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Monday, Oct 21, 2019

The Sabarimala verdict establishes the supremacy of Constitutional morality

As the country moves forward, the far reaching socio-economic consequences of this historic verdict will unfold themselves

analysis Updated: Nov 09, 2018 20:53 IST
TKA Nair
TKA Nair
Journalist Kavitha Jakkal being escorted by the police to Sabarimala Temple, Kerala, October 19. Kavitha and activist Rehana Fathima were taken to the temple but the priest, reportedly, locked it and the women had to return mid-way.
Journalist Kavitha Jakkal being escorted by the police to Sabarimala Temple, Kerala, October 19. Kavitha and activist Rehana Fathima were taken to the temple but the priest, reportedly, locked it and the women had to return mid-way. (PTI)
         

While considering the recent verdict of the apex court invalidating the legal restrictions on the entry of women

between the ages of 10 and 50 years into Sabarimala temple, it must be borne in mind that this ban was enforced strictly after the Kerala high court verdict in 1991. There have been many earlier instances of women of all ages entering the Sabarimala temple complex to offer prayers and perform rituals such as the annaprasan of their children. The affidavit given by the Kerala government/Travancore Devaswom Board stands testimony to this.

The main argument against women of menstruating age entering Sabarimala advanced before the Supreme Court during its hearing and repeated by those who are agitating against the verdict even today is based on the “impurity” of women during menstruation. The deity in Sabarimala – Lord Ayyappa – is in the “Naishtik Brahmachari” form; he abhors the presence of women of “impurity” and would like no disturbance to his brahmacharya. Male devotees on their pilgrimage are also enjoined by custom to practice severe penance including abstinence for 41 days before ascending the 18 steps of Sabarimala to offer their prayers.

There are no authentic historical records about the origin of the Sabarimala temple including the installation of the idol of Lord Ayyappa in the Naishtik Brahmachari form and the customs, practices and rituals with which the pilgrimage started. However, there is historical evidence to establish that customs and rituals of the Sabarimala pilgrimage have been undergoing changes from time to time in response to changing circumstances. Besides the fact that women of all ages entered the temple before the high court injunction, the following facts are widely known. For instance, the kodiyettam (flag-hoisting ceremony) and padipooja (worship of the holy 18 steps) were not in vogue earlier. No poojas were offered to Malikappuraththamma in the earlier days, but they are offered at present. Many Sabarimala pilgrims still remember the customary practice of breaking fresh coconut while ascending the sacred 18 steps which has now been given up. “The most celebrated breach” of the taboo against entry of women of all ages into the Sabarimala is that of the queen of the Travancore royal family.

Elaborate arguments centering round the customary practice being enforced on the basis of the Kerala High Court verdict of 1991 with reference to Articles 13, 14, 15, 17 and 25 of the Constitution of India were advanced before the apex court by a galaxy of legal luminaries. Most of them representing several Hindu organisations and institutions such as the Nair Service Society, the Pandalam Royal family, which claims to have special rights and privileges in respect of Sabarimala, and the high priests of Sabarimala vehemently opposed entry of women of all ages. After considering the arguments advanced for and against, the Apex Court with the dissenting voice of the only woman judge on the bench repudiated the Kerala High Court verdict of 1991 and upheld the right of women of all ages to enter into Sabarimala temple for offering prayers.

Shorn of the main assertions of the advocates of customary practices and rituals associated with Sabarimala and legal niceties, the crux of the matter is faith versus the law. Arguing that faith has no rationale and its validity or relevance cannot be tested against man-made laws, it has been argued for a long time in different contexts that faith is supreme in human affairs.

Going through the Supreme Court verdict given by the Chief Justice and three of his brother judges, it is amply clear that they have once and for all repudiated the supremacy of faith over the Constitution. On the underlying basic principle that the Constitution of India is supreme, the Chief Justice and his companion judges in different words unequivocally upheld that even in matters of religious faith, Governments, religious and other institutions and the people of India are bound by the constitution of the country. This historic verdict supersedes all other laws of the land and customary practices and beliefs and traditions of different religions/faith which are contrary to it. Thus, on the one hand, it proclaims the triumph of women’s rights towards equality with men and on the other it establishes the supremacy of Constitutional morality over customary laws, rituals and traditions. The far reaching socio-economic and political consequences of this historic verdict will unfold themselves as the country moves forward.

TKA Nair is former advisor to former Prime Minister Manmohan Singh

The views expressed are personal

First Published: Nov 08, 2018 15:29 IST

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