The aftermath of Sabarimala

History suggests that revolutions were often not led by constitutional courts, but rather by people with political will. The Sabarimala episode, curiously, highlights an instance where the political executive in Kerala aided the Supreme Court to steer the country a little closer to the liberal ideals of equality and freedom.

Around five months after the apex court decided that the Sabarimala temple should be open to all from both genders, on this women’s day, it is worthwhile to consider what this means for women. The idea of associating the worth of a woman with virginity or purity is not uncommon. It is reported that in western Nepal, women are kept secluded in a shed during the days of menstruation. Some die due to diseases like diarrhoea or pneumonia. These women were not rescued by their families since they feared that they will be ‘polluted’ if they interact with the menstruating women. In various parts of India, women are actively prohibited from entering the kitchen or puja rooms during menstruation. Menstruating women are frequently subject to humiliation, guilt and seclusion.

The argument that the temple exclusion of women is a form of ‘untouchability’ is supported by this notorious social context. Article 17 of the Constitution emphatically declares that untouchability is abolished. During the Sabarimala episode, the contention that the discrimination against women is another kind of untouchability under Article 17 was strongly resisted by those opposing the entry, both inside and outside the court. The claim was that the discrimination applicable to certain backward classes due to historical discrimination could not be applied to women, in a different context. It was also urged, though without any foundation, that keeping the women away from Sabarimala has nothing to do with the notions of purity and impurity. However, when the women finally entered Sabarimala in January, the tantri of the Sabarimala temple did indeed shut the temple for the ‘purification ceremony’. Hence, the fact that the prohibition of women was predominantly based on reasons of purity was made demonstrably visible. This perhaps forcefully legitimises the conclusion of Justice Chandrachud in the Sabarimala case (Indian Young Lawyers Association & Others vs. the State of Kerala, 2018) that biological processes of a woman “must be free from social and religious practices, which enforce segregation and exclusion.” It was further held that Article 17 cannot be interpreted so as to exclude women who are discriminated against on the basis of the ideas of pollution. Therefore, by broadly interpreting the abolition clause, the Supreme Court put transformative constitutionalism in action.

Right to expression

The issue of Sabarimala was conceived by women not merely as that of entry to the temple, but rather of broader religious reformation in a culture ridden with gender inequality. It throws light on gender stereotyping, autonomy and the right to expression and worship of women. The ‘equal’ entitlement under Article 25 of the Constitution that promises freedom of conscience and religion was peculiarly noted. It demonstrated that religions tend to have an overarching patriarchal character and it is important that women themselves fight against it and reform religion. It gave visibility to the opinions of women and what they believed about the issue.

It is further significant how the judgment of the Supreme Court motivated the political movements in Kerala. The Wall of Women, a human chain formed across Kerala initiated by the state government and the civil society, sought to recognise the women’s right to access to public places. This popular reaction to the judgment is certainly positive. The debates surrounding Sabarimala also gave a platform and voice for the women in Kerala, to step beyond the boundaries and to express their views freely and openly. Kanaka Durga, one of the women who entered the temple was attacked by her relatives in her own house and was disowned by her family. Rehana Fathima, who attempted entry, was arrested and imprisoned for a mere Facebook post on Sabarimala. The enormous amount of courage displayed by these women, in the face of social ostracism, humiliation and discontent has contributed to the enrichment of the political climate in the state.

The fact that a large number of women could not enter Sabarimala even now, is truly saddening. It, however, does not mean the efforts for gender equality and women empowerment have come to a standstill. The determination of the women who entered Sabarimala and those who speak in favour of equality will continue to disturb those who believe that women matter less than men. This provocation is probably, the most striking achievement of the pro-entry movement.

The Sabarimala controversy is not only significant for equality jurisprudence in the legal realm, but also for its substantive contribution to politics.

(Thulasi K.Raj is a lawyer at the Supreme Court of India and Kerala High Court)