When Law Runs Amok: How Sabarimala Devotees Can Nullify The Supreme Court Verdict

Let’s start with this. Imagine if the Sabarimala authorities put up a notice at the approaches to the temple such as this:

Dear Sabarimala Devotees,

As you are aware, we the devotees of Swami Ayyappa ardently believe that in Sabarimala he manifests as a naishtika brahmachari. Furthermore, we believe that when a male deity is worshipped as a naishtika brahmachari, the specific agamas of the temple — based on the injunction in Yajnavalkya Smriti — impose the condition that he not be subjected to the company of women aged 10 to 50 — in any way.

Recently the judges of the Supreme Court of the secular state of India have ruled that this naistika brahmachari tradition is “unconstitutional”. True women devotees of Swami Ayyappa by very definition subscribe to the same faith that is shared by all of us and they would never act in such a way that it would bring destruction to self, fellow believers and for the deity. Lakhs of women devotees have taken to the streets in protest against this outside interference.

Hinduism offers a marketplace of paths, there are other forms of Swami Ayyappa or countless other deities. Therefore, we kindly request non-devotee women to respect our faith that forms an integral part of this shrine. Thank you.

This is an earnest statement of the deepest beliefs held by the body of devotees – whether some courts recognise this body as a legitimate denomination or not. After reading the notice, only the truly hostile woman would venture the shrine to show her defiance or make a political statement.

How will the secular state deal with the situation caused by such a notice? The answer, I am afraid, can be very alarming. The notice will mostly discourage women by citing the shared faith. The state can only respond to this by committing even bigger constitutional blunders by curtailing freedom of speech or even forced speech. For instance, a court may rule that such a blatant expression of faith is itself against constitutional values and hence invalid. You may even be asked to put out a humiliating reverse notice repudiating your own previously held faith and creating a message conducive for the women. Or the communist government of Kerala may use tax money to do it for you. They may issue a notice in newspapers discrediting the faith system, announcing the new faith and inviting women to visit. There are already reports of such notices being planned. In the United States, they have an explicit “Lemon Test” that prevents this type of bizarre and endless state interference in religion. Just how far will India’s judicial system go in this regard?

Such judicial misadventure puts the pagan polytheists at a distinct disadvantage compared to the Christians and Muslims. This is due to three things:

• Dramatically, a larger surface area of Hindu practices versus the tight and solemn Christian and Muslim rites.
• The courts have formulated an essential practices test, which demand evidence for the practice of certain faiths. This fits in easily with the Abrahamic religions, where revelation is the central category of knowledge. God has revealed himself and expressed his purpose and clear instructions. They have been recorded in a book. How can you argue with that?
• A political price – assaulting Christians or Muslims will invite retribution from the international community. Hence there is a political cost to take care of. However, a counter needs to be put forward. Taking down Hindu practices can also incur a political cost because in theory pagans can also consolidate, governments can be voted out, and the constitutional laws amended. One wonders, if this is what we are expected to do?

This disadvantage can be trivially weaponised by strategic players. Can a “transformative document” of the Constitution be used to “deconstruct”, “reform”, or “transform” the heathens and their vibrant Hindu practices into an easier-to-legally-defend monochrome? These are not flights of fantasy. We already know strategic public interest litigation (PIL) is real due to the absence of standing requirements. Is it really believable that they could not find a single woman devotee of Sabarimala to bring this suit forward? This, particularly when apostasy and rebellion has zero-cost for Hindus.

In her dissent, Judge Indu Malhotra rightfully concluded that this PIL should never have been admitted. Even in terms of examining religious practices, this is an outside deconstruction rather than a court unwillingly dragged into a schism between believers themselves. An example of the latter would be the famously comical case of Vadakalai and Thenkalai Tamil Iyengar factions whose squabbles over anointing the Kanchipuram temple elephant reached the Privy Council! Even though the case had no business being discussed in the courts, it at least was a dispute among the believers. Hence can be dealt with as a civil dispute, something similar to determining property rights.

Now let’s unpack some of the reasoning in the judgement itself.

Religious Versus Secular Aspect

First, a small note about the justices (I am leaving Judge Indu Malhotra alone because she has wisely dissented) drawing attention to the landmines that exist in the new territory the other four pioneers have cleared. The four male judges are not from the catchment area Sabarimala devotees hail from, and do not have any personal association with this or similar pilgrimage centres. The schooling background of the judges is also relevant because here they are not looking at the secular aspect of a case but opening up a religious tradition. So, what’s the difference?

I illustrated this on twitter with an example: Imagine if Hindus had #core1 (Edu Rights at par with minorities) and Sabarimala authorities ran a chain of secular CBSE schools. In that chain of schools, let’s say they did not allow girl students. Then if a case came beefore (sic) the judges, there is no need to worry about the background of the judges because they are called upon to rule on a secular matter – education.

Denial Of Right To Practice Religion

Former Chief Justice of India (CJI) Dipak Misra and Justice A M Kanwalikar base their opinion on the Sabarimala rule is unconstitutional because it offends a woman’s right to practice religion under Art 25(1):

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.

There are, quite obviously, situations where exclusion is valid – for example I cannot barge into your house and demand to worship Shiva in your puja room. So, quite obviously, there are some overriding private exceptions to the unfettered right of worship. A very real test is “how substantially is the right to practise religion” harmed by this exclusion. The judgement completely skips that part because that is where the petitioners will lose badly.

The Hindu woman’s right to practise the religion is only negligibly affected due to the following reasons.

Sabarimala is only one thread in the fabric of Hindu/pagans. Women who don’t buy into the whole belief system can and do thrive – they simply select another thread. The evidence of that is the PIL petitioners themselves, who seem to be quite content and spirited.

The Sabarimala thread is so dominant that there will be collateral damage to women due to the exclusion. Neither are they losing out on seats in medical colleges run by the Sabarimala Trust nor suffering any real disability, or economic or social boycott.

The urge to worship Ayyappa at Sabarimala itself is a bogus construct and, Misra and Kanwalikar should not have dwelt on that. There is no evidence that women devotees of menstrual age want to worship specifically at Sabarimala in total defiance of the faith. As said earlier, such a scenario would have built a different case. That women groups would have then constituted an internal schismatic group within the Sabarimala fold, but nothing of that sort here.

Biological Exclusion And Impurity

Judge R F Nariman says:

Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

Again, the conception of “worship” itself is being used here in an Abrahamic sense. “Worship” here is not the same as mass or baptism or other sacraments in Christianity or Islam. In the pagan Hindu system, we are not mindless people worshiping stones. We worship the “faith, the accumulated history, legacy, past, divinity, ancestor heroes” that manifests themselves through the stone. In the Sabarimala case, it is a naistika brahmachari we are dealing with. Nariman shows little understanding of the disqualification – it is not because of biological ground of menstruation but because of the unique nature of the deity. Look at it in the reverse – are Hindu deities allowed to be even endowed with different ‘natures’?

In Tamil Nadu, there are deities that we believe are propitiated by devotees walking on coal embers, sacrificing roosters and rams etc. Other practices include taking dips in kumbhs and pushkars in certain holy places. Should they just take a shower instead? Do we want the court to step in at this level and play referee?

This impurity angle can be indiscriminately used to drive stakes into pagan practices, particularly the elevated status of vegetarianism in most public temples. Is the Sabarimala rule of abstention from non-vegetarian food an assault on the right of meat eaters to worship Ayyappa at Sabarimala?

A Form Of Untouchability – The Article 17 Angle

(The Indian Constitution bans “untouchability in all forms” in Article 17)

Justice Chandrachud’s opinion should be immune to commentary. His main yardsticks can be bracketed under the “constitutional morality and transformative project”. I feel they are so outlandish that it is impossible for any practice to be protected from judicial takedown along any axis. However, he does profess one argument that needs comment – that the Sabarimala exclusion is a form of untouchability – which is commonly understood to refer to a very specific caste practice.

This is from a July article by Dr Tarun Khaitan who predicted:

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability.

First, it is grotesque to compare a permanent inheritable social disprivilege affecting man, woman and child of particular castes versus a temporary, isolated, and totally unimpactful exclusion of women from a single shrine. This is also not a case of post-modern “intersectionality” – where multiple oppression axis combine. Sabarimala is a uniform exclusion of women – Brahmin women, Nair women, Nadar women and Scheduled Caste women.

I feel it is important to point out the bad faith in the Article 17 argument of Justice Chandrachud and his legion of “liberal fans”. He says:

Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation.

First of all, the constitutional mandate of “transformation” is alarming – we are going to have to insist on the specifics. Does this mean transform pagans into believers? Or believers into atheists? Or everyone into fools? What is point A and what is point B? How can a country function if such a secretive and incomplete contract is going to be the basis of our relationship with the law?

The bad faith argument is not recognising the caste-neutrality – a central aspect of the pilgrimage.

If Article 17 (untouchability) is your main concern, then the Sabarimala custom must be given the maximum freedom possible. Judge Chandrachud did not even give it a passing mention. The pilgrimage is a glorious coming together of castes unlike any other denomination. I recall my own childhood experiences in city buses where all pilgrims irrespective of their background used to be called saami. The Sabarimala movement also has spurred a large gurusami, a special elder priest cadre that is caste neutral. The gurusamis are the men who initiate others. There are several instances of the so-called upper castes getting the initiation of the 41-day penance period from the so-called backward caste elders. This should be a matter of great amazement and pride that such a denomination has developed. In our #core vision, such a group should be the vector for social change and not some distant, rootless judges pontificating on things they cannot comprehend.

Now, the response to this will be: “allowing women does not change any of this”. But it does. First, it is much easier for men to bond across caste boundaries than if you add women to the mix, which gets complicated. Second, it inserts the law into the bonds devotees have built among themselves for no “government purpose” whatsoever. Article 17 arguments are hence founded on ignorance, and must be rejected.

Denomination And Essential Practices Test

Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account. (Misra quoting Supreme Court In Aurobindo Society – denying them denomination status holding them to be Hindus)

The Quakers in the colony of Virginia said they would not be able to take oath of allegiance to the newly-independent colony and in addition they won’t send their men to the monthly arms training for the militia. They said they are a separate Christian denomination and their faith does not permit oaths and to bear arms. They were allowed. The Amish of Wisconsin, a separate Christian denomination, which descended from the Swiss Anabaptists claimed they won’t send their kids to the mandatory public schooling. They were allowed in Wisconsin v Yoder.

In all these cases, it is trivial to establish they are a separate denomination because they trace their origin to a founder – George Fox for the Quakers and Jakob for the Amish. These founders established a specific set of principles and rules of conduct that formed the basis of the schism from the mainline Catholics. How on earth are the Sabarimala devotees going to match this level of documentation? Or the dahi handi? Or the Shani Singapur? Or Chidambaram? Perhaps, new denominations like Lingayat, perhaps some Iyengars, can prove they are a denomination but only to a limited extent.

The So-Called Denomination Test

(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
(2) Common organisation, and
(3) Designation by a distinctive name.

As discussed earlier, pagan denomination cannot be modelled as a total schism like the Abrahamics. A denomination in those cases are a result of a mainline splitting into separate collections. Among Hindus, it can be about adopting a unique practice at one time but in other times, merging with others. A Brahmin Sabarimala devotee and a Vanniar devotee for the purpose of the pilgrimage are identical – they follow the same penance, take the same paths, look identical, carry the same irumudi, repose faith in the same deity, sing the same devotional songs, recite the same chant, etc. But in other times, they go back to other forms of worship as per their preferences. This does not mean that Sabarimala cannot be a denomination because the followers do not practise the same elements of the faith all the time.

The test can be reversed; be passed by a different judge. Collection of individuals? The devotees belong to a common organisation? The Sabarimala kosthis are all over the town. They are distinctive and easy to spot. The gurusamis are elder priests, who initiate others. No other sect has these gurusamis. Isnt this enough? Name? These are the names: Swamy Sharanam, Sabarimalai, or simply ‘malai’, or saami. Why is this important. Should the name be registered?

There are finer legal points on which the denomination test fails. We will put them out in the coming days.

Essential Practices

As I have analysed in another #core5 case – the egregiously overreaching jallikattu judgement. The essential practices of a Hindu cannot be ascertained, what can be checked is the essential element of a particular practice. The goal of that would be to detect a mischief hiding under an essential shield and nothing more. However, all four judges of the Sabarimala case trying to extract the essence of Hindu “exclusion of women is an essential practice of Hinduism”.

See this by Misra/Kanwalikar:

It has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In no scenario, it can be said:

What is happening here is the following. The judges might know that they are on thin ice on the denominational aspect, and Sabarimala probably is a denomination. Hence they say “listen, even if you are a denomination – your practice isn’t essential”. That is in line with precedents in the Shiroor Mutt and Devaru cases.

The problem here is that they are making an inexcusable leap – from examining whether the practice is essential to the Sabarimala tradition, they have widened it to examine if the practice is essential to a Hindu. They set up a strawman in the form of a hypothetical, generalised “practice of exclusion of Hindu women”. The wide question of whether this exclusion is essential to a Hindu is not even part of the case. This is where judicial indiscipline will hurt the pagans because our fate turns on such fine distinctions and switches. Is Sabarimala itself an essential part of Hinduism? A judge, tomorrow, can ask, after all 80 per cent haven’t heard of it – they are pious Hindus. This is unlike the Abrahamics, if you haven’t heard of Jesus or Mathew or Muhammad – you can’t be a member.

To conclude, this judgement represents a singling out of a thriving religious practice grounded in faith. No woman devotee complained. An activist court should have taken care not to be seen as a hostile court, particularly when it is striking down on a pilgrimage that transcends caste and brings all Hindus together. It must be immediately reviewed, an ordinance passed, or a constitutional amendment bill introduced.

In our #core vision no 5, we have long recommended a constitutional amendment which insulates these varied practices from PIL process. We now foresee an endless stream of attacks exploiting this new found vulnerability. These attacks can be led by both stupid and strategic forces – may well result in the death of our colourful and inclusive religion.

What Can Be Done?

The ideal situation is a responsive legislature at the Centre – one which sees where this activism is headed and responds to these things before they get out of hand. But even without legislative support, we can spread the message deep among the people and build a vanguard which can fight the future battles.

In the short term, this judgement will have no impact on believers of the faith other than to inconvenience them. An already jam-packed temple will now have to make arrangements for separate queues for women, the feminist irony. And what not. This will be used by both hostile men and women, who are not believers but will be there just to show their defiance and hostility.

What can be done by the board to protect the interest of their believers: declare a special day where women are allowed, then do whatever ritual is needed to protect the deity in the background. This makes sense for administrative convenience. Can the court interfere if a repentance mantra is invoked?

Another option is to file court cases against exclusion in other religions. This is unfortunately required because the idea of jurisprudence in India does not focus on uniform application and principles. They take things apart on an ad-hoc basis by challenging the exclusion of women from Christian and Muslim clergy. Remember that the Indian state actually funds those sites of exclusion and have an international secular impact. Unfortunately, such belligerence maybe the only way we can hope to hammer out a principle. Contrast this with core societies like the US , where uniform application is the basis of these laws. In the Smith Standard in the US, the test is that any rule that is enforced impacting free exercise of religion must be uniform. We fumble with the basics.

The ultimate and foundation protection is however – what we call as #core1. The very real legal disadvantages Hindus face are in the education sector. A ticking time bomb. Without #core1, whatever gains we make in Sabarimala will be ephemeral. Your date of execution has already been set.

This article was first published on Reality Check India and has been republished here with permission.