Supporters of the BJP and the Hindu nationalist organisation Rashtriya Swayamsevak Sangh (RSS) at a protest in Kochi, India, January 2019 
Sivaram V/REUTERS

Over the past six months, hundreds—perhaps thousands—of women have lined up to honor a Hindu deity at a temple in southern India. Only two of them have made it in. The rest, pilgrims to one of the country’s most unusual religious sites, have been blockaded, shouted at, pelted with stones, and beaten back by angry protesters. Of the two women who succeeded in viewing the deity, one was thrown out of her marital home and separated from her children, and both have received death threats.

The Hindu temple at Sabarimala, in the state of Kerala, has been at the center of a raging political and legal controversy for nearly three years. At the core of this dispute is the temple’s policy banning women between the ages of ten and 50 from entering its premises—a ban that some argue is unconstitutional. In September 2018, the Indian Supreme Court agreed: it ruled the ban to be a violation of gender equality and ordered temple authorities to grant female pilgrims access.

Ever since, priests, devotees, activists, politicians, and—because this is India—film stars have engaged in heated and sometimes violent debate over the proper scope of religion-state relations. With general elections scheduled to begin next week, the dispute over Sabarimala gives a classic puzzle in Indian law a new and striking visibility in the country’s politics.

ASCETIC, WARRIOR, GOD 

Sabarimala and its presiding deity, Ayyappan, are unique even by Hinduism’s capacious standards. Despite being located deep in a hilly wildlife preserve and usually open for only a few days each month, the temple is one of India’s wealthiest religious institutions, largely owing to the valuable offerings brought by devotees. Meanwhile, narratives of Ayyappan usually describe him as a god raised as a human prince who becomes a warrior and finally an ascetic. More striking still, he is the offspring of two male gods, Vishnu and Shiva, conceived when one of them assumed female form.

A priest at Sabarimala temple, January 2019 
A priest at Sabarimala temple, January 2019 
REUTERS

Above all else, Sabarimala stands out for its unique entry rules: men of all castes and even all religions are free to enter, but women between the ages of ten and 50 (regardless of caste or faith) are not. Explanations for the ban abound. As a celibate ascetic, Ayyappan should be spared the tempting presence of fertile women—that is, women between menarche and menopause. The forest trek, which must be done on foot over several days, is too arduous for women. The pilgrimage to Sabarimala is a celebration of masculinity and male bonding. Whatever the rationale, some form of the ban—as well as criticism of it—seems to have always existed. The last time the ban was litigated was in the early 1990s, when the Kerala High Court declared the temple’s exclusionary policy to be constitutional.

Supporters of the ban argue that it is a necessary aspect of worship at Sabarimala. Not unlike the many iconographies of Mary (from Our Lady of Fátima to Our Lady of Guadalupe and Our Lady of Lourdes), Hindu deities take on different appearances, histories, and preferences in different places. Supporters of Sabarimala’s ban argue that no other Ayyappan temple restricts women’s access because nowhere else does Ayyappan appear in his celibate ascetic form. Women who flout the rules and enter regardless, the argument goes, make it impossible for devotees to worship Ayyappan-at-Sabarimala in keeping with their beliefs.

Opponents of the ban counter that not everyone believes that Ayyappan-at-Sabarimala objects to the presence of fertile women. As a result, they argue, it is women in the prohibited age range who want to visit Sabarimala whose religious freedom is diminished. Moreover, because Sabarimala is managed by an arm of the Kerala state government, critics argue that the ban on women amounts to state-sanctioned gender discrimination. 

Kanaka Durga and Bindu Ammini, the first women to enter Sabarimala temple, in Kochi, India, January 2019
Kanaka Durga and Bindu Ammini, the first women to enter Sabarimala temple, in Kochi, India, January 2019
Sivaram V/REUTERS

The temple dispute first came to the Indian Supreme Court’s attention in 2006, when a group of women lawyers asked the court to invalidate the ban. Like so many other claims in India’s overburdened judicial system, the petition lay virtually dormant until almost a decade later, when several social movements began raising the issue of women’s access to religious spaces more generally. In late 2018, after multiple hearings, the court finally issued its verdict: the temple would have to cease enforcing the ban.

FIRST PRINCIPLES

India’s 1950 constitution reflects conflicting impulses regarding the proper form of religion-state relations: it both protects citizens’ religious freedom and turns religion into an object of regulation and reform.

Many of the constitution’s framers worried that without government action, Indian society would continue to be troubled by practices the lawmakers considered incompatible with democracy, such as caste discrimination and suttee (the immolation of widows alongside their dead husbands). The constitution’s interventionist spirit also reflects long-standing ties between sovereign rulers and Hindu temple management, especially in southern India, where temples have long been important centers of socioeconomic power. Since Hinduism does not have an ecclesiastical hierarchy that can resolve disputes and oversee the day-to-day administration of religious institutions, these functions have often been performed by “secular” sovereigns—first native princes, then British colonial authorities, and now the Indian state.

India’s 1950 constitution reflects conflicting impulses regarding the proper form of religion-state relations.

At the same time, the constitution also enshrines conventionally liberal-democratic commitments to religious freedom. It grants citizens freedom of conscience and the right to “profess, practice and propagate” their religion. It also allows “every religious denomination or any section thereof” to manage its own affairs in religious matters. Both of these features suggest that religious life ought to remain a space of private authority that is relatively free from governmental intrusion.

Indian courts have had to reconcile these conflicting demands. Their solution, first articulated in a landmark 1954 case, has been the essential practices doctrine, whose key concept is that the state cannot alter “the essential part of a religion.” It is for the court to decide what exactly this essence is, based on “the doctrines of that religion itself.” In the context of a dispute such as Sabarimala, the essential practices doctrine encourages courts to consult devotees, sacred texts, and religious authorities to judge whether the ban on women’s entry is indeed central to Ayyappan worship. If it is, then it merits protection, even if it clashes with other constitutional values such as equality and nondiscrimination.

Of course, disputes of this type rarely involve practices that everyone agrees are “essential.” Believers are sometimes incensed when a court informs them that their deeply held views are not religiously significant or accurate. Still, Indian courts have frequently attempted to reform the practice of religion (especially Hinduism), and very often they have succeeded—a testament to the immense popular respect the country’s judiciary commands compared with the legislative or executive branch. Soon after independence, for instance, the Supreme Court forced various temples to grant members of the so-called untouchable castes, or Dalits, the same entry rights as other Hindus, in keeping with the new constitution’s abolition of untouchability. Likewise, in a series of decisions from the 1970s and 1980s, the court ruled that Hindu priests did not have a constitutional right to pass down their positions to their heirs.

RELIGION ON THE BALLOT?

If the last few months are any indication, the Sabarimala case may challenge this largely impressive record on religious reform. As often happens, the Supreme Court produced no majority opinion, but a plurality of judges held that Ayyappan devotees were not distinct from Hindus in general and that the exclusion of women between the ages of ten and 50 was not essential to Hinduism writ large.

The public’s reaction was swift. By mid-October 2018, over 2,000 people had been arrested for protesting the ruling. Hundreds more have since been arrested for blockading aspiring women pilgrims. A local actor and Hindu nationalist activist announced that “women [who visit Sabarimala] should be ripped apart; one half should be sent to Delhi and another to the Kerala Chief Minister.” On the other side, women who support the ruling conducted counterprotests and formed a 620-kilometer human chain in support of gender equality. In a matter of weeks, individuals, religious groups, and caste associations had filed more than 40 petitions asking the court to concede that, given the protests, a grave injustice had resulted from its opinion. The court has repeatedly postponed hearing these petitions, leaving the issue in limbo.

A protest against the Supreme Court ruling in New Delhi, January 2019 
Adnan Abidi/REUTERS

In the meantime, Sabarimala has gone from being a regionally significant temple to a proxy for the struggle between Hindu nationalism and a more liberal, inclusive politics. For Kerala, the dispute over Sabarimala is likely to have a negligible impact in the short run. Since 1957 the state government’s leadership has more or less alternated between the Communist Party of India and the Indian National Congress, and it is unlikely to deviate from this pattern in the foreseeable future. However, Keralite politics are increasingly being conducted in the shadow of Indian Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP), which has been quietly making inroads into the state for years. Issues such as Sabarimala will only exacerbate this trend.

At the national level, Sabarimala’s ban has been consistently supported by the BJP, which rose to power by promoting a vision of India as a culturally Hindu nation. At many points, the BJP has advocated legal measures that would prohibit India’s various religious communities from using their own customs to govern marriage, divorce, adoption, and other “personal” issues. Indeed, in late 2018, the BJP was criticizing the Supreme Court verdict on Sabarimala for outlawing a Hindu religious custom and simultaneously celebrating its victory in Parliament for having outlawed a Muslim practice, namely, that of effectuating a divorce by pronouncing the word talaq three times.

Yet Sabarimala is not a neatly partisan matter. The Indian National Congress, the BJP’s primary adversary and traditionally the more socially progressive party at the national level, is one of several key players to have vacillated over the issue. The Congress’ waffling is partly due to the divergent political incentives it faces at the regional and national levels. Nationally, the Congress’ politicians initially supported the Supreme Court opinion. But in Kerala, the Congress is the less progressive of the major parties and thus better positioned to attract conservative Hindu votes. As a result, the Congress leaders in Kerala began agitating for a reinstatement of the ban soon after the Supreme Court verdict.

Sabarimala is not a neatly partisan matter.

The party’s state and national divisions operated at cross-purposes for more than three months. The Congress’ national leader, Rahul Gandhi, eventually tempered his support for the ruling, saying that there was “validity in the argument that tradition needs to be protected” and that he would not “be able to give an open and shut position” on the ban. Gandhi’s reversal, which came a few months ahead of a general election, was likely an attempt to recapture Hindu voters who have been shifting to the BJP for several years. A similar strategy has already boosted the Congress at the state level, where it recently flipped three BJP-led governments after Gandhi made a point of visiting Hindu temples on the campaign trail, among other conspicuous overtures to Hindu voters. 

It is too early to fully grasp the affair’s ramifications at the national level. Politically, if not legally, the dispute remains unresolved while the Supreme Court continues to postpone hearings on the review petitions. Even if the court adjusts its ruling, a single case is unlikely to overturn more than 70 years of state intervention in religious practices. Nonetheless, Sabarimala has acquired an undeniable and deeply polarizing political cachet in recent months—enough for Kerala’s chief election officer to warn candidates in the upcoming elections against “citing or invoking” religious propaganda on the “Sabarimala issue.” Such admonitions, however, serve as guidelines rather than legally enforceable rules. Most likely, the dispute’s ultimate arbiter will still be the voting public.

  • DEEPA DAS ACEVEDO is a legal anthropologist and Assistant Professor of Law at the University of Alabama. She has conducted ethnographic and archival research on the temple at Sabarimala since 2009.
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