Mihira Sood

| @Mihira_Sood | July 28,2018

To argue for temple entry restrictions on menstruating-age women in this day and age requires a fair degree of legal and logical contortion in order to obfuscate the gender injustice that lies at the heart of the issue. There has been a wide range of arguments that have been put forth by various Respondents in the case of Kerala’s Sabarimala temple, yet all of them deploy a common strategy: to persuade the Court that the restrictions aren’t what they seem, which is gender discrimination, and are in fact something else altogether, that is, a nuanced religious requirement keeping in mind the specific needs of the deity in question.

Gendered restriction

The first step in obscuring the gendered nature of the restriction is to deny that this issue affects women as a class at all. This argument takes several forms. One is that the affected women are not a class of people, an argument that has no merit, as they have been deemed a class by the Temple Board itself. Another is that the exclusionary factor is not being a woman, but being of menstrual age, so it is therefore not discriminatory. Given that it is only women who menstruate, this is about as logical as arguing that a restriction on people with the XY chromosome is not discrimination against men, as the exclusionary factor is chromosomes and not gender.

That certain categories of men and women are permitted does not take away from the fact that in the case of men, the restriction is based on choice, whereas for women, their natural and inevitable biological functions, specific to their gender, render them ineligible

It was also argued that that the discrimination is not Man v. Woman, but Man v. Man (those who have practiced the 41-day purity ritual, and those who haven’t) and also Woman v. Woman (those within the 10 to 50 age group, and those outside it). That certain categories of men and women are permitted does not take away from the fact that in the case of men, the restriction is based on choice, whereas for women, their natural and inevitable biological functions, specific to their gender, render them ineligible. Additionally, the fact remains that no verification is done for men to test whether or not they have observed the prescribed celibacy and austerity, whereas for women, the risk is apparently so high that a blanket ban is preferred.

As to the question of many female devotees embracing the restriction, the argument made in Koushal’s case that a miniscule minority may be deprived of their rights, has been comprehensively and rightfully demolished by the Court in Puttaswamy. Those who do not wish to visit the temple need not, but their choice cannot be used to deny the choice of others

Other arguments were also made to deny the brute patriarchy that underpins this restriction — that Kerala has a high literacy rate, that some (though not all) Malayali communities are matrilineal and therefore there is no question of patriarchal forces or conditioning, and that many (though not all) female devotees accept this restriction. Being able to write one’s name is no indicator of gender equality, and the myth of Kerala’s romanticised matriarchy has been exposed time and again by scholars, activists, and grassroots workers. As to the question of many female devotees embracing the restriction, the argument made in Koushal’s case that a miniscule minority may be deprived of their rights, has been comprehensively and rightfully demolished by the Court in Puttaswamy. Those who do not wish to visit the temple need not, but their choice cannot be used to deny the choice of others.

Deity as juristic person vs. women as natural persons

It has even been argued that the juristic nature of deities (a legal fiction created for tax purposes given the enormous amount of wealth with religious organisations) implies that the deity also has fundamental rights of privacy and expression under Article 21 that override those of natural persons such as women!

The second step is to present the restriction as necessary keeping in mind the nature of the deity. In this, the celibate nature of the deity is cited, arguing that visitors have to exhibit the same degree of celibacy as manifested by the deity, for which a period of 41 days of austerity and abstinence is prescribed. In this, it has even been argued that the juristic nature of deities (a legal fiction created for tax purposes given the enormous amount of wealth with religious organisations) implies that the deity also has fundamental rights of privacy and expression under Article 21 that override those of natural persons such as women! One can only hope that the Court will foresee the mischief such a construction will lead to, and dismiss it unequivocally.

What remains unanswered however, is what exactly celibacy or abstinence has to do with menstruation. In other words, is there a connection between the restriction and the object of the rule, even assuming the object is lawful? The answer is no.

Firstly, the class of persons carved out itself is arbitrary. The restriction is not based on the actual fact of ongoing menstruation, but on average menstruating age. We know however, that there are women who menstruate before the age of 10, just as there are women who menstruate after the age of 50. Equally, there are women within that age bracket who have not started menstruation, or who have ceased to menstruate, who do not menstruate owing to medical conditions, or owing to pregnancy or lactation. Supporters argue that the restriction is framed in this way as it is not legally possible to verify whether or not a woman is menstruating, but a blanket ban is an obviously discriminatory and unconstitutional response.

 Perpetuating rape culture

Secondly, even if we assume that the class of people restricted is logically distinctive, does it further the object of celibacy of visitors in any way? Whether a woman is 10, or 30, or 50, menstruating or not, fertile or not, the fact remains that none of these aspects affect whether or not the woman has been celibate for the past 41 days.

Men are a preferred, indeed coddled class of devotees, who are incapable of restraining themselves when potentially fertile women are around. This construction of helpless, testosterone-driven men and bewitching temptresses is all too familiar — it is a staple of rape culture and victim blaming

The only possible nexus is if we accept that the mere presence of women who are of child-bearing age will deprive men of their senses and cause them to break their vow of celibacy. This implies that men are a preferred, indeed coddled class of devotees, who are incapable of restraining themselves when potentially fertile women are around. This construction of helpless, testosterone-driven men and bewitching temptresses is all too familiar — it is a staple of rape culture and victim blaming.

There is then no part of this argument that doesn’t discriminate against women — whether it is arbitrariness, lack of parity in verification requirements, placing the onus of men’s celibacy on women, treating men as a class of devotees whose interests require greater protection. Each and every one of these conclusions requires the ban to be struck down as blatantly unconstitutional.

Whichever way you slice it, the celibacy argument is not only inaccurate and irrational but also equally discriminatory toward women. It is then clear that both the limbs of the Respondents’ arguments fall — that the ban doesn’t discriminate against women, or that the celibate nature of the deity requires it.

Knowing that the clear impact of the ban is gender discrimination, let us now turn our attention to the intent. If women outside this age group are permitted, and celibacy isn’t the reason, then what is?

Menstrual taboo as a kind of untouchability

If untouchability is about stigmatising a group of people, deeming them unclean and impure by virtue of a group into which they were born, then it defies imagination as to how this is different

Sometimes, the simplest and most obvious answer is the correct one. In this case, it is about the age-old taboo against menstruation, and the ritual pollution associated with it. It is about untouchability, even if this is not the context within which that term arose. But if untouchability is about stigmatising a group of people, deeming them unclean and impure by virtue of a group into which they were born, then it defies imagination as to how this is different. The language of Article 17 which abolishes untouchability is sufficiently broad so as to enable such an interpretation, with far less of an imaginative leap than that required for the variety of rights read into Article 21.

Religious denominations subject to constitutional morality

Given the history of temple entry movements in India and the role which religion plays in the social fabric, the issue is certainly not just a religious one but one that is inextricably linked with civil liberties and social equality

Lastly, let us address the vexed issue of Article 25 and 26. Article 25(1) guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. This must be read to mean all individual persons, including women, and not groups, which are separately covered under Article 26. Failing to adopt this individualist interpretation completely undermines the idea of religion as a personal faith and treats it only as a domain of entrenched patriarchal institutions. Article 25(2)(a) permits the State to regulate secular activities associated with religious activities. Given the history of temple entry movements in India and the role which religion plays in the social fabric, the issue is certainly not just a religious one but one that is inextricably linked with civil liberties and social equality, and therefore falls in the ambit of this clause.

As if this wasn’t clear enough, Article 25(2)(b) expressly permits the State to intervene for the purpose of throwing open the doors of Hindu religious institutions to all classes and sections of Hindus. The framers of the Constitution could have used the category of caste here, if that was the intent, but again, the usage of “all classes and sections” lends itself far more naturally to a broad interpretation than many other rights expansions.

Article 26, which protects the rights of religious denominations, is expressly subject to morality, which the Court has held time and again to mean Constitutional, and not public, religious, or majoritarian morality

Lastly, Article 26, which protects the rights of religious denominations, is expressly subject to morality, which the Court has held time and again to mean Constitutional, and not public, religious, or majoritarian morality. No part of the Constitutional scheme supports the reading put forth by the Respondents. Striking down the ban will not just be a significant step forward in terms of gender equality, but will provide a progressive template with which to adjudicate many other disputes relating to religion, and a truly liberal, individual-oriented framework of fundamental rights.

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