FOLLOW UP “SABARIMALA”

FOLLOW UP “SABARIMALA”

This week saw only 2 women trying to enter the precincts of Sabarimala shrine who were stopped by the police, which chagrined and irked Ms. Preeti Desai the woman activist behind the all women entry into the Shani Shingnapur temple and the likes of her.  Yesterday, In Kerala High court there were two petitions heard by the Sitting Division Bench Judges Justice P.R. Ramachandra Menon and justice N. Anil Kumar.

In the first petition, it was filed by a petitioner M.K. Narayanan Potti, who is a teacher and author of many publications on temple rituals. He favoured the Supreme Court judgement on all women entry and he wanted revised formulation of rituals and practises to facilitate such entry. This he proposed through court to direct the “thantri” of sabarimala temple to reconsider the 41 days of vratham or the vow that they go through should be reduced to 21 days for all those fertile age group women to enable them to make the pilgrimage. His contentions were that men themselves are not so strict while undertaking 41 days’ penance and vow, then why women should be deprived of entry? Further he added, that temple rules are not that inflexible that they cannot be changed by tantric to keep in terms with the evolving changes. He quoted Shastra’s and ancient scriptures, where it was not averse to women becoming “brahmacharinis”. From the “thanthri’s side since no initiative was taken in this regard as they took a tough stand that if fertile age group women step into the temple then the temple would be shut for purification ceremonies.

Hence the petitioner sought for the court’s direction in this regard. The court on hearing the petitioner’s plea dismissed the case saying, “basic premise of the petition that women cannot perform 41 days’ penance due to “impurity” arising out of intervening menstruation was totally misconceived. The court drew the attention of the petitioner that Supreme Court had unequivocally declared in Young Lawyers Association case that menstruation cannot be considered as impurity which prevents women from performing penance and undertaking pilgrimage. The court held the decision of Justice Chandrachud (SC), “that exclusion of women on the notion of impurity due to menstruation amounted to untouchability”. Furthermore, the Kerala High court observed that there was no law which empowered to issue directions to a “thantri” regarding temple rituals and observances. They asked the petitioner why he never thought of intervening by a petition in the SC, to apprise the court of his suggestions? SC is the appropriate forum to seek necessary clarifications and modifications as the High Court is powerless to issue further directions regarding implementation of a SC decision.

In the second case a petition was filed at Kerala High Court, by National Ayyappa Devotees Association and others, against implementing SC Judgement on all Women entry filed by Indian Young Lawyers Association. This petition was filed contending that the SC judgement was only “declaratory in nature” and it’s not for the state Government to implement it. It further said that SC Judgement was “per incuriam” that is, with lack of due regard to law or facts and “sub silentio” that the things are in implied meaning which are not so expressly said. The division bench pointed out that the High court cannot examine the scope and correctness of the SC Judgement.  Since the petitioners had already approached the SC, for dismissal of the said judgement and they have sought for dismissal at the Kerala High Court, the court observed that the petitioners cannot pursue two parallel remedies for the same issue before two different courts simultaneously.

From the counsel of the petitioners it was quoted, “the state government misunderstood the declaratory opinion in the judgement to be final to effect the judgement and has been hasty to go ahead and implement the decision made which resulted in sabarimala to be converted into a war zone. The counsel had also said that this High court has been misled to construe the said above SC judgement as one requiring compliance, which was not to their liking.  The justices’ asked the counsel on what basis the statement was made in the petition for which the petitioners ‘counsel was apologetic. The judges also said that the petition was incomplete, with technical defect, with only one parties signature which also required total eight petitioners’ signature. The court dismissed the petition reserving the petitioners’ liberty to move the apex court seeking remedies.

With the women aged between 10 and 50 taking vows not to enter the temple, lets’ hope that centuries old customs, traditions and practices are not overtaken, overridden by laws and law makers.

-Vijayashree Ramesh

The writer is an advocate based at Chennai.