Sabarimala case: It’s not a struggle to defeat religious faith

The Sabarimala case provides the Supreme Court with a chance to bridge the gap between the constitutional ideals and our social reality.

In April 1947, during a heated debate in the Constituent Assembly’s advisory committee on the subject of fundamental rights, Alladi Krishnaswamy Iyer uttered a prescient warning: “You can never separate social life from religious life”. Iyer’s insight – that the new constitutional order would have to respond to how deeply religion was implicated in Indian social life – would haunt the Constituent Assembly in its debates over religious freedom, and has haunted Indian constitutional politics ever since. This month, it came to the fore again, as a Constitution Bench of the Supreme Court heard the controversial Sabarimala case.

In this file photo dated November 18, 2013, devotees wait at Lord Ayyappa temple, Sabarimala. The Supreme Court has said women have the constitutional right to enter Sabarimala temple in Kerala and pray like men without being discriminated against(PTI)

While the legal issues in the case are complex and multi-layered, at its heart, the question is a simple one. The Sabarimala shrine prohibits women between the ages of 10 and 50 from access to worship. The Travancore Devaswom Board, which controls the shrine, cites the vow of celibacy taken by Lord Ayyappa, the impurity associated with menstruation, and the requirement of a 41-day penance (which, again, women cannot undertake because of menstruation) as justifications for this practice.

The petitioners before the SC argue that each of these reasons – directly or indirectly – discriminates against women, contrary to text and spirit of the Constitution. To this, the defenders of the practice retort that the Constitution grants to every religious denomination the right to determine its own rules, and the keepers of the shrine can hardly ignore the divine injunction of Lord Ayyappa. After all, the women can go to any other temple where these restrictions don’t apply.

The question is a difficult one. Some argue that what it means to be a secular State is to accord religious orders and religious groupings autonomy and freedom from State interference. Practices that may conflict with the constitutional order are nonetheless allowed to stand, on the understanding that, as long as it is a matter of pure faith, the State should respect it and leave it alone. It was following this reasoning that the American Supreme Court, for example, held that religious groups were not bound by the secular State’s rules of non-discrimination when they were selecting someone for religious office.

But it is here that Alladi Krishnaswamy Iyer’s warning to the advisory committee becomes relevant. It is one thing to exempt religious orders from complying with the constitutional scheme in a society where religion is a private matter, a pure question of the relationship between an individual and God. It is quite another to use the same yardstick in a society in which religion is, on the contrary, a deeply public affair, and so closely bound with an individual’s social and moral standing in the community. To leave such a vast domain untouched by constitutional principles would make of the Constitution itself little more than a rope of sand.

Our own recent history bears eloquent testimony to this fact. In the great Dalit movements for civil rights in the early 20th century, temple entry was at the heart of the agenda. This was because in a society in which religion played such an important role, temple bans for the “untouchables” were not simply about denying them the right to worship, but a powerful public statement of social inferiority and subordination. Remedying that was an essential step towards equality and full moral membership of the community. BR Ambedkar recognised this well when he observed that “the issue is not entry but equality.”

Ninety years later, the issue remains equality. We are still a society that discriminates against women, by rules, by customs, and by social sanctions. Much of this discrimination takes the form of material deprivation and violence, but equally, much of it is expressive. The struggle for entry into Sabarimala must be understood, therefore, not as a struggle to defeat religious faith or to undermine Lord Ayyappa’s vow of celibacy, but as a struggle to ensure that we do not remain a society that, in very public and demonstrable ways, continues to deny women equal moral membership of the community by invoking ideas of purity and pollution.

That is how the Constitution becomes relevant to the issue of temple entry. As Ambedkar observed during yet another debate on secularism in the Constituent Assembly: “After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.” The Sabarimala case provides the Supreme Court with a chance to bridge the gap between the constitutional ideals and our social reality.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal