmark judgment came on 28 September 2018, declaring the ban on women of ages 10-40 entering the temple ‘unconstitutional’ and ‘discriminatory’.

Following this, on 2 January, two women created history by entering the sanctorum of the Sabarimala Temple in Kerala.

The entry of Bindu (42) from Koilandy and Kanakadurga (44) from Angadipuram in Malappuram district of Kerala sparked state-wide protests.

Meanwhile, hours after the two women entered the shrine, the temple was closed for “purification rituals.”

The protests had Lord Ayyappa devotees who cited ‘tradition’ to oppose the Supreme Court judgment. On the other side, the fight was spearheaded by women’s rights activists, who were determined to visit the shrine and uphold the SC’s judgment allowing women of all ages to enter.

Here’s all you need to know about the case:

How it Began – From 1991 to 2019

In 1991, Mahendran, a devotee, wrote a petition stating that the temple board, in collusion with the government, was violating temple practises by allowing women into the sanctum and according special treatment to VVIPs. This case was even represented by women lawyers. This was converted to a Public Interest Litigation, since the judgment affected a large number of people.

In a substantial judgment, the Division Bench of the Kerala High Court said women between the ages of 10-50 shall not be allowed to enter, as per the existing traditions. The age limit was specified by the Travancore Devaswom Board (TDB), in charge of the administration of the temple. The court also wondered if the Ayyappa devotees formed a separate religious denomination.

In 2006, the Indian Young Lawyers’ Association escalated the issue directly to the Supreme Court. This was not an appeal of the 1991 judgment, but it did call that judgment to question. Specifically, it challenged Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and said all Hindus have the right to enter the temple and denying them the right was a form of “untouchability”.

The 2006 writ petition also made a general prayer asking for gender equality in all places of worship. This was eventually interpreted to pertain to only Hindu temples.

In 2016, the case came before a three-judge bench, which included Justice Dipak Misra (who was not a chief justice at the time), as well as Justice Bhanumathi and Justice Ashok Bhushan.

On 20 February 2017, the bench reserved judgment.

On 13 October 2017, the bench discussed five issues that could merit escalation to the Constitution bench. This meant deciding whether the issues were inherently unconstitutional or were misinterpreted, making them illegal.

Finally, on 28 September 2018, the Supreme Court removed the ban on the entry of women into the Sabarimala temple in Kerala.

On 14 November, 2019, the Supreme Court referred judgement on 65 petitions that challenged the removal of the ban, to a 7 judge bench.

The Five Issues Addressed by the Bench

In simple terms, these were the five issues;

1. Is it not unconstitutional to reserve entry on the basis of gender? (Violation of Articles 14, 15, 17, 25, 26)

2. How do you strike a balance between the rights of menstruating women to enter the temple and the rights of the temple to reserve entry? (Violation of Article 25)

3. Is the Ayyappa temple a separate religious denomination? If so, how can a State-funded entity indulge in practices that violate constitutional morality? (violation of Articles 290A, 14, 15(3), 51-A(e) )

4. Does Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rule permit the ban of some women? (Violation of Articles 14, 15(3) )

5. Is the rule itself in violation of the act, which allows the entry of all Hindus into the temple? (Does Rule 3(b) violate provisions of Part III of the constitution?)

Key Quotes from the Judgment

“Devotees of Ayyappa do not constitute a separate religious denomination...the bar on entry of women between the age of 10-50 years is not an essential part of religion.”

Former Chief Justice Dipak Misra

“Balance needs to be struck between religious beliefs on one hand and the cherished principles of non-discrimination and equality laid down by the Constitution on the other hand.”

Justice Indu Malhotra

“Religion cannot be a cover to deny women the right to worship...To treat women as children of a lesser God is to blink at constitutional morality.”

Justice DY Chandrachur

“The fact that women have a physiological feature of menstruating has nothing to do with her right to pray.”

Justice RF Nariman

On the Basis of Menstruation?

One of the key points that the Indian Young Lawyers’ Association brought to the notice of the Supreme Court was a portion of Rule 3 of the Temple Entry Act of 1965.

Excerpt from the SC judgment.(Photo: Sci.gov.in)

Here, ‘women at such times’, refers to women who are menstruating. According to the submissions of the petitioners, this was the reason for the ban on the entry of women into the Sabarimala temple.

It must be noted that at the Sabarimala temple, women between the age group of 10-50 are not allowed entry into the temple all through the year, with no mention of menstruation anywhere in religious texts that codify worship and rituals at the Sabarimala temple. This restriction is only limited to a certain age group, and does not extend to all women as a class.

According to the review petition submitted by Supreme Court advocate J Sai Deepak, the rule in question (Rule 3) is based on;

“...the rights of the deity in the temple, the rights of His devotees, the power of the State to codify existing practices and the right of the Temple to preserve the identity of the Deity and the Temple.”

Excerpt from review petition filed by SC Advocate J Sai Deepak

The age limit of 10-50 was codified by the Travancore Devaswam Board in 1991. While it is arbitrary and is a cause of confusion, the attempt here was to codify the existing tradition and practice that was followed for centuries.

The Sabarimala Temple

A section of the Pandya dynasty fled Tamil Nadu to escape the onslaught of Malik Gafur, and settled in Pandalam around the 13th century. It was around this time that the Sabarimala temple was established, but remained inaccessible for over three centuries. In 1910, the idol of Lord Ayyappa was installed (Sastha, a formless deity was worshipped until then). The temple was renovated in 1950, after it was set ablaze and desecrated in June the same year. The stone idol, which was broken and damaged, was replaced by the Panchaloha (five metal) idol, which still remains. The deity is worshipped as Ayyappan and Dharmashastha.

Typically, temples in India are constructed, consecrated and their rituals managed either according to the Agama Shastras or the Tantra principles. The Sabarimala temple, like many temples in Kerala, is based on the Tantra. 

The Sabarimala temple is open only for a few days each month, and continuously during the months of November, December and January, during which time devotees undertake the 41-day vow which qualifies them to visit the sanctum.

The pilgrimage, for those who undertake the 41-day vow (of celibacy, teetotalism and avoiding profanity) involves walking up a 61 km mountainous path.

Ayyappa’s Vow of Celibacy

The deity at the Sabarimala temple is believed to have taken up the vow of celibacy. According to Indic traditions, celibacy is a gender-neutral concept, which applies to men and women alike. The Bhoothanatha Upakhyana, the Brihadaranyaka Upanishad, the Bhagavad Purana and the Apasthamba Sutras codify this vow and place a set of rules/restrictions that are enjoined as part of the adherence to ‘Brahmacharya’ (vow of celibacy).

The concept of celibacy is not universal to Hinduism, nor is it enjoined as a compulsion on either the followers or the deities across all temples.

One of the eight rules of celibacy is to avoid contact with women who are within reproductive age. It is for this reason that women between the ages of 10-50 are restricted from visiting the shrine. This is also the reason for the ‘menstruation’ mix-up.

Two concepts, unique to the Hindu religion are at play here.

One, the Hindus do not exonerate their Gods from temptation. Anyone, even Gods, can fall from their ideal or goal. It is to exemplify this concept that Lord Ayyappa at Sabarimala is seen as strictly adhering to the vow of celibacy. In fact, the mythology of Ayyappa’s birth itself is based on the story of Lord Shiva falling for the beauty of Mohini, the feminine avatar of Lord Vishnu.

Two, notions of impurity associated with menstruation are false fabrications in this respect.

Is Sabarimala Temple State Funded?

If so, its functioning, both administrative and religious, must fall under State purview. Here is what Article 290A says;

A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore-Cochin.

Article 290A

The sum of 46 lakhs was later amended to 51 lakhs. This is not a dole that the state pays to the temple, but rent for temple land that is currently under its purview.

The Travancore Princely State had agreed to pay the temple a sum of 46 lakhs when, in 1921, it took over the administration and control of the temple’s lands.

After Independence, when the Tranvancore Princely State merged with the Union of India, it also passed on the assets and liabilities, including the yearly payment of 46 lakhs to the Sabarimala temple.

What Now?

At present, the on-ground situation in Sabarimala is a complicated blend of compliance and defiance.

“We will not allow anyone to take law and order in their hands... Government will not submit a review petition. We’ve said in court that we’ll implement the order.”

CM Pinarayi Vijayan

In 2018, a number of voices from the public were pro-verdict.

Many women who fall within the restricted age group said, on camera, that they would be visiting the temple.

On the other hand, the protests against the verdict had not only gathered steam, but had also been hijacked by local political parties. In a surprising turn of events, the BJP, RSS and even the Congress in Kerala have decided to go against the Supreme Court verdict, and now stand united against the ‘communist’ state government, headed by Pinarayi Vijayan.

The Supreme Court referring the judgment to a larger seven-member bench is anti-climactic for the review petitioners. But the issue is yet to find closure.

Comments on the Issue

As with the Jallikattu protests, local politicians tend to latch on to popular sentiment, or the majoritarian view around which protests are formed. The same can be seen with the Sabarimala issue. In 2018, While the Shiv Sena welcomed Trupti Desai’s entry into the Shani temple in Shingnapur, members of its Kerala wing have threatened mass suicide if the state chooses to implement the order.

Trupti Desai, who has been at the forefront of advocating the rights of women of all age groups to enter Sabarimala, said she is hopeful that the seven-judge bench will decide on the basis of constitutional rights.

Despite veiled threats and against what is considered popular sentiment, the CM of Kerala Pinarayi Vijayan stuck to his guns, promising to provide adequate facilities and protection for the entry of women, in line with the SC verdict. The BJP in the state wasn't too happy.

“We give him 24 hours to resolve the issue. If he fails to do it, then he should be prepared to see a different type of protest from us. We will make it very clear that we are not trying to make political capital through this campaign.”

PS Sreedhar Pillai, Kerala BJP President to CM Pinarayi Vijay

This year though, both pro-entry and pro-ban sides have interpreted the judgment to be in their favour.

Pandalam Royal Family member Sasikumar Varma, one of the petitioners, said he was happy with the apex court's decision to review the 28 September verdict allowing women of all age groups to offer prayers at the Sabarimala Ayyappa Temple.

“The court understood the feelings of the devotees and transferred the petitions to be reviewed by a seven-judge bench. This means there was some error in the earlier judgment. We feel relieved and happy that the SC has decided to review its earlier verdict. This is Lord Ayyappa’s blessing.”

RR Varma, Pandalam Royal Family

References:

1. Kerala Govt Will Implement SC Verdict on Sabarimala – CM Pinarayi Vijayan

2. Rejoinder to Indian Young Lawyers Association Petition by J Sai Deepak

3. IE on Sabarimala verdict

4. The Tribune on Sabarimala Verdict

5. Article 21

6. Bramhanda Purana

7. Lord Ayyappa is a Legal Person

8. TOI – No temple entry for Dalits in Gujarat

9. Articles of Faith – TIE

10. Article 25(2)(a)

11. Attukal Temple

12. Youth Ki Awaaz on Sabarimala Ban

13. S Mahendran Vs Secretary, Travancore, 1991

14. Writ Petition 373, 2006

15. Financial Express – Why Religious Denomination is Key

16. Judgement of Dipak Misra

17. Seshammal Vs State of Tamil Nadu, 1972

18. Sabarimala.org

19. Sabarimala Temple Arson Case, 1950

20. Ayyappa Temple Calendar