Book Excerpt: ‘Courting Equality’ Revisits the Sabarimala Case and the Case for Reading Menstrual Exclusion as Untouchability

THE EXCLUSION OF WOMEN [from Sabarimala] was first litigated in the Kerala High Court in 1991, through a PIL filed by a man complaining about young women making the trek up the hill and offering prayers at the shrine. In S. Mahendran v. The Secretary, Travancore Devaswom Board, the Kerala High Court held that excluding women was constitutionally protected as it was a long-standing custom. In fact, before this ruling, the restriction applied only during specific festive seasons, while on regular days, women of all ages were permitted to visit the temple. The High Court decided that it should apply throughout the year, and felt that there was ‘no reason why women should be permitted’. 

This line of inquiry was flawed from the outset. The correct question is not whether permitting women is necessary or justified but whether excluding them is. It is the deviance from constitutional norms that has to be justified and not the adherence to them.

In order to evade constitutional scrutiny, the court has to first accept that the exclusion is not what it seems, which is patent gender discrimination and menstrual taboo, and that it is, in fact, a ‘nuanced’ religious requirement of the specific deity. One argument in this vein is that the restriction is not on women but on menstruation and, therefore, it is not based on gender. It doesn’t take any legal training to see this claim for what it is. Given that it is only women who menstruate, gender discrimination is not an unfortunate side effect here; it is the whole project. This is a childish and superficial level of reasoning that has no place in serious legal and judicial discourse.

The fact that there are restrictions on men too, in the form of the vratham, is also of no assistance, because in the case of men, the classification is based on choice, whereas for women, it is based on natural biological functions which are specific to their gender. Additionally, no verification is done for men to test whether or not they have observed the prescribed celibacy and austerity; they are simply taken at their word. In the case of women, the risk of menstruation is evidently so unthinkable that a blanket ban on all women between the ages of ten and fifty is preferred.

It is also pointed out that many female devotees embrace the prohibition and are happy to wait till they have aged out of it. This is no justification. Those who do not wish to visit the temple need not, but their choice cannot be used to deny the choice of others. Even if it is only a small minority of women who would undertake the pilgrimage, they have a right to do so. The logic of a minuscule minority being undeserving of constitutional protection has been comprehensively and rightfully demolished by the court in Puttaswamy.

The restriction then, clearly discriminates against women as a class of people, meeting the first requirement for an Article 14 violation. The next question is whether the carving out of this class is arbitrary. The restriction is not based on the actual fact of ongoing menstruation but on average menstruating age. It is a fact that there are girls who menstruate before the age of ten, just as there are women who menstruate after the age of fifty. Equally, there are women within that age bracket who have not started menstruation, who have ceased to menstruate, or who do not menstruate owing to medical conditions, pregnancy or lactation. The rule is framed in this way because 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.

The next question is whether the exclusion is a necessary means to achieve a legitimate objective. It has been presented as necessary because of the celibate nature of the deity and the belief that visitors must also exhibit the same degree of celibacy for which the forty-one days of austerity and abstinence are prescribed. Assuming that protecting the celibacy of the deity (and the devotees) is a lawful object, what is the connection between celibacy and menstruation?