DIFFERING PERSPECTIVES WITHIN FEMINISM: CONSTITUTIONAL DEBATES ON SABARIMALA
Updated: Mar 24
All feminists do not speak in a homogeneous voice. They have differing perspectives on issues that affect their cause, which are informed by their diverse socio-political and ideological contexts. Feminist movements have evolved over time to adopt different labels according to their goals and beliefs. Liberal feminism is a strand in feminism which, inspired by the ideals of liberalism, believes in the rights of all individuals. It seeks to achieve equality for women because they are also individuals in the liberal understanding, fully capable of independent thought and action, and deserving of rights. They seek to achieve this through the operation of law. Radical feminism is another strand in feminism which rejects the notion that change can be ushered in through the use of state machinery. It criticises the state for being a male-dominated patriarchal setup and believes that the society and its structures need to undergo a radical change to bring an end to patriarchy. These labels are not watertight and values flow freely among these and various other categories. However, the categorisations make it amply clear that there is no one way of being a feminist. Postmodern feminism is one strand that actively recognises this subjectivity of thought in people which is a product of their unique location in social, cultural, economic and ideological structures.
These differences within the feminist way of thinking are exhibited in the way different feminists engage with societal issues. The aim of this paper is to understand these different positions in the Indian context by analysing feminist responses to the restriction that was imposed on women in the age group of 10-50 years from entering the Sabarimala temple situated in the Pathanamthitta district of Kerala. A 5-judge Constitution bench of the Supreme Court of India held the restriction to be unconstitutional because it violated the fundamental right to equality guaranteed under Article 14 of the Constitution of India to all citizens. The restriction excluded women in the menstruating age group of 10-50 years from entering the temple. This exclusion based on biological differences was held to be violative of Article 14. It was noted that the practice did not constitute an essential practice of the religion and so, was subject to judicial scrutiny.
Feminist discourse on the issue has been divided since before the 2018 verdict. Those in favour of the ban have argued that the courts must respect the religious sentiments of people and recognise their constitutionally guaranteed freedom to manage religious affairs under Article 26. Those against the ban have argued that the freedom of religion must not be granted at the expense of the right to equality of women, and that Article 14 must strike down the discriminatory, patriarchal and orthodox prohibition. This paper shall discuss views from either side of the debate, popular responses on both sides and criticisms for both of them. While the nuances in the arguments of either side are acknowledged, the paper shall broadly refer to those in favour of the ban as proponents of respecting religious sentiment and those against the ban as proponents of equality.
Proponents of equality
Many feminists have asserted that allowing women entry into the temple is a positive step in the realisation of gender equality. Dr Saumya Uma contends that practices that seek to ban entry of women into temples are a manifestation of the patriarchal ideology entrenched in societal structures which attempt to protect themselves under the guise of freedom of religion. She places reliance on and emphasises the significance of constitutional morality, which values the substance or essence of constitutional values over the form in which the text is written. She argues that “all religious or customary practices, irrespective of whether they are derived from religious tenets or cultural beliefs, irrespective of whether or not they are essential tenets of a religion, ought to be tested using the yardstick of constitutional morality.”
Kalpana Kannabiran draws a parallel between the prohibition on entry of women in the menstruating ages and the practice of untouchability against Scheduled Castes, Scheduled Tribes and Dalits. She argues that the prohibition is an extension of the supremacist ideology of caste orders. She writes that the use of the orthodox, casteist laws of Manu in court to justify the prohibition on the entry of women in menstruating ages is a practice based on the caste-based ideologies of purity and pollution. Menstruating women are seen as ‘impure’ who must not be allowed to dirty the temple. This, she argues, is in derogation of Article 17 of the Constitution which bans the practice of untouchability in any form.
Nivedita Menon offers a counter to Justice Indu Malhotra’s dissenting opinion in the Supreme Court verdict. She responds to Justice Malhotra’s assertion that the court must not impose its rationality on religion by arguing that the Supreme Court did not overturn faith, it merely overturned a previous judgment of the Kerala High Court which had imposed the ban on women’s entry. She explains that the temple did not have a strict ban on women before the High Court judgment and so, this prohibition is not an age-old tradition but a modern ban.
Popular response to the debate around this issue took the form of a social media campaign called #HappyToBleed, when the Devaswom Board of the Sabarimala temple made a gender-discriminatory statement to the effect that they would allow women entry into the temple when machines that could detect if a woman is menstruating or not were invented. Happy to Bleed campaigners asserted that there is no shame in menstruating and that it is not a defiling process, but a cleansing one.
Some of the beliefs voiced by women who support the prohibition do reflect internalised notions of patriarchy and the misogyny it perpetuates. However, the extent to which others can claim to ‘know better’ and ask them to look at the issue from their perspective, which they hold to be the objective truth, is debatable. Calling it gender discrimination when many women do not look at it the same way raises the question of who one considers to be deserving of independent agency, but can one really make such a judgment? The majority of Ayyappa worshippers supporting the ban believe that the petitioners in the Supreme Court judgment have an impersonal understanding of their traditions and seek to provide them with ‘reforms’ that they have not demanded. Feminists on this side of the debate face this dilemma of justifying their equality-based perspective on the issue as different from paternalism.
Proponents of respecting religious sentiment
Deepa Das Acevedo argues that the assumption of the court that religious traditions and principles of equality can never be at odds is dismissive and leaves no room to examine facts and to balance competing constitutional demands in an immersive manner that would be the most just. She argues that the Supreme Court, eager to exhibit its activist avatar, disregarded devotee perspectives and created a bad precedent by damaging the ‘essential practices’ doctrine it had itself developed. She questions the silence of the judgment on constitutionally significant issues like the relationship between religion and rationality, the task of identifying appropriate petitioners for PIL suits impacting religious freedom and the possibility that deities have constitutional rights.
Madhu Kishwar criticises the Supreme Court judgment for disregarding more important values of a democracy while standing up for gender equality. She emphasises respect for diverse communities as a core value of the Indian democracy. She says that ‘rabid feminists’ must not, in the name of equality, stomach the freedom to imagine deities in whatever way one wants, that is allowed to people in India. She draws an analogy between colonialists who belittled Hindu religious practices for their polytheism and the people fighting for gender equality, whom she calls the ‘modern day missionaries’, for being intolerant of the diversity in the Hindu religion.
Popular response from supporters of the prohibition took the form of the ‘#ReadyToWait’ campaign, which was a social media initiative that sprang up in response to the Happy to Wait campaign. These campaigners asserted that they are willing to wait till they attain the permissible age to enter the temple because they respect ancient customs.
The idea that religions must be allowed to evolve on their own and to regulate themselves, free from state or legal intervention raises questions of whether religions can be trusted to do the necessary introspection and reform themselves. The Supreme Court has held in various cases that fundamental rights cannot be waived off by people according to their will. Thus, even if one were to accept that women who are ‘ready to wait’ must be allowed to exercise their agency and decide for themselves when they want to enter the temple, they cannot resist the outlawing of a prohibition on the entry of all women in the menstruating ages, because it is violative of their right to equality. The women who are ‘ready to wait’ can wait till they turn 50 regardless of whether or not the prohibition on the entry of women stays in place.
India has a fair share of conservative religious leadership at the central as well as state level. It is pertinent to ask what would be the fate of the rights of women, lower castes and other cultural or religious minorities if religions are completely excused from judicial intervention. Khap panchayats are guilty of issuing diktats to preserve the caste order or the notions of ‘purity’ of matrimonial bonds which they hold to be a part of the religion of the parties involved. The mob lynching of religious minorities over issues considered sacred by the mob are intentionally left unaddressed or inadequately addressed by political leaders. In a representative democracy like India which has a clear majority of Hindu population, it is common for political leaders to base their politics along religious lines. The Constitution of India entrusts the responsibility of protecting the fundamental rights of people, as well as the responsibility of checking the other two organs of the state on the judiciary. Political and practical considerations suggest that it may not be viable to grant immunity from judicial intervention to religious matters if the Court is prima facie satisfied that a violation of fundamental rights is involved.
Additionally, Dr B R Ambedkar criticised Hinduism for being a system of laws set in stone and asserted that the religion must be given up entirely. He converted to Buddhism over this reason and continued to fight for the rights of lower castes by demanding state intervention as well as leading a political struggle to bring about change. He observed:
“The worst evil of [Hinduism] is that the laws it contains must be the same yesterday, today, and forever. They are iniquitous in that they are not the same for one class as for another. But this iniquity is made perpetual in that they are prescribed to be the same for all generations…The objectionable part is that this code has been invested with the character of finality and fixity.”
With such an unchanging characteristic, Hinduism, or arguably, any religion, cannot be expected to self-regulate its matters in an equitable manner. As Nivedita Menon writes, “social transformation is best brought about by political struggles rather than from above by the law, but the oppressed do not have the luxury of waiting for that moment to come about.” The debate among feminists over whether the state should intervene in religious matters such as the Sabarimala dispute, and to what extent, does not have a conclusive end. Perhaps the feminist awakening lies merely in respecting, acknowledging, and actively engaging in such political and religious debates to let all strands of thought be heard while remembering and recognizing the constitutional morality that forms the basis of independent India.
This test was laid down in The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954): AIR 1954 SC 282.  Indian Young Lawyers Association v State of Kerala (2018): WP(Civil) No 373 of 2006. Dr Saumya Uma is an academic, law researcher, lawyer, trainer, writer and campaigner on gender, law and human rights.  Saumya Uma, 'Women's Access To Places Of Religious Worship In India: The Constitutional Conundrum Of Gender Equality Versus Freedom Of Religion' (2017) 2 International Journal of Law, Human Rights and Constitutional Studies. Kalpana Kannabiran is a sociologist and lawyer. She is the current Director of Council for Social Development, Hyderabad.  Kalpana Kannabiran, 'Denying Women Entry To The Sabarimala Temple Amounts To Untouchability' (The Wire, 2018) < https://thewire.in/law/sabarimala-temple-women-entry-supreme-court > Nivedita Menon is a feminist writer and a professor of political thought at Jawaharlal Nehru University, Delhi.  S Mahendran v Secretary, Travancore Devaswom Board (1993): AIR 1993 Ker 42.  Nivedita Menon, 'Law Versus Faith, Female Activists Versus Male Devotees And Other Strange Creatures At Sabarimala' (KAFILA - COLLECTIVE EXPLORATIONS SINCE 2006, 2020) < https://kafila.online/2019/02/06/law-versus-faith-female-activists-versus-male-devotees-and-other-strange-creatures-at-sabarimala/ >  Bhandari H, 'Women Are #Happytobleed, Then What’s The Problem?' (The Indian Express, 2015) < https://indianexpress.com/article/trending/trending-in-india/women-are-happytobleed-then-whats-the-problem/ > accessed 4 December 2020 Deepa Das Acevedo is a legal anthropologist and an assistant professor at the Hugh F Culverhouse Jr School of Law, the University of Alabama.  Deepa Das Acevedo, 'Pause For Thought: Supreme Court’s Verdict On Sabarimala' (2018) 53 Economic & Political Weekly.  Deepa Das Acevedo, 'Gods’ Homes, Men’s Courts, Women’s Rights' (2018) 16 International Journal of Constitutional Law. Madhu P Kishwar is an academic and author, credited for being the founding editor of Manushi, a journal on gender inequalities in India.  Madhu Kishwar, 'Restrictions On Women At Sabarimala: It Is Complicated' (The Hindu, 2017) < https://www.thehindu.com/opinion/op-ed/restrictions-on-women-at-sabarimala-it-is-complicated/article19887180.ece >  Madhu Kishwar, ‘Don’t Like This Temple? Choose Another' (The Hindu, 2013) < https://www.thehindu.com/opinion/op-ed/Don%E2%80%99t-like-this-temple-Choose-another/article12305711.ece >  '#Readytowait: Women Explain Why They Are Willing To Delay Their Entry Into Sabarimala' (DNA India, 2016) < https://www.dnaindia.com/india/report-women-devotees-of-lord-ayappa-say-they-are-readytowait-to-enter-sabarimala-2249993 >.  Basheshar Nath vs. Income Tax Commissioner AIR 1959 SC 149; Muthiah vs. Commissioner of Income Tax AIR 1956 SC 269.  'Khap Panchayat Issues Diktat To Rape And Parade Two Dalit Women Naked' (India Today, 2015) < https://www.indiatoday.in/fyi/story/khap-panchayat-issues-diktat-to-rape-and-parade-two-dalit-women-naked-289507-2015-08-21 >  'Khap Panchayat Orders To Kill Lovers' (India Today, 2010) < https://www.indiatoday.in/latest-headlines/story/khap-panchayat-orders-to-kill-lovers-74958-2010-05-23 >  'Dadri: Outrage After Mob Lynches Man For Allegedly Consuming Beef' (The Indian Express, 2015) < https://indianexpress.com/article/india/india-others/outrage-after-man-lynched-over-rumour-of-storing-beef-in-house/ > Jason Overdorf, 'India's Holy Cow Vigilantes' (Newsweek, 2015) < https://www.newsweek.com/holy-cow-vigilantes-394749 > B R Ambedkar, Annihilation Of Caste (Verso 2014). n 8.
1. Indian Young Lawyers Association v State of Kerala (2018): WP(Civil) No 373 of 2006
2. The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954): AIR 1954 SC 282
3. Uma S, 'Women's Access To Places Of Religious Worship In India: The Constitutional Conundrum Of Gender Equality Versus Freedom Of Religion' (2017) 2 International Journal of Law, Human Rights and Constitutional Studies
4. Kannabiran K, 'Denying Women Entry To The Sabarimala Temple Amounts To Untouchability' (The Wire, 2018) < https://thewire.in/law/sabarimala-temple-women-entry-supreme-court >
5. S Mahendran v Secretary, Travancore Devaswom Board (1993): AIR 1993 Ker 42.
6. Menon N, 'Law Versus Faith, Female Activists Versus Male Devotees And Other Strange Creatures At Sabarimala' (KAFILA - COLLECTIVE EXPLORATIONS SINCE 2006, 2020) < https://kafila.online/2019/02/06/law-versus-faith-female-activists-versus-male-devotees-and-other-strange-creatures-at-sabarimala/ >
7. Bhandari H, 'Women Are #Happytobleed, Then What’s The Problem?' (The Indian Express, 2015) <https://indianexpress.com/article/trending/trending-in-india/women-are-happytobleed-then-whats-the-problem/ >
8. Acevedo D, 'Pause For Thought: Supreme Court’S Verdict On Sabarimala' (2018) 53 Economic & Political Weekly
9. Acevedo D, 'Gods’ Homes, Men’S Courts, Women’S Rights' (2018) 16 International Journal of Constitutional Law
10. Kishwar M, 'Restrictions On Women At Sabarimala: It Is Complicated' (The Hindu, 2017) < https://www.thehindu.com/opinion/op-ed/restrictions-on-women-at-sabarimala-it-is-complicated/article19887180.ece >
11. Kishwar M, 'Don’t Like This Temple? Choose Another' (The Hindu, 2013) < https://www.thehindu.com/opinion/op-ed/Don%E2%80%99t-like-this-temple-Choose-another/article12305711.ece >
12. '#Readytowait: Women Explain Why They Are Willing To Delay Their Entry Into Sabarimala' (DNA India, 2016) < https://www.dnaindia.com/india/report-women-devotees-of-lord-ayappa-say-they-are-readytowait-to-enter-sabarimala-2249993 >
13. 'Khap Panchayat Issues Diktat To Rape And Parade Two Dalit Women Naked' (India Today, 2015) < https://www.indiatoday.in/fyi/story/khap-panchayat-issues-diktat-to-rape-and-parade-two-dalit-women-naked-289507-2015-08-21 >
14. 'Khap Panchayat Orders To Kill Lovers' (India Today, 2010) < https://www.indiatoday.in/latest-headlines/story/khap-panchayat-orders-to-kill-lovers-74958-2010-05-23 > accessed 5 December 2020
15. 'Dadri: Outrage After Mob Lynches Man For Allegedly Consuming Beef' (The Indian Express, 2015) < https://indianexpress.com/article/india/india-others/outrage-after-man-lynched-over-rumour-of-storing-beef-in-house/ >
16. Overdorf J, 'India's Holy Cow Vigilantes' (Newsweek, 2015) < https://www.newsweek.com/holy-cow-vigilantes-394749 > accessed 5 December 2020
17. Ambedkar B, Annihilation Of Caste (Verso 2014), pp 306.