(Guest post by Shreya Atrey)
On a friend’s invitation, I attended a Sabbath service at her synagogue, which is part of the Jewish Renewal movement. The Rabbi welcomed the ‘newcomers’ individually. As a secularist, his welcome to people of different faiths heartened me, especially his warm salam-alaikum to the woman from Morocco. I also spotted some whose disabilities could be spotted, two women kissed during the im promptu traditional dance when people held hands and moved around the room in the circle, and several Blacks and South Asians participated with fervour. The equality of sexes, religions, race, nationality, disability and sexual orientation gave me a genuine sense of welcome.
This is not always the case with religious spaces though. The Wailing Wall in Jerusalem allows men and women to worship only separately; non-Muslims cannot visit the holy sites of Mecca and Medina; women are completely barred from entry into the sanctum sanctorum of the Haji Ali Dargah; Mormon churches often deny entry to homosexual couples. These examples can go on. So in this vein, the prohibition of women aged 10-50 years from entry into the Sabarimala shrine in Kerala seems nothing extraordinary. As the argument goes, the prohibition is neither about women nor about law. It is purely a religious matter, autonomously governed by ancient texts, traditions and beliefs under Article 26(b) of the Indian Constitution. Those who respond to this framing of the issue, argue that the State can interfere per Article 25(2) of the Constitution even if it were a religious issue. But given the obvious fact of denial of entry to those of a certain sex (female) and belonging to a certain age (10-50), the question of whether the exclusion itself is wrongful even if governed or justified by religion remains. Since religious freedom under Article 25 is subject to ‘other provisions of [Part III on fundamental rights]’, how do we understand the exclusionary rule in the light of the fundamental right against sex discrimination under Article 15(1)?
This post offers an explanation for why the exclusionary rule in Sabarimala is a case about women and not just religion, and a case of sex discrimination in particular which should be considered prior to any religion-based justification of such discrimination.
The key point to understand in response to those who claim that a rule denying temple entry to women is not about women but about religion, is that there is nothing like a pure site of identity like ‘women’ which operates in isolation of other identities of religion, caste, race, disability, age, sexual orientation etc. Women are used in producing and sustaining other categories like race, religion and nationality; and in turn, these other categories are used to subordinate them. Caste serves as a relevant example. The central tenet of reproduction of caste by endogamy or marriage within caste is seen as based on a strict regulation of women’s sexuality. Patriarchy controls the sexuality of upper-caste women by regulating it with concepts such as ‘purity’ and ‘chastity’ and thereby prohibiting marriage outside caste; while at the same time using the bodies of lower caste women as sites of sexual colonisation. Women thus, serve as the gateways of the caste system, through which they are in turn subordinated and oppressed. Religion is no different. The regulation of women’s bodies and freedom is used for framing religious dogma, for example, making the absence of women from a temple as (if) essential to religious practices of the temple, and in turn excluding and marginalising them from the same.
This helical relationship is crucial to the understanding of both religion and gender. To deny this connection is to effectively subvert and ultimately discard the analytical lens provided by extensive anthropological, historical, gender and feminist scholarship, which is key to cracking the problem of religion-based sex discrimination in Sabarimala.
About Sex Discrimination
Once we understand that religious practices which concern women are about women centrally in the way women produce those practices and get subordinated by them in turn, how do we further understand this as a matter of discrimination under Article 15(1)?
In the case of Sabarimala, the exclusionary rule may be argued as discriminatory in one or many of the following ways—marginalising women from participation in a long-held and cherished practice of their religion; infringing their dignity by conveying the message that they are less than others who can participate at Sabarimala; demeaning them by considering them as not of equal moral worth as other persons allowed into Sabarimala without distinction based on their sex, caste, religion or place of birth; deprivation of genuine choice for participating in a religious practice which they consider valuable; inhibiting integration, inclusion and solidarity of the society; limiting the exercise of their substantive freedoms or autonomy; disadvantaging women because of their historically disadvantaged group-status; dominating women and exuding power over them. At the heart of these individual accounts is an explanation of what is wrong about discrimination as such. These accounts seek to delineate the particular disadvantage (of accessing a religious space) for women because they are women. This explanatory link between the discriminatory effect of something upon a particular group defined by the grounds of ‘religion, race, caste, sex, place of birth or any of them’ is the core of the discrimination question. In whichever of the many formulations we may seek to define and identify the effects of discrimination in this case, it is important to not deny recognising them at all, just because the exclusion is religion-based or that there may be a religion-based justification for it.
The various justifications offered in the Sabarimala case relate to—protecting women by this exclusionary rule because of the arduous nature of the pilgrimage; avoiding pollution by the presence of unclean, possibly fertile and menstruating, women; respecting the celibate God at Sabraimala by preventing the temptation of women for him; or to preserve temple energy and the uniqueness of that temple. The responses to these justifications point out that—women are equally capable as men to undertake arduous spiritual journeys; that women are not impure because menstruation is a natural process; that Gods are above mere temptations; and that uniqueness of a temple cannot lie in the fact of women’s exclusion. To state and respond to religion-based justifications, however nuanced, without examining the discriminatory effects of a differentiation is to put the cart before the horse in Article 15(1) analysis. Comparative doctrine from South African and Canadian discrimination law shows similar reservations about abandoning analysis of discriminatory effects in favour of justifications. In failing to see what is discriminatory in the first place about exclusionary rules like the one in Sabarimala—whether it violates dignity, demeans, marginalises, limits substantive freedoms and autonomy—by denying that it is neither about the group which it excludes nor about the discriminatory effects against that group, beats common sense, law and extensive academic literature which helps us unravel the meaning of discrimination.
The fact that not all women are barred from entry but only those aged 10-50 years and that women are not barred from entry into other temples are two particularly suspect justifications. Even when only a certain crosssection of women has been barred, it is enough for that exclusionary rule to be classified as a matter of sex discrimination. Whether the criteria of exclusion is intersectional in nature, i.e. defined by another characteristic like age does not perforce justify that criteria as non-discriminatory upon any reasonable interpretation of Article 15(1). Similarly, the argument that permission to enter other temples justifies denial of entry at Sabarimala is tantamount to saying that discrimination is not discrimination when made selectively.
Last week, the Rabbi ended the sermon insisting on ‘liberal spirituality’ and ‘humanist religiosity’—that religion and spirituality after all happen ‘through us’. In his understanding, the common core of all religions are not their rituals but the possibility of relating to one another as humans through religion and in being inclusive and welcoming in our everyday religious and spiritual practices. I hope the pending Supreme Court decision in Sabarimala not only grapples with gender and its relationship with religion, as well as sex discrimination proper under Article 15(1); but also appreciates the Preambular proclamation where it is through the people themselves that we gave ourselves the Constitution which aspired for a particularly inclusive and plural vision of India, including that of religious freedom.
(Shreya Atrey is a Hauser Post-doctoral Global Fellow at the NYU School of Law)
 Irene Gedalof, Against Purity: Rethinking Identity with Indian and Western Feminisms (Taylor and Francis 1999) 178.
 Vrinda Nabar, Caste as Woman (Penguin 1995) ch 1.
 Vidyut Bhagwat, ‘Dalit Women in India: Issues and Perspectives – Some Critical Reflections’ in PG Jogdand (ed), Dalit Women in India: Issues and Perspectives (Gyan Publishing House 1995) 6.
 See Gabrielle Dietrich, ‘Women and Religious Identities in India after Ayodhya’ in Kamla Bhasin, Nighad Said and Ritu Menon (eds), Against All Odds: Essays on Women, Religion and Development from India and Pakistan (Kali for Women 1994) 44.
 The question of whether only State based discrimination is caught by Article 15(1) is examined by Gautam Bhatia, ‘The Case Against Customary Exclusion’ <http://www.thehindu.com/opinion/lead/the-case-against-customary-exclusion/article8108424.ece >
 Iris Marion Young, Justice and the Politics of Difference (PUP 1990) ch 2.
 Denise G Réaume, ‘Discrimination and Dignity’ (2003) 63 LLR 1.
 Deborah Hellman, When is Discrimination Wrong? (HUP 2008) ch 2.
 Amartya Sen, Development as Freedom (OUP 1999).
 Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16, 22.
 Sophia Moreau, ‘What is Discrimination’ (2010) 38 PPA 143
 Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015) chs 4–5.
 Owen Fiss, ‘Groups and the Equal Protection Clause’ (1976) PPA 107.
 Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (HUP 1987)
 Sandra Fredman, ‘Gender and Transformation in the South African Constitutional Court’ in Oscar Vilhena, Upendra Baxi and Frans Viljoen (eds), Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (PULP 2013); Sheila McIntyre, ‘The Supreme Court and Section 15: A Thin and Impoverished Notion of Judicial Review’ (2006) 31 QLJ 731.
 See Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution (2012).