Pass ordinance and Save Sabarimala!

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Our faith is in crisis. The way we profess and practice our religion has been misunderstood, not only by people who do not understand Kerala’s tradition and culture, but also by the highest courts of our country. Today, India stands at a crossroads – either we can fully realise the vision of our Constitution-makers and let religion be the domain of the faithful, or we let our judiciary transform into ecclesiastical courts and pronounce on the way we practice our religion, opening the floodgates for inviting judicial scrutiny over all religious practices in this country.


The Sabarimala temple is unique. No other temple devoted to Lord Ayyapa possesses the characteristics Sabarimala does, and it is this uniqueness that Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 sought to preserve by prohibiting only some classes of women (i.e. those between the ages ten and fifty) from entering the Sabarimala temple. Since the inception of the temple 1600 years ago, there has been an uncodified rule that it is not appropriate for women of a certain age to enter Sabarimala. This rule flows directly from the nature of the deity that resides in Sabarimala – Lord Ayyappa in his Naishtik Brahmachari form. The temple is a celebration of celibacy – in this form, the deity is eternally celibate, and requires the same spiritual discipline from his believers. All devotees visiting Lord Ayyappa at the Sabarimala temple must maintain the vratam (including, among other things, remaining celibate for a period of 41 days preceding the visit).


The menstrual cycle of the woman is inherently, the antithesis of celibacy. It is a celebration of both the ability and the function of procreation. This is not merely a matter of faith, but also borne out by ‘modern’ science and physiology. Since menstruating women (and their procreative ability) are antithetical to the vision of celibacy that Lord Ayyappa celebrates, the deity, in an exercise of His right to privacy, precludes those women from entering the sanctum sanctorum of the Sabarimala temple. Put simply, the mode of worship in Sabarimala is based on the particular manifestation of this deity. Since the other manifestations of Lord Ayyappa in the other Ayyappa temples are not in the form of the celibate Naishtik Brahmachari, there is absolutely no prohibition on women entering those Ayyappan temples elsewhere. It is this fact that the Hon’ble Supreme Court of India has misunderstood in its recent majority view. The Naishtik Brahmachari form of Lord Ayyappa at Sabarimala constitutes a distinct denomination within the broader class of believers that form the diverse Hindu religion, and as such, enjoy the freedom from state interference as guaranteed under Part III of the Constitution of India.


It is absolutely essential to ensure that the exclusion of this class of women from entering Sabarimala remains central to the internal logic of belief and deference to Lord Ayyappa in the Naishtik Brahmachari form and should not be conflated with broadly generalised and wilfully vacuous notions of patriarchy that are being put forth in bad faith by certain sections with vested interests. It is merely an issue about different classes of people, offering different kinds of devotion – while the men are called Ayyapans, the women are called Malikappurams. Men and women who have observed the vratam offer their devotion to Lord Ayyapa at Sabarimala while menstruating women offer their devotion to the Devi at Malikappuram. Thus, both groups offer different devotions at the temple. The matriarchal Hindu society of Kerala certainly values women as independent and autonomous persons with agency in all aspects of their temporal and spiritual lives. It places Goddess Devi on a high pedestal. This is precisely why Sabarimala is an example of a different form of devotion, rather than a discriminatory one. Differential treatment that is rooted in reason are not discriminatory – they are essential to preserve the uniqueness of our deities, and the deeply-held and socially just practices of the Hindu community. Our Constitution is cognizant of these distinctions and thus permits reasonable classification based on rational nexus – this principle of the right to equality being patently upheld under Article 14.


We wish to reiterate that a religion has the right to choose its tenets as long as their impacts are not extra-religious. For instance, while sati was deplorable as it was inhumane murder, other differentiating religious policies may be permitted as long as their sole consequence is that the only harm that they can cause, is that one becomes non-religious in the event of non-compliance.  It is here where we wish to point out the central thread of why the Hon’ble Supreme Court decided incorrectly – it conflated the Naishtik Brahmachari at Sabarimala with the other manifestations of Lord Ayyappa elsewhere. Essentially, no person, whether man or woman, whether menstruating or otherwise, needs to visit Sabarimala to be devotees of Lord Ayyappa. Further, when they do visit other temples of Lord Ayyappa, they do not need to maintain the traditional vratam. If they are true devotees as they say, they have the option of visiting any of the other countless Ayyappan temples across the length and breadth of India, or even abroad.


More importantly, the deity at Sabarimala has His own internal logic. This ensures that all devotees of Lord Ayyappa do not have an automatic right under Article 25 to express their devotion by visiting Sabarimala. Since the deity at Sabarimala is sui generis and distinct, He has the right to formulate the contours of His own faith and express limitations. No person can claim the right of access to the places of worship of faiths they are not a part of.  For instance, no Hindu has any moral, legal, or political standing to claim entry into a place of worship of any other faith. Hence, all devotees of Lord Ayyappa cannot demand access to Sabarimala unless they satisfy the requirements laid down by the deity at Sabarimala. There are many other temples in India which only allow access to particular genders – for instance, the Bhagavathy temple at Kanyakumari does not allow men to enter, and the Mangal Chandi temple at Bokaro disallows women from entering. Religions have their internal logic for allowing access within certain fields, and one must not entertain a right to enter a particular temple even if they are a devotee satisfying the general tenets of the religion, if the particular requirements of that temple fail to be met.


This is precisely why our Constitutional framers left out the issue of temple access as a fundamental right under Article 15 (2), which in turn protects every person’s right to enter a list of public spaces that it enumerates, strictly to protect the well-being of the erstwhile untouchable castes. It does not grant any right to claim entry to any and all temples, as they are not public spaces everyone is entitled to access. Interestingly, this right to exclude access of people not fulfilling the requirements of the religion has been accepted by Justices Mishra, Khanwilkar, and Malhotra to be a part of Article 25 (1) in their majority judgment. This exposes the internal logical and jurisprudential inconsistencies of this misguided attempt at enforcing a vacuous notion of gender justice that is not rooted in a wholesome appreciation of the fact that even excluding some categories of people from some spheres is not automatically unjust – rather, it is only an instance of the vibrant diversity of our faith which enriches and sustains it.


As Justice Indu Malhotra notes in her dissenting opinion, the petitioners in this case were not even Ayyappan devotees trying to enter Sabarimala. They are evidently people who do not understand Sabarimala, Kerala, or the contours of faith and devotion. Women have been discriminated against in our country for generations, yes, but Sabarimala is not one such instance. In fact, Sabarimala has been a shining light of our Constitutional ethic of secularism – of principled distance of the state from religion – with only minimal interference to settle patently unjust and evil practices against public order, morality, and health. Not a single one of these concerns exists at Sabarimala, and this misguided intervention is an assault on our civic and religious sensibilities. As Justice Indu Malhotra further clarifies, it is not for the courts to sit in judgment of what forms the essential practices of a religious denomination.


Equally egregious is the unchecked expansion of locus standii that the court has unfortunately indulged. It is a settled principle of constitutional law, that only those who are affected by a specific state action may enjoy the right to petition our superior courts for relief claiming a breach of fundamental rights. This requirement is relaxed only in rare exceptions for protecting the commons (such as environmental issues) and personal freedoms. In this case, the court has committed jurisprudential blasphemy by not only entertaining petitions from non-affected busybodies, but also be using the tool of public interest litigation to desecrate our fundamental rights guaranteed under Article 25 of the Constitution. If this incorrect majority view is upheld, then any cultural tradition of any religion could be under threat, however essential they are held to be by their worshippers. For instance, the exclusion of women from priesthood in the Catholic Church, the bar on entry of women into Islamic mosques and so on. It is this chaotic consequence that the Hon’ble Supreme Court along with those malicious actors who merely want to threaten the sanctity of the Hindu faith have failed to consider.


Trying to disguise sameness as equality in Sabarimala is merely a reductionist way of looking at the complexities of religion, particularly targeted at Hinduism, the most ancient, diverse, and accepting of the major religions of the world. It takes away from the unique nature of our diverse deities and their worship, as has been handed down from generation to generation to form the corpus of our syncretic religion. The recent outpouring of lakhs of Keralites, led and managed by ordinary Hindu women across the socio-economic spectrum, is evidence of the alarming risk of social destabilisation that would follow if this dharma is not safeguarded.


It is our most humble request, that you use your kind offices as the Hon’ble Prime Minister of India, and as a practicing Hindu, to help defend our faith from the misguided intervention of the courts and the nefarious conspiracies of non-believers to destabilise Hindu society, both in Kerala and elsewhere. We appeal to you to advise the President of India to promulgate an ordinance under Article 123 of the Constitution of India to halt this grave miscarriage of justice, and stay the operation of this judgment. This will restore our most ancient customs and traditions, and put an end to the opportunistic designs of many unscrupulous actors.