Though the Supreme Court is yet to decide on the legality of the ban on the entry of women of menstrual age into Ayyappa temple at Sabarimala in Kerala, the oral observation of Justice Dipak Misra, that the Constitution rejects discrimination on the basis of age, gender and caste, has spawned a fierce debate on the issue of discrimination against women in the name of religion. Indian Young Lawyers Association and five women lawyers have moved the apex court seeking direction to allow entry of women without age restriction. The Kerala High Court had upheld the ban in 1993 ruling that the Travancore Devaswom Board, authorised to manage the temple, could deny entry to women in the age group of 10 to 50. It was based on Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which bars entry of women at such time during which they are not by custom and usage allowed to enter a place of worship. The PIL says that it is violative of Articles 14 (equality before law and equal protection of law) and 25 and 26 (freedom of religion) of the Constitution. It may be argued that Article 25 of the Constitution guarantees freedom to practise, profess and propagate any religion, and so the priests are free to decide how it is to be practised. Article 25, which guarantees rights to an individual, should be read along with Article 26 which gives such rights to an organised body. The Constitution does not define “religion” but the Supreme Court gave comprehensive definition in Commissioner, HRE v. L T Swamiar (1954), “Religion is certainly a matter of faith with individuals or communities and is not necessarily theistic… A religion undoubtedly has its bases in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief.

A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress.” On this basis, it may be ratiocinated that an organised body is free to frame its own code. There is one Attukal Devi temple at Thiruvananthpuram, popularly known as lady Sabarimala temple, where entry of men is totally banned irrespective of age. However, it is debatable whether Articles 25 and 26 allow for discrimination on the ground of sex, especially when it’s a place of public worship. Justice Misra’s observation that, “There is a difference between a temple meant for public worship and a mutt (monastery),” appears logical and judicious. During the brief hearing, the bench put a pointed question whether it could say with certainty that no women entered the temple in the last 1,500 years.

Counsel for the Kerala government K.K. Venugopal argued that women who have not attained menopause cannot “preserve the purity” during the 41-day journey to the temple. Legally speaking, any such ban on the ground of sex is difficult to pass muster. However, the case of menstruating women has to be examined from non-religious and scientific angle. During periods, women need rest and it is probable that they were debarred from going to temples as it involves a cumbersome rigmarole of rites and rituals. This may also be the reason why they were not allowed into the kitchen. May be, to enforce it rigorously, it was patinated with religious sanction, and it came to a pretty pass that women were discriminated in the name of religion and taken to be inferior beings.

There is a need to explode the myth that women are impure during periods. Women have been endowed with the highest divine gift which is the power of procreation and it is manifested in menstruation. There are many yogini temples in India which are well-known sites of tantric worship. There is a Bhagwati temple in Kerala where the entire village assembles for the worship of the goddess over four days when she is menstruating. The belief goes that there is the discovery of a ‘stained’ cloth which is the conclusive evidence of Devis’s menstruation. People scramble to touch the cloth as it is supposed to bring blessings. Similar is the case with Kamakhya temple at Kamrup (Assam) which is the site of Sati’s vagina. How can it be that while the fertility of a goddess is worshipped, the fertility of women is otherwise. Mohini is the incarnation of Lord Vishnu, portrayed as a femme fatale, an enchantress, who maddens lovers, sometimes leading them to their doom. In Mahabharata, she appears as Vishnu, acquires the pot of amrita (nectar) from the asuras (demons) and gives it back to the devas (gods) ensuring their immortality. Women saints like Arundhati and Apala have contributed hymns to the Rig Veda. Gargi and Maitreyi are other celebrated and respected scholars. However, in this case, the question has been raised whether the court should intervene in matters of faith or should it be left to the people or the government for reforms? How far is the intervention of law desirable? Mahatma Gandhi was thoroughly opposed to the ban on entry of Harijans into temples. But instead of breaking any custom or forcing their entry into any such temple, he took a vow not to enter any temple where the entry of Harijans is denied. Although, if the court has to decide, it will go strictly by law.

By Uma Ramachandran

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