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Deepa Das Acevedo, Gods’ homes, men’s courts, women’s rights, International Journal of Constitutional Law, Volume 16, Issue 2, April 2018, Pages 552–573, https://doi.org/10.1093/icon/moy039
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Abstract
For decades, the Hindu temple at Sabarimala has drawn media attention and the occasional lawsuit because of its ban on women aged ten to fifty. Most recently, popular campaigns for expanding women’s access to temples have revived a twelve-year-old public interest suit before the Indian Supreme Court. The petitioners in that suit argue that Sabarimala’s ban, though earlier recognized as an “essential practice” of Ayyappan worship, violates constitutional guarantees of equality and religious freedom. Opponents counter that the ban is in keeping with constitutional guarantees that religious denominations may govern their internal affairs and keep control over their religious institutions. This article provides a “state of the field” overview with respect to essential practices jurisprudence and the Sabarimala dispute on women’s entry, drawing on case law and media coverage to construct a history of the Sabarimala dispute writ large and to contextualize the current litigation within that broader history.
In February 2017, the Indian Supreme Court was slated to hear the latest installment of a twelve-year-old case involving the Hindu temple at Sabarimala.1 Although the hearing has been postponed several times, observers continue to hope that the Court will decide whether the temple may continue to exclude women between the ages of ten and fifty from its premises on the grounds that fertile women offend the presiding deity, Ayyappan.2 The Court’s ultimate decision will both offer some resolution to a long-running dispute, since contestations over women’s entry predate the current case by several decades, and also add a high-profile contribution to the body of law known as “essential practices jurisprudence.”
This article provides a “state of the field” overview with respect to essential practices jurisprudence (particularly with regard to access to temples) and the Sabarimala dispute on women’s entry. Section 1 offers a brief history of the essential practices doctrine that primarily focuses on Supreme Court litigation and the considerable body of scholarship that has grown out of it. Section 2 moves away from the Supreme Court to focus on Sabarimala and women’s entry; I draw on case law and media coverage to construct a history of the Sabarimala dispute writ large as well as to sketch an account of recent social movements centered on women’s access to various temples. The conclusion highlights some of the interesting questions raised by the current Sabarimala case.
Not only does the Sabarimala litigation bring a high-profile institution into the body of Supreme Court jurisprudence on essential practices, it does so in the midst of an unprecedented level of media coverage and popular awareness. As Section 2 demonstrates, Sabarimala and the broader question of women’s access to temples have been the focus of multiple social media campaigns. Notwithstanding this, there has been almost no scholarly analysis of the case that contextualizes it within the broader history of the dispute over women’s entry or the development of essential practices jurisprudence. This article is a contribution to that effort.
1. The Supreme Court and essential practices jurisprudence
India’s approach to religion–state relations has long drawn attention for the way in which it blends two seemingly contradictory elements: secular governance (formally part of the constitution since 1976), and an extensive governmental apparatus regulating religious life. Scholarship on this topic has mostly sought to reconcile these two impulses by arguing that secularism in India means something other than the separation of religion and state—that, for instance, “Indian secularism” means the state maintains a “principled distance” from all religions, or that it entails a three-way balancing of “religious freedom,” “celebratory neutrality,” and “reformatory justice.”3
Like scholars, courts too have had to think creatively in order to reconcile competing impulses in the Indian Constitution. The most common clashes are between articles 25(1)4 and 265 on the one hand (which protect various aspects of religious freedom for individuals and groups) and articles 25(2)(a) and 25(2)(b)6 on the other hand (which authorize various forms of state involvement in regulating religious institutions and religious life more broadly).7 In such cases, courts often apply the judge-made “essential practices” doctrine to determine which aspects of religion lie beyond the state’s purview.
The doctrine was first articulated in a 1954 Supreme Court case, Shirur Mutt,8 in which the Supreme Court was asked to resolve the competing claims of a leader of a religious order and a state actor authorized to participate in the regulation of religious institutions. The petitioner was the head of the Shirur Math, a Hindu religious order in Udupi, in contemporary southwestern Karnataka. After a series of managerial troubles and the passage of the Madras Hindu Religious Endowments Act (Act II of 1927), the Hindu Religious Endowments Board required the petitioner to appoint an external manager.9 Clashes between the manager and the petitioner led to an exchange of lawsuits and appeals to the board that eventually culminated in the case before the Supreme Court.10 The petitioner’s main contention was that the Act (as well as its successor, the Madras Hindu Religious and Charitable Endowments Act, 1951) conflicted with his constitutional rights as the leader of a religious order to manage the order’s affairs, assets, and practices.11 The Advocate-General for Madras argued that “all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.”12 In response, the Shirur Mutt Court stated that “what constitutes the essential part of a religion”—and what was thus beyond the purview of the state—“is primarily to be ascertained with reference to the doctrines of that religion itself.”13
Shirur Mutt not only constructed the concept of “essential practices” as a carve-out against state action, it also made clear that the “essential” aspects of religion included rituals and practices as well as beliefs, and that the views of believers were inherently relevant to this analysis.14 The latter two aspects of the opinion were something of a departure from previous rulings by both the Supreme Court and some high courts.15 For example, in the 1953 case Ratilal Panachand, the Bombay High Court held that the constitutional definition of “religion” extended only to “whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men.”16 Because “[t]here are religions which bring under their own cloak every human activity . . . it would be absurd to suggest that a Constitution for a secular State ever intended that every human and mundane activity was to be protected under the guise of religion.”17Ratilal earned a striking rebuke from the Supreme Court when it went up on appeal shortly after Shirur Mutt.18
Likewise, in Saraswathi Ammal, another pre-Shirur Mutt case, the Supreme Court cast doubt on the religious character of Hindu beliefs or practices lacking a textual basis.19 Notwithstanding the plaintiff’s assertion that the practice in question (building a tomb and conducting certain ceremonies there in perpetuity) was not unusual within her community, the Court proclaimed that “it may be assumed that such a practice is not likely to grow up amongst Hindus where cremation and not burrial [sic] of the dead is the normal practice, except probably as regards sannyasis [ascetics] and in certain dissident communities.”20
But although Shirur Mutt expanded religious freedom for individuals and groups by including practices (not just beliefs) as articulated by believers (not just texts) within the scope of constitutional protection, it did so in the course of approving a vast bureaucratic apparatus for regulating religious institutions. The appellant in Shirur Mutt was the commissioner of the Hindu Religious Endowments department of the Madras government, which had been authorized by the state legislature to regulate public Hindu temples and institutions. Shirur Mutt at once created real space for individuals and communities to challenge the role of the state in regulating specific religious practices and sanctioned a regulatory infrastructure that would insert the state into the daily management of religious institutions. Temple governance across South India continues to be deeply informed by the bureaucratic machinery authorized by Shirur Mutt.21
In the decade or so following Shirur Mutt, a series of Supreme Court decisions suggested that—at least at the apex court—the promise of Shirur Mutt would be somewhat short-lived. Cases like Venkatramana Devaru,22Durgah Committee,23Saifuddin Saheb,24 and Shastri Yagnapurushdasji25 revealed a Court that increasingly took the responsibility of defining what was “essential” to religion, and thus to religious freedom, upon itself. For instance, in Devaru, a temple entry case, the Court conducted its own exegesis of religious texts to argue that properly understood the plaintiff community’s religion did not require the exclusion of Dalits from temple areas that were open to caste Hindus.26 Similarly, Durgah Committee, in which the bulk of the Court’s analysis focused on the relationship between the Sufi shrine in question and various state authorities dating from the twelfth century, contained a “note of caution” regarding the identification of essential practices.27 The Court noted that “practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.”28 Together, the 1960s cases demonstrated that the Supreme Court was willing not only to act as gatekeeper between the religious and non-religious (or the non-essentially religious), but also between “real” and “fake” religion.29
Although the Court’s growing willingness to rely on its own understanding of religion has drawn no small amount of criticism—a leading article in the early 2000s proclaimed that “[i]t does not lie with the judiciary to tell people what constitutes the faith”30—another case from the 1960s offers some insight as to why the Court’s approach may sometimes be necessary. Tilkayat Govindlalji articulated an important qualification to Shirur Mutt’s prescription that believers themselves ought to determine what was essential to their faith. Chief Justice Gajendragadkar observed that “[i]n cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the [Shirur Mutt] formula . . . because the community may speak with more than one voice.”31 This is precisely the challenge facing the Supreme Court in the Sabarimala litigation.
Cases from the 1980s and 1990s reflect the Court’s reliance on its own intuitions regarding religion and, often, its commitment to a reformist agenda. In a pair of 1983 cases, the Court held that the teachings of Sri Aurobindo constituted a philosophy rather than a religious denomination and that the tandava dance—in which adherents dance in a public procession carrying knives, live snakes, tridents, and skulls—was too recent an addition to the Ananda Marga tradition to constitute an essential practice.32 The Ananda Marga example is particularly interesting: in a subsequent decision issued in 2004 (Ananda Margi II) the Supreme Court was faced with the implications of its own preference for textual authorities and it responded by narrowing the boundaries of the essential practices doctrine even further. A throwaway line in the 1983 decision (Ananda Margi I) observed that “there is no justification in any of the writings of Shri Ananda Murti [the order’s spiritual leader] that Tandava dance must be performed in public.”33 Subsequently, Murti issued a revised edition of the order’s primary text, the Carya Carya, in which he underscored the religious importance of performing the tandava dance in public.34 In Ananda Margi II, the Court rejected the revised Carya Carya on the grounds that “it will create problematic situations if the religion is allowed to circumvent the decision of Court by making alteration in its doctrine,” effectively freezing the tenets of the Ananda Marga circa 1983.35
The Ananda Margi II Court’s suspicion of change extended to more than the very real possibility of textual arbitrage: after ending its discussion of Shirur Mutt with the statement that “alterable parts or practices are definitely not the ‘core’ of religion,” the Court went on to say that the tandava dance could not be a protected essential practice since it was only introduced as an element of Ananda Margi tradition eleven years after the order’s founding.36 In other words, only the foundational “core” of a religious tradition could be considered essential. As Section 2 suggests, the degree to which practices can change or be subject to non-observance yet still considered essential is a key issue in the Sabarimala litigation.
Although the story of essential practices jurisprudence may seem like an unambiguous march toward greater judicial intervention, that view is subject to a few caveats. To begin with, the structure of the Indian Supreme Court makes it somewhat difficult to speak of a unified “Supreme Court jurisprudence” on any particular issue. The Court’s size—currently twenty-six judges in all—and its practice of hearing most matters in benches of two or three judges means that judges can interpret the law differently from one another until and unless a larger bench has issued binding precedent.37 Second, the history of the essential practices doctrine is often told as a history of Supreme Court jurisprudence alone, but the Supreme Court is far from the only actor involved in determining, protecting, and regulating what is “essential” to a religious community. Many of the cases discussed in this section were appeals from High Court decisions reflecting a broader, less court-centric view of what is essential religious practice.38 More important, there is a vast network of actors—judicial, executive, and statutory—exercising authority over religious institutions and practices. While that in itself inescapably leads the state to intervene in religious life to a high degree, it does not follow that the outcome is always a reduction in religious autonomy.39 The following section describes that web of governmental actors as it relates to Sabarimala and to previous as well as ongoing disputes over women’s access to the temple.
2. Essential practices at Sabarimala
Sabarimala, like other temples in Kerala, is overseen by a combination of three distinct but overlapping state actors.40 First, as a public Hindu temple, it comes under the general authority of the Minister of Devaswom Affairs in the Government of Kerala. This person exercises broad authority over some 1700 public temples across Kerala, which can range from roadside altars to regional power centers. Nevertheless, the minister’s actual influence over Sabarimala pales in comparison to that of a second state actor, a statutory body called the Travancore Devaswom Board (TDB). The TDB is one of five geographically defined temple boards in Kerala and is by far the most powerful among them: it oversees approximately 1000 temples by itself, including two of the wealthiest religious institutions in India. TDB’s five members are appointed by Hindu members of the state cabinet and legislature, and because a seat on the TDB grants the holder power over lucrative state contracts and temple jobs, it is a valuable element in the patronage system of Keralite politics. Virtually the only entity able to meaningfully counteract the TDB’s authority is a third state actor, the Kerala High Court, whose designated “temple bench” holds extensive audit powers over the TDB and frequently establishes judicial commissions or intermediate officers to examine the TDB’s activities. For instance, a High Court judge and a district court judge appoint a special commissioner whose sole purpose is to report on the TDB’s governance of Sabarimala.
This dense network of state oversight does not make Sabarimala or Kerala unique within the Indian context. Temples in Kerala, like those in other South Indian states, have extensive administrative needs that have traditionally been met by a combination of local elites and distant rulers. During the colonial era, British officials gradually displaced native princes as patrons and arbitrators of temple disputes, and they eventually reorganized the structure of temple governance across the Madras Presidency via Act I of 1925.41 The system created by the 1925 Act applied directly to Malabar (northern Kerala) but, even more importantly, it inspired the administrative infrastructure for temple governance across South India, including all of the modern state of Kerala.42
Perhaps the first thing to remember is that the ban on women aged ten to fifty has now been an “essential practice” of Ayyappan worship at Sabarimala for at least twenty-five years.43 This section explores two developments in the ban’s legal history to show that the fundamental questions surrounding it have remained relatively stable even though it has drawn popular and legal attention for a variety of reasons. In the first development, a 1991 decision, Mahendran v. TDB, the Kerala High Court defined the scope of the ban and awarded it protected status.44 And in 2011, the High Court dealt with a striking—and ultimately unconfirmed—violation of the ban when it became involved in a controversy involving an actress named Jaimala. This long history will come before the Supreme Court as it considers whether Sabarimala’s ban should continue to be exempt from constitutional and statutory guarantees of equality.
2.1. Mahendran v. TDB
Mahendran began as a public interest litigation (PIL) suit filed by an Ayyappan devotee who was concerned that women in the prohibited age range—especially those who were wives of VIPs—were visiting Sabarimala in violation of the temple’s customs.45 This reference to “customs” signals both the fact that Ayyappan is a celibate deity for whom fertile women may be offensive or distracting and the forty-one-day penance that devotees undertake, most notably during the annual pilgrimage season.46 As part of the penance, devotees wear distinctive black clothing and abstain from meat, alcohol, and sex, as well as other sources of ritual impurity.47 A fertile woman (defined for administrative purposes as one between the ages of ten and fifty) is deemed inherently incapable of maintaining ritual purity for the full forty-one days because of the interruption caused by her menstrual cycle.48
The Mahendran complaint identified one visitor in particular, S. Chandrika, who was a temple commissioner at the time of her visit and thus a VIP in her own right.49 It accused Chandrika of taking her daughter and infant grandchild to Sabarimala in August 1990, to conduct the child’s ceremonial first rice-feeding.50 Perhaps because the suit alleged a kind of systemic carelessness, the High Court also issued notice to the Travancore Devaswom Board and listed the TDB as well as the State of Kerala as named respondents.51
Chandrika responded that she had neither violated any customs nor abused her authority because (i) all female commissioners are over fifty years old at the time of their appointment, (ii) there were also other rice-feedings being conducted at Sabarimala that day, and (iii) the ban applied only to the annual pilgrimage season (November–January) and the festival of Vishu (April).52 The Court appears to have either accepted Chandrika’s arguments as to her own and her daughter’s wrongdoing or lost interest in the issue because the rest of the opinion is concerned with the nature of the ban and its constitutionality in light of articles 15, 25, and 26.53 As the case went forward, a temple advocacy group joined Mahendran on the petitioner’s side, while the Kerala branch of the Indian Federation of Women Lawyers (IFWL) joined Chandrika, the TDB, and the State of Kerala on the respondent’s side.54
Overall, the respondents made four broad arguments.55 First, they implied that a total ban could not really be essential to Ayyappan worship at Sabarimala because women in the prohibited age range had been openly visiting the temple for some considerable length of time.56 Indeed, there was documented proof—in the form of board-issued receipts for rice-feeding ceremonies—that the authorities knew women aged between ten and fifty were visiting Sabarimala.57 Despite this, the board had never received complaints from “men of religion” or from the chief priest himself about allowing women during the off-season.58
Second, the respondents essentially suggested that a series of legislative enactments made access to temples a particularly strong default rule that was subject only to some limits that either did not or should not apply to Sabarimala.59 The Chief Secretary of Kerala and the IFWL both noted that § 3 of the Authorization of Entry Act (1965) guarantees entry for every Hindu, and the IFWL further argued that the exclusion of fertile women violated § 3’s protection for all “sections or classes” of Hindus.60 The Chief Secretary acknowledged that administrative rules established before the Entry Act mandated the exclusion of women at times when they were “by custom and usage” not permitted to enter temples.61 He also acknowledged that, per § 31 of the Hindu Religious Institutions Act (1950), the TDB’s responsibility was to administer the daily and festival operations of the temple “according to its usage.”62 But he seemed to imply that the board adequately complied with this responsibility by issuing notifications regarding the ban during the pilgrimage season and Vishu.63
Third, the respondents made an argument about transformations in customary practice. To begin with, they maintained that the original custom at Sabarimala had been to allow women entry and that women in the prohibited age range had visited the temple until at least 1950.64 A major fire that year prompted both renovations to the physical infrastructure of the temple and changes in the ritual practices observed there—including, the respondents suggested, the rules governing female pilgrims.65 In the alternative, they maintained that the ban had been motivated by practical concerns about the difficulty of the journey and that those concerns were obsolete in an era where better roads and transportation simplified the once-arduous trek to Sabarimala’s hillside location.66
Finally, the respondents argued that even if the ban was a long-standing custom motivated by religious concerns (contrary to the first and third arguments), it was never meant to be in effect year-round. Chandrika, the TDB, and the State of Kerala all argued that the ban only applied during the pilgrimage season and Vishu because those were the only times of year when worshippers were required to undertake the forty-one-day penance.67 It is worth noting, though, that disputes over women’s entry at Sabarimala have often arisen when the Communist Party of India (Marxist) has been in power—as it was when the Mahendran complaint was filed—and the CPI(M) has almost always advocated for a total repeal of the ban.68
In response to this last argument about seasonal enforcement, as well as in response to the suggestion that women had been openly visiting the temple for decades, the petitioners seemingly did little except reiterate that women in the prohibited age range should not go to Sabarimala.69 In other words, they implied that whatever might be descriptively true, the prescriptive standard was one of total prohibition. The Mahendran opinion also does not suggest that the petitioners engaged with the argument about statutory expansion of access, although the court itself did so by disagreeing with the IFWL.70 Regarding the respondents’ third argument—that women’s entry was an issue on which customary practice had changed or should change—the petitioners simply disagreed: women’s entry was not one of the areas in which ritual practice had changed after the 1950 fire,71 and the rationale for excluding women ages 10–50 was the religious objection to their fertility rather than the strenuousness of the pilgrimage.72
Somewhat unusually for a religious freedom case, neither the petitioners nor the respondents relied on religious texts for support; instead, the documents they referenced were wholly secular artifacts like bureaucratic reports, newspaper articles, and personal correspondence.73 This was undoubtedly because the Sanskrit texts that might have otherwise played a significant role in the hearings and in the High Court’s final analysis simply do not exist with respect to Ayyappan worship, and there are few (if any) comparable vernacular texts.74 In the absence of the kind of textual authority that could otherwise have provided clues regarding “true” customary practice, the parties and the Court were forced to look to testimony regarding which practices ought to obtain at Sabarimala and which practices had in fact been observed.75
In the end, the High Court made two important decisions in the course of ruling that the ban was an essential practice of Ayyappan worship and that it did not violate articles 15, 25, or 26 of the constitution or the Authorization of Entry Act.76 First, and seemingly in tension with a long tradition of valuing the old over the new in matters of religion, the High Court concluded that the length of time a religious practice had been observed conveyed nothing about the practice’s legitimacy.77 Second, and notwithstanding the fact that women in the prohibited age range had been visiting Sabarimala during the off-season openly and for nearly half a century—and often for purposes that demanded the explicit acquiescence of temple authorities—the court not only affirmed the ban for the pilgrimage season and Vishu but also officially extended it to cover all days on which the temple is open.78
Despite these somewhat surprising steps, the outcome in Mahendran actually reflects fairly long-standing trends in Indian jurisprudence. On the one hand, the opinion stayed true to the idea that religious validity is best measured not by observed behavior but by something—a text, a priestly utterance—that may be considered prescriptive.79 It also cohered with legislative and judicial commitments at both the state and federal levels to enhancing uniformity and predictability in religious law and temple administration.80 The next chapter in the story of women’s entry at Sabarimala would not significantly challenge any of these determinations, although it would underscore the tension between equality guarantees and group rights in essential practices jurisprudence, as well as introduce a tabloid-like interest in the ban on women.
2.2. Jaimala’s case
In June 2006, the TDB conducted a devaprasnam at Sabarimala—a ritual determination of the deity’s will—whose results and extended consequences would figure as an important topic in Keralite politics for more than five years.81 Soon after the devaprasnam began, the astrologer hired to oversee the ritual announced that serious flaws in the management of the temple were incurring Ayyappan’s displeasure.82 Most worrisome, he claimed that a woman in the prohibited age range had entered the temple precincts.83 The day after he made this announcement, a minor actress named Jaimala faxed a confession to temple authorities in which she admitted to having visited Sabarimala in 1987, when she was in her late twenties, and to having touched the image when the throng of devotees behind her caused her to stumble into the inner sanctum.84
Jaimala’s claims were themselves almost immediately discredited: not only did it seem implausible that a beautiful young woman could have come into such proximity with the shrine without attracting attention, but word soon spread that there was a prior link between Jaimala and the astrologer that made the entire episode seem suspicious.85 Public and governmental attention swiftly turned to the possibility that the confession was part of a conspiracy to gain publicity and that, as such, it might constitute a crime under the Indian Penal Code (IPC) even if Jaimala had not violated Sabarimala’s ban.86 The validity of the ban itself was never truly revisited; rather, what remained unclear at the time of Jaimala’s confession was whether the mere claim of having violated the ban could trigger criminal sanctions even when the claim was likely false.
The Crime Branch of the Kerala State Police eventually took a stance in the affirmative by filing charge sheets against Jaimala, the astrologer, and the astrologer’s aide on the grounds that they had conspired to commit “a deliberate and malicious attempt to outrage the religious sentiments [of Ayyappan devotees]” under IPC §§ 295(A) and 120(B).87 This prompted a series of complicated procedural questions, as well as a minor battle between the Kerala High Court and the state government.88 In April 2011, Justice Joseph of the Kerala High Court declined to exercise supervisory judgment over the matter in light of the fact that the district magistrate had not considered whether the statute of limitations had run.89 In October of that year, Justice Balakrishnan issued a stay on the Kerala government’s order to prosecute Jaimala and accepted for consideration a petition in which Jaimala claimed both that the statute of limitations had run and that she had not committed any illegal act because women were not banned from visiting Sabarimala until 1991—the year Mahendran was decided.90 The latter claim, namely, that the validity of the charges against her hinged on the legal status of the ban, is puzzling given that the text of § 295(A) does not require that an essential practice be at issue.91
Finally, in July 2012—after a six-year process involving the Kerala High Court, the TDB, two branches of the state government, a district magistrate, and several members of Sabarimala’s religious and administrative hierarchies—Justice Satheeschandran dismissed the charges for lack of evidence that she had acted with the intent to outrage the religious sentiments of Ayyappan devotees.92
Jaimala’s case did not alter the nature of the ban or its status as an essential practice, but it did prompt a group of lawyers to file a PIL petition in the Supreme Court challenging the ban.93 Admittedly, the lawyers’ petition was on track to suffer the same fate as hundreds of its fellows in the overburdened Indian judicial system: aside from referral to a larger bench in 200894 and several interim hearings by assorted judges,95 not much seemed to be happening. However, this changed, and the validity of the ban once again came up for judicial analysis, after a series of social movements to expand women’s access to religious institutions gathered momentum in 2015.
2.3. Social movements for women’s entry
This section explores two very recent developments in Sabarimala’s social history. First, events related to Sabarimala’s ban and forty-one-day penance spurred a Twitter campaign criticizing the belief that menstruation causes ritual impurity. Around the same time, women’s access to Hindu temples in general and to Sabarimala in particular became the focus of a striking on-the-ground movement. Although these events do not add to the case history of the Sabarimala litigation, they served to push public discourse (and, arguably, the Supreme Court) toward renewed consideration of the ban’s constitutional validity, and at least one of the participants has formally joined the current dispute before the Supreme Court.
In November, 2015, the new president of the TDB, Prayar Gopalakrishnan, caused a commotion while giving what he undoubtedly expected to be a simple public relations talk at the Kollam Press Club.96 When asked about Sabarimala’s ban, Gopalakrishnan replied: “A time will come when people will ask if all women should be disallowed from entering the temple throughout the year. 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’ for a woman to enter the temple. When that machine is invented, we will talk about letting women inside.”97
Around a week later, a student named Nikita Azad wrote an open letter to Gopalakrishnan in which she critiqued his views on menstruation, cleanliness, and sin. She signed the letter using the pen name “A Young, Bleeding Woman,” and published it on the news and discussion forum Youth Ki Awaaz (“Voice of the Youth”), where it went viral.98
What began as a response to the rationale behind Sabarimala’s ban soon became a generalized objection to patriarchy and misogyny. By November 23, just three days after her Youth Ki Awaaz post, Azad was fielding questions and criticisms about the hashtag #HappyToBleed, which had spread in the aftermath of her letter, as well as about a Facebook campaign in which women posted photos of themselves holding placards bearing the slogan.99 She was adamant that #HappyToBleed was not a temple-entry campaign—on the contrary, it was a way to meet “statements like these that legitimize gender discriminatory practices . . . with fearless resistance.”100 But Sabarimala and temple entry were never too far away: Azad would eventually join the IYLA as an intervenor in the Supreme Court suit,101 and in 2016 her social media campaign was mimicked by activists on the other side of the women’s entry issue.102 Those commentators, who used the hashtag #ReadyToWait, were largely responding to a striking new ground campaign whose explicit goal was expanding women’s access to religious institutions.
This campaign was led by Trupti Desai, who in late 2015 emerged at the forefront of a new kind of temple entry movement.103 Whereas the temple entry movements of the early twentieth century had centered on caste-based exclusion, Desai’s movement—which bears some superficial similarities to those earlier agitations—focused on gaining access for women regardless of their caste.104 By all accounts, Desai stumbled into temple entry activism after reading about the purification ceremony conducted at a temple in her home state of Maharashtra because a woman had entered its inner sanctum.105 Over the course of the next year, a special wing of Desai’s community organization would lead or participate in agitations at three Hindu temples and one Muslim shrine, all of which would eventually grant access to women.106
That shrine, the Haji Ali dargah in Mumbai, is a particularly relevant comparison point for the current Sabarimala litigation because it too became the subject of a High Court opinion and a Supreme Court order.107 Unlike the other institutions targeted by Desai, the push to open Haji Ali had been part of a separate, local campaign prior to its association with Desai’s movement; the local campaign was led by Zakia Soman and Noorjehan Safia Niaz, who became the named plaintiffs in a PIL suit filed in 2014.108 The crux of that suit was a new set of barricades established in 2011–2012 by the dargah authorities that prevented women from entering the inner sanctum to offer prayers. Women had previously been allowed in and men continued to be permitted into the inner sanctum even after the barricades were erected.109
The Bombay High Court’s opinion in Niaz v. State of Maharashtra makes clear that the Haji Ali case both is and is not comparable to the Sabarimala litigation. On the one hand, the dargah authorities (whom the High Court refers to as the “Trust” or “trustees”) alluded to menstruation and the ritual impurity it triggers as a reason for excluding women from the inner sanctum of the structure.110 The trustees also claimed that the ban was not a total ban on women’s entry since women could still enter the dargah and were simply prevented from accessing the inner sanctum.111 And, also like the respondents in Mahendran, the trustees maintained that limited access was in the interests of the women themselves since it promoted their safety—this time from eve-teasing and lascivious men rather than from mountain-side hikes.112 Finally, similar constitutional provisions were at issue in both cases.113
On the other hand, as the petitioners argued, many facts in the Haji Ali case were “peculiar and distinct from the facts in the case of Sabarimala.”114 The trustees themselves admitted that, prior to 2011–2012, women were allowed access on par with men.115 Moreover, unlike in Mahendran, there were textual sources to hand—the Qur’an and the Hadith—but the High Court deemed these sources ambiguous or inconclusive on the issue of women’s access to dargahs.116 Finally, the court held that the Trust lacked the authority to regulate “matters of religion” respecting the dargah because its actions were confined to “purely secular activities . . . such as giving loans, education, medical facilities, etc.”117 But perhaps most important, the Trust quickly and voluntarily chose to revoke its ban in the midst of appealing the High Court’s ruling.118 After several decades and multiple chances to act similarly, neither the TDB nor Sabarimala authorities have ever demonstrated a serious interest in revoking Sabarimala’s ban on women.
In December 2016, barely two months after the Haji Ali victory, Trupti Desai announced that she would take her fight for equal access to places of worship to Sabarimala.119 Desai’s announcement elicited rare agreement in Kerala between prominent supporters and detractors of the ban. Rahul Easwar, the grandson of Sabarimala’s chief priest and a frequent spokesman on behalf of his family, quickly declared that Desai should not be permitted to enter the temple and warned her that “women activists” sympathetic to temple traditions would block both Desai and any “ultra feminists.”120 Less predictably, Minister for Devaswom Affairs G. Sudhakaran—who has long been personally in favor of repealing the ban,121 and whose government has explored various ways to expand women’s access to Sabarimala122—also came out against Desai’s plan. Sudhakaran announced that the state would be forced to act if Sabarimala experienced any “law and order” problems, and he urged Desai to fight in the courts alongside the government.123 After rumors spread that Desai would fulfill her promise by entering the temple in disguise, local police stepped up their security efforts.124 In the end, and despite a momentary scare on the final day of the 2016–2017 pilgrimage season, it appears that Desai did not take her movement to Sabarimala and has since moved on to other issues in her home state.125
2.4. IYLA v. State of Kerala
The current suit, IYLA v. State of Kerala, awaits hearing after it was referred to a five-judge “Constitution” bench of the Supreme Court, but court filings suggest that the doctrinal issues raised by Sabarimala’s ban remain essentially unchanged.126 The documents that are currently available include writ petitions filed by the Indian Young Lawyers Association and Nikita Azad as well as a brief filed by the Court-appointed amicus curia, and they converge on many key points. For instance, all three filings agree that the ban undermines the article 25 right of individual Hindu women to freely practice their religion by offering worship at Sabarimala.127 Similarly, all three filings agree that “women” constitute a “section or class” of “Hindus,” and consequently that women’s right of entry into public temples like Sabarimala is protected by § 3 of the Authorization of Entry Act.128 And finally all three agree—unsurprisingly—that, in the battle between article 25 (freedom of religion) and article 26 (denominational independence), the former wins.129 All of these issues surfaced, albeit in less detailed fashion, in the Mahendran decision twenty-five years ago.130 But while the doctrinal battles in this latest phase of the Sabarimala dispute are not particularly new, the arc of the dispute itself suggests a few lessons.
First, the Sabarimala litigation underscores the extent to which courts conducting essential practices analysis are dependent on texts. Over a quarter-century after Mahendran, the Amicus brief and the IYLA petition once again raise doubts as to whether or not the ban really is all that important to Ayyappan worship by pointing to the historical record of women’s entry that was cited in 1991.131 Notwithstanding its time-consuming nature, this kind of continued wrangling over first principles is not all bad. Because it lacks a textual hook to hang its hat on, it seems more likely that the Supreme Court must do as courts do in other areas of the law by conducting fact-finding, evaluating the record, and—more important—deeply interrogating its own assumptions about how to define Hindu practice. Textual exegesis is, after all, a court’s comfort zone, and by forcing the Court out of that zone, Sabarimala’s ban and other similarly text-less practices underscore the difficulty and enormity of determining the “essential” aspects of religion.
Second, the Sabarimala litigation offers a high-profile and relatively high-stakes chance to watch, in real time, the “feedback loop” that is said to be a by-product of the Supreme Court’s small bench structure.132 Jurisprudential experiments by smaller benches allow “other benches of the Court to better understand the feasibility and real-world implications of its judgments.”133 To the extent that the Haji Ali case actually is a reasonable analog to the Sabarimala dispute, public reception of the Bombay High Court’s opinion and the Supreme Court’s order combined with the social movements and media campaigns led by Nikita Azad and Trupti Desai may leave the Court feeling more comfortable with overturning a long-standing and well-litigated practice.
3. Conclusion
Whenever the Sabarimala litigation is eventually heard by the constitution bench, the Court’s ruling will provide clues to several larger puzzles aside from the questions that have been explicitly referred to it by the smaller bench.134 First, and flowing directly from recent Supreme Court and High Court decisions in Ananda Margi II and Niaz v. State of Maharashtra, the Court’s ruling will indicate just how important longevity is in essential practices analysis. One of the key elements of the Supreme Court’s analysis in Ananda Margi II and the Bombay High Court’s analysis in Niaz was the relatively short span of time in which the disputed practice had been observed. In the context of the Sabarimala dispute, the ban is variously said to be a custom that has obtained since “time immemorial” and one that gained traction only after the 1950 fire. Even a documented 1950 start date would make Sabarimala’s ban a relatively well-established practice—but will it be enough?
Relatedly, the Court’s ruling in the current litigation will offer some insight as to the fate of practices that have been imperfectly observed, given the assertions that Sabarimala’s ban was regularly and openly flouted. One possible outcome is that the Court will analogize it to the tandava dance that was not performed for the entirety of the Ananda Marga order’s existence. However, the Court might also liken violations of Sabarimala’s ban to aberrations in otherwise general and long-running practices, as in Saraswathi Ammal.
Finally, the Sabarimala ruling will clarify who has the authority to defend a religious practice as “essential.” The argument made by the Bombay High Court in Niaz—that the Trust was concerned with “purely secular activities” and had no say in religious matters—also plausibly applies to the TDB and State of Kerala, who are the primary respondents in the IYLA suit. Does this mean that notwithstanding the elaborate state infrastructure surrounding religious institutions in India the actors charged with defending religious practices, which often enjoy considerable public support (as the #HappyToWait campaign indicates), are individual priests? These are just some of the ways in which the Supreme Court’s ruling will shed valuable light on the future of essential practices jurisprudence.
My thanks to Madhav Khosla, Jamal Greene, and the participants at the symposium on constitutional rights in South Asia for great conversations; to Tom Ginsburg and John Comaroff for invaluable feedback and support; to Gabriela Femenia for research assistance; and, as always, to John Felipe Acevedo. Errors are mine alone. This research was partly supported by the Social Science Research Council.
Footnotes
Anonymous, Lawyers Challenge Entry Ban in Sabarimala Temple, The Hindu, Aug. 19, 2006.
Ayyappan himself is a complicated composite character: the child of two male deities born while one of them assumes female form, he is a prince who becomes a warrior who becomes an ascetic (who is really a god). The exclusion of fertile women from his most important temple is similarly complicated—women of all ages are allowed at other Ayyappan temples, although none possess the significance and prestige associated with Sabarimala—but it is most often associated with Ayyappan’s status as an ascetic and his consequent need to avoid sexual temptation. See Deepa Das Acevedo, Celibate Gods and “Essential Practices” Jurisprudence at Sabarimala, 1991–2011, inFiling Religion: State, Hinduism, and Courts of Law 101, 107–109 (Daniela Berti, Gilles Tarabout, & Raphael Voix eds., 2016).
Rajeev Bhargava, India’s Secular Constitution, inIndia’s Living Constitution: Ideas, Practices, Controversies 105, 117 (Zoya Hasan, E. Sridharan, & R. Sudarshan eds., 2002) (describing “principled distance” as “whether or not the state intervenes or refrains from action depends on what really strengthens religious liberty and equality of citizenship for all”); Rajeev Dhavan, The Road to Xanadu: India’s Quest for Secularism, inReligion and Personal Law in Secular India: A Call to Judgement 301, 311 (Gerald James Larson ed., 2001). Contrast Deepa Das Acevedo, Temples, Courts, and Dynamic Equilibrium in the Indian Constitution, 64 Am. J. Comp. L. 555 (2016) (arguing that “we’d be better served in our efforts to understand Indian jurisprudence on religious freedom by adopting a view that doesn’t seek either to minimize the conflict or to justify it using other assertions about Indian democracy that are themselves highly problematic” and proposing “dynamic equilibrium” as an alternative).
India Const., Part III: Fundamental Rights, art. 25(1) (“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”).
id. art. 26 (establishing rights for religious denominations “or any section thereof” with regards to religious and charitable institutions, affairs of religion, and real and personal property).
id. art. 25(2) (authorizing the state to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice” and “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”).
Other constitutional provisions also surface with some regularity in religious freedom cases, but are not quite as standard as articles 25 and 26—for instance, article 14 (equality before the law), article 15 (prohibition of discrimination on the basis of membership in several protected categories), and article 17 (abolition of untouchability).
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, A.I.R. 1954 S.C. 282.
Id. ¶ 4.
Id.
Id. The opinion suggests that the petitioner based his claims on articles 19(1)(f), 26, and 13 of the constitution—but the sentence introducing the essential practices doctrine in ¶ 20 is part of a discussion of articles 25 and 26.
Id. ¶ 19. Note that this is the Court’s paraphrasing of the attorney general’s position.
Id. ¶ 20.
Indeed, the very first example given after the statement of the doctrine itself concerns the Hindu practice of offering food to deities at particular hours of the day. Id.
Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court 49–50 (2010).
Ratilal Panachand Gandhi v. State of Bombay, A.I.R. 1953 Bom 242, ¶ 4.
Id.
Ratilal Panachand Gandhi v. State of Bombay, 1954 A.I.R. 388, ¶ 12 (“it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief”).
Saraswathi Ammal v. Rajagopal Ammal, 1953 A.I.R. 491, ¶¶ 9–10.
Id. ¶ 14.
Das Acevedo, supra note 3, at 560–564 (discussing temple governance in Kerala).
Sri Venkatramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255.
Durgah Committee v. Hussain Ali, A.I.R. 1961 S.C. 1402.
Saiffudin Saheb v. State of Bombay, A.I.R. 1962 S.C. 853.
Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya, A.I.R. 1966 S.C. 1119.
C. J. Fuller, Hinduism and Scriptural Authority in Modern Indian Law, 30 Comp. Stud. Soc’y & Hist. 225, 234 (1988) (arguing that the Court’s adventures in hermeneutics “hardly differs in form from any of the other well-known examples of reformist arguments that Hindu texts, when properly understood, do not sanction Untouchability.”).
Durgah Committee, A.I.R. 1961, ¶ 34.
Id.
Sen, supra note 15, at 58. See also Marc Galanter, Hinduism, Secularism, and the Indian Judiciary, 21 Phil. East & West 467, 475 (1971) (stating, in the course of discussing Shastri Yagnapurushdasji, that “[r]ather than apply its basic concepts, the court propounds a view of Hinduism, its unity and continuity, that enables it to discern what is authentic and essential and what is not.”
Rajeev Dhavan & Fali S. Nariman, The Supreme Court and Group Life: Religious, Freedom, Minority Groups and Disadvantaged Communities, inSupreme But Not Infallible: Essays in Honour of the Supreme Court of India 256, 263 (B.N. Kirpal et al. eds., 2000).
Tilkayat Shri Govindlalji v. State of Rajasthan, 1963 A.I.R. 1638.
S.P. Mittal v. Union of India, A.I.R. 1983 S.C. 30 (discussing Aurobindo); Acharya Jagdishwarananda Avadhuta v. Commissioner of Police, 1984 A.I.R. 512 (Ananda Margi I) (discussing Ananda Margis).
Ananda Margi I, 1984 A.I.R., ¶ 5.
Commissioner of Police v. Acharya Jagdishwarananda (Ananda Margi II), Civil Appeal No. 6230 of 1990, ¶¶ 1, 5.
Id. ¶ 11.
Id. ¶¶ 9, 10.
Nick Robinson, Judicial Architecture and Capacity, inThe Oxford Handbook of the Indian Constitution 330, 340 (Sujit Choudhry, Madhav Khosla, & Pratap Bhanu Mehta eds., 2016) (discussing the impact of bench structure on the Court’s jurisprudence). Ronojoy Sen highlights the relatively recent decision in Orissa Mining Corporation as an example of the Court’s departure from its usual willingness to define the contours of religious practice. Ronojoy Sen, Secularism and Religious Freedom, inThe Oxford Handbook of the Indian Constitution 885, 893 (Sujit Choudhry Madhav Khosla, & Pratap Bhanu Mehta eds., 2016). In Orissa Mining, the Court held that local elected bodies had to consider whether tribal communities and other forest dwellers had a right to worship hills that would be destroyed by a mining project. Orissa Mining Corporation v. Ministry of Environment & Forest (2013) 6 S.C.C. 513, ¶¶ 55–58.
See, e.g., Ananda Margi II, Civil Appeal No. 6230 (overturning a Calcutta High Court ruling finding the tandava dance to be an essential practice); Bramchari Sideshwar Shai v. State of West Bengal (1995) 4 S.C.C. 646 (overturning a Calcutta High Court ruling granting the Ramakrishna Mission “religious minority” status); Durgah Committee, A.I.R. 1961 (overturning a Rajasthan High Court ruling finding the khadims of Ajmer dargah had arts 25 and 26 rights regarding the management of the dargah).
Das Acevedo, supra note 3 (describing a Kerala High Court investigation into a celestial display that is the climax of Sabarimala’s pilgrimage season which both did and did not reveal the display to be man-made, and describing deliberations over a potential new administrative hierarchy for Sabarimala in which no governmental actor was ultimately given apex authority over the temple).
This description of temple governance within Kerala and India more generally is taken from Das Acevedo, supra note 3, at 560–564.
The Madras presidency comprised all of modern Tamil Nadu, as well as parts of Kerala, Karnataka, and Andhra Pradesh.
Although the current administrative regime is most directly linked to a colonial infrastructure, the relationship between temples and state authority goes back much further and deeper than this. See generallyArjun Appadurai, Worship and Conflict under Colonial Rule: A South Indian case (1981) (discussing temples as centers of economic redistribution and the precolonial and colonial era ties between Hindu temples and kingship in South India)
In saying this I differ somewhat from the amicus curia appointed by the Supreme Court in the current matter. Brief of the Amicus Curia, Writ Petition (Civil) 373 of 2006, at 4 [hereinafter Amicus brief] (“The High Court judgment finds that this is a usage but does not find that it is a religious custom or an essential religious practice.”) (on file with author).
S. Mahendran v. Secretary, Travancore Devaswom Board, A.I.R. 1993 Ker 42). Although Mahendran does not directly apply the term “essential practice” to the ban, the opinion situates its analysis within classic essential practices jurisprudence and calls the reasons for the ban “vital” and “fundamental.” Id. ¶¶ 14–22 (discussing essential practices jurisprudence as the appropriate framework for analyzing the ban) and 39 (describing reasons for imposing the ban). In an earlier work I attributed the Mahendran opinion to Justice Paripoornan, whose impact on temple governance has been immense and long lasting and who was on the two-judge panel that decided Mahendran, but who did not actually author the decision. Das Acevedo, supra note 2, at 116.
Mahendran, A.I.R. 1993 Ker ¶ 2. Actually, the High Court “converted” the petition into a PIL suit, which eliminates the need to demonstrate personal harm. Id at ¶3. For a survey of the sizable literature on public interest litigation, see Deepa Das Acevedo, Sovereignty and Social Change in the Wake of India’s Recent Sodomy Cases, 40 B.C. Int’l & Comp. L. Rev. 1 (2017).
Filippo Osella & Caroline Osella, “Ayyappan Saranam”: Masculinity and the Sabarimala Pilgrimage in Kerala, 9 J. Royal Anthropological Inst. 729, 730, 733–737 (2003) (mentioning Ayyappan’s celibacy and describing preparations for the pilgrimage to Sabarimala).
Id. at 733–737.
Mahendran, A.I.R. 1993 Ker ¶ 7.
Temple or devaswom commissioners are part of the tripartite system of temple governance in Kerala involving the Kerala High Court, a state cabinet portfolio, and officials of the five, regionally demarcated temple boards. A commissioner usually acts as a liaison between a board, the High Court, and the state government. Das Acevedo, supra note 3, at 563.
The opinion identifies the date, using the Malayalam calendar, as 1 Chingam 1166 M.E. Mahendran, A.I.R. 1993 Ker ¶¶ 2, 9. Chingam falls in August–September, and in 1166 (or 1990), the first of Chingam would have likely been August 17.
Id. ¶ 3. For further description of the relationship between the TDB, State of Kerala, and Kerala High Court in the management of Hindu temples, see Das Acevedo, supra note 3.
Mahendran, A.I.R. 1993 Ker ¶ 9. Readers should note that for ease of reading I am collapsing two distinct but related periods—Mandalam and Makaravilakku—into “the pilgrimage season.”
Id. ¶ 12. India Const., art. 15 (prohibition of discrimination on the basis of, among other things, sex); India Const., art. 25 (“freedom of religion”); India Const., art. 26, especially 26(b) (“freedom of religious communities to manage their internal affairs”). Indeed, Chandrika is not even mentioned in the Court’s final rulings, which are directed at the TDB and the State of Kerala. Mahendran, A.I.R. 1993 Ker ¶¶ 44–47.
Mahendran, A.I.R. 1993 Ker ¶¶ 2–4.
Since I could not access the parties’ written filings, my understanding of these arguments is based on the Kerala High Court’s opinion and news coverage.
Mahendran, A.I.R. 1993 Ker ¶43, ¶¶ 8–9 (noting the TDB’s position that “[f]or the last 20 years woman irrespective of their age were allowed to visit the temple when it opens for monthly poojas” and Chandrika’s position that “[w]hen monthly poojas are conducted, women of all age groups used to visit Sabarimala.”). There is some discrepancy, even within the board’s statements, as to how long women have been openly visiting Sabarimala. Compare Mahendran, A.I.R. 1993 Ker ¶ 8 (twenty years) with Mahendran, A.I.R. 1993 Ker ¶ 43 (forty years).
Mahendran, A.I.R. 1993 Ker ¶ 7.
Id. A.I.R. 1993 Ker ¶ 43.
See generally Mahendran, A.I.R. 1993 Ker ¶¶ 10, 26 (discussing, among others, the Travancore-Cochin Hindu Religious Institutions Act, 1950; Travancore-Cochin Temple Entry (Removal of Disabilities) Act, 1950; Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965).
Id. ¶¶ 10 (discussing the chief secretary’s § 3 argument), 26 (discussing the IFWL’s § 3 argument, and (noting the IFWL’s view that “‘[s]ection or class’ includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever” but disagreeing on grounds that “entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not woman as a class.”).
Id. ¶¶27 –28. The opinion’s wording is at times confusing. The Court refers to rules framed under the 1965 Act, rules framed under the “Temple Entry Act” (possibly meaning the Removal of Disabilities Act, 1950), and rules enacted following the Temple Entry Proclamation of 1936. See id. ¶¶ 26 (referencing rules under the 1965 Act), and 10 (referencing rules under the “Temple Entry Act”), and 27 (referencing rules following the 1936 Proclamation). At one point, the Court seemingly suggests that the TDB framed Rule 6(c), pertaining to women’s entry, under the “Temple Entry Act” (see id. ¶ 10) while at another point it implies that Rule 6(c) was issued by the Maharajah of Travancore following the Proclamation of 1936 (see id. ¶ 27). Finally, the amicus in IYLA v. Kerala notes that Rule 6(c) under “the 1950 Act”—“on which the Kerala High Court has placed reliance”— is essentially similar to Rule 3(b) under the 1965 Act. See Amicus brief, Writ Petition (Civil) 373, ¶ 8(1).
Mahendran, A.I.R. 1993 Ker ¶ 10.
Id.
Id. ¶ 7 (describing the TDB’s counter-affidavit as suggesting that “[t]he religious practices and customs followed earlier had changed during the last 40 years particularly from 1950, the year in which the renovation of the temple took place after the ‘fire disaster’. Even while the old customs prevailed, women used to visit the temple though very rarely.”). Likewise, the opinion specifies that the Maharajah of Travancore visited Sabarimala with his Queen in 1115 M.E. (1939–1940). Id. Records also show that the Maharaja of Cochin’s daughter visited Sabarimala in early August 1947. General Department, Bundle 430: File 1165 (1946–1949) and Bundle 425: File 688 (1946–1949), Kerala State Archives (India).
Mahendran, A.I.R. 1993 Ker ¶ 7. This part of the TDB’s position is somewhat confusing because in the opinion it is preceded by the observation, presumably also drawn from the board’s counter-affidavit, that “[i]n olden days worshippers visit[ed] the temple only after observing penance for 41 days” and that “usually ladies between the age of 10 and 50 will not be physically capable of observing vratham for 41 days on physiological grounds.” Id. (emphasis added).
Id. ¶¶ 6–7.
Id. ¶ 43 (describing the TDB and Chandrika’s position), 10 (describing the chief secretary’s position).
During recent iterations of the women’s entry issue, the CPI(M) has been in power and was led by E.K. Nayyanar (1987–1991), V.S. Achuthanandan (2006–2011), and Pinarayi Vijayan (2016–present). On the CPI(M)’s support for women’s entry, see Anonymous, State for Women’s Entry in Sabarimala, The Hindu (July 10, 2007), available athttp://www.thehindu.com/2007/07/10/stories/2007071053530500.htm [hereinafter State for Women’s Entry]; Anonymous, Now, Kerala Govt. Favours Entry of Women into Sabarimala Temple, The Hindu (Nov. 7, 2016 3:45 p.m.), available athttp://www.thehindu.com/news/national/kerala/Now-Kerala-govt.-favours-entry-of-women-into-Sabarimala-temple/article16439331.ece (noting that the Kerala government had changed its mind twice in one year as it alternated between CPI(M) and Congress-led governments, with the CPI(M) supporting a repeal of the ban). See also T. K. Devasia, Before #HappyToBleed campaign, there were other attempts to allow women into Sabarimala, Scroll.in (Nov. 27, 2015 5:30 p.m.), available athttps://scroll.in/article/771711/before-happytobleed-campaign-there-were-other-attempts-to-allow-women-into-sabarimala (interview with a former CPI(M) devaswom minister describing the minister’s long-standing support for totally repealing the ban).
As evidence of this prescriptive argument the petitioners presented a private letter written by the chief priest of Sabarimala to the leader of a Hindu nationalist organization, in which the priest said that allowing women in the prohibited age range to enter the temple would be contrary to its customs. Mahendran, A.I.R. 1993 Ker ¶ 35. The chief priest reiterated this position in his testimony to the Court. Id. ¶ 31. The petitioners also presented a report published by the TDB following an astrological ritual meant to ascertain the wishes of the deity, in which the astrologers reported that Ayyappan disliked the presence of young women. Id. ¶ 36.
See id. ¶¶ 26–27 for an extended discussion of the Authorization of Entry Act, the Hindu Religious Institutions Act, the Temple Entry Proclamation, and various rules created under these acts.
Id. ¶31 (stating that “[a]ccording to [the chief priest], woman belonging to the age group of 10 to 50 were prohibited from entering the temple even before 1950”).
Id. ¶¶ 40–41 (citing the testimony of another priest, Puthumana Narayanan Namboodiri).
See supra note 69 (discussing the report and the letter). Alongside his complaint, the petitioner had submitted a newspaper article containing a photograph of Chandrika and her female relatives conducting the rice-feeding at Sabarimala. Mahendran, A.I.R. 1993 Ker ¶ 2.
Das Acevedo, supra note 2, at 108.
The petitioners’ three star experts were Sabarimala’s chief priest (tantri), the leader of the largest Ayyappan devotional association in Kerala, and the head of an erstwhile royal family considered the original patrons of the temple.
Mahendran, A.I.R. 1993 Ker ¶ 44. Note that the court does not use the term “essential practice.”
Id. ¶ 37. The court paraphrased from an unspecified edition of Venkatramaiya, Law Lexicon with Legal Maxims, to say that “it is not necessary to require proof of its existence for any length of time in order to establish ‘usage.’”
Mahendran, A.I.R. 1993 Ker ¶ 43.
See, e.g., Marc Galanter, The Displacement of Traditional Law in Modern India, 24 J. Soc. Issues 65, 73 (1968) (“One of the remarkable and unanticipated results of the British administration of Hindu law was the elevation of the textual law over lesser bodies of customary law.”). On the importance of personal authority in classical India, see Donald R. Davis Jr., Law and “Law Books” in the Hindu Tradition, 9 German L.J. 309, 313 (2008) (“written law alone had but little authority without the force of a personal authority to corroborate and guarantee the text’s value”).
Often, but not always—certainly not in Mahendran—reforms to enhance uniformity and predictability have also furthered progressive principles. See Das Acevedo, supra note 3, at 577 (discussing progressive reforms in the Hindu Code bills) and 563 (discussing the reforms in Keralite temple administration spearheaded by Justice Paripoornan, who was on the Mahendran bench).
Anonymous, “Devaprasnam” at Sabarimala Reveals Flaws in Temple Affairs, The Hindu (June 17, 2006 00:00), http://www.thehindu.com/todays-paper/tp-national/tp-kerala/devaprasnam-at-sabarimala-reveals-flaws-in-temple-affairs/article3120547.ece [hereinafter “Devaprasnam” at Sabarimala]; Anonymous, HC Quashes Charges Against Jayamala, Others, The New Indian Express (July 14, 2012 12:05 p.m.) [hereinafter HC Quashes].
“Devaprasnam” at Sabarimala, supra note 81.
Later analysis and news coverage suggests that the astrologer made the pronouncements regarding women’s entry after the very first day of the devaprasnam and that view is now widely accepted. See, e.g., Anonymous, Actress Chargesheeted for Entering Sabarimala,” Times of India (Dec. 14, 2010 7:52 p.m.), https://timesofindia.indiatimes.com/india/Actress-chargsheeted-for-entering-Sabarimala-temple/articleshow/7098334.cms; Gilles Tarabout, Religious Uncertainty, Astrology and the Courts in South India, inOf Doubt and Proof: Ritual and Legal Practices of Judgment 59, 71–72 (Daniela Berti, Anthony Good, & Gilles Tarabout eds., 2015).
Don Sebastian, The Priest and the Actress, DNAIndia.com (Sept. 26, 2006 12:11 p.m.), www.dnaindia.com/india/report-the-priest-and-the-actress-1055377. Indeed, 1986–1987 seems to have been a banner year for actresses interested in impermissibly visiting Sabarimala. In the wake of Jaimala’s confession, reports surfaced of two others—Girija Lokesh and Sudha Chandran—who had also gone to the temple in that year, although Chandran claimed to have been there as part of a film shoot. John Mary, India Actress “Defiles” Shrine (broadcast July 3, 2006 8:48 p.m.), http://news.bbc.co.uk/2/hi/south_asia/5132602.stm (discussing Sudha Chandran); Anonymous, Girija Lokesh Says She Too Visited Sabarimala in 1987, The Hindu (July 4, 2006 1:30 p.m.), http://www.thehindu.com/todays-paper/girija-lokesh-says-she-too-visited-sabarimala-temple-in-1987/article3100111.ece.
Sebastian, supra note 84 (reporting that “Panicker had conducted a tantric ritual at the actor’s house in Bangalore in 2005”).
Id.
Anonymous, Charge Sheet Filed Against Jayamala, Astrologer, The Hindu (Dec. 15, 2010 1:30 p.m.), http://www.thehindu.com/todays-paper/tp-national/Charge-sheet-filed-against-Jayamala-astrologer/article15593962.ece [hereinafter Charge Sheet Filed]; Anonymous, Charges Against Jayamala Quashed, The Hindu (Apr. 13, 2011 4:08) [hereinafter Charges Quashed] (specifying that the relevant IPC sections were §§ 295(A) and 120(B)). Indian Penal Code (1860), chaps. V A, § 120(B) (“criminal conspiracy”), XV, § 295(A) (“damaging religious sentiments”); § 295(A) punishes statements or actions intended to hurt the religious sentiments of a particular community. See infra note 91. It was enacted in 1927 following controversies involving publications that were critical of the Prophet Muhammad. Neeti Nair, Beyond the “Communal” 1920s: The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Indian Penal Code, 50 Indian Econ. & Soc. Hist. Rev. 317 (2013).
The rest of this paragraph corrects my earlier reading of available sources respecting the final disposition of the Jaimala incident, contained in Das Acevedo, supra note 2, and reflects my current views on the matter.
Jayamala v. State of Kerala, OP(Crl.) No. 1332 of 2011(Q), ¶ 12 (Apr. 12, 2011) (“it is for the learned Magistrate to decide whether the final report was… submitted within the period of limitation prescribed . . . and if so, [whether] any exclusion of time as provided under Sec. 470 [is appropriate] or, whether cognizance has to be taken notwithstanding expiry of the period of limitation as provided under Sec. 473 of the Code.”).
Anonymous, Controversy over Sabarimala Temple Entry Returns to Spotlight, Times of India (Oct. 14, 2011 7:45 a.m.), https://timesofindia.indiatimes.com/city/kochi/Controversy-over-Sabarimala-Temple-entry-returns-to-spotlight/articleshow/10352341.cms [hereinafter Controversy over Sabarimala]; Anonymous, Court Offers Reprieve to Kannada Actress in Temple Case, Mid-Day.com (Oct. 14, 2011 7:30 a.m.), https://www.topnews.in/light/court-offers-reprieve-kannada-actress-temple-case-241323 [hereinafter Court Offers Reprieve]; Baiju NT, Stay on Jayamala Prosecution, Galatta.com (Oct. 14, 2011), https://www.galatta.com/tamil/news/stay-on-jayamala-prosecution/54461/. I had earlier suggested that Jaimala herself had not articulated the Mahendran argument at this stage in the proceedings, when I meant to say—based on available news coverage—that she had not previously articulated this argument. Das Acevedo, supra note 2, at 119.
The text of § 295(A) is as follows: “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment . . . or with fine, or with both.” Indian Penal Code (1860), Chapter XV, § 295(A) (internal citations omitted).
Jayamala v. State of Kerala, Crl. M.C. No. 3796 of 2011 & connected cases (July 13, 2012). The justice also dismissed charges against the astrologer and his assistant. See Anonymous, Sabarimala Visit: HC Clears Actress Jayamala, Asian Age (July 14, 2012 00:00) [hereinafter Sabarimala Visit]”; HC Quashes, supra note 81. See also Controversy over Sabarimala, supra note 91 (mentioning the High Court, the Home Department, and the Crime Branch team); Court Offers Reprieve, supra note 90 (mentioning the magistrate judge); Anonymous, “Vigilance Squad” to Grill Jaimala, Times of India (July 5, 2006), https://article.wn.com/view/2006/07/04/Vigilance_squad_to_grill_Jaimala/ [hereinafter Vigilance Squad] (describing the TDB’s dispatch of a vigilance squad); Anonymous, Tradition Will Be Preserved at Sabarimala: Minister, The Hindu (Aug. 4, 2006) [hereinafter Tradition Will Be Preserved] (describing a Devaswom Department press conference to reassure devotees following the devaprasnam revelations)
Indian Young Lawyers’ Association v. State of Kerala, Writ Petition (Civil) 373 of 2006, at 51 [hereinafter IYLA] (“This the immediate necessity of filing the present writ petition has arisen on account of the recent confession by Jaimala about her visit to the temple in 1987 and the ensuing debate regarding why gender discrimination is exercised in a place of worship.”). In the mode of classic PIL cases, their petition was based on their reading of news reports rather than personal harm. IYLA, ¶¶ 2–3.
Anonymous, Sabarimala Issue for Larger Bench, The Hindu (Mar. 8, 2008), www.thehindu.com/2008/03/08/stories/2008030860130100.htm.
Krishnadas Rajagopal, New Bench to Hear Sabarimala Case, The Hindu (July 8, 2016 2:40 a.m.), http://www.thehindu.com/news/national/New-Bench-to-hear-Sabarimala-entry-case/article14476035.ece (noting that “[a] total of 10 Supreme Court judges, sitting in various combinations, have already heard the case in as many years”).
Anonymous, Outrage on Facebook After Sabarimala Board Wants Machine That Scans Menstruating Women, TimesOfIndia.com (Nov. 23, 2015 6:15 a.m.), https://timesofindia.indiatimes.com/india/Outrage-on-Facebook-after-Sabarimala-board-wants-machine-that-scans-menstruating-women/articleshow/49888621.cms.
Id.
Nikita Azad, “A Young Bleeding Woman” Pens an Open Letter to the Keepers of Sabrimala Temple, YouthKiAwaaz (Nov. 20, 2015), available athttps://www.youthkiawaaz.com/ 2015/11/open-letter-to-devaswom-chief-sabrimala/.
Nikita Azad, #HappyToBleed: An Initiative Against Sexism, Countercurrents.org (Nov. 23, 2015), https://www.countercurrents.org/azad231115.htm (identifying and responding to various questions and criticisms regarding the campaign).
Id.
In re Nikita Azad (Arora), I.A. No. 10 of 2016 in WP(C) 373 of 2006.
Vinod V. K., Sabarimala Row: Women Devotees Say They’re #ReadyToWait, OnManorama.com (Nov. 30, 2016).
Geeta Anand, Forging a Path for Women, Deep into India’s Sacred Shrines, NYTimes.com (Apr. 29, 2016), https://www.nytimes.com/2016/04/30/world/asia/forging-a-path-for-women-deep-into-indias-sacred-shrines.html.
During the 1920s and 1930s, there were efforts to open temples in Vaikom (in what was then the princely kingdom of Travancore), Guruvayur (in the princely kingdom of Calicut), Pune, and Nashik (both in the erstwhile Bombay presidency). Bharat Patankar & Gail Omvedt, The Dalit Liberation Movement in the Colonial Period, 14 Econ. & Pol. Wkly. 409, 417 (1979) (giving dates for the Guruvayur, Pune, and Nashik satyagrahas); Robin Jeffrey, Temple-Entry Movement in Travancore 1860–1940, 4 Soc. Scientist 3, 15 (1976) (noting that the Vaikom satyagraha began on March 30, 1924, and concluded twenty months later).
Anand, supra note 103.
The temples, all in the state of Maharashtra, are the Shani temple in Shingnapur, the Mahalakshmi temple in Kolhapur, and the Trimbakeshwar temple in Nashik; the Muslim shrine is the Haji Ali dargah in Mumbai. It’s worth noting that although Desai did enter and pray in the Mahalakshmi temple, she was physically assaulted on her way out—perhaps for not wearing a sari, perhaps for entering at all. Anand, supra note 103; Anonymous, Trupti Desai Offers Prayers at Trimbakeshwar Temple in Nashik, HindustanTimes.com (Apr. 22, 2016 1:30 a.m.), https://www.hindustantimes.com/india/trupti-desai-offers-prayers-at-trimbakeshwar-temple-in-nashik/story-YfbuXNqKDs6TTeyAFucj4O.html (noting that another activist group, the Swarajya Mahila Sanghatana, entered and prayed in the inner sanctum one day before Desai and her colleagues).
Neha Nalawade, One Year After Haji Ali Ruling, Fight on for Women’s Rights, The Hindu (Oct. 26, 2017 6:00 p.m.), http://www.thehindu.com/todays-paper/tp-national/tp-mumbai/one-year-after-haji-ali-ruling-fight-on-for-womens-rights/article19922397.ece.
Noorjehan Safia Niaz & Ors v. State of Maharashtra, PIL No. 106 of 2014 (Bombay High Court).
Id. ¶ 5.
Id.¶¶ 11, 25.
Id.¶ 11.
Id.¶¶ 5, 11, 37.
Compare id., ¶¶ 10–12 (listing arts. 14, 15, 25, and 26) with Mahendran, A.I.R. 1993 Ker ¶ 12 (listing arts. 15, 25, and 26).
Niaz, PIL No. 106 ¶ 10.
Actually in their court filings the trustees contradicted themselves as to the descriptive matter of whether or not women had equal access. Id. ¶¶ 21–23.
Id. ¶¶ 25, 26, 30, 31.
Id. ¶ 35.
Nalawade, supra note 107.
Anagha Sawant, Trupti Desai Will Visit Sabarimala Temple in January, DNAIndia.com (Dec. 4, 2016 9:00 p.m.), http://www.dnaindia.com/india/report-desai-will-visit-sabarimala-temple-in-jan-2279436.
Megha Varier, Rahul Easwar Dares Trupti Desai to Enter Sabarimala, Says 500 Women Will Stop Her, TheNewsMinute.com (Dec. 1, 2016 12:30 a.m.), https://www.thenewsminute.com/article/rahul-easwar-dares-trupti-desai-enter-sabarimala-says-500-women-will-stop-her-53665.
Devasia, supra note 68 (noting that “Sudhakaran, a former Kerala minister, and [C.K.] Guptan, former president [of the TDB]” “couldn’t help but feel proud” to watch the #HappyToBleed campaign unfold because “[t]he change they had advocated for so long was moving forward in another form”).
Anonymous, State for Women’s Entry in Sabarimala, TheHindu.com (July 10, 2007 00:00); Radhakrishnan Kuttoor, Stakeholders Differ on Women’s Entry, TheHindu.com (Feb. 8. 2008 00:00) [hereinafter Stakeholders Differ], http://www.thehindu.com/todays-paper/tp-national/tp-kerala/Stakeholders-differ-on-womenrsquos-entry/article15160854.ece.
Anonymous, Minister Sudhakaran Cautions Trupti Desai Against Sabarimala Entry, OnManorama.com (Dec. 9, 2016 3:31 p.m.).
Anonymous, Rumours of Trupti Desai’s Presence near Sabarimala Leaves Police in Jitters, AsiaNetNews.com (Jan. 20, 2017 12:07 p.m.).
Id.; Anonymous, Now, Activist Trupti Desai to Fight for Liquor-Free Maharashtra, The New Indian Express (Jan. 30, 2017 4:37 p.m.), http://www.newindianexpress.com/nation/2017/jan/30/now-activist-trupti-desai-to-fight-for-liquor-free-maharashtra-1565081.html.
Krishnadas Rajagopal, Supreme Court Refers Case of Ban on Women’s Entry into Sabarimala Temple to Constitution Bench, The Hindu (Oct. 13, 2017 1:50 p.m.), http://www.thehindu.com/news/national/supreme-court-refers-ban-on-womens-entry-at-sabarimala-to-constitution-bench/article19851755.ece.
IYLA, Writ Petition (Civil) 373, ¶¶ 7–8; Amicus brief ¶ 3, Writ Petition (Civil) 373; Azad, I.A. No. 10, ¶¶ 1–3.
IYLA, Writ Petition (Civil) 373, at 20; Amicus brief ¶ 7, Writ Petition (Civil) 373; Azad, I.A. No. 10, ¶¶ 11–12. Another standard definitional battle in essential practices jurisprudence is whether the religious community in question constitutes a denomination and is thus eligible for the article 26(b) freedom to “manage their own affairs in matters of religion.” The current court filings are less consistent in their treatment of this issue than in their discussion of whether Hindu women constitute a “section or class” of Hindus: the Amicus brief notes that the “burden to prove that devotees of Lord Ayyappa form a denomination within the meaning of Article 26 of the Constitution of India is on those who claim such a status” but goes on to assume for the time being that Ayyappan devotees constitute such a denomination (Amicus brief ¶¶ 5–5.1, Writ Petition (Civil) 373); the IYLA petition only implicitly disputes denomination status inasmuch as it argues that the ban does not even fall within “the Hindu religion” (IYLA, Writ Petition (Civil) 373, ¶¶ 7–8); the Azad petition argues that Sabarimala is not a denominational temple that even if Ayyappan devotees constitute a denomination their authority over “internal affairs” does not extend to the issue of temple entry (Azad, I.A. No. 10, ¶¶ 29–31).
Amicus brief ¶ 5.1, Writ Petition (Civil) 373; IYLA, Writ Petition (Civil) 373, ¶¶ 11–12 (citing Devaru, A.I.R. 1958, at 920); Azad, I.A. No. 10, ¶¶ 40, 43.
Mahendran, A.I.R. 1993 Ker ¶¶ 13 (on whether ban undermined art. 25 right of individual women), 26 (on whether women constitute a “section or class” of Hindus);
Amicus brief ¶ 8, Writ Petition (Civil) 373; IYLA, Writ Petition (Civil) 373, ¶¶ 12–13.
Robinson, supra note 37, at 342.
Id.
For a list of the questions referred to the constitution bench, see Rajagopal, supra note 126.
