The Long Road Home from Sabarimala

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The month-old Sabarimala judgment given by the Supreme Court of India has opened the floodgates to a massive nationwide conversation on how Indians view women, morality and the normalization of the inherently problematic ways in which we treat both. Whether it is addressing the stigma associated with menstruation, or the parallelism with the #MeToo movement, or taking on the broader aspect of institutionalized gender discrimination, Sabarimala has pulled its fair share of skeletons out of the closet.  However, has the seemingly straightforward verdict in Sabarimala paved the way for something even greater?

In a public interest litigation (PIL) filed before the High Court of Delhi, social activist Sanjjiiv Kkumaar has sought to end all discriminatory religious practices in all faiths, making such acts of discrimination a penal offence.

The PIL filed by Mr. Kkumaar essentially targets discriminatory behaviour that has been entrenched in religious institutions as a form of practice. The PIL seeks the issuance of a writ of mandamus (an order by the court directing a public authority to do or refrain from doing something) for the following-

  • To ensure menstruating/non-menstruating women of any religion can enter and pray at the Zoroastrian fire temple and the Temple of Silence (sic).
  • To ensure that menstruating/non-menstruating women of any religion can enter/pray at any temple in India without restriction and to ensure entry is permitted to male devotees at temples traditionally reserved for women such as the Attukal Temple, Chakkulathukavu Temple, Santoshi Maa ‘Vrat’, and the Bhagati Maa Temple, to name a few.
  • To ensure menstruating/non-menstruating women of any religion can enter and pray at mosques across the country, alongside men for salat and non-salat prayers.
  • To ensure women of the Islamic faith are not barred from offering prayers at their mosques during menstruation.
  • To ensure women of the Hindu faith are not restricted from fasting, praying, entering the kitchen during menstruation.
  • To ensure that women of the Zoroastrian faith can be ordained as priests.
  • To ensure that women of the Hindu faith can be ordained as pujaris, purohits or as heads of akharas.
  • To ensure that women of the Islamic faith can be ordained as imams of mosques and can lead mixed gender congregations or salat and non-salat prayers.
  • To ensure that women professing Christianity can be ordained as priests, bishops or deacons.

The PIL traces back the response of each religious group to menstruation, acknowledging that while some cultures like Mayans, the Native Americans and several subcultures in Africa regard menstrual blood as holy and powerful, several other religious structures such as Sikhism, Buddhism and Christianity approach the issue with biological neutrality. Religions like Hinduism, Islam, Jainism, associate menstruation with impurity and uncleanliness, requiring elaborate mechanisms to keep women secluded from everyday affairs during the menstrual period. Similar to menstruation runs the argument of ordainment.

The PIL picks up where the Sabarimala judgment left off, citing the observations made by the court as a pressing enough reason for action to be pursued against the discrimination inherent in religious structures. Citing Dr Justice DY Chandrachud’s separate judgment, the PIL asserts that exclusionary religious practices defile constitutional morality:

A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality.’

However there is certain merit to Justice Indu Malhotra’s dissent in the Sabarimala judgment that plays a pivotal role in entertaining a public interest litigation of this magnitude. Justice Malhotra’s primary concern with the Sabarimala judgment was how susceptible the worship of a religious denomination had become due to influences outside the sect. Perhaps she foresaw the trouble which a precedent such as Sabarimala might set were it to be interpreted in its loosest sense.  She observed that, ‘Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.’

With Mr. Kkumaar’s PIL there is direct interference with not only religious minorities but with entire structures and systems of organized religious belief. By opening the doors of the Zorastrian faith to the general populus, it is not just discriminatory practice that meets its end, but also the essential nature of the faith itself. While discrimination does persist in all forms of organized religion, a blanket one-size fits all policy regularizes faiths to their detriment.  

The second caveat, carried forth from this is the question of determining the essential nature of religious practices– a common test of  determination provided that such dissent as to the essentiality of a religious practice is internal. Justice Malhotra observed that what can be seen as oppression, or discrimination can only be determined within a religious denomination or group. What the present PIL does not foresee is that there comes a certain association with follwing a particular faith. Such association creates an identity for the followers and allows them the ability to direct the lines and landscape of their collective identity. Discriminatory practices based on menstrual cycles is both abborrent and archaic. But it is for the proponents of each faith to affect egalitarian practices within their religions.

Justice Malhotra also brought to light the precarious position upon which constitutional morality is balanced. Observing that constitutional morality refers to the moral underpinnings which contextualise the spirit and letter of the Constitution, constitutional morality in a pluralistic society must reflect the freedom of devotees to practice their religion according to the principles of said religion. She noted that, ‘It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.’ Reading this in the context of the present PIL, it’s important to remember that organized religions are more than a spiritual collective. Religions, especially in a country like ours provide a rigid social order around which livelihoods are organised. Disrupting that is akin to disrupting the very fabric of Indian society.

Does that mean discrimination against women can be allowed to thrive? Not at all.  Constitutional morality is after all the solution. It allows a certain degree of wokeness to enable change with religions to make them more relevant, more life-affirming and a lot more egalitarian.  The ideas of the dissent may contrast with the ideas of the majority opinion in the Sabarimala judgment. However, it is crucial to entertain a public interest litigation which effectively changes the face of religions across the country in one fell swoop with the highest standards of constitutional stringency. If it is tenable, or even remotely possible, the road home from Sabarimala is far more arduous than we had anticipated.

Priyanshi Vakharia is a Research Associate (Legal Reform) at One Future Collective.

Featured image: Isha Sadhguru

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