Previous Blog (1/3)
Next Blog (3/3)
As mentioned in my previous blog, S Gurumurthy recently triggered a discussion on Twitter around the Sabarimala case. He was weighing in his opinion on how the legal system cannot be above faith. This is a director at Reserve Bank of India. It is intellectually boring to break down any analysis by S Gurumurthy. His opinion and bigotry can only be matched by someone like Steve Bannon from the US. However, the most acclaimed narrative has been produced by a Hindu apologist, J Sai Deepak. He is the best spokesman for the Hindu right wing and I want to take down his argument in this blog. I want to do this through the below parts.
- The Sabarimala Case
- Analysis of J Sai Deepak’s argument
- Analysis of other arguments
- Ready to wait
- Blaming judgements for natural calamities
- My Opinion
The Sabarimala Case
The core of this case is extremely simple. A bunch of people filed a case against women being barred from entering the Sabarimala Temple. The case was filed in 2006 and taken up by the Supreme Court of India in 2017. Towards that time a bunch of girls from Kerala started a movement called ‘Ready to wait’. This movement wanted to keep the status quo. The movement got traction and attracted some prominent religious and legal experts into the case. J Sai Deepak was one of the lawyers representing the ‘Ready to Wait’ movement. I can go on an on about de-mystifying the Sabarimala deity, Ayyappa but that is not of any significant benefit to this argument. Wikipedia provides a decent introduction on Sabarimala and Ayyappa. However, there are a few points I want to share, which adds some value to the case.
Difference between Ayyappa and Manikandan
As the legend goes, Manikanda(n) was a prince of the Pandalam dynasty. He is believed to have lived in the 12th Century BC. He is supposed to be an incarnation of the Hindu god Ayyappa. It is one short of a trinity, probably can be referred to as duality.
The belief is Ayyappa maintains celibacy
According to the belief of the people who run these temples, the deity Ayyappa wishes to be a celibate. The temple website mentions the below.
“As Sabarimala Ayyappa is ‘Nithya Brahmachari’ (celibate)women between the 10-50 age group are not allowed to enter Sabarimala. Such women who try to enter Sabarimala will be prevented by authorities. Only pilgrims who have observed Vrutham alone are allowed entry through the holly Pathinettampadi. They have to carry Irumudikettu (Pallikettu)also.”
Sabarimala is autonomous but under the Government of Kerala
The Sabarimala Temple is run by the Travancore Devaswom Board. Though the functioning of the board is autonomous, the members of the board are nominated by the state government of Kerala. The Travancore Devaswom Board website has the details. It is not a completely private institution. Further, they cannot have a constitution which contradicts the constitution of the country.
The judgement hasn’t come through on the case
There is so much noise around this subject but the judgement hasn’t been given yet. The court has reserved the judgement to a later date.
This wasn’t the first case on the subject
This case cannot be understood in full context unless we look into in the context of the judgement given by the Kerala High Court in 1991 in a case related to letting women entering the temple. After listening to the argument, the judgement was pronounced as below.
“The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.”
“In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”
Ref: https://indiankanoon.org/doc/1915943/
The Haji Ali Dargah case
There was a similar protest to allow women to enter the Haji Ali Dargah. The women who fought for their rights won their case. The judgement was pronounced on 26 August 2016 when the Bombay High Court ruled that women could enter the Dargah. Though the Sabarimala case was filed a long time before, the Haji Ali Dargah case definitely has opened the floodgates.
Ref: https://www.tribuneindia.com/news/editorials/another-door-opens/623134.html
Analysis of J Sai Deepak’s argument
J Sai Deepak’s argument can be divided into the below parts. There is so much mentioned about the veracity of this argument but I feel it only convinces people who are already convinced. I don’t think defending anything reprehensible should be praised as an act of bravery and skill. Anyway, I will deconstruct his arguments to see what makes sense.
- Lord Ayyappa is a juristic person and has the liberty to do what he wants
- This is a question of religious freedom
- It is not a women’s issue
- The court should not be imposing their views on religious practices
- There are similar examples across other religions or other temples
I have given references to the argument presented by J Sai Deepak in the section below.
Lord Ayyappa is a juristic person and has the liberty to do what he wants
“Lord Ayyappa of the Sabarimala is a “juristic person” for the purposes of property ownership and taxes and hence, he equally has rights under Article 21 (protection of life and personal liberty), 25 (freedom to practice religion) and 26 (freedom to manage religious affair) of the Constitution.
The deity has the right to remain a ‘Naishtika Brahmachari’ (eternal celibate) and this was also part of the right to privacy of the deity, the will of the deity needed to be respected.”
It is true that Lord Ayyappa is considered a juristic person under the Indian Penal Code. According to law, the juristic person includes not only natural person (living) but also corporations, idols and even the dead people. However, Article 21 has an exception. When carrying out a procedure established by law, one’s personal liberty shall be deprived. So, Ayyappa has the right to remain an eternal celibate, as long as he stays lawful. The same is the case with Article 25, Ayyappa has the complete freedom to practice his religion.
However, the argument is completely mute. Sabarimala is not owned by Lord Ayyappa. The place is owned and operated by Travancore Devaswom Board for the person named Lord Ayyappa. Lord Ayyappa can walk out and sit inside his private property. At that point, he will have all the personal liberty he wants. As long as he is sitting inside a building owned and maintained by Travancore Devaswom Board it has to operate under Article 5 of the constitution. Travancore Devaswom Board is partially maintained by the State Government of Kerala and has constitution provisions.
Article 15 – 2 (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
The proof that the board is funded by the state is in Article 290A of the Indian Constitution.
290A. A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of 1 [Tamil Nadu] every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore Cochin.
So, this argument is a non-sequitur.
This is a question of religious freedom
Now, let’s look at Article 26 of the Indian Constitution which outlines religious freedom.
26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
This is a plain conflation of concepts. Every religious denomination has the right to manage their own affairs in matters of religion. However, matters of religion come under the law. Supreme Court is not ruling against rules of Hinduism. However, the rules of Hinduism have to come under the legal code. For example, if my religion asks me to perform a cruel operation on a newborn resulting in the death of the baby, it will still be classified as murder. Right to manage your religious matters doesn’t mean a right to discriminate. Either way, the usage of this clause is meaningless in the context of an individual called Lord Ayyappa.
Now, coming to the definition of Naishtika Brahmachari. Naishtika Brahmachari means celibacy till death. How do women entering the temple take away the celibacy of the Lord Ayyappa? According to Hindu scriptures (Smritis), a naishtika brahmachari is supposed to live under the supervision of his guru. This means he owns nothing and lives by begging. Can you think of someone begging and a male offering them food in the olden days? Also, this rules of Lord Ayyappa owning the place. Now there is another famous naishtika brahmachari in Hindu mythology, Lord Hanuman. I don’t think he avoids seeing women. The Supreme Court of India is not changing the definition of the word by any means.
It is not an issue of discrimination against women.
This is laughable. I am not sure how you can say that women who are capable of having a child cannot enter the temple and still say it is not an issue of discrimination against women.
Further, the point mentioned was “The women have been respecting the tradition for a long time now and this is not a case of temple versus women or men versus women”. Now women have also been respecting Sati for centuries. That doesn’t make the sati an acceptable practice.
The other point made is, “The issue of exclusion of women was not based on the notion of purity and rather dependent on facts like celibate nature of the deity which has been preserved for years”. This is completely false. How do I know? Prayar Gopalakrishnan, the president of the Travancore Devaswom Board has done the job. His quote says everything that needs to be said in this regard.
“These days there are machines that can scan bodies and check for weapons. There will be a day when a machine is invented to scan if it is the ‘right time’ (not menstruating) for a woman to enter the temple. When that machine is invented, we will talk about letting women inside.”
The court should not be imposing their views on religious practices
The next point by J Sai Deepak is that the court and others should not be “superimposing” their social views on the temple which has stated its position “loud and clear”. He followed that with the below point.
“Tomorrow somebody can say that he would like to offer chicken as ‘prasadam’, can such an offer be entertained and the rules of religion and the God cannot be changed.”
This is an argument from emotion than logic. Let us look at the first point here. The court should not be superimposing their social views on the temple. This is completely incorrect. The temples come under the jurisdiction of the Indian Constitution and any views that they have which are against the constitution will be challenged. A temple, for example, cannot preach discrimination or violence. It is against the law. Temple is within a jurisdiction of a legal entity. It is cyclic fallacy if you use the same law to argue that the temple is above law.
On the second point of offering chicken as ‘prasadam’, there are laws protecting such actions. For example, one cannot say that by allowing women to enter mosques, pigs can also enter the mosques next. This is a hasty generalisation fallacy. It also commits an argument from analogy.
There are similar examples across other religions or other temples
The last of his argument was that there are other such practices which continue. The example used is throwing of babies outside the Baba Umer Dargah, Solapur Maharashtra. It is worth noting that the National Commission for Protection of Child Rights has already banned the practice. It still continues to happen illegally because such people are idiots. Further, the fact that A is wrong and still happens. Therefore, B is wrong should also be allowed to happen is not a logical argument. If he is trying to trigger a divide between Hindus and Muslims in this case, then it is worth noting that there are Shiva temples in the same area which do the same ‘Throwing Baby’ act.
Overall, his complete narrative is an argument from incredulity. There is no logic to it apart from trying to strike an emotional chord with his co-fundamentalists.
Analysis of other arguments
I also want to list other arguments presented in this case.
Argument by K. Radhakrisnan
A Senior advocate K Radhhakrishnan, appearing for the Pandalam royal family, referred to the concept of morality and said that the constitutional morality cannot override the private morality in cases of religious practices. This is completely wrong. Morality is the principles concerning the distinction between right and wrong or good and bad behaviour. As seen in Wikipedia, morality is the differentiation of intentions, decisions and actions between those that are distinguished as proper and those that are improper. Constitution fundamentally does that. Most religious moralities allow you to own and trade people as slaves. The constitution gives you the right to think and speak freely. It is your right to not want to exercise it. Morality, however, is how you behave with the society in that context. Private morality is a meaningless construct in that case. It is a deliberate conflation of the definition of the word morality. I am assuming he meant liberty. Even with that, I have already shown that the argument is flawed.
Argument by Abhishek Manu Singhvi
Abhishek Manu Singhvi is a lawyer and a Member of the Parliament in India. It is outrageous to see him defend unconstitutional practices.
Defending the Sabarimala tradition in the Supreme Court, advocate Abhishek Manu Singhvi on Tuesday told the bench that there are temples in the country where even men are not allowed. He added that a court cannot be invited to give a finding that a tradition or belief is not of antiquity without the evidence being examined in a trial. Arguing for the Travancore Devasom Board which administer the sabarimala temple, Singhvi also argued that there are hundreds of traditions practised buy dozens of faiths in India and it is not possible to bring them all under definition of Constitutional morality. “Even in Mosques across the country, women are not allowed,” said Sighvi. He added that the test under articles 25 and 26 was not whether a particular practice was right or wrong but whether it was a bonafide belief practiced for centuries by a community.
His first point of men not being allowed is fundamentally allowed under the constitution of India. This is the same reason why you have women-only compartments in trains but don’t have it for me. Article 15-3 of Indian Constitution says, “Nothing in this article shall prevent the State from making any special provision for women and children.” So, women can have such special privileges. There are 8 such temples in India. His second point should comfortably be the worst of the lot. Since there are too many traditions, we should not bring them under the constitution. I wonder what is the purpose of a constitution or legal system in such a situation. I wonder if he is calling for anarchy in a court of law. And finally, I have already discussed the articles 25 and 26 above. So, I am not going back to it.
Ready to Wait argument
There is something about this campaign which invites mockery. The premise of the ‘ready to wait’ campaign is utterly stupid. While it is a cool hashtag, it is meaningless. No one is forcing these women to not wait. Even if the judgement allows women to enter the temple, it doesn’t force these women to enter. It is not a mandate. They can wait. I am surprised, people can’t see the stupidity in these arguments. It is also pretty ironic that the parent organisation is called ‘People for Dharma’. I wonder the context in which they are using the word ‘Dharma’. It could mean righteousness, rule, law or cosmic order. Do they mean, the rest of them are for ‘Adharma’? This is the callousness seen in some movements like ‘Pro-life’, like anyone who opposes it is ‘Anti-life’. You don’t need a right to wait in a democracy, just like you don’t need a right to stay hungry or right to shave your head.
I was subsequently proven right by the nature of the arguments posed by the people propping up this campaign. Here are a few.
“If you don’t wish to believe in Hindu deities and their stories/legends, then don’t. But this sudden interest in destroying millenia old traditions in the name of “rights” is becoming absurd. Would you, for instance, support my right to eat pork inside a mosque? Religious places are not public places.”
“Sati, triple talaq, child marriage are social customs. #Sabarimala temple’s tradition is based on Shastras. Not a ‘SOCIAL’ issue. Devotees coming out with #ReadyToWait declaration. Women don’t intend to allow atheism win over Bhakti.”
“I respect my traditions, therefore will never visit Sabarimala before the right time for me. Feminists should leave us alone.”
I sometimes wonder how far and deep the termite of misogyny has spread. Now women want to become their torchbearers. I want to just highlight a few points.
- Destroying traditions under the name of rights is not absurd. Traditions have to be questioned in any civilised society. The Hindu Sastra (Manusmriti) highlights the role of a woman to be subservient to her male guardian.
- You do not have a right to eat anywhere. It doesn’t say that in the constitution. You don’t have the right to kill a lion as well.
- Shastras are social issues. Hindu Sastras call for discrimination of people based on various factors. I wish she reads a bit more before making a fool of herself in public.
- Feminists are not forcing anyone, especially these people to go to the temple. No one is forcing anyone to enter. People are fighting for the right to enter a temple here.
It is not surprising to see this line of argument. In 1934 there was a report submitted to the Maharaja of Travancore on allowing lower caste Hindus to enter the Sabarimala Temple. I have given an excerpt from the report (as I read it from another source) below. This was called the ‘Temple Entry Committee Report’. I have provided more links in the references section.
“Exclusion from temples, not always the result of the excluded class being considered inferior to others. It is based on a belief that the approach of certain people is likely to derogate from the spiritual atmosphere surrounding the pratishtha, the deity installed in the temple. A large body of (high-caste folk) believe, on the basis of the (scriptures), that the entry of the (low) into (their) temples would cause defilement of the temples…and there will be no efficacy in the worship or rites performed in them.”
As it can be seen, this line of argument is not uncommon with the people running the temples and the people practising these beliefs.
Blaming judgements for natural calamities
Religious fundamentalists have always been guilt tripping judiciary when it has promoted equal rights against the will of their religions. The evangelicals in the past have blamed Hurricanes in the US, the attack on WTC, the earthquake in Haiti and even the 2011 tsunami in Japan to gay rights. Now the Hindu right in India has taken over the same approach. They are pressurising the judiciary into think there is somehow a connection between the judgement and the floods in Kerala. However, they are using a multi-pronged approach for this. There are volunteers on the ground who are helping the flood victim. This builds the goodwill. Then, there are people who drive local movements drawing the connection. They evoke the causation versus correlation conundrum in people. Finally, there are people who attack the judiciary. It is a good strategy only if everyone else is an idiot.
My Opinion
I am not a fan of religious reforms. When people talk about reforming a religion, all they do is add another flavour of the religion essentially twisting some elements of the religion to make it more palatable to the society. If the religions adapt to the social changes, then they do not perish. So, we leave the next generation to fight this evil construct. Morality has always come at the expense of religion and not because of religion. Religion has successfully collected the social morals of a time and encompassed them in their system. However, morals evolve as people learn more. If religions are allowed to move their goalpost we can never get rid of this evil.
At the same time, I am not sure about the need for any self-respecting woman to enter the temple premises after knowing how they are being discriminated against by the system. Unless they do it to annoy the establishment, I can’t think of a valid reason to enter. For that reason, I can’t think why any woman would want to be religious. No religion ever gives a woman equal right.
I want the Supreme Court of India to give the Travancore Devasom Board two options. The fundamentalists fighting for the right of the Lord Ayyappa like J Sai Deepak want the first option while the people who are contesting them want the second. I feel the court should provide both the options to the board and ask them to take a call.
Option #1: Become a completely private entity by leasing the area from the Government. This means
- Lost their charity status
- Pay taxes like a private institution
- Lose government protection
- Still under Indian Constitution and Legal system
They would run like a theme park. They set their rules. However, this requires a constitutional amendment.
Option #2: If they want to operate in its current fashion then
- Allow women of all ages to enter the institution
- No discrimination against any community, gender or sex
On a different note, I wish tax rebates for all religious institutions should be removed. When a cab driver or a car mechanic has to pay one’s full due of taxes why should religious institutions get a free pass?
References
Constitution of India
Sabarimala case details
Travancore Temple Entry Report
J Sai Deepak Argument