SABARIMALA APPEAL: A TRAGEDY OF BLUNDERS

Thomas Gray, an English poet and scholar, coined the phrase: “ignorance is bliss”. At times, though, ignorance can lead to an “abyss of depravity”...in legal argument.

Case in point. The recent judgment of the Hon'ble Supreme Court of India in the Sabarimala Temple case.

The pronouncement has paved the way for entry of all women into the sanctum sanctorum of the temple. It is no doubt a watershed moment in the history of justice in India. While devotees of Lord Ayyappa, the presiding Deity of the Sabarimala Temple, have assailed the landmark verdict, women's rights activists and liberals have hailed it.

Nevertheless, the judgment does represent the nadir of legal presentation and advocative persuasion. Here are seven failings of the battery of legal luminaries that argued the matter.

Hindu Temple: The Lord's Home

ONE: A Hindu temple is referred to as devālaya or devasthāna— literally, 'home of God' or 'abode of God'. As has been held by the Hon'ble Apex Court, the divine spirit descends into the idol/image in the temple upon consecration. From then on, the image of the presiding Deity, a juristic entity under law, is believed to reside in the temple. Devotees then venerate the image through assorted pūjas, ārti, etc., which the priestly class, as intermediaries, perform in the temple.

Thus, the Hindu temple erases the divide between man and the Divine. It serves as a place of communion with Divinity for devotees and provides spiritual bliss and succor to the faithful. It is not a “place of worship (pūja)” for devotees, who can seek audience, that is, darśaņa of the Deity though and receive His blessings by offering prayers and obeisance to the Almighty through the temple priest, or archaka. No rituals, be it seva, pūja, homa, yajna or archana, are performed directly by the faithful, who are mere visitors/spectators within the temple.

Thus, being the abode of the Almighty, the temple precincts are His/Her private space sanctified through rituals and practices based on specific vedās, āgamas, śāstras and sampradāyas.

It is apparent that the temple trustees were unable to convince the Hon'ble Apex Court that the temple is not a public space per se. Neither is it a tourist spot. Hence, entry is a privilege governed by applicable customs and traditions.

No Gender-based Disparity or Discrimination

TWO: The counsels appearing on behalf of the temple trustees ought to have argued that the prevalent practice in question is only age-based exclusion; it is not gender-based disparity or discrimination.

Such age-based exclusions, restrictions, prohibitions and eligibility criteria have always been applied by the State for several purposes, which inter alia include appointments to public offices.

Now, it is empirically established and scientifically supported that while many girls attain puberty at an age as early as 8 years, some women reach menopause at an age as late as 55 years. The median age for menopause among Indian women is believed to be 44 years.

Further, the anatomical and physiological phenomenon of menstruation is not restricted to women alone. It is a medical and scientific fact that menstruation occurs in “intersex humans”, “trans-men” and “pseudo-hermaphroditic men with autosomal recessive congenital disorders due to the presence of Müllerian derivatives.”

Hence, it can hardly be concluded that the practice is discriminatory towards menstruating women, given the lack of scriptural records linking the practice to physiological or reproductive criteria.

So why this brouhaha over the erroneous linking of an age-based restriction with menstruation?

Arbitrariness of the Age Bracket

All the same, the age-group of 10-50 years is arguably and admittedly arbitrary. As much as the age-limit of 32 years applicable to 'general-category' candidates appearing for the UPSC examinations is!

Further, Articles 14 and 15 impose duties on the State and not on religion, which is 'separate' from our State under our constitutional framework and the 'secular' principles enshrined therein. Therefore, the contention that the age restriction at Sabarimala is ultra vires the Constitution is a red herring, be it on legal or moral grounds.

Rights and Privileges of the Deity

THREE: It is well-settled that rights can be enjoyed by one and all without depriving, derogating or diminishing the rights of others. It is a fact that a large section of Hindu society, both male and female, revere Lord Ayyappa as a “naiśțika brahmachāri” and support the continuance of the prevalent customary practices, which are neither pernicious to the interests of nor detrimental to the well-being of other devotees.

Indeed devotees in favor of sustaining the traditional practices at Sabarimala Temple too are equally entitled to freedom of conscience and the right to freely practice their religion. They too have a right to adhere to rituals and express their devotion within the sanctum sanctorum and a religious milieu that is devoid of women of a particular age-group, arbitrary or otherwise. No coercion or compulsion can be imposed on them in issues of individual faith.

Of course, those who believe that such customary practices in the temple of great antiquity are abhorrent or repugnant, have no locus to demand any reformation of a matter pertaining to personal choice and private preference.

Nonetheless, non-believers must be freely allowed to form a separate sect or schismatic denomination of Lord Ayyappa worshipers and set up religious institutions that impose no restrictions on its faithful.

Arduous Sabarimala Pilgrimage

FOUR: Further, for many devotees, observance of piety, celibacy and abstinence over 41 days culminates in the visit to the Sabarimala shrine. This crucial facet was not forcefully brought out during arguments.

An essential aspect of the observances is that the darśaņa of Lord Ayyappa is to be completed in a certain religious context and traditional setting that is devoid of women in the said age-group. Hence, the presence of such women in the temple precincts would hurt the religious sentiments and violate the fundamental rights of the many devotees observing the elaborate 41-day ritual with great zeal, fealty and asceticism.

In fact, female worshipers with true devotion for and great reverence to the Deity would honor tradition and refrain from entering the sanctum sanctorum. After all, devotees are those who owe allegiance to, respect the sanctity of and protect the dignity of the Deity. Such persons surely would abide by applicable customs, practices and traditions.

It is only agenda-driven atheists, heretical activists and meddlesome mischief-mongers masquerading as devotees of the Lord who would want to spoil the holiness of a 41-day, penance-like ritual and pilgrimage undertaken by millions of Hindu men.

Fundamental Rights of Devotees

FIVE: The fundamental rights delineated in Article 25 of the Constitution are no doubt available to 'all persons'. But, the rights are to be enjoyed and exercised without hurting corresponding rights of others.

Thus, the counsels failed to establish that those rights do not extend to the right to worship inside a temple, which is the exclusive domain/privilege of the designated priest(s) acting as an intermediate agent or empowered attorney for appropriately chanting mantras and performing rituals.

The entry to the holy shrine is indeed an integral aspect of the 41-day “vrittham”, which comprises of pious observances and devout abstinence. The arduous pilgrimage to and the final, ceremonial entry into the sanctum sanctorum are essential elements for the segment of Hindus, denominational or otherwise, devoted to Lord Ayyappa.

Hence, it is ironical for a believer in Lord Ayyappa belonging to the impugned demographic segment to insist on visiting the shrine by not only defying the prevalent traditions, but also denting and denuding the rights of fellow-believers to observe their vows of abstinence. A true devotee of Lord Ayyappa would abide by and subscribe to the applicable restrictions in deference to traditional practices.

Concept of Religious Denominations

SIX: The counsels representing the temple trustees failed to impress upon the learned Judges that the term “denomination” is alien to Hinduism. The Christian denomination is an 'identifier' to an ecclesiastical order and an associated hierarchy of local churches, which consists of congregations of affiliated members. Every denomination has a structured theological organisation with well-defined 'command-and-control structures' and 'distinctive traditions and procedures'. Members, who are inducted into the 'covenant community', profess the denominational faith and observe its practices.

The relationship between the denomination and its devotee, that is, the member, is one-on-one. Thus, Christian denominations are mutually exclusive. In other words, Christians belonging to one denomination owe allegiance exclusively to that denomination, despite being monotheistic.

Contrarily, every Hindu enjoys an inclusive, 'many-to-many' relationship with the Creator and His Embodiments. The underlying polytheistic fabric permits every Hindu to be devoted simultaneously to several Deities and frequent religious institutions belonging to diverse denominations. The religious freedom and flexibility permits Hindus to follow disparate rituals, usages, customs and practices with minimal denominational encumbrances.

Hindu Temples and Denominations

Past judicial pronouncements have straight-jacketed Hinduism by force-fitting it into a Christian paradigm. Nevertheless, if the Christian concept of “denominations” were to be imposed on Hinduism− the interpretation of the Hon'ble Apex Court in the Shirur Mațh and SP Mittal judgments serving as the gold standard− then, not just monastic orders such as Hindu mațha, but every temple would constitute a denomination.

The rationale is simple.

Each Hindu temple: (a) is designated by a distinctive name; (b) has a group/collection of (devoted) individuals with a common faith, that is, a system of beliefs, doctrines and practices based on the consecrated Deity therein, which they regard as conducive to their spiritual well-being; and, (c) consists of a spiritual/religious organisation comprising of priests, trustees, benefactors and administrators.

When viewed through the prism above, the Sabarimala Temple sure enough is a “denomination temple”. It is the polytheistic nature of Hinduism though that permits us to be inclusive and non-discriminatory in our devotion towards multiple Deities.

Secularism and Constitutional Morality

SEVEN: It is well-settled in law that “secularism” is about the separation of State and religion. Accordingly, government has to not only be non-religious, but also accord equal, non-discriminatory status to all religions.

It also widely-accepted that the judicial apparatus is one of the three branches in the 'trias politica' state.

Hence, if the lofty ideal of 'secularism' enshrined in the Constitution is to be realised/adhered to in India, the judiciary too must refrain from interfering in religious affairs, particularly practices that do not derogate, deprecate or depreciate the rights of others. Any devotee taking exception to the prevalent faith, custom and tradition is under no coercion, obligation or compulsion to follow the same.

It further follows that the judiciary is indeed duty-bound to uphold constitutional morality and legitimacy by strictly and completely adhering to the tenets of “secularism”.

Final Observations

It appears from the ratio decidendi in the Sabarimala judgment that legal submissions in favour of retaining the demographic restrictions at the temple were weak and pedestrian, if not myopic. It surely would have been worthwhile to pursue the jurisprudential angles detailed above.

But, would that have altered the outcome of the proceedings?

I surely don't have the answer. Do you?