Study of Op-Eds on Sabarimala Temple court

case

Prayag Savsani

August 2019

Contents
1 Case Timeline 2

2 Woman in Opposition 2

3 Indu Malhotra’s Arguments 2

3.1 On challenging religious practices . . . . . . . . . . . . . . . . 2
3.2 On Right to Equality . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 On Gender Equality . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 On Essential Practices . . . . . . . . . . . . . . . . . . . . . . 3
3.5 On women being treated as untouchables . . . . . . . . . . . . 3

4 The wrong stakeholders are involved 3

5 Questioning Justice Indu’s views 4

5.1 Article 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.1.1 Argument . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.1.2 Counter Argument . . . . . . . . . . . . . . . . . . . . 4
5.2 Article 15 (2)(b) and Article 17 . . . . . . . . . . . . . . . . . 4
5.2.1 Argument . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.2.2 Counter Argument . . . . . . . . . . . . . . . . . . . . 4

6 Argument pertaining to biological characteristics 5

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 3 INDU MALHOTRA’S ARGUMENTS

7 Mythological argument 5

8 Are the women trying to enter really true devotees? 6

1 Case Timeline
Sabarimala temple verdict: A chronology of events

2 Woman in Opposition
Article Link : I am a Woman from Kerala. Here’s Why I am Against the
Sabarimala Verdict
Talks about how the religious feelings of Ayyapan devotees shouldn’t be in-
terfered with. Goes on to say how true female devotees would never want to
enter the temple.
Gender equality can be attained at so many levels in life, rather
than bringing the religious angle to it.
Praises the court on Triple Talaq judgment and calls it a historic victory
for women as it didn’t hurt religious beliefs but criticizes the same for this
judgment.

3 Indu Malhotra’s Arguments

NOTE: Very similar content to what can be found in her judgment.
Article Link: Sabarimala verdict: 5 key reasons why Justice Indu Malhotra
differed with majority view

3.1 On challenging religious practices

PILs challenging religious practices shouldn’t be entertained as they can
cause serious damage to the constitutional and secular fabric of this country.

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3.2 On Right to Equality
4 THE WRONG STAKEHOLDERS ARE INVOLVED

3.2 On Right to Equality

The whole debate regarding Article 14 (Right to Equality) vs. Article 25
(Right to Freedom of Religion). Takeaway point - Equality in matters of
religion must be viewed in the context of the worshippers of the same faith.

3.3 On Gender Equality

There are over 1000 temples of Lord Ayappa where entry of women is allowed
as Lord Ayappa has not manifested himself in the form of a Naishtik Brah-
machari. Hence, the right to gender equality to offer worship is protected by
permitting women to enter those particular temples.

3.4 On Essential Practices

A religion can lay down a code of ethics, and also prescribe rituals, ceremonies
etc. which are also regarded as an integral part of religion and hence are to
be protected as a religious belief.

3.5 On women being treated as untouchables

According to Justice Indu, using Article 17 to consider women as untouch-
ables in this case is misconceived. She argues with nothing but the definition
of the article itself as untouchability was never meant to be applied to women
as a class. She also makes a point that Article 17 abolishes untouchability
rising from social conditions but in this case, denial of entry to women was
governed by a proper law and not just a social phenomenon.

4 The wrong stakeholders are involved

Article Link: Sabarimala and the dangers of overrating arguments
According to this article, low caste people were also denied entry to the
temple for a certain period of time. They wished to enter the temple and it
was a right they sought which in turn was granted to them once the courts
intervened. But women who believe in Ayyappa never sought this right in the
first place. It is a right sought by atheists who don’t respect the underlying
religious beliefs/practices.

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 5 QUESTIONING JUSTICE INDU’S VIEWS

5 Questioning Justice Indu’s views

NOTE: This article also repeats Justice Indu’s arguments which in turn can
be found in the judgments too.
Article Link: Questioning the Dissenting Voice in the Sabarimala Verdict

5.1 Article 14
5.1.1 Argument
As duly noted by Justice Indu, Article 14 i.e. Right to Equality cal only be
invoked by persons who are similarly situated i.e. they belong to the same
faith or sect. This in turn, disqualifies the petitioners as they’re perceived as
third party interveners in this case.

5.1.2 Counter Argument

Justice Indu thus expects the people belonging to the same community to
fight this case and especially the women. But given the patriarchal nature
of our society, the women may not effectively do the same.

5.2 Article 15 (2)(b) and Article 17

5.2.1 Argument
Article 15 (2)(b) asserts that no citizen on grounds of sex can be subject
to any disability, liability, restriction or condition with regard to places of
public resort. The appeal of the petitioners to include the temple as a “place
of public resort” is invalidated by Justice Indu on grounds that there was a
“conscious deletion” of “temples” and “places of worship” by the Constituent
Assembly while writing the Indian constitution. The argument regarding
Article 17 can be found above (fun fact: clicking above takes you right to
that point in the document).

5.2.2 Counter Argument

The above mentioned arguments from Justice Indu come from a rather re-
strictive approach of constitutional interpretation i.e. the originalist approach.
This approach is based on the intent of the framers of the Constitution at

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 7 MYTHOLOGICAL ARGUMENT

the time of drafting the text. Over time, originalism as a method of con-
stitutional interpretation has been subjected to serious criticism while the
“living tree” approach (the constitution as an evolving and organic docu-
ment) has gained prominence. This calls for a thorough review of traditional
institutions like caste and religion through novel approaches. Therefore, the
exclusion of women from religious spaces on the grounds of them menstruat-
ing is a specific form of untouchability and social segregation. In this case,
women belonging to the restricted age group become a caste category in
themselves, subordinated by men, within religious principles of purity and
pollution. Caste here should not perceived as an individual or a social or cul-
tural group, but rather as a tool of oppression to create a sense of hierarchy
between genders.

6 Argument pertaining to biological charac-

teristics
Article Link: Freedom to pray: on Sabarimala verdict
The practice is justified because women of menstruating age would not be
able to observe the 41-day period of abstinence. However, this argument
failed to convince the judges. CJ Deepak Misra considers it unconstitutional.

7 Mythological argument
Quora Answer
According to the puranas, Ayappa was born to destroy a female demon who,
thanks to a curse, could only be vanquished by a child born of both Shiva and
Vishnu. When Ayappa fulfils his destiny by killing her, a beautiful woman
emerges from the body. Now free, she asks Ayappa to marry her. He refuses,
explaining to her that his mission is to go to Sabarimala where he would
answer the prayers of his devotees. However, he assures her that he will
marry her when kanni-swamis (devotees visiting the shrine for the first time)
stop coming to Sabarimala someday.
She now sits and waits for him at a neighbouring shrine near the main temple
and is worshipped as Malikapurathamma.

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 8 ARE THE WOMEN TRYING TO ENTER REALLY TRUE
DEVOTEES?

And that is why women do not go to Sabarimala. It is partly out of empathy

for Malikapurathamma and her eternal wait.

8 Are the women trying to enter really true

devotees?
Quora Answer
A true devotee always visits sabarimala with irumudi kettu. The irumudi
(a cloth which has two parts with offerings to Ayyappa Swamy, carried by
a devotee while going to sabarimala) has to be tied in the presence of a
guruswamy (who has visited the sannidhanam more than 18 times), who
does that only with the permission of the devotees’ family.
As you would read the answer, you would realize that all the cases of women
trying to enter the shrine either involve women from other religions who’re
trying to prove God knows what or, they’re women who’ve done this without
their family’s permission and also thereby not following all the traditional
formalities. They now face serious consequences amongst the society.