Insights into Editorial: Failing the Test of Gender
Insights into Editorial: Failing the Test of Gender
22 December 2015
The Supreme Court of India recently ruled that appointment of archakas in Tamil Nadu temples as per the Agamas was not a violation of the right to equality. The Court said, the exclusive right given to a particular group or denomination to enter the sanctum sanctorum of a temple and perform rituals cannot be construed as a practice of untouchability.
- Citing a century-old ruling of the Madras High Court in the Gopala Moopanar case, the Supreme Court justified its decision. In the Gopala Moopanar case, the court had held that the exclusion prescribed in the Agamas was not on the basis of caste, birth or pedigree. The Moopanar case revealed how some Agamas even excluded Brahmins from the sanctum sanctorum and duties of performance of pujas.
- The Court also cited the Constitution Bench judgment of 1972 in the Seshammal case, where it was said that Agamas were the “fundamental religious belief” of a particular sect.
What has the court ruled now?
The Supreme Court, through its order, has made it clear that appointment of priests should conform to the Agama practices prevalent in a particular temple, even if it meant that archakas (priests) were appointed from a given “denomination, sect or a group” in the State.
- Both sides with contrasting views- the orthodox, who oppose any government interference in the appointment of priests, and some reformist groups that want the posts to be thrown open to all castes-have welcomed this decision.
A 2006 government order issued by the Dravida Munnetra Kazhagam (DMK) regime in Tamil Nadu allowed any Hindu with requisite qualification and training to become an archaka (priest) in Hindu temples in Tamil Nadu. This was challenged before the Supreme Court.
- The government had even launched Agama training schools in several temples, to impart the required training and qualifications to become archakas in Hindu temples.
What are Agamas?
They are the rules that govern temple construction and worship and dictate the eligibility of those to be appointed to important religious positions in the temple, including the priests.
- Agamas in Sanskrit mean “that which has come to us.” They expound a variety of subjects and they are really the stylebook, on which Hindu rituals are based.
- Agamas incorporate a fundamental religious belief of the necessity of performance of the poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies.
Agamas Vs Fundamental Rights:
In the present case, the Supreme Court had two important aspects to adjudicate on-
- First, it had to ascertain if the government order violated the freedom of religion enshrined in the Constitution by being invasive in essential practices vital for the survival of the particular religion.
- Second, it had to ascertain if the Agamas, which the petitioners insisted had to be devotedly followed in the appointment of priests, violated Articles 14 and 15 (right to equality) and 17 (abolition of untouchability). Article 17 came into play as Agamas invoke the concept of defilement and pollution of the idols in case its rules are violated.
The apex court, relying on a number of past pronouncements and the arguments presented before it in the current case, took the view that denominations are not caste- or class-based. The court held that if the Agamas in question do not proscribe any group of citizens from being appointed as archakas on the basis of caste or class, the sanctity of Article 17 or any other provision of Part III (fundamental rights) of the Constitution or even Protection of Civil Rights Act, 1955 will not be violated. And hence Agamas do not violate Fundamental Rights as mentioned under the Constitution.
The concept of Gothra:
The petitioners, who had challenged the 2006 government order, said in their submissions to the court that descendants of particular rishis (sages of yore), in other words ‘Gothra’, alone could be appointed as priests and so this is not restricted to the Brahmin community. Brahmins who do not fulfill this rule cannot touch the deity.
- While this might be the claim, it is a recorded fact that most Agama temples with any considerable history have Brahmins alone as priests. The simple fact is that it is mostly Brahmins and few others high in the caste hierarchy who still know which ‘Gothra’ they belong to and might have documented evidence to prove their case.
- But, for a community that was for long treated as outcastes and practically kept away from all functions of the religion, judgments such as these would keep them away from the sanctum sanctorum forever. Thus, according to some experts, Agamas violate the fundamental rights.
Determination of eligibility:
Another important problem the judgment creates is who would determine if a person fulfilled the eligibility to become part of a particular denomination given that the court itself has admitted the difficulty in finding experts in this field.
- While it has kept the doors of the judiciary open in case of a dispute, the fact that the priestly functions of an Agama temple will now remain in the hands of a few is the ultimate outcome of this verdict.
What has been ignored by the court?
The court has ignored the question whether there is any scope for women to become priests under Agamic rules. It has ignored gender discrimination in temple worship, in general, and in Agama temples, in particular.
- In the entire 54-page judgment, the word “women” finds mention only once, that too in a citation.
- In the judgment, the court cites how certain Agamas clearly specify from where members of different communities could worship the deity. The lowest in the caste structure, it says, should be content with seeing the gopura (temple tower). But, The Agamas do not address the question of women donning the role of priests at all.
- Women have always been systematically kept out of priestly roles with menstruation often cited as the reason. In none of the major Agama temples in Tamil Nadu would one find a woman archaka. In fact, it is only in the absence of the Agamas that women have achieved entering the “holy of holies”, as the sanctum sanctorum is claimed to be.
The purported non-existence of caste-based discrimination, as cited by the apex court, is not enough to pass the tests of Article 14, 15 and 17. It is important here to revisit the language of Article 14, 15 and 17. The first two bar discrimination on the basis religion, race, caste, sex or place of birth. The third is also clear in its dictate: “Untouchability is abolished and its practice in any form is forbidden”. Thus, it should be essential for any custom, denomination or usage to pass the test of gender to be declared as being in consonance with the Constitution.