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SABARIMALA TEMPLE: THE ANTAGONISM OF FAITH AND LAW

INTRODUCTION
The history of Sabarimala and the Ayyappan deity is hidden in something secret. The scholar Radhika Sekar in her book “The Sabarimala Pilgrimage and Ayyappan cultus” stated that the myth of Ayyapan is not found in any of the major puranic texts.[1] According to A. Sreedhara Menon, Sabarimala history has more to do with Buddhism than with Brahmanism. As principles of Buddhist and devotees resemble, like non-violence, vegetarianism and abstinence from sex during 2 months before pilgrimage. Sabarimala is the 2nd largest pilgrimage in the world after the holy site of Mecca in Saudi Arabia. Around 3.5 crore pilgrims visited the temple last year according to the government. The temple is located at the Periyar tiger reserve in Kerela. The temple is dedicated to god Ayyapan who believes to be the son of lord Shiva and Vishnu. Ayyapan is believed to be celibate and rides on a horse and tiger. The devotees are expected to follow a 41 days rigorous period before pilgrimage.
JUDICIARY – THE GUARDIAN OF JUSTICE
Pillars of judiciary are strong enough in the world, one may view it in the events of Sri Lanka where the president misused his powers and there constitutional provisions to the wind. In US, President Trump’s moves against migrants are being questioned in the court. In India, changes which need to have been enacted by parliament have been eased by the Supreme Court. Worldwide, it is the judiciary that is safeguarding democracy. Judiciary remains the last hope.[2] On the roads of India and Pakistan, a terrifying message has been sent out that courts must not rush in where politicians were scared to walk. The public and political reply to the Supreme Court judgements in 2 cases – Sabarimala in India and the Asia Bibi case in Pakistan bear striking resemblance. The only thing distinct is the ability of the 2 nations is to enforce a writ.[3]
Sabarimala, looks like a new touchstone for understanding liberals, especially from Kerela. In the landmark judgement of Sabarimala, Supreme Court in majority opinion of 4:1 on 28 September 2018, lifted the centuries old rituals on prohibition on women between the age group of 10-50 are not allowed in participating in rituals. This rule was given legal sanction of rule 3(b) of the Kerala Hindu places of public worship rules, 1965. In this judgement Supreme Court established that individual freedom is superior over purported group rights even in issue of religion. In the judgement, the main opinion shared by former Hon’ble Chief Justice of India and Hon’ble Justice A. M. Khanwilkar was that the exclusion of women reduced the freedom of religion to a “dead letter” and is not an essential religious practice. Justice Rohinton F. Nariman held that Rule 3(b) of Kerela Hindu Places of Public worship Rule 1965, was violative of Article 15(1) of the constitution. Hon’ble Justice D.Y. Chandrachud also held that “stopping women from the age of menarche in entering the temple is violative of Article 17. It is viewed that to treat women as the child of a lesser God was to deceive the constitution”. He also wrote that a deity in temple does not have any constitutional rights because they are meant for individuals not for idols or deities.[4] “Like should be treated alike and that unlike should be treated unlike” so why not women should be treated like a man. What an irony, it is that on one side we treat women as the Goddess in Hinduism and on the other side barring them in entering the temple. Many of the people are of the view that at Sabarimala temple sits Lord Ayyappan whom is Naishtika Brahmacharya and would lose his celibacy when a menstruating women would come in touch with him. As here menstruating is appeared to be impure. But in Manusmriti Chapter 5, Clause 66, it was clearly written that a women is purified on a miscarriage and menstruating women becomes pure by bathing after the menstrual secretion has stopped. Again in Clause 85 when the twice born has come into contact with a menstruating women, Kandala, a women in childbed, a corpse will become pure by bathing.[5] Whether one believes or not but the Supreme Court judgement allowing women is the law of the land. As in constitution it is clearly mentioned under Article 25(1) the right of women to enter in temple and also barring them will be violative under Article 17 of constitution. But still some peddlers of hate are not in favour with the law of the land and are portraying Sabarimala as a battlefield of religion versus law and disturbing the constitutional machinery of state by creating chaos.
According to my view, no good Hindu would ever want chaos in Kerela and such place like the holy shrine of Sabarimala. Many people in the name of faith are creating ruckus but it is not their faith, it is their ego which overcomes it and they are no longer adherent of God. As soon we believe we need to protect God, we lose our faith. It is clear paradox of faith.[6] Not even single women has managed to get into the temple even after the Supreme court verdict but have patience because reforms are best brought through social movements and not by pieces of legislation and judgements.[7] Women are more focused in building social support. These are my deep wishes that this storm too will be overcome soon by Kerela like the floods.
THIN LINE BETWEEN JUDICIAL ACTIVISM AND JUDICIAL OVER REACH
Kerela, which has always served as a model of progress especially in health and education. Kerala also has a record of past events of social movements that mobilised people to break the grip of customs and rituals.[8]
In the landmark judgement, the sole woman judge who dissent with the majority was Hon’ble Justice Indu Malhotra. According to her view, India which is a place of diverse culture and religion has different rituals according to their religion and these issues should not be interfered by the court because constitutional morality will allow them to practice their beliefs.[9] Religious practices cannot be tested along on the ground of article 14. The Sabarimala temple and the divine is protected under Article 25 of constitution. Hon’ble Justice Indu Malhotra may be right because women are more in number than men all these women have expressed their belief that they are not ready to change the existing rituals that bar the entry of women aged 10-50. Many of them also expressed to assert their solidarity in existing rituals. So may be the Supreme court should allow the rituals to continue until there is uniform code of equality and should take a view on this before hearing the review petitions.
Many devotees in Kerala including women are not against the entry of women aged between 10-50 in temple because they think that as a temple unique custom as not discriminatory to women. May be the entry of women will destroy the sanctity and popularity of Sabarimala as it is a matter of faith and one should have the right to practice it.
It may be seen as a tussle going on between the judiciary and the executive because separation of power which is considered as a basic structure of the constitution divide the powers and scope of the three organs that is legislature, Judiciary and Executive but judiciary keeps on pushing the horizons of judicial activism. In November 2016, our former President Pranab Mukherjee cautioned judiciary as they keep on indulging in the work of legislature and the executive and keep on expanding its horizons to cover cases like Rafale, Sabarimala and pollution of Ganga, it is not considered as a case of judicial overreach. Supreme Court is made for the common man so he should reach their easily with his grievances. But with 58000 grievances pending and 30% of the cases not taken up for 5 years in top court, should the court be busy with all the cases that are beyond its jurisdiction?[10]
In many judgements, Supreme Court has become too much active in making laws but it’s a question that,” Can Judges Legislate”?
In the recent case of Arun Gopal v Union of India (2017) Supreme court fixed the timings of bursting cracker on Diwali and prohibit the non-green fireworks, even though there was no law to that effect. In landmark case of MC Mehta v UOI, the court nullifying the statutory rule 115(21) of Central Motor Vehicles Act, 1989, when it gave orders that no BS4 vehicle should be sold after 2020 and in many cases like Rajesh Sharma v State of Uttar Pradesh (2017), Kashinath Mahajan v State of Maharashtra (2018) etc., as there are instances where it can be seen as violative of separation of power as judges are drafting their own laws.[11]
At the very end according to my view, the wisest course of action in the issues of religion is to let the communities of follower to evolve their norms on their own.[12]
CONCLUSION
Even after the Independence of 71 years we are still stuck on these religious issues which is an institution to divide and rule played by politicians. Religion has played part in only dividing and not unifying as it can be seen in India and Pakistan division was due to religion only, even in the Bangladesh and Pakistan partition they both are Muslim populated but still they are parted from each other. In the famous T.V. show Sacred Games it shows that in the name of religion how people can be fooled. According to my theory, things which are going on are the best which can be according to the circumstances of the present scenario because nothing is permanent. At last I would like to say “a coin always has two sides” and end with a couplet of Faiz Ahmed Faiz,
“Dil na ummeed toh nahi, nakaam hi toh hai,
Lambi hai gham ki sham magar sham hi toh hai…”

REFERENCES
[1] https://thewire.in/history/appropriation-of-ayyappa-cult-the-history-and-hinduisation-of-sabarimala-temple
[2] T.Anand Raj,”Pillars of Judiciary”,The Hindu,Nov.17,2018
[3] Sanjay Hegde,”A question of writ”,The Hindu,Nov.15,2018
[4] Sanjay Hegde”A question of writ”,The Hindu,Nov.15,2018
[5] Brinda Karat”Driven by notions of purity and impurity”,The Hindu,Oct.26,2018
[6] Sundar Sarukka”The Paradox of Faith”,The Hindu,Oct.29,2018
[7] Sreekumar N.”At Sabarimala”,The Hindu,Oct.23,2018
[8] Krishna Kumar”Failing to lead by example”,The Hindu,Nov.5,2018
[9] Sanjay Hegde”A question of writ”,The Hindu,Nov.15,2018
[10] Kangayam R.Narasimhan,”Delicate Balance”,The Hindu,Nov.17,2018
[11] Markandey Katju,” When Judges legislate”,The Hindu,Nov.16,2018
[12] Keerthik Sasidharan,”The churning of tradition”,The Hindu,Oct.21,2018

ABOUT THE AUTHOR:

Rahul Sisodia is a 2nd year law student at Jamia Millia Islamia. He has keen interest  in Constitutional law and criminal law.
In Content Picture Credit: ScoopWhoop

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