INTRODUCTION

Customary law is considered to be the oldest law having its subsistentrelevance. It is

still prevalent in different parts o f the world. For some societies itis a source o f law while

for others it is law per se. Customary law is a dynamic law.

It is not a static law as such, even though; it is too rigid to be easily changed. In

thisworld of ethnic pluralism and diverse socio-cultural ethos and practices, customarylaw

varies from society to society and from age to age. According to C.K. Allen,Custom is the

first and most essential law. Most o f the customs is recognized notbecause the courts or

legislatures give them sanctity o f law but because they aretreated as such law by the

community as a whole and people feel themselves bound by them 1. Savigny opines that

custom per se is law. It does not require state recognition to become law 2. This conceptual

understanding o f custom as said to bealready law in itself, according to historical school, is

different from that o f theanalytical school wherein its main priests like John Austin argued

that customs arenot law until so declared by the sovereign. Custom is considered only as a

sourceof law until it is being recognized by the state or its instrumentalities. This view ofthe

analytical school stands more relevant as human societies are now governedunder the new

modern state system. This is an impact o f basic structuraltransformation from that of the old

traditional law and system o f governance to anew contemporary law and system o f

governance. Article 27 o f the United Nations Declaration on the Rights o f the

IndigenousPeoples, 2007 (Geneva) provides that states shall establish and implement

inconjunction with indigenous peoples concerned a fair, independent, impartial, openand

transparent process, giving due recognition to indigenous peoples’ law, traditions,customs

and land tenure systems to r recognize and adjudicate the rights o f indigenouspeoples

1
Allen, C.K., Law in the Making, Oxford University Press, Oxford, Reprint 1975, p.84.
2
Aggarwal, Nomita., Jurisprudence (Legal Theory) Central Law Publications, Allahabad, 4th edition,
2000, p. 120.

1
pertaining to their lands, territories and resources including those whichwere traditionally

owned or otherwise occupied or used. Indigenous peoples shallhave the right to participate in

this process. This Article clearly aims to strengthenand develop the indigenous laws and

customs by giving due cognizance. The U.N.Declaration is a clear indication o f the objective

approach o f the apex world bodyin safeguarding and promoting the various customary laws

o f the (indigenous) peoples around the world.

A Custom is any established mode of social behaviour within the community.

Variousdimensions of human behaviour which are prescribed by the community or society

hint atthe conceptual frame of custom. It is considered as one of the mechanisms of

socialcontrol and an appropriate direction for humans to live in the community and to allow

thesociety to perpetuate. Custom in Chamber’s 20th Century Dictionary means, ‘What one

iswont to do: what is usually done by others: any of the distinctive practices andconventions

of a people or locality, esp., those, of a primitive tribe’.

Custom has been defined and opined by various scholars, jurists and authors. “The

wordcustom” as defined by Sapir, “is used to apply to the totality of behaviour patterns

whichare carried by tradition and lodged in the group, as contrasted with mere random

personal activities of the individual. Radin states that “customs are regarded as habitual ways

ofconduct among social groups.” While Carter maintains that, custom is the “uniformity

ofconduct of all persons under like circumstances.” According to Holland, “custom is

agenerally observed course of conduct.”

In Subramanian Chettiar v. KumarappaChettiar3 custom has been defined as, “Aparticular

rule which has existed from the time immorial and has obtained the force of law in a

particular locality.” In Hur Prasad v. SheoDayal,4 custom has been defined as‘Rule which in
3
AIR 1955 Mad 144.
4
26 W.R. 55 (P.C.); cited in, Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law
Agency, Faridabad, at p 167.

2
a particular family or in a particular district or in a particular sect, class ortribe, has from long

usage obtained the force of law.’ Citing Hur Prasad v. SheoDayal,Sir Hari Singh Gour states

that, ‘Custom is an established practice at variance with thegeneral law.’5

According to Keeton, ‘Customary law may be defined as those rules of human

actionestablished by usage and regarded as legally binding by those to whom the rules

areapplicable, which are adopted by the courts and applied as source of law, because theyare

generally followed by the political society as a whole, or by some part of it.’The Hindu Code

defines custom and usage as “Any rule which, having been continuouslyand uniformly

observed for a long time, has obtained the force of law…in any local area,tribe, community,

group or family, if it is certain and not unreasonable or opposed topublic policy.”

CLASSIFICATION OF CUSTOMS

Taking into consideration what has been discussed above, customs are habits of action

orpatterns of conduct which are generally observed by classes or groups of people.

Suchhabits of action or pattern of conduct (customs) can be classified into– 1)

Customswithout binding obligation and 2) Customs with definite binding obligation.

Customs without Binding Obligation

Customs which are concerned with less important aspects of social life are covered in

thiscategory. Most societies have certain customs with respect to the kind of dress one

isexpected to wear on various occasions. For example, wearing a black dress at a

funeralceremony in England but, white in India. Well-established customs are observed

atburials and other solemn ceremonies, etc. A large section of people observe customs of

certain kind for the funeral of their deceased relatives, irrespective of the fact that it maynot

be affordable for them. Whatever it may be, none of these customs is completelyobligatory /
5
Gour, Sir Hari Singh, “The Hindu Code”, (1973), Law Publishers, Allahabad, Vol. I, at p 156.

3
binding. Their sanction, in many cases though powerful, is imperfect. Noman is under an

absolute compulsion to give a feast at the time of marriage or after thefuneral of the deceased

relative, etc. All these customs are followed due to the fear thatnon-observance of such

customs may lead them to be socially outcaste. Such customs arenon-binding in the sense that

they are not obligatory to follow. People follow them due tothe social pressure of public

opinion. When a custom of this type is violated, societyusually reacts by showing social

displeasure or disapproval; but it has no sanction in thestrict sense of the term. Such customs

can be called as ‘Social Customs’.

Customs with Definite Binding Obligation

In this category those customs are covered “which in a more definite and stringent

senseare regarded as the specific duties and obligations of men. Such customs may regulate

theobligation of marriage and the upbringing of children, the transmission of property

atdeath, or the modes of consummating and fulfilling agreements. Such customs do

notpertain to the sphere of social formalities, outward decorum, or aesthetics; rather, they

areconcerned with the serious business of society, the work that must be accomplished

inorder to secure and guarantee satisfactory conditions for collective life.”6 Customscovered

in this category are backed by sanction which is more certain in its operationthan any other

social customs. Such customs, if satisfy certain standards or tests, acquirelegal character, and

their violation is met by typical sanctions employed by the legalorder. Such customs are

enforceable and obligatory. Such customs can be further dividedinto Legal Customs and

Conventional Customs.

For the purpose of the present study the researcher is more concerned with

LegalCustoms than to mere Social Customs.

6
Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint
(1996), Harvard University Press, U.S.A., at p 300.

4
Legal customs

‘Legal Custom’ occupies a place by itself in that its sanction is more certain in

itsoperation than that of any other. “The effect of sanction”, writes Sir C. K. Allen,

“isnegative rather than positive: if the custom is not followed, certain desired

consequenceswill not be brought about.” For example, if a particular custom is not followed,

themarriage will not be treated as valid; the desired consequences of becoming a husbandand

wife will not be brought about. Children out of such marriage will not be treated aslegitimate.

Law, back by the opinion at the earlier stage and at later stages by thetribunals of the

community, will forbid those relationships to be effected.

General customs

General custom is that which prevails throughout the country and constitutes one of

thesources of the law of the land. It prevails throughout the territory of the state and

isobserved by all the members of the society. There was a time when common law

wasconsidered to be the same as the general custom of the realm followed from ancienttime.

Local customs

A local custom is a custom confined to a particular locality and constitute a source of

lawfor that locality only. According to Salmond, “The term custom in its narrower

sensemeans local custom exclusively.”

The western concept of local custom which applies only to a defined locality such as

adistrict or a town, does not similarly apply to the Indian situation. Local custom hereimplies

to something more than a geographical locality. In India, local custom may be divided into

two classes – Geographical Local Customs and Personal Local Customs.

These customs are law only for a particular locality, sect, or family.

5
Conventional customs

According to Salmond, ‘A conventional custom is one whose authority is conditional

onits acceptance and incorporation in agreement between the parties to be bound by it.’He

further stated that, ‘In the language of English law the term custom is more

commonlyconfined to legal custom exclusively, while conventional custom is distinguished

as usage. Usages are not laws ex proprio vigore.’7 A conventional custom or usage is

apractice established by having been followed for a considerable period of time, andarising

out of a contract between the parties; it does not arise out of its own force. Thus, ausage or

conventional custom is an established practice which is legally binding, notbecause of any

legal authority independently possessed by it, but because it has beenexpressly or impliedly

incorporated in a contract between the parties concerned.

TRANSFORMATION THEORY OF CUSTOM INTO LAW

The general criterion which distinguishes social customs from legal custom has

alreadybeen discussed above. The lines of demarcation between the two are fluid. While

somecustoms are non-legal, in the sense that they do not have absolute binding

obligationwhereas, some customs have absolute binding obligation. Customs having

absolutebinding obligation are legal customs and are elevated to the status of law if they

satisfy certain judicial tests. At this point, it becomes necessary to consider the conditions

underwhich the transformation of ‘custom’ into ‘law’ takes place. Broadly speaking, there

aretwo theories regarding the question as to when custom is transformed into law. Those

arethe Historical and the Analytical theory of law.

Historical School

7
Dias, R M W, “Jurisprudence”, First Indian Reprint (1994), Aditya Books Private Limited, New Delhi,
at p 192.

6
 Edmund Burke, who laid down the foundation of the historical school, pointed to

history,habit and religion as the true guides to social action. Friedrich Carl Von Savigny

andGeorge Friedrich Puchta are the main exponents of the historical school of law. This

school maintains that, law was primarily the expression of the legal convictions andpractices

of the community. According to this school, custom carries its own justificationin itself,

because it would not exist at all unless some deep-seated needs of the people orsome native

quality of temperament give rise to it. The growth of law does not dependupon the arbitrary

will of any individual. It grows as a result of the intelligence of thepeople. Custom is derived

from the common consciousness of the people. It springs froman inner sense of right. Law

has its existence in the general will of the people. Savignycalls it Volkgeist. According to Sir

Henry Maine, “Custom is conception posterior to that ofThemistes orjudgments.” Themistes

were judicial awards which were dictated to the King by theGreek goddess of justice. He

explained, “Themistes, Themises, the plural of Themis, arethe awards themselves, divinely

dictated to the judges.” Jethrow Brown also maintainsthat, “Custom is often posterior to

judicial decision…. Under the pretence of declaringcustom, judges frequently give rise to

it.”33

Analytical School

Austin, one of the main priests of the Analytical school, denies customs the force of

lawuntil they have been expressly recognized by the sovereign. This is consistent with

hisgeneral doctrine of sovereignty, for, without the cachet of supreme authority,

customcannot be conceived as a command. To him a customary practice is to be regarded as

arule of positive morality unless and until the legislature or a judge has given it the forceof

law.34 According to this view, habitual observance of a custom, even though accompanied

by a firm conviction of its legally binding character, does not suffice toconvert the custom

into law; it is the recognition and sanction of the sovereign whichimpress upon the custom

7
the dignity of law. The sovereign may abrogate custom. Acustom is law only because the

sovereign allows it to be so. Custom is a source of lawand not law itself. According to Austin,

“A customary law may take the quality of legalrule in two ways: It may be adopted by a

sovereign or subordinate legislature and turnedinto a law in the direct mode (statute law) or it

may be taken as a ground of judicialdecision, which afterwards obtains as a precedent and in

this case it is converted into alaw after judicial fashion. In whichever of these ways it

becomes a legal rule, the law intowhich it is turned emanates from the sovereign.”

To conclude, both the theories contain some element of truth but that is only partial

andnot the whole truth. Austin denies customs the force of law. He calls it a

‘positivemorality’. But, according to Allen, Austin ‘failed to explain satisfactorily why the

bodyof rules which he classified as ‘positive morality’… lacked the true characteristic

oflaw.’This is true, especially when customs grow up by conduct and are derived fromthe

common consciousness of the people. Therefore, it is a mistake to measure its validitysolely

by the elements of express sanction accorded by courts of law or by any otherdeterminate

authority. But it is also true that many customs do not appear to be based on general

conviction of their rightness or necessity, or upon any real or voluntary consensusutentium. It

also appears that the historical school has undermined the creative role of thejudges in

molding and shaping the customs. In India, especially, in order that a custommay have the

force of law, it is necessary that it should satisfy all the essentials orrequirements of a valid

custom.

ESSENTIALS OF A VALID CUSTOM

`Essentials of a valid custom can, broadly, be classified into – Formative Essentials

andOperative Essentials. Antiquity, Uniformity/Continuity, Certainty and

8
Consciousacceptance as of right, etc. are the essential formative elements of a valid custom.

Custompossessing these elements is prima facia valid though it may be unenforceable if it

isunreasonable, opposed to morality, public policy, express enactments of legislature and for

want of proof; all these are invalidating elements. Therefore, in order to be valid, a custom

must be reasonable, should not be opposed to morality, public policy, expressenactments of

legislature and must be strictly proved. All these are operative elements.

Hence, in order to be valid custom must possess all the formative as well as

operativeelements.

Custom must be Ancient

The word ancient denotes that the custom must be of some antiquity. The term

‘ancient’is equivalent to the expression ‘from time immemorial’.39 According to Blackstone,

“acustom, in order that it may be legal and binding, must have been used so long that

thememory of man runneth not to the contrary.” Salmond also states that, custom, to havethe

force of law, must be immemorial. It must have existed for so long a time that, in thelanguage

of law, “the memory of man runneth not to the contrary”. In English law, theexpression ‘time

immemorial’ means ‘time so remote that no living man can remember itor give evidence

concerning it. Custom was immemorial when its origin was so ancientthat the beginning of it

was beyond human memory, so that no testimony was available asto a time when it did not

exist.’ English law places an arbitrary limit to legal memoryand fixes 1189 A.D. (accession

of Richard – I) as enough to constitute the antiquity of acustom. But this was by no means the

original interpretation. For instance, ProfessorPlucknett quotes Azo (d 1230) who said: ‘A

custom can be called long if it wasintroduced within ten or twenty years, very long if it dates

from thirty years, and ancientif it dates from forty years’.

Custom must be Uniform and Continuous

9
 One of the essential elements of a valid custom, as has already been discussed above,

isthat, it must be ancient. From the fact that the custom is ancient, it follows that it must

beuniform (and not variable), definite and continuous, for these are the elements to

establishitsimmemorial use. If there is discontinuance, such discontinuance destroys its

stability. If a custom has not been followed continuously and uninterruptedly for a long time,

thepresumption is that it never existed at all. Blackstone says that, interruption within

legalmemory defeats the custom ‘continua dicoita quod non fit legitime interrupta’. It

isimmaterial whether such discontinuance was accidental or intentional. In its effect

itamounts to an abandonment of the custom.

Custom must be Certain

In order to be valid, custom must be certain and definite. Willes C.J. in Broadbent

v.Wilkes observed that, a custom must be certain ‘because, if it be not certain, it cannot

beproved to have been time out of mind, for how can anything be said to have been time

outof mind when it is not certain what it is?’ To the same effect Jessel M.R. observes:‘When

we are told that custom must be certain—that relates to the evidence of a custom.

There is no such thing as law which is uncertain—the notion of law means a certain

ruleof some kind.’ Custom must be certain in respect of (i) its nature; (ii) its locality; and(iii)

the persons whom it is alleged to affect.

Custom must be Consciously Accepted as of Right

Opeinonecessatis, that is, Conviction on the part of the members of the community

that acustom is legally binding and the source of enforceable rights and obligations is one

10
ofthe most essential elements of a valid custom. It is this conviction which distinguishes

alegal custom from social custom. Therefore, in order to be valid, custom must have

beenconsciously accepted as having the force of law. It must have been observed as of

rightand must have been enjoyed peaceably. Allen states that, the public which is affected by

the usage must regard it as obligatory, nor as merely facultative. According to Sir

HariSinghGour, enjoyment of custom must be “as of right, and therefore, neither by violence

nor by stealth, nor by leave asked from time to time”. Dias puts it as, nec vi nec

clamnecprecario. For without this there is no evidence that it exerts obligatory pressure

toconform.

Custom must be Reasonable

Malus ususabolendusest, that is, a custom must be reasonable is another

essentialrequirement of a custom. The authority of usage is not absolute, but conditional on

acertain measure of conformity with justice and public utility. This does not mean that

thecourts are at liberty to disregard a custom whenever they are not satisfied as to itsabsolute

rectitude and wisdom, or whenever they think that a better rule could beformulated in the

exercise of their judgment. According to Salmond, “Custom, in orderto be deprived of legal

efficacy, must be so obviously and seriously repugnant to rightand reason, that to enforce it

as law would do more mischief than that which would resultfrom the overturning of

expectations and arrangements based on its presumedcontinuance and legal validity.”

Reasonableness of a custom is an essential requirement of its validity. However, it

cannotbe said that custom is always founded on reasons. No amount of reason can make

acustom. What is reasonable or unreasonable is a matter of social values. It may differfrom

time to time, from place to place. Therefore, whether a custom is reasonable or notis

determined by the contemporary values of every society, though there are certain rules or

11
practices which are considered unreasonable at all times and in all societies. The lawcourts

will not enforce unreasonable customs, for law will not allow what is unreasonableor

inequitable in spite of the fact that the people or a class of people in a locality hasgiven their

long acquiescence to a particular practice, if it finds that to allow it would domore harm than

what might result by its disallowance.

It should not be Opposed to Morality, Public Policy or an ExpressEnactment

A custom to be valid must not be opposed to principles of morality or public policy

andmust not be expressly forbidden by an enactment of the legislature.A custom, to be valid,

must not be immoral. The court cannot enforce immoral custom.There is, however, no fixed

test or strait jacket formula to judge the morality of a custom.The question what customs are

‘immoral’ must be left to the conscience of the court.Morality is a necessary social

convention as to which all agree up to a certain extent; butbeyond it, it is a matter of opinion.

A European would, for example, regard bothpolygamy and polyandry as highly immoral, but

both these institutions are deep rooted inthe Indian soil and though polyandry is now fast

dying out, polygamy is a popularoriental custom. A Muslim, especially, may not think

polygamy as immoral. But judgingthe validity of such customs, the courts generally adapts

itself, as far as possible, to thestandards of morality of the sect, tribe or caste to which the

custom is sought to apply,remembering always that it has not only to pay due regard to the

sentiments of thecommunity but also to the general welfare of the society. A custom which is

abhorrent todecency or morality however long practiced and recognized by a particular

communitycan find no kind of enforcement by a court of law. A good many cases have arisen

wherethe courts have refused to recognize and enforce certain customs on the ground that

theyare immoral. In BalusamyReddiar v. Balkrishna Reddiar,8 marriage with the

daughter’sdaughter was held illegal as being abhorrent to morality though there was such a

8
AIR 1957 Mad 97.

12
customin the Reddiar community of Tirunelveli district. The custom by which the marriage

tiescould be dissolved by either husband or wife against the wish of the divorced party

onpayment of a sum of money was held immoral.

Clear Proof of Existence of Custom

Another essential requirement of a valid custom is that, it must be established by

clearand unambiguous evidence; where it is in derogation of the general law it is

construedstrictly. Since custom claims a privilege out of the ordinary course of law, it must

bestrictly proved, strictiiuris. Custom goes back to the distant ages; they are set up

withvarious motives for the furtherance of various interests, and the initial problem is

alwaysto decide whether the custom prayed in aid has a good foundation in fact.

PROOF OF CUSTOM

Under the Indian law, custom is a question of fact and the burden of proof is on the

partywho relies on the custom.9 There is no presumption that a particular person or class

ofpersons is governed by custom. A custom which is repeatedly brought to the notice of

thecourts may be held to be introduced into law without the necessity of proof in each

particular case.10 Therefore, when a custom is recognized by the courts for a long time, itis

not necessary to prove it each and every time as the court can take judicial note of thesame.

Rattign’s Digest lay down that a custom may be proved by any one of the

followingmodes—

Proof of Custom by Opinions

9
Mst. Kripal Singh v. Bachhan Singh, AIR 1958 SC 199.
10
Rama Rao v. Raja of Pitapur, AIR 1918 PC 81; also see, Mahant Bhagwan v. Girija Nandan, AIR 1972
SC 814.

13
 Opinion as a rule are inadmissible in evidence, as a witness is required to depose to

factsof which he knows, and not merely of what he thinks. But to this rule there are

certainexceptions wherein opinions are admissible in evidence. The existence of a custom

canbe proved by the opinion of a person likely to know of its existence, or having

specialmeans of knowledge thereon as provided under sections 48 and 49 of the Indian

EvidenceAct, 1872. The proof of custom should consist of those deliberate and well

consideredopinions of the people living under, and governed by the custom in question. The

opinionmust relate to “what custom is” and not to “what custom ought to be”. Section 48

laysdown that when a court has to decide as to existence of any general custom or

generalright, the opinion of persons, who would have known the custom if it existed, is

relevant.Section 49 deals with family customs or customs of any body of men.

Proof by Statements of Persons who are Dead

According to section 32(4) of the Indian Evidence Act, 1872, existence of customs

can beproved by statements of persons who are dead, or whose attendance cannot be

procuredwithout reasonable delay or expense, if such statements were made before

anycontroversy to such customs arose. It further provides that the said statements must

havebeen made only by persons who would have been likely to be aware of the existence

ofsuch a custom if at all it existed. These statements must relate to the existence of anypublic

right or custom or matter of public or general interest.

Proof of Custom by Transaction

Section 13(a) of the Indian Evidence Act, 1872 lays down that any transaction by

whichthe rights or customs in question was created, claimed, modified, recognized, asserted

ordenied, or which was inconsistent with its existence is relevant to prove the existence

ofcustom or right. Therefore, if in a transaction in which a custom was involved, suchcustom

14
was taken notice of, claimed, modified, relied, asserted, demanded or its veryexistence or

non-existence of such a custom may be proved by that transaction.

Proof of Custom by Instances

The proof of custom by instances is, probably, the largest aspect of proof of custom.

“Themost cogent evidence of custom is not that which is afforded by the expression of

opinionas to its existence, but the examination of instances in which the alleged custom has

beenacted upon, and by the proof afforded by judicial or revenue records or private records

orreceipts that the custom has been enforced.”89 Instances of custom can be of varioustypes.

They may be oral instances, instances recorded in documents or judgments inwhich instances

were asserted and accepted or rejected.

Proof by Village Oral Traditions

Village oral traditions have been considered to be a good evidence of custom.

Thedeliberate and well-considered opinion of the people living and governed by custom is

arecognized mode of proof of custom. The question ‘whether a particular custom does ordoes

not prevail in any particular tribe’ is a matter on which tribesmen themselves are inthe best

position to pronounce an opinion. Whenever questions as regards to tribalcustoms are to be

determined, the parties try to secure the evidence of the members ofthat tribe and even people

living in the neighbourhood, as regards the existence or nonexistenceof the custom. The

people of a particular community are the best and the mosttrustworthy repositories of the

traditions which go to constitute a particular customprevailing in that community and their

evidence, therefore, is of a great value.

Proof of Custom by Written Memorials

Custom can be proved by entries in any public document made—

15
i. By a public servant in the discharge of his official duty, or

ii. By any other person in the performance of a duty especially enjoined on himby the law of

the country in which the public document is kept.

Proof of Custom by Judicial Decisions

A decision in a case of custom is not a judgment in rem. It is only relevant under

section13 of the Indian Evidence Act, 1872 as judicial instance of the custom being

recognized.

A judgment in a question of custom is relevant not merely as an instance under

section13, but also under section 42 of the Indian Evidence Act, 1872 as evidence of the

custom.

Section 42 of the Act says that, judgments, orders or decrees (other than those

mentionedin section 41) are relevant if they relate to the matters of public nature, but

suchjudgments, orders or decrees are not conclusive proof of that which they state. It has

beenheld in Ram Kishore v. Kabindra11 that, a judgment as to existence or non-existence of

acustom is a good evidence to prove the existence or non-existence of that custom. Section 42

permits custom to be proved by a judgment, decree or order not inter partes, in whichit was

recognized. But mere production of judgment, however relevant, is not conclusiveproof of

custom. Judgments under section 42 are only a piece of evidence of custom. Asregards its

evidentiary value, much depends upon the nature of the enquiry, the evidenceadduced and the

decision given thereupon. A judgment given ex partecannot commandthe same value as one

given after contest, or one suffered on compromise resulting after acontest.96 All these

judgments cannot be placed on the same footing.

11
AIR 1955 All 59.

16
Proof by Authoritative Manuals of Customary Law

Authoritative manuals of customary law are sometimes considered as valuable

evidencefor proof of customary law. The courts freely admit into evidence published works

ofrepute on the subject of custom. But, of course, such works must be those compiled

toinstruct and not merely to entertain readers. Works such as Sherring’sLaw of

Caste,Steele’sLaw of Caste, Tupper’s Punjab Customary Law, Rattigan’s Digest on

CustomaryLaw of Punjab, Sant Ram Dogra’s Code of Tribal Custom, Craik’s Customary

Law of theAmritsar District, etc. fall into the former category and command serious attention.

Suchmanuals or digests as evidence of proof of custom have to be used with caution. In

JagatSingh V. Ishwar Singh,12 rejecting a statement of custom in Craik’s Customary Law

beingopposed to the statement of law in Rattigan’s Digest, Abdul Qudir J. observed: “on

thisparticular point the manual (Craik’s Customary Law of the Amritsar District) states

theproposition too broadly to be accepted as correct in as much as it is materially at

variancewith the view embodied in Article 48 of Rattigan’s Digest...”It has been held in

JaiKumar v. Sher Singh13 that, although Rattigan’s Digest is of the highest authority on

thequestion of customs of the Punjab, the judicial notice of the custom stated therein can

betaken only if it has been well recognized by the decisions of the courts of law. In a seriesof

cases the Supreme Court has held that whatever there is conflict between an entry as

tocustom in Riwaj-i-am and Rattigan’s Digest, the presumption is the entries in Riwaj-i-

amare correct.

Sabarimala

12
AIR 1930 Lah 700 (2).
13
(1960) 3 SCR 975.

17
 The Sabarimala temple is a temple complex located at Sabarimala inside the Periyar

Tiger Reserve in Pathanamthitta district, Kerala, India.14 It is the site of the largest annual

pilgrimage in the world with an estimate of between 17 million and 50 million devotees

visiting every year. The temple is dedicated to the Hindu celibate deity Ayyappan also known

as Dharma Sastha, who according to belief is the son of Shiva and Mohini, the feminine

incarnation of Vishnu. The traditions of Sabarimala are a confluence

of Shaivism, Shaktism, Vaishnavism, and other Śramaṇa traditions.

The temple is situated on a hilltop amidst eighteen hills at an altitude of 480 m

(1,574 ft) above sea level, and is surrounded by mountains and dense forests. The dense

forest, part of the Periyar Tiger Reserve, around the temple is known as Poongavanam.

Temples exist in each of the hills surrounding Sabarimala. While functional and intact

temples exist at many places in the surrounding areas like Nilakkal, Kalaketty, and Karimala,

remnants of old temples survive to this day on remaining hills.

In response to a PIL filed in 1991, the Kerala High Court had judged that

the restriction of entry of women ages 10–50 to the temple was in accordance with the usage

prevalent from time immemorial, and it directed the Devaswom Board to uphold the

customary traditions of the temple. However, on 28 September 2018, the Supreme Court of

India overturned the restriction on the entry of women, declaring it unconstitutional and

discriminatory. On 2 January 2019, two women under the age of 50 finally entered the shrine

for the first time since the Supreme Court verdict, after attempts by many others failed due to

protests by devotees.

The temple is open for worship only during the days of Mandalapooja (approximately 15

November to 26 December),Makaravilakku or "Makara Sankranti" (14 January)

and MahaVishuva Sankranti (14 April), and the first five days of each Malayalam month.
14
 "SABARIMALA SREE DHARMA SASTHA TEMPLE". travancoredevaswomboard.org. Retrieved 4 January 2019

18
Origin

The worship of Sastha forms part of the very ancient history of south India. At

Sabarimala, the deity is worshiped as Ayyappan and as Dharmashasta. The shrine of

Sabarimala is an ancient temple. It is believed that the prince of Pandalam dynasty, an avatar

of Ayyappan, meditated at Sabarimala temple and became one with the divine. The place

where the prince meditated is the Manimandapam.

There are many Sastha temples in South India and across the globe. As per the temple

history, the Sastha temple at Sabarimala is one of the five Sastha temples founded by

Parasurama. The other Sastha temples in this group of five includes the Ayyappan Temples:

at Kulathupuzha, where the Sastha appears as a Balaka or child; at Aryankavu where the lord

appears as a Brahmachari or young man; at AchankovilShastha Temple, where the lord leads

the Grihastha Ashrama life here and depicted along with his two wives – Purna and

Pushkala at Sabarimala, where the lord is depicted in the Vanaprastha or form of

renunciation; at PonnambalaMedu the lord appears as a yogi and where the "makaravilaku" is

lit.

After the installation of the temple, it was mostly unreachable for about three

centuries. In the 12th century, a prince of Pandalam Dynasty, called Manikandan,

rediscovered the original path to reach Sabarimala. He had many followers with him,

including the descendants of the Vavar (a Muslim warrior whom Manikandan defeated)

family. This prince is considered an avatar of Ayyappa, and is believed to have led a pack of

tigers to his palace with Vavar and then later disappeared to the Sabarimala temple. The

temple was then renovated.[16][

In 1821, the kingdom of Pandalam was added to Travancore. 48 major temples including the

Sabarimala temple were also added to Travancore. The idol was erected in 1910.

19
The history behind the worshipping methods

The customs of the pilgrims to Sabarimala are based on five worshipping methods;

those of Shaivites, Shaktists and Vaishnavites. At first, there were three sections of devotees

– the devotees of Shakti who used meet to worship their deity, the devotees of Vishnu who

followed strict penance and continence, and the devotees of Shiva who partly followed these

two methods. Another name of Ayyappa is Sastha. All these can be seen merged into the

beliefs of pilgrims to Sabarimala. The chain the pilgrims wear comes from the Rudraksha

chain of the Shaivites. The strict fasting, penance and continence is taken out of the beliefs of

the Vaishnavites. The offering of tobacco to Kaduthaswamy can be considered to be taken

from the Shaktists.

Women

According to the Memoir of the Survey of the Travancore and Cochin States,

published in two volumes by the Madras government in the 19th century, women of

menstruating age were denied entry into the Sabarimala temple two centuries ago. Though

the authors, lieutenants of the Madras Infantry, completed the survey by the end of the year

1820 after nearly five years of research, it was published in two volumes only in 1893 and

1901. "Old women and young girls may approach the temple, but those who have attained the

age of puberty and to a certain time of life are forbidden to approach as all sexual intercourse

in that vicinity is averse to this deity (Lord Ayyappa)," the report said 15Upto 1991, women

visited the temple even though in small numbers. Women pilgrims below the age of 50 would

visit the temple to conduct the first rice-feeding ceremony of their children (Chorroonu) in

the temple premises.16

15
 https://www.theweek.in/news/india/2018/11/22/british-era-survey-report-says-sabarimala-ban-existed-200-years-ago.html
16
 Gilles Tarabout (2015). "Religious Uncertainty, Astrology and the Courts in South India". In Berti, Daniella; Good,
Anthony; Tarabout, Gilles. Of Doubt and Proof. Legal and Ritual Practices of Judgmen. Ashgate. pp. 70–71. ISBN 978-1-
4724-3451-7. Retrieved 29 October 2018

20
 In 1991, Justices K. Paripoornan and K. BalanarayanaMarar of the Kerala High Court,

in their ruling against the Travancore Devaswom Board, restricted the entry of women

between ages 10 and 50 from offering worship at the temple, stating that such a restriction

was in accordance with the usage prevalent from time immemorial. [21] In addition, the judges

directed the Government of Kerala, to use the police force to ensure that restriction was

complied with.17

On 28 September 2018, the Supreme Court of India, in a 4-1 majority decision,

overturned the ban on the entry of women. The Chief Justice, Dipak Misra, stated that the

selective ban on women was not an "essential part" of Hinduism, and instead a form of

"religious patriarchy".Justice Dhananjaya Y. Chandrachud stated that the ban "stigamatises"

and "stereotypes" women, while "placing the burden of men's celibacy" on them. The lone

women judge, Indu Malhotra noted in her dissenting judgement that “what constitutes an

essential religious practice is for the religious community to decide” and not a matter that

should be decided by the courts. She added that “notions of rationality cannot be invoked in

matters of religion by courts”.

Two Indian women become first to enter temple after centuries-old ban overturned on

2nd January 2019. On 2 January 2019 at 3:45 AM, for the first time after the Supreme Court

verdict, two women in their early 40s were escorted by police into the Sabarimala temple,

allegedly through a back gate meant for staff. The Chief Minister of Kerala, Pinarayi Vijayan,

confirmed their entry. Thereafter, priests closed the temple for one hour to ritually purify it.

SIGNIFICANCE OF THE TOPIC:

In this study, the focus is on how secularism is operationalized inthe relationship

between the state and a Hindu temple. When state does notinterfere in matters relating to

17
 Kerala High Court (5 April 1991) Bench: K Paripoornan, K B Marar; Source: [1] (accessed Sunday May 1, 2016)

21
religions, is state intervening in mattersrelating to Hindu religion, because Hinduism being

the religion of themajority and the state has to play a balancing role to ensure that

majoritydoes not impose its ways on governance. According to the provisions in

theConstitution, state should be impartial towards all religions; state should begoverned

democratically according to rule of law; and state should ensurethat the religion of the

majority or the minority does not dictate the way thestate should be governed. Historically,

world over, when religion has beenused by rulers to safeguard their territory, perhaps India is

the first newlyindependent democracy to adopt secularism; especially in a multi-

religious,multi-party context, the state’s secular credentials are repeatedly tested.

SCOPE OF THE STUDY:

Defining the word ‘gender’ is a simple task but, when we emphasize on the meaning

of ‘equality’ then it is a bit complex task. In simple language, Gender means any sex – be it

male, female or any transgender and Equality means treating everyone equal in the eyes of

law irrespective of any caste, colour, race, sex, religion, and region. A blend of these two

words leads to a wider concept of “Gender Equality”. ‘Access’ means entry or way to reach a

particular thing and ‘Worship place’ denotes any place to which some religious sentiments

are attached or is specially designed structure or consecrated space where individuals or a

group of people come to perform acts of devotion, veneration, or any religious study. By

putting some legal reflections on these terms, we get some wider connotations related to

Gender equality and Access to worship places. According to our Indian Constitution,

Equality before the law means that equality among equals and that the law should treat

everyone equal be it while giving punishments or while protecting rights. The right to sue and

be sued, for the same kind of action should be same for all citizens of full age.

OBJECTIVES OF THE STUDY:

22
 The following are the objectives of the dissertation:

1. To study the meaning of valid custom and the process of a valid custom transforming into

a law.

2. To understand about the statutory regulations of Travancore temples of which sabarimala

is also a part.

3. To understand the administration of devaswom boardsand temples in Kerala.

4. To evaluate the judicial responses to the management of Hindu temples in Kerala.

5. To analyse the question of women entry into sabarimala temple in response to the

judgment of the Supreme Court of India.

HYPOTHESIS

1. The study of the temple is basically an investigation in to the nature ofthe

relationship between the state and state owned temples. There are manyprivate temples

outside the ambit of state control. The revenue of the privatetemples, the reforms in the

sacred area and accountability are also animportant matter to be understood.

2. Further investigation into such issueswith regard to private temples in Kerala is

recommended.Kerala’s private temples also attract tourists. The economiccontributions of

private temples in comparison with the state can be anotherarea of research which will be of

great relevance.

3. The potential of temples as an important source of employment is aconclusion

derived from this study. In the modern days outsourcing of jobsis accepted as an important

method of enhancing efficiency and economy inmanagement. It will be of use to analyze the

23
nature of the works ofemployees in the non-sacred area and to examine the scope of

outsourcingthe jobs.

4. Non-Hindu religious institutions are engaged in many charitableactivities like

running orphanages, Cheshire homes, holding free medicalcamps etc. The temples owned by

the state in Kerala irrespective of havingplenty of surplus income are not engaged in such

social activities. Thereasons for this have to be understood in the context of Devaswoms

beingcharitable institutions.

5. The law relating to the responsibility ofmanaging temples can be explored. What

kind of changes in the laws governing temples will be required for establishing temples in

foreigncountries can also be explored.

METHODOLOGY FOLLOWED:

As is well known at the present day a research scholar cannot depend upon any one

particular method of preparation of a thesis. A combination of different methods is required

to achieve the best possible results. Thus a doctrinal and non-doctrinal method has been

applied mainly in the preparation of the present work.Where necessary comparative and

critical methods are also employed to have a detailed study of the subject under

consideration. Role of valid custom as a source of law in relation to the sabarimala temple

has been studied with relevant insight into the subject. The importance of valid custom as a

tool of protecting and preserving the cultural heritage of Kerala Temples and the Travancore

Board has been studied. The researcher has also taken into account the recent Supreme Court

judgment for the entry of women into the sabrimala temple and its repercussions are being

analyzed under the conclusion and suggestions.

SOURCES OF INFORMATION:

24
 The required materials needed for the dissertation have been collected mainly by

applying doctrinal approach. The various sources of information utilized in the making of this

dissertation includes sources of law like legislation, case laws, text books, articles, legislative

bills etc. It is basically textual in approach as contrasted to non-doctrinal approach which is

primarily contextual in nature. In the preparation of this dissertation, adopting the above

mentioned techniques data has been collected from various enactments and the cases decided

by the forums, agencies, commissions and the courts in various states of the country,

authoritative text books, seminar reports, internet etc.

CHAPTERIZATION:

The dissertation has been divided into five chapters:

1. INTRODUCTION: This chapter gives an explanation about custom as a source of law. It

also discusses about the sabarimala temple and the recent judgment of Supreme Court for the

entry of women into the temple.

2. THE TEMPLES UNDER THE TRAVANCORE BOARD – STATUTORY

REGULATIONS: This chapter explains the temple entry proclamation and subsequent

developmentin temple administration and how the management of temples are placed in a

newtrack.

3. ADMINISTRATION OF DEVASWOM BOARDS (DB’s) AND TEMPLES IN

KERALA – A STUDY: This chapter studies about the temples in Kerala and how they are

managed by DBs. Four DBs manage 3000 templesin Kerala. Even though there is less

similarity in the functioning of DBs in Kerala,there exists huge disparity in the DB s

functioning in Kerala.

25
4. JUDICIAL RESPONSES TO THE MANAGEMENT OF HINDU TEMPLES IN

KERALA: This chapter highlights the judicial responses to the various issues that have come

up in the temple administration of Kerala and the various legislations that have been enacted

from time to time from pre-independence era to the present day is addressing various issues

of temple administration of which sabarimala is also a part.

5. RELIGIOUS FREEDOM AND GENDER JUSTICE: WOMEN ENTRY ISSUESIN

SABARIMALA TEMPLE: This chapter gives an overview of the gender equality and

gender justice features of an egalitarian politicalsystem. Gender equality is meaningless

without gender justice and discrimination onthe basis of gender which is a violation of basic

human rights.

6. CONCLUSION AND SUGGESTIONS: This chapter gives a brief summary of the

various chapters discussed and likewise makes suggestions in relation to the gender justice

issues pertaining to the entry of women in sabarimala temple with understanding of the

temple administration of Kerala.

CHAPTER - II

26
 THE TEMPLES UNDER THE TRAVANCORE BOARD – STATUTORY

REGULATIONS

INTRODUCTION

The temple entry proclamation of 1936, 'a miracle of modern 18times", was infact the most

non-violent and bloodless revolutionsilently took place in Travancore in recent years. With

this act, thetemple worship in Travancore became a popular religiousmovement through the

participation of all sections of Hindupopulation irrespective of caste, colour and creed. Sri

ChithiraThirunal Balarama Varma, the Maharaja of Travancore changedthe course of history

and the destiny of the people with a stroke ofhis pen effecting a revolutionary change in the

society. Yet formaintaining cleanliness inside temples and to upkeep the spiritualatmosphere

certain rules were formulated and implemented. On24th November 1936, such twenty-one ,

rules and conditions werebrought to the notice of the public through a proclamation.

Manyexpressions like 'temple', 'chief officer' of devaswomsetc wereexplained in the

proclamation and the powers of the chief officerwas clearly specified. According to rule four,

the permission toenter the temple would be limited upto the srikoil(sanctumsanctorum) and

tidapally(kitchen) of the temples19. From timeimmemorial, certain unwritten rules had been

in vogue inTravancore temples regarding cleanliness and holiness with a viewto achieve rare

spiritual exaltation. For example, men wearingshirts and garments other than traditional dhoti

andangavasthramare not admitted inside the temples . Suchrestrictions are intended to

induce a reverent attitude in theworshippers and to enhance the spiritual efficiency of

theTravancore temples. These conditions led to the formulation ofsuch rules that would

safeguard the maintenance of spiritualatmosphere in these temples. These rules were to be

applied to allpersons irrespective of their rank in the society or the community to which they

18
The Temple Entry Proclamation Memorial Souvenir, 1942, p.1.
19
The Regulations and Proclamations of Travancore, 1112 M.E(A.D. 1937) Vol.IV, p.3.

27
belonged . They specified the classes of persons whoshould not enter the temples on certain

occasions in consonancewith the prevailing custom and usage. Persons who are notHindus,

those who are under pollution due to birth or death intheir families, drunkard persons, women

at mensturation time,professional beggars, persons suffering from contagious diseaseswere

not allowed to enter the temples. Taking meat into the temple,smoking within the premises,

carrying cloth umbrella and kerosenelamp and such practice would be disallowed . The chief

devaswomofficer has powers to grant or withhold permission depend oncustoms and

traditions. His authority would prevail until set asideby higher authority. The chief officer has

powers to pass orders forarrest against those who violate the rules. If any one contravenesthe

rules or commits any offence which requires purifactoryceremonies, he shall be awarded

imprisonment and fine as per rules.

The temple entry proclamation and subsequent developmentin temple administration put the

management of temples in a newtrack. The existing laws became insufficient to contain

theaspirations of the people in the changed circumstances. Sofar as the administration of

incorporated and unincorporateddevaswoms in Travancore is concerned they were controlled

andregulated by the previous proclamations such as proclamation of1079 M.E (A.D.1904),

1097M.E(A.D. 1922) etc. The Regulation III of1079M.E(A.D. 1904) called as 'The Hindu

Religious EndowmentRegulation of 1079' gave dewan full power to administer

thedevaswoms taken over from trustees and also call upon to submitthe list of properties,

periodical accounts from the trustees of anytemple. If also empowered the dewan to frame

rules for carryingout this Regulation to provide for the better administration of theHindu

religious endowments in Travance20. In the Regulation of1097M.E(A.D. 1922) the

government constituted a devaswom fundunder section four of the Regulation. It was

intended for keepingthe temples in a state of good repair in accordance with the usageand

20
Hindu Religious Endowment Regulation 111, Preamble, 1097 M.E, (A.D. 1904)

28
custom recognised by the government. The government alsoallotted in the state budget every

year an amount for thesedevaswoms not being less than forty percent of the ayacut

andsanchayamland revenue of the state. This shows the attitude ofthe government to protect

the devaswoms by supporting withfmancjal assistance from the state fund since the

devaswomproperties had already been merged with the sircarproperty on theassumption of

their managements. The government never turned adeaf ear to the financial problems that

affected the Travancoretemples. Yet a major portion of the expenditure was met from

thevoluntary contributions and offerings made by the devotees. As theworship in Travancore

temples was wide open to all sections ofHindu population of the state, the believers' visit to

these templesincreased day by day effecting a simultaneous increase in theincome of the

temples. Hence popularisation of worship broughtabout financial soundness in the temples of

Travancore. Thisnecessitated further statutory regulations for the administrationand control of

these temples both in terms of general and financialmanagement leading to exaltation of

spiritual performance ofTravancore temples. Another reason for the birth of new

statutoryregulation was the political compulsion arised due to the merger ofTravancore and

Cochin state. The Devaswom (Audit) Proclamation1123 M.E (A.D. 1948) provided a sum of

rupees fifty lakhs everyyear to sreepandaravakaand the same would be paid to

theTravancore temples. The Travancore Interim Constitution Act of1123 M.E (A.D. 1948)

also incorporated the same provision ofcontinuing the practice of paying the same amount to

Travancoretemples . The SreePadmanabhaswamy temple at Trivandrum wasunder the direct

control of the ruler of Travancore and a separatefund was created for its purpose and an

executive officer wasappointed to supervise its administration. As a result theadministration

of the Temple became very effective.

29
The Covenant:

In July 1949, a covenant was entered into between the rulersof Travancore and Cochin with

the concurrence and guarantee ofthe government of India whereby the united state of the

Travancore and Cochin was formed 21. It legally came into force on 1st July1949. The Raj

Pramuk was appointed for the united state as perArticle 4(1) of the covenant which had been

entered into by bothcovenanting states and Sri ChithiraThirunalBlairamavarmabecame the

Raj Pramukh in July 1949. He contiued to be the RajPramukh till the formation of the Kerala

State on 1st November1956. As per Article 4(2) he was entitled to hold the office duringhis

lifetime. According to Article 7(2) of the covenant a council ofministers was also appointed

to aid and advise the Raj Pramukh inexercise of his functions. The ministers held the office

during the pleasure of Raj Pramukh . The remarkable feature of the covenantwas the

formation of the devaswom fund. As per Article 8(a), theobligation of the covenanting state

of Travancore was to contributea sum of rupees fifty lakhs every year from general revenue

to thedevaswom fund and rupees one lakh to sreepandaravakaproperties .SreePadmanabha

Swamy temple received rupees fivelakhs every year as fund in lieu of rupees one lakh

alreadysanctioned as per the devaswom (amendment) proclamation of1123 WE (A.D. 1948).

the Ruler appointed an executive officer tolook after the affairs of the Sreepadmanabha

Swamy temple atTrivandrum. The temple committee wascomposed of three Hindu members

nominated by the Ruler ofTravancore to advise him in the discharge of his functions.

The covenant also envisaged a provision for the establishmentof a board known by the name

Travancore Devaswom Board whichwas entrusted with the administration of all the

incorporated andunincorporated devaswoms, all their properties and devaswom fund 22. The

21
Eastern Book Company, (ed.), Constitution of India, article 2904, Lucknow, 1986, p.116.
22
The Covenant, op.cit, p.3.

30
board was constituted on 1st August 1949 inaccordance with the provisions of the covenant.

The administrationof the incorporated and unincorporated devaswoms and the Hindureligious

institutions and funds in Travancore and Cochin cameunder the control of the respective

devaswom boards from 1stAugust 1949. Yet the temple of SreePoornathrayeesa

atTrippunithura and PazayannoreBhagavathy temple at Pazayannorecontinued under the

direct control of the Ruler of Cochin.The covenant provided for constituting a legislature

consistingof the Raj Pramukh and a legislative assembly for the united stateof Travancore

and Cochin. All the persons who had been appointedas members of representative body of

Travancore and Cochinbecame the members of the legislative assembly of the united state.

The legislature of the united state had the power to make lawswithin the framework of this

covenant and the constitution of India.The Raj Pramukh had the power to promulgate

ordinances as andwhen it was found necessary and such ordinances were laterreplaced

through Act passed by the legislature. Altogether thecovenant had twenty two Articles along

with a schedule. Thegovernment of India had given concurrence to the covenant and

guaranteed all its provisions.

Ordinance No.IX of 1124 WE (A.D. 1949)

The Raj Pramukh of united Travancore- Cochin state waspleased to make and promulgate the

Ordinance No.IX of 1124M.E(A.D. 1934) in exercise of the powers conferred on him

development relating to the temple administration inTravancore was the constitution of the

Travancore DevaswomBoard as per Section 3 of the Ordinance. The Board was entrustedwith

the power of administration of incorporated andunincorporated devaswoms, devaswom fund,

devaswom surplusfund except SreePadmanabha Swamy temple and

Sreepandaravakaproperties. The Board was constituted with three Hindu membersof which
23
Ordinance No.IX of 1124 M.E(A.D. 1949), dated 1 August 1949.

31
the Ruler nominated one, Hindu council of ministers andHindu members of legislative

assembly elected one each. They wereelected for four years. The members of the Board

elected thePresident in thier first meeting. A separate committee wasconstituted for the

administration of the SreePadmanabha Swamytemple. The executive officer of the temple

acted as the secretary ofthe committee. One of the noteworthy provision included in

theordinance was the provision for the assumption of management ofHindu religious

endowments on certain grounds . There were fiftysix sections in the ordinance which had

been incorporated in sixchapters. The Hindu Religious Endowments Act of 1079 M.E(A.D.

1904), Devaswom Proclamation of 1121 M.E(A.D. 1946) etcstand suspended due to the

operation of this Ordinance.Subsequently, the ordinance was replaced by another

ordinanceviz. the Hindu Religious Institutions ordinance 1950 and the samewis later replaced

by Travancore Cochin Hindu ReligiousInstitutions Act, 1950.

Ordinance No-1 of 1950

The Hindu Religious Institutions Ordinance No.1 of 1950introduced further changes in the

Temple administration. Theformation of the united Travancore - Cochin state under

RajPramukh brought about many changes in the administration ofdevaswoms in Travancore.

Consequently the administration oftemples was stream lined with new regulations both for

spiritualadministration and financial administration of temples in theregion. In 1950, when

the legislative assembly of the state ofTravancore - Cochin was not in session, Rajpramukh

promulgatedthe ordinance under clause (1) of the Article 213 of the constitutionof India read

with Article 238. He promulgated the above ordinanceas he was satisfied that circumstances

exist which made itnecessary for him to take immediate action for making provision forthe

administration, supervision and control of various categories ofdevaswoms and their

appurtenances with immediate effect. Thisordinance stressed many points with regard to the

constitution ofdevaswom board, procedure for the election of members to theboard, removal

32
of members, honorarium for president and members 24 , vesting of jurisdiction in the board etc

which laidfoundation for a permanent governing body for the devaswoms ofthe state. The

ordinance was replaced by Act XV of 1950, whichcame into force on April 195025.

Institutions Act

The Travancore Cochin Hindu Religious institutions Act (ActXV of 1950) was passed

replacing the Hindu Religious InstitutionsOrdinance, 1950. This Act has three parts, part-I

extended toTravancore, Part II to Cochin and Part III to the whole of the stateof Travancore

and Cochin. It replaced all the previousproclamations and also the ordinance No. 1 of 1950.

There are 130sections in the Act of which 60 sections are meant exclusively for Travancore

State and rest to Cochin state. In section 2, subsection (c), the incorporated and

unincorporated devaswoms havebeen defined. The incorporated devaswoms are

sircardevaswomsmentioned in Schedule-I and unincorporated devaswoms arepersonal

deposit devaswoms, which have separate accounts ofincome and expenditure. The Act also

extensively dealt with thedevaswom fund, surplus fund, devaswom properties,

karanmaservices and the Boards' control over the devaswom department,the powers, duties

and responsibilities of devaswom commissioner,assistant devaswom commissioners and

superintendents of thedevaswom department. Section four of the Act is meant toconstitute the

Travancore Devaswom Board. Section six of the Actlays down that a person who is to be

nominated or elected asmember of the Board must reside in the state of Travancore -Cochin

and profess the Hindu religion and must have attainedthirty five years of age. Thus any

person who has not openlyrenounced the Hindu religion is eligible to be a member of

theBoard'. He need not be a believer in temple worship or is a personhaving interest in the

affairs temple. As the power of nomination isleft to the council of ministers and members of

24
Monthly Honorarium, for President Rs. 450/-and member Rs.400/- each.
25
Government of Travancore, Extraordinary Gazette, Trivandrum, dated 16 th April 1950.

33
legislative assembly,the Board was brought under the influence of political party inpower. In

his report on the devaswom administration reforms, K.P.Sankaran Nair, the legal advisor to

the Devaswom Board had statedabout politicization of the religious institutions belonging to

theHindus. He observed that owing to the onslaught of politics the daytoday administration of

the temples and Board office deteriorated considerably.

26
Section 7 of the Act lays down the disqualification for membership to the Board . These

include insanity, a person whois deaf mute or suffering from leprosy, an undischarged

insolvent,an office holder or a servant of government, a local authority, aperson convicted by

a criminal court for any offence involving moralturpitude etc. Section 8(1) lays down that a

member shall cease tobe a member of the Board if he subsequently becomes

disqualifiedunder section 7 or if he ceases to profess the Hindu religion. Thesection Provides

that any person interested may apply to thedistrict court, Trivandrum against the order

ofdisqualification. Thesection also provides for an appeal to the high court against anorder of

the district court and the appeal is to be decided in adivision bench. Until the decision of the

high court is pronouncedthe member alleged to have been subject to disqualification

isentitled to act as if he were not disqualified. Section 9 of the Actlays that a member of the

Board may be removed from his office bythe high court on the ground of proved

misbehaviour or incapacity.

A single judge in the high court on receiving such an applicationfrom the Advocate general

or a person belonging to the Hinducommunity has to conduct an enquiry and if a prima facie

case isestablished he has to refer it to the division bench with reasons andthe division bench

would pass final orders.

Chapter III of the Act, section 18 to 23 dealt with SreePadmanabhaswamy temple . Section

18(1) sets apart six lakhs ofrupees annually out of fifty-one lakhs provided for payment to
26
Vide in the Appendix IV, p.11-12.

34
thedevaswom fund in Article 238(ü) of the constitution, towards theexpenditure in

SreePadmariabha Swamy temple. The ruler ofTravancore is to appoint an executive officer to

administer thetemple, the Sreepanadaravakaproperties and all other propertiesand funds of

the temple vested in trust in the ruler of Travancoreand the sum of six lakhs transferred from

the devaswom fund. Acommittee consisting of three Hindu members nominated by theruler

of Travancore advised him in the discharge of his functions.

The ruler is the Chairman of the committee and the committee metonce in quarter at

Trivandrum. The ruler fixed the remunerationof the members. The executive officer acted as

the secretary of the committee.

One of the remarkable feature in the Act is the provision forthe continuance of the

Devaswom department as constituted in 1097 M.E (A.D. 1922) 27. The Board appointed the

devaswomcommissioner and the devaswom commissioner appointed the chiefexecutive

officer of the department. The expenditure in connectionwith the said department shall be met

out of the devaswom fund.The appointments in the administrative service in the

devaswomdepartment shall be made by the Board in accordance with therules prescribed for

such appointments.

Devaswom Commissioner:

At the apex of administration stood the devaswomcommissioner who served as a link

between the government anddevaswom. Generally members of royal family were appointed

asdevaswom commissioner as seen from the appointment of RajarajaVar ma as the first

devaswom commissioner28. He shall be theadviser to the government in matters relating to

the devaswomadministration. He is also directly responsible to the governmentfor the proper

management and control of devaswoms, charitablemslitutions and Japadakshinas. As a rule,

35
he should be consultedin all matters affecting Hindu temples and in respect ofapplications for

permission to open places of public worship underthe proclamation.

Duties and responsibilities:

The devaswom commissioner occupied a respectable andresponsible position in the hierarchy

of the officers of thedevaswom department. He was entrusted with the following duties and

responsibilities.

(1). To supervise and control the working of the subordinateofficers of devaswom

department.

(2). To regulate the expenditure within the sanctioned pathivusand estimates.

(3). To watch and collect the receipts from all sources due to thedevaswom fund.

(4). To make arrangement for the proper preservation andcustody of nadavaravus (offerings

from devotees),thiruvabharanams (ornaments of gods and goddesses),pattuparivattams (silk

garments) and allbelongings of devaswoms.

(5). To see the live stock attached to the devaswoms properlycared for.

(6). To submit for the sanction of government proposals for therevision of pathivus of those

devaswom whose pathivus remain tobe revised.

(7). To submit to the government an annual report on theadministration of devaswom and

other institutions in his chargewith the special reference to the transactions of devaswom

fund.

(8). To act as the administrator of the devaswom fund subject tothe rules and instructions that

may be laid down by government.

36
(9). To generally see the administration of devaswoms conductedin accordance with the

provisions of the proclamations and

(10). To submit to the government all the returns regardingdevaswom matters which were

being sent by the chief secretary(earlier division - peishkars).

Besides these duties, he enjoyed a number of other privileges too.M. He got the right to make

appointment in all the sanctionedestablishments both in the offices and in the devaswoms

underhim. But their pay does not exceed to Rs.50 per mensem subject tothe provisions of

public service notification.

(2). To appoint all subordinates to the devaswom and otherinstitutions under his control. But

he should not divorce karanmaholders appointments without the sanction of the government

orappointing santliikars(priests) in the royal palace.

(3). To transfer any officer whom he is competent to appoint andall members of the non-

gazetted staff.

(4). To transfer superintendent to one group to another.

(5). To grant any kind of leave under the rules to any officerwhom he is competent to

appoint, casual leave to all officers underhim and privileged leave to all except the gazetted

officers.

(6). To place a superintendents' additional charge of aneighbouring group when the

superintendent of the latter is onleave.

(7). To dismiss, degrade, suspend, discharge, retire and acceptthe resignation of any officer

whom he is competent to appoint,based on certain rules and regulations.

37
(8). To sanction all contracts for supplies and services todevaswoms, if the value of each case

does not exceed Rs.2000/-.However, Rajaraja Varma was allowed to sanction to contracts

tohave the value upto Rs.5000/- which is an additional privilegeenjoyed by him.

(9). To sanctioned the purchase of provisions to cash where nocontractors are forthcoming,

provided the sanctioned patliivus,budget estimates and nirak rates are not exceeded.

(10). To sanction the disposal of nadavaravuprovisions andunserviceable silk cloths and

credit the amount to the devaswomfund.

(11). To get the nadavaravugold and silver melted in the mint andmake necessary alterations

in the thiruvabharanamregisters,provided that there is provisions in the budget for the

expenditurethat may be necessary for the purpose.

(12). To arrange for the disposal with the pervious sanction ofgovernment, of unserviceable

thiruvabharanams, vessels andvahanams(vehicle of god) credit the amount to the

devaswom fundand make necessary alterations in the registers.

(13). To maintain a full and correct account of thiruvabharanamsand submit to the

government the necessary half-yearly plus andminus accounts together with a view of

certificates for verification.

(14). To maintain full accounts of vessels (bharanipathrom) andsubmit to the government

half yearly returns and certificatesregarding them;

(15). To have the complete control of the valuable clothes(pattuparivattams) of the

devaswoms.

38
(16). To sanction the making of new thiruvabharanams, vesselsand vahanamsusing old

materials, provided that, in the case ofestimates exceeding Rs.500/-, the sanction of the

government ispreviously obtained;

(17). To sanction estimates for petty constructions and repairs upto a limit of Rs.500, in each

case.

(18). To allow transfer of funds from the provision forpurathepaditharam, for expenditure

under akathepaditharam, incase the cash allotment for the latter is found inadequate

onaccount of fluctuation in prices, the diversion being however madefirst from the item,

arangukars (actors), then from 'procession' andlastly sadya (feast).

(19). To enquire into and report on the affairs of Hindu religiousendowments, when required

to do so in individuals cases, section 6of the Hindu Endowment Regulation III of 1079 M.E.

(A.D. 1904).

(20). To sanction all estimates not exceeding the total sanctionedallotment for special

purifactory and other ceremonies not includedin the pathivu provided funds are available in

the budget and theexpenditure does not exceed Rs.500 in each case.

(21). To make contributions for renewal and repairs of minordevaswoms by private

gentlemen or bodies provided that (a) anestimate is previously sanctioned for the purpose (b)

thecontribution does not exceeded one-half of the cost of the works orRs.500/- which ever is

less and (c) funds are available for purpose.In discharging his duties, the commissioner was

only helped by apersonal assistant recruited from the cadre of Tahsildar. Thecommissioner 's

office was broadly divided into correspondencebranch and account branch. The

correspondence branch was againsubdivided into English section and vernacular section.

Thedevaswomscommissioner maintained a correct list of allendowments under his control

39
and supervised the administrationwith the help of assistant commissioners and

superintendents.

Assistant Commissioner:

The assistant commissioner were appointed next to thecommissioner. They were responsible

for the proper control andmanagement of the devaswoms in his district and for the

efficientconduct of ulsavamsand other festivals29. They were to bring tothe notice of the

archaeological superintendent and of thedevaswom commissioner anything of archaeological

or epigraphical interest met within temples 30. The assistant commissioner wasempowered to

make any appointment on the sanctionedestablishment either in his own office or in the office

's subordinateto him. He got the right to transfer any officer, whom he iscompetent to

appoint, to grant any kind of leave to any officersubordinate to him and make temporary

arrangements for theconduct of work. Assistant commissioner was given the right to fineall

subordinates except superintendents subject to maximum ofRupees two at a time. He can

dismiss, degrade, suspend, dischargeor accept the resignation of any officer whom he is

competent toappoint. He must do this only after getting the written explanationfrom such an

officer in accordance with the 'principles of naturaljustice'. He shall state the charges against

such officer, theevidence in support of such charges, the finding in each charge andfinally

pass such order. In case of such punishment, it is open tothe subordinate to appeal to the

devaswom commissioner againstthe order of punishment within thirty days. However, no

appealshall lie on an order imposing a fine. He is endowed with the power to confirm

contracts for supplies and services upto Rs. 1000/- andsanction estimates for petty

construction and repairs uptoRs. 100/-Assistant commissioners were empowered to issue

summonsfor the attendance of persons or for the production of documentsrelating to enquires

29
G.O.R.O.C. No.206/21/G.B., dated 2 September 1922.
30
Order Dis.No 450 of 22, dated 11 August 1922.

40
connected with devaswom matters. For thedisobedience of such summonses the assistant

commissioner gotthe right to fine them upto rupees fifty.

Assistant commissioner was to keep revenue deposit register,register of security deposits,

consolidated statement of receipts,monthly account classified abstract receipts, classified

abstract ofpayments . Assistant commissioners are of the rank of divisionaltreasury officers.

To attend the work of these officers, they wereallowed to keep one clerk, an accountant and a

peon in addition to the office staff.

The Superintendents:

The superintendents were the keystone of the efficiency andsuccess of the devaswom work.

They were ranked as drawingofficers responsible for expenditure ranging from Rs. 13,000/-to

1,43,400/-. The superintendents were responsible for an averageexpenditures of Rs.40,000/-.

Important ceremonies like carfestivals in the south Travancore and ulsavamswere

conductedunder the supervision of the superintendents.

The superintendents shall be competent to grant leave to allsubordinates under him except the

chief officer of each devaswom.He can fine all subordinates subject to a maximum of rupees

one ata time. He shall also be competent to place any subordinate undersuspension pending

enquiry. He can sanction to incur expenditureup to rupees five necessary for temporary

sudhi(pasudanapunniyaham) for the conduct of daily ceremonies in anticipation ofsanction,

in any temple under his jurisdiction.

The classification of devaswoms proposed by thecommissioner is to be approved. This is the

prime duty of thesuperintendents. They were instructed to perform their duties to

make the administration more efficient . In the initial stages thesuperintendents were to be

guided by the assistant commissioners.They were required to report any difficulties while

41
discharging theirwork. In this situation the revenue department was directed torender all

necessary assistance by utilising the services of theofficers of their department in regard to

supplies and service,account rules and special ceremonies . The superintendents

ofdevaswoms were empowered to issue summons for the attendanceof persons or for the

production of document relating to enquiriesconnected with the devaswom department.

Violation to attend forsuch enquiries based on the summonses, they were empowered to

impose fine upto rupees ten, but no right to excuse such offenders 31 . The orders issued by the

superintendents were notfinal. The aggrieved party can appeal to assistant commissionerand

those from the assistant commissioners to the commissioner ofdevaswom. However appeals

from the decision of devaswomcommissioner he to the dewan. Apart from them, separate

officersof the grade of superintendents were appointed for the personaldeposit devaswoms in

certain places namely Thuravur, Pattazhi,Erumeli and Paschima. The other personal deposit

devaswoms willbe controlled by the superintendents within their jurisdiction.

Thesuperintendents were of two ranks with two grades of salary andthe lower grade was

given the opportunity for promotion on thebasis of their work.

The superintendents should maintain the registers like cashbook, acquitance roll, undisbursed

salary register, permanentadvance register, contingent register, revenue deposit

register,endowment register, register of VazIiivadus, register of pathivus,register of

undisbursed pathivu, register of re-payments onundisbursed pathivu, register of

thiruvabharanams, register ofbharanipatrams, register of pattuparivattams, register

ofsecurities, paddy and rice register . Each superintendent wasprovided with a clerk,

accountant and a peon in addition the establishment employees32.

31
G.O.R.O.C.No.731 of 22/G.B.,dated 3 November 1922.
32
Vide appendix V, p.33

42
Apart from the commissioner, assistant commissioners andsuperintendents, a group of staff

was appointed for the control andmanagement of devaswoms in the state 42 . The office

establishmentshould therefore be pretty strong both in the correspondence andaccounts

branch. Correspondence in the devaswom departmentshould as far as possible be conducted

in the vernacular(malayalm) language while English being adopted to communicatewith other

departments and the account office.

Section 31 deals with the power of the Board to manage theaffairs of both incorporated and

unincorporated temples ofTravancore and arrange for the conduct of the daily

worship,ceremonies and the festivals in every temple according to itsusages. The properties

and funds of unincorporated devaswoms arekept separately. The Board is to keep regular

accounts of thereceipts and disbursements in respect of institutions under itscontrol. The

accounts are to be audited annually by the high courtand take appropriate action. The major

receipts and expenditure inthe devaswom included 10 items of receipts and 30 items of

expenditure33.

Section 35 of the Act deals with the rule making power of theBoard. Such rules should not

become inconsistent with the Act andthe rules are framed in the following matters.

(a). all matters expressly required by this Act to be described.

(b). regulating the scale of expenditure of incorporated andunincorporated devaswoms and of

Hindu religious endowmentsunder the management of the devaswom Board.

(c). the maintenance and auditing of the accounts of incorporatedand incorporated

devaswoms and Hindu religious endowments.

33
3.O.Dis.No.831/40/Dev., dated 3 September 1940.

43
(d). submission of budgets, accounts, returns or otherinformation by the devaswom

department to the Board.

(e). the method of recruitment and qualifications, the grant ofsalaries and allowances, the

discipline and conduct of officers andservants of the Board and of the devaswom department

andgenerally the conditions of their services;

(f). the establishment of provident funds andthe grant of pensionfor the officers and servants

of the Board and the devaswomdepartment.

(g). the grant of travelling and haulting allowances to themembers of the Board and the

officers of the devaswom department.

Chapter V empowers the Board to supervise and controlendowments as defmed in section

2(b) and even to take over itsmanagements in certain cases after holding an enquiry. Where

theendowment is not taken over, the Board can appoint new trusteefor its better

administration. Though the decision of the Boardregarding assumption of management of the

endowment may bechallenged before a court, the decision of appointing a new trusteecan not

be challenged34. Chapter VI of the Act is dealing withmiscellaneous provisions. According to

section 58, the Board hasbeen given the power to amend, alter or add to schedule I of the

Actthrough notification in the gazette.

On careful analysis of the Act, it is evident that the formerdevaswom department was

renamed and constituted as Travancoredevaswom Board. Hence a detailed study of the

devaswom Boardwould reveal its improvement from former devaswom department.

The enactment of this Act clearly shows the reluctance of thegovernment to continue the old

pattern of temple administration inTravancore. The formation of Travancore devaswom

34
Kerala Law Times, (S.N) No.50(19),1974.

44
Board wasmainly intended for better and effective administration of templesin Travancore in

a democratic way with peoples' participation in thegovernance. But one has to arrive at a

meaningful conclusion, onlyafter evaluating the working of Travancore Devaswom Board

incomparison with the former devaswom department.

OF DEVASWOM BOARDS (DB’s) AND TEMPLES IN KERALA – A STUDY

Introduction

Temple, according to Oxford dictionary, is an edifice or place devoted todivine worship.

Each community call it differently- Church by Christians, Mosqueor Masjid by Muslims,

Pagoda by Bhuddhists, Gurudwara by Sikhs, etc. Evenamong Hindus the temples have

different names at different places, such asAmbalam, Devalaya, Kovil, Mandiram,

Devasthanam, etc. For an ordinary Hindu, itis threshold to Bhakthi, which leads to Moksha or

final liberation. (Jayashanker,1997)35

India has an ancient civilization that is preserved in its religion, customs,traditions and

architecture. It has a distinctive culture and a way of life. It abounds intemples that would

certainly attract many visitors. The geographic land of India hasseveral marks of faith spread

all across its length and breadth. “India has two milliongods, and worships them all. In

religion all other countries are paupers; India is theonly millionaire.” Mark Twain (Top 30

famous temples in India, 2015)36. Indianreligion especially Hindu faith offers numerous gods

and goddesses to seekblessings from.

35
Jayashanker, S. (1997). Temples of Kerala. NewDelhi: Controller of Publications, Civil Lines.
36
Top 30 famous temples in India. (2015). Retrieved from http://www.tourmyindia.com

45
Temples in Kerala extends from Thiruvananthapuram to Kasarakode withvarying shrines.

The temples in Kerala have been all the time an amazing factor forits uniqueness in structure,

rituals, tradition, offerings, festivals, customs etc. Someof these are even connected with our

great epics, the Ramayana and theMahabharatha. The national agenda for us, therefore, shall

be to preserve andnurture this invaluable tradition that has been bequeathed to us from

timeimmemorial and thereby to uphold the greatness of our culture. An average

Keralitehindu feels that their day starts with the prayer and offering in the temple with a

batheither in the pond nearby or in the house itself with a divine circumstance.

All temples of Kerala are managed by Devaswoms. Devaswom meansproperties of god

(Deva means God and Swom mean ownership in Sanskrit). Thus itis a social system, by

which all properties of each temple are declared as personalproperty of presiding deity of

each temple and managed through a body of trusteeswho bear allegiance to the presiding

deity.

Devaswom/Brahmaswom/Rajaswom

The word dewaswom is used in IsaanasivaGurudevaPaddathi (Kriyapaada,patala 20, sloka

16) which indicates that Devaswom covers village temples, cowsbelonging to them, etc.

Dewaswom is a socio-religious trust with government orsociety /community nominated

members as trustees to manage temples and its assetsand ensure smooth functioning of

temple as per traditional rituals and customs. Thissystem is normally found in Kerala, where

almost all temples are either managed byGovernment controlled Dewaswoms as a cluster for

temples which falls under itsdirect administration or formed by private bodies / families.

The system of forming Devaswoms is relatively new, a practice started inlate 17th century.

Prior to that, most temples either had Brahmaswoms orRajaswoms. In the Brahmaswoms

system, each temple and all of its assets areconsidered to be the private property of its chief

46
priest, normally from BrahminNampoothiri families. Rajaswoms are, where the properties

belong to ruling feudallords or Nair families or even small royal families. This system has

created intensecorruption as well as political rivalry, especially in case of Rajaswom ruled

temples,thus losing sanctity. In many cases during wars, the rival army targets the temples,as

the opening of the temple gates to a rival army signals the defeat of ruling family.

Acts governing Temple Administration in Kerala

Kerala state is comprised of the regions taken from the erstwhile Malabarand South Kanara

districts of Madras Presidency and the Travancore- Cochin State.The Acts and regulations

which were in force in the respective regions werecontinued to be followed in the newly

constituted Kerala state. So far no uniformlaw has been made though the matter is in the

active consideration of theGovernment. The temples in Kerala are governed by the Act of

1950 and 1951.

In addition a separate enactment (Act of 25 of 1971) was made for the SreeKrishna Temple.

This Act was nullified by an order of the High Court of Kerala.Therefore subsequently an

ordinance was issued in 1977 (25 of 1977) which wasreplaced by an amended Act in

1978(Act 14 of 1978). This Act came into force on21st March 1980. By a separate

notification No Go (MS) 828/81/RD dated 25th July1981 the Government of Kerala amended

the Rules for depositing the amountsreceived by GuruvayurDevaswom in all Co- operative

Urban Banks or ScheduledBanks. The Act of 1950 and 1951 provides for the constitution of

Travancore,Cochin and Malabar Devaswom Boards in Kerala. However, the old concepts

ofMalabar, Cochin, and Travancore still persist in the Statute Book.

47
Organisation Structure of Devaswom Boards in Kerala

The four devaswoms Boards (Guruvayur, Travancore, Malabar and Cochin)together manage

nearly 3000 temples in Kerala. The organization structure ofDevaswom Boards in Kerala are

given in Figure

Devaswom Boards in Kerala

The administration and /or supervision of temples under the Kerala state areentrusted with

five basic Devaswom Boards namely Travancore Devaswom Board(TDB), Cochin

DevaswomBoard(CDB), KoodalManikyamDevaswom Board(KDB), GuruvayurDevaswom

Board(GDB) and Malabar Devaswom Board (MDB).(Govt. of Kerala, 2012) 37Four important

Devaswom Boards (TDB, CDB, GDB andMDB) and their functions are separately analysed.

Travancore Devaswom Board

37
Govt. of Kerala. (2012). Devaswom Boards in Kerala. Retrieved from The official web portal, Govt.of Kerala:
http://kerala.gov.in

48
Travancore Devaswom Board is an autonomous body formed underTravancore Hindu

Religious Institution Act “XV” of 1950. It is entrusted with thetask of administering 1249

temples in the erstwhile princely state of Travancorecomprised in the state of Kerala which

were earlier administered by the ruler ofTravancore prior to the integration of the princely

state of Travancore and Cochin in1949. The Constitution of the Board was based on the

Covenant entered into byMaharaja of Travancore in May 1949 and concurred and guaranteed

by theGovernment of India.

The Board comprises of President and two members. One member shall benominated by the

Hindus among the council of Ministers and the other member shallbe elected by the Hindus

among the members of the Legislative Assembly of theState of Kerala. The term of President

and members is for a period of three years. Ithas a Secretariat and its headquarters is at

Nanthencode, Thiruvananthapuram,headed by the Secretary of the Board. Sabarimala temple

also has been administeredby it. The second largest temple under this board is

Chettikulangara temple atMavelikkara. The Constitution of the Board was based on the

covenant entered intoby the King of Travancore.

Administration of Travancore Devaswom Board

The administration of Travancore Devaswom Board is mainly carried outthrough Board

members who are assisted by commissionerate and variousdepartments under it. The

administration divisions (Travancore Devaswom Board,2015)38 under Travancore Devaswom

Board consists of :

1. Board: Consists of President and two members

38
Travancore Devaswom Board. (2015). Administration. Retrieved from http://travancoredevaswomboard.org

49
2. Commissionerate: is headed by Devaswom Commissioner and assisted byseven Deputy

commissioners namely Pension and Service Grevance andRedressel Cell ( P&SGR) ,

Administration, Inspection, Thiruvananthapuram,Pattanamthitta, Harippadu and Vaikam.

3. Accounts: is headed by Devaswom Accounts Officer

4. Audit: under Finance and accounts officer

5. Works Department: Headed by Chief engineer in General and one chiefengineer

6. Sabarimala Executive Office: Headed by Special Commissioner

7. Law Department

8. Vigilance and Security

9. Cultural Department

10. Thiruvabharanam

Administrative Offices under the Travancore Devaswom Board

Administrative offices under the Travancore Devaswom Board are twentyone under the

charge of Assistant Devaswom Commissioner except Sabarimala(Executive Officer). In

addition to Executive Officer there is Special Commissionerfor Sabarmala Group. Sabarimala

Group includes Sabarimala Devaswom, PambaDevaswom and NilakkalDevaswom. The

administrative offices under TravancoreDevaswom Board include:

1) Neyyattinkara Group-

2) Thiruvananthapuram Group

3) Ulloor Group

50
4) Varkala Group

5) Kollam Group

6) Punaloor Group

7) Kottarakkara Group

8) Karunagappalli Group

9) Ambalappuzha Group

10) Mavelikkara Group

11) Harippadu Group

12) Aranmula Group

13) ThiruvallaGoup

14) Mundakayam Group

15) Changanassery Group

16) Kottayam Group

17) Ettumanoor Group

18) Vaikom Group

19) Thrikkariyoor Group

20) Paravoor Group

21) Sabarimala Group

Important Temples under the Board

51
Temples under the TDB are categorised under four heads namely Grade I,Grade II, Grade III

and PD temples. In Grade I temples there is more than threepoojas daily and the temples are

opened in the morning and evening. Grade IItemples are opened in the morning and evening

and Grade III temples are openedonly once in a day. PD(personal Deposit) Temples are those

where accounting isdone seperately as per rules.

Out of 1249 temples under the administration of the Board, 237 temples areGrade I temples.

Grade III temples are more under the TDB, that is, 481/1249which constitute 39% of total.

Grade II Temples are in the second place as regardsnumber, ie 479/1249 (38%). PD temples

are very less and it constitutes only 4% oftotal.

Cochin Devaswom Board

The political sovereignty of Zamorin over Cochin ceased by 937 ME (1762AD) consequent

on signing the Treaty by Travancore and Cochin. The immediateimpact as stated earlier was

the confiscation of properties of Yogaathiri andOoraalaars and thereby the temples managed

by them came under the administrationof Sarkkar (Government). Subsequently several other

minor temples were also takenover by the Sarkkar on the ground of mismanagement. Thus

large number oftemples came under the management of the Sarkkar.

However, Col. Munroe, the British Resident and whom later appointed asDiwan of Cochin in

1812, was responsible for bringing effective controls ontemples. Col. Munroe recommended

that all Dewaswom properties and the revenuefrom Devaswom should be merged with the

general revenues of the State. Furtherfor meeting expenditure of the temples Pathiv (ie scale

of expenditure onUthsavams, remuneration to temple staff, maintenance charges etc) was

instituted.

52
These recommendations were accepted by the Maharaja. A committee wasconstituted to

study its implications in 990 KE (1815). After a study of 309Devaswoms, 179 Devaswoms in

Cochin states were classified as VazhipaatDevaswoms. This was a major step by the

Government which resulted in theacquisition of temple lands and interference in temple

administration.All these 179 temples were known as ‘incorporated Devaswoms’ of which24

were treated as Keezhetams (subordinates to a more important temple).

Subsequently, either due to mismanagement by Ooraalaars or under some otherpretext, some

more temples were taken over by the Sarkkar though their funds werekept separately. Each

such Devaswom was called ‘unincorporated Devaswom’. In1702 ME (1897) a separate

Devaswom Department was formed under asuperintendent and all incorporated and

unincorporated devaswoms were broughtunder it.

Ten years later in1907 these incorporated and unincorporated Dewaswomswere merged by a

later amendment in 1916. A common Trust Fund was constitutedas an endowment. Moreover

they were classified into four groups, viz,Thiruvilwamala, Thrissur, Thirivanchikulam and

Trippunithura. In 1909 newexecutive staff like Inspectors, Kariakkars, Muthalpitis,

Accountants, etc wereappointed.

Under Cochin Hindu Religious Institutions Act of 1906, the Governmenttook over the

management of Devaswoms which were mismanaged. Suchinstitutions were called ‘assumed

Devaswoms’. The head of the Departmenthitherto, known as Superintendent was re-

designated as Commissioner on 1stNovember 1926.

Consequent to the integration of princely states of Travancore and Cochin,the administration

of Devaswoms in the Cochin state come under the CochinDevaswom Board (CDB)

constituted on 1ST August 1949 under the Articles of theCovenant entered in to by the Rulers

of Cochin and Travancore on 23 d June 1949.Both the groups Devaswoms and assumed

53
Devaswoms were brought under theBoard, first by an Ordinance and later by the Travancore-

Cochin Hindu ReligiousAct of 1950. On 16 th June 1950 the Board was reconstituted again.

Apart from thosetemples governed by the CDB a large number of private temples (known

asOoraanma temples) exist in Cochin area. Those private temples which get grantfrom

Cochin Dewaswom Board are also known as VazhipaatDevaswoms. CochinDevaswom

Board is a socio-religious trust appointed by the Kerala Government tolook after Hindu

temples in Central Kerala consisting of Ernakulam District,Thrissur District and Palakkad

District. It is headquartered in Thrissur city.

Administrative Structure of Cochin Devaswom Board

Cochin Devaswom Board is ruled by a Managing Committee consisting ofthree members.

The managing committee or board consists of three Hindu members.The Kerala Cabinet can

nominate two persons and Hindu members in the Cabinetcan nominate one person.

According to the Act, any person, including a woman,who is a Hindu, thirty five years of age

and a resident of the Kerala state can becomea member of the board.

Divisions/ Groups under the Cochin Devaswom Board

The board is divided in to two sections, namely Establishment section andTemple section.

The Establishment section is in charge of the administrationwhereas the Temple section

handles routine rituals and functions of the temples. Thetemple section consists of the priests

and other temple functionaries. TheEstablishment section is further divided into four

sections- Department ofAdministration, Department of Finance, Department of maintenance

and the storesDepartment. There are five divisions namely one Special Devaswom-

54
Chottanikkaraand four Groups namely Thrissur, Thiruvillamamla, Thiruvanchikulam

andTrippunithura. The Thrissur Division is the biggest of Cochin Devsawom Board

andThrippunithura division is the smallest.

Category wise Temples under Cochin Devaswom Board

The Cochin Devaswom Board’s classification of temples is not based on anystrict criteria.

Income, importance and convenience are taken for classification oftemples in to groups A, B,

etc. However in appointing priests (Santhikkars) differentgrouping are adopted as per the

directions of Supreme Court. Such a classificationon the basis of Grade of posts.

The table above shows that majority of the temples (63.43%) under CochinDevaswom Board

belong to Grade C followed by Grade B (18.71%), Grade A(10.45%) and Grade C (7.21%).

This grade wise list was approved in 16-9-2008 bythe CDB.

Control Institutions under CDB

In addition to temples under the direct management and control of the CDB,there are certain

institutions as control institutions under the CDB. These are theinstitutions in which CDB

have only auditing control.

Malabar Devaswom Board

The first direction or enactment relation to formation in of MDB came intoforce in 1817

(Madras Regulation VII of 1817). According to it the BritishGovernment, by virtue of

itssovereign power, continued to enforce their right tovisit and supervise endowments and

prevent abuse of power which had hitherto beenenjoyed by local rulers. This regulation laid

down machinery for supervisionconsisting of

i) The board of revenue

55
ii) Local agents, ie, District collectors and

iii) Trustees, managers and superintendent etc.

The enactment was operated till 1839 when certain Christian zealots andreligious

propagandists in the United Kingdom agitated urging the Government ofMadras to refrain

from administering the Hindu temples and Muslim mosques astheir administration would not

fall under the function of the Government. As perdecisions of the Court of Directors of the

East India Company the control on templeswas not effectively implemented till 1863. The

Religious Endowment Act XX 1863had enabled the Govt. to divest itself of the management

of the religiousendowments. But this Act was a failure due to the general attitude of

thepeople.

Subsequently many attempts were made to bring out legislations in the MadrasLegislative

Council. Some bills were introduced, but none of the bills was placed inthe Statute Book,

though they could bring out some concrete and useful ideas on acomprehensive legislation.

Keeping these ideas, the Madras Government passed an Act I of 1925 whichrepealed the Act

of 1863. The Act was however short lived as its validity wasquestioned in the Madras High

Court. The Govt., therefore, introduced a bill in theLegislative Council in 1926 and placed it

in the Statute book as Madras HinduReligious and Endowment Act of 1927. This Act also

was amended several times.

After attaining independence, the Congress Ministry of Madras State introduced adetailed

Bill and the Hindu Religious and Charitable Endowment Act of 1951 waspassed which

replaced the Act of 1927. Due to litigations, this Act had also to beamended by Madras Act

of XXI of 1954 and IX of 1956 and later replaced by anAct of 1959. However as the Kerala

State was formed on 1st November 1956 theHindu Religious and Charitable Endowment

56
(HR&CE) Act 1951 as amended byACT XXI of 1954 was accepted and made applicable to

temple situated in MalabarDistrict (including KasarkodeTaluk). Though all the temples in the

erstwhileMalabar area are Ooraanma temples they are controlled by HR & CE Department.

Only those temples which are financially sound are administered by the Department.After the

passing of the States Reorganisation Act 1956 (Act No. 37 of 1956),Malabar district

excluding the islands of Lacadives and Minicoy and KasargodTaluk of South Kanara district

came to be known as Malabar district in the state ofKerala along with the territories of the

existing State of Travancore and Cochin.

Under the legal provision of adaptation Clause in part XI of the Kerala Service RuleAct, the

Madras H.R & C.E Act 1926 came to be under the administrativesupervisory control of the

Government of Kerala, and hence under the H.R & C.E(Admn) Department. The legacies and

inroads of the previous temple administrationand traditional aspects materialized the Act No.

XIX of 1951in to the molding frameof the H.R & C.E administration. In addition to the

temples to which the H.R& C.EAct was made applicable, considerable number of public

religious institutions alsocame within the purview of the Act due to the exercise of power of

the Governmentby notification to extend the provisions of the H.R & C.EAct1956.

The Law of Religious and Charitable Endowments has not undergone anyrevolutionary

change for quite some time, till the promulgation of Ordinance bywhich the provision for

constitution of the Malabar Devaswom Board was made bythe H.R & C.E (Amendment)

Ordinance of 2008(Ordinance No. 2 of 2008). Thesame was re-issued and further the Madras

H.R & C.E (Amendment) Act, 2008 (ActNo. 31 of 2008) was enacted. The first MDB

consisting of 9 members assumedoffice on 2nd October 2008.

The MDB is exercising supervisory control of the temple administration, toensure that the

funds are utilized for the beneficial interest of that institution, in aproper, transparent and

57
lawful manner in the same manner as it was done by the H.R& C.E (Admn) Department. So

the temple funds are not utilized for any otherpurpose, alien to each temple. Even the

Government or the Board have no authorityto take away or transfer the temple money or

channelise the fund for Governmentfunctions.

Division-wise Temples under Malabar Devaswom Board

Temples under the management of MDB is classified under five divisionsnamely

Kasarakode, Thalassery, Kozhikode, Malappuram and Palakkadu for easilysupervising the

temple affairs.

Categorisation of Temples under Malabar Devaswom Board

The temples under the MDB are categorized according to annual earnings ofthe temples.

‘Special Grade’ Temples are those whose annual earnings is 75 lakhs ormore. Those whose

earnings range between 25 lakhs to 75 lakhs come under ‘GradeA’ Temples, those with 10

lakhs to 25 lakhs earning under ‘Grade B’ Temples, thosewith 3 lakhs to 10 lakhs under ‘C

Grade’ and those up to 3 lakhs earnings under‘Grade D’.

Most of the temples under MDB are ‘Grade D’ temple (77.22%) whoseannual income is up

to Rs 3 lakhs. About 10% ‘B grade’ temples and about 9% ‘Cgrade’ temples, about 3 percent

‘A Grade’ temples and only 1.59 percentage specialgrade temples are there under the MDB.

On the basis of Grade, the temples aredirected to remit annuities to the MDB.

Grade- wise and Division wise temples under the Malabar DevaswomBoard

The temples under MDB spread over five divisions and five grades over 7Districts in Kerala.

The grade and division wisetemples under the MDB. The Malappuram division under

theMDB has more temples, especially D grade temples and Kasarakode division hasfew D

grade temples. Special grade temples are very less in Kozhikode division ascompared to

58
others.B grade temples are less in Malappuram division and thedivision does not include any

A Grade temples. C grade temples are more inKasarakode division and less in Malappuram

Division. The number of temples in alldivisions other than D grade is below fifty.

GuruvayurDevaswom Board

It is pertinent to point out here that under the scheme framed by the HighCourt of Madras in

appeal 211 and 212 of 1930 (as modified by District Court,South Malabar in OS No. 1 of

1938), the administration, control and management ofthe temple and its properties and

endowments had been vested in the hereditarytrustees, namely the Zamorian Raja of Calicut

and the Karanavan, for the timebeing, of the MallisseryIllam of Guruvayur.

This position was changed in 1971 by the enactment of GuruvayurDewaswom Act of 1971

which was later amended in 1978, replacing the Trusteeshipby a managing committee,

nominated by the Hindu Ministers in the State Cabinet.The day-to-day administration is

supervised by an Administrator appointedby the Government. The Managing Committee

include, the Zamorin Raja, theMallisseriNamboodiri and the Tantri of the temple among

others. According to 1978Act, the Managing Committee consists of 9 members- The Zamorin

Raja, Mallisseri Namboodiri, the Tantri, a representative of the employees of theDewaswom

and five more persons of whom one shall be a scheduled caste member.

The six non- traditional members are appointed by the Hindu Ministers of KeralaGovernment

of Kerala of which one will be the Chairman of the ManagingCommittee. The Committee

selects an Administrator from the panel of names givenby the Government.

The Administrative office is functioning in the ‘Sreepadmam’ building atSouth Nada. There

is a public relations office which functions at ‘SreePadmam’complex to guide the pilgrims if

59
and when necessary, and to furnish them with everyinformation pertaining to the temple and

the Dewaswom.

Subsidiary Temples/ DewaswomKezhedams

There are ten temples that are treated as kezhedams of the GuruvayurTemple.

(GuruvayurDevaswom Board)39

1. Narayanamkulangara Devi Temple, Mammiyur, Thrissur

2. Thamarayur Vishnu Temple and Ayyappa temple, Thrissur

3. AnjoorAyyappa Temple, Mundoor, Thrissur

4. Vermannur Siva Temple ,Kunissery, Palakkadu (Dist)

5. ManganchiraSree Krishna Temple, Annakkara, Thrissur

6. KunnamkulamThalakkottukara Siva Temple, Kunnamkulam, Thrissur (Dist)

7. Punnathur Siva- Vishnu temple and Bhagavathy temple, Thrissur

8. KaveedKarthyayani Temple, Thrissur

9. Poonthanam Sri Maha Vishnu Temple, Malappuram

10. Nenmini Balarama and Ayyapa Temple, Thrissur

Comparison of DBs in Kerala

DBs in Kerala have different nature of working. Even nature of functioningof the Boards

differ and methods and supervisory power and control also differ. DBshave only supervisory

power in certain cases while in others there is full control.Guruvayur Temple and its

39
GuruvayurDevaswom Board. (2013). GuruvayurDevaswom Board
Diary2013. Guruvayur.

60
kezhedams are managed by GDB while the other threeBoards manage south, central and

north area temples under them.

Devaswom Board Staff – an Analysis

The efficient functioning of Devaswom Boards are ensured through a teamof staff members.

There is no uniformity in the pattern of staff among DevaswomBoards. Hence it is desirable

to examine the staff pattern among DevaswomBoards.Data regarding nature of staff are

collected by administering pre-testedinterview schedule.

DB staffs of the four basic Devaswom Boards, varies from SpecialDevaswom Commissioner

to Mahouts in certain cases and to Daffedar in othercases. For the study, the staff of

Devaswom Board is classified under four headsnamely Top Officials, Middle Officers,

Lower officials and Supporting staff. SpecialDevswom Commissioner, Devaswom

Commissioner, Commissioner, AssistantCommissioner, Secretary and Administrator are

included under Top Officials.

Middle level Officers consists of Cost and Finance Accounts Officer, Finance andAccounts

Officer, Public Relations Officer, Land Special Officer, Accounts Officer,Assistant

Commissioner Finance (AC-F), Assistant Commisssioner- Bhandharam,Senior

superintendent, Superintendent, Junior superintendent, fair copysuperintendent, Head

Accountant, Head Clerk, Executive engineer, Assistantexecutive engineer, Assistant

Manager, Assistant engineer, Deputy AO, SystemManager and Security Officer . Lower level

staff consists of Confidential Assistant,Selection grade typist, UDC, LDC and Clerks. Gold

smith, Peon, security guard andDefedhar form part of supporting staff. Fifteen staff from each

Devaswom Board hasbeen selected by non probability sampling.

Levels –wise Devaswom Board staff

61
Out of the sixty staff of the four Devaswom Boards, the highest percentageare (50%) middle

level Officers and the least are supporting level. Lower levelOfficers constitute 31.67% of

total Board staff. Only 10 % are top level officials and8.33 % are supporting staff.

Out of middle level officers, the highest percentage (66.67%) belongs toCDB and lowest to

MDB. Top officials are equitably distributed among TDB andMDB with 13.33%. Likewise

top officials percentages are same among GDB andCDB. Lower levels officials are same in

both CDB and TDB. Lower levels officersare more in MDB.

Age

Age is an important determinant of the efficiency and expertise of staff. Thestaff are

categorized under five groups on the basis of age, that is, 20-30, 31-40, 41-50, 51-60 and

above 60.

Majority of the Devaswom Board (43.33%) staff belongs to the age group of41-50. Only

6.67% belong to the age group of above 60 years. They are retired staffof various categories

on deputation or as temporary staff. 28.33% belong to agegroup of 51-60. Only 10% are

under the age group of 20-30. This data reveals thefact that there is no new posting in

Devaswom Boards.53.33% of staff of GDB belongs to age group of 41-50. No staff are there

inthe age group of above 60 in GDB and MDB.

Gender

Devaswom Boards employ both male and female staff.Gender wise analysis reveals that 70%

of the respondents are males. Theratio of female staff is less in GDB. The highest percentage

of female staff (46.67%)can be found in Cochin Devaswom Board. Traditionally, most of the

temple relatedactivities are performed by males. As Devaswom Boards are related with

62
templesand are supposed to supervise and administer the temple affairs, most of

theDevaswom Board staff are males.

Educational Qualification.

Educational qualification affects the quality and potential of staff members.Hence an attempt

has been made to analyse the educational qualification of staff ofDevaswom Board.

Experience

Experienced staff are considered as valuable assets of an organization.Devaswom Boards are

no exception to this. In order to analyse the experience of thestaff of Devaswom Boards,

employees are divided in to four categories, namely, lessthan one year experience, 1-5 years ,

5-10 years and above 10 year.

The highest percentage of employees have (45%) an experience of 1-5 yearsand 11.67 %

have more than 10 years’ of experience. None of the employees inTDB are below one year

and more than 10 years’ experience.

Previous Experience

Since most of the employees have experience outside the Devaswom Boards,they are divided

in to five categories on the basis of previous experience. Analysis reveals that the highest

percentage of employees has 20-30 years ofexperience in other offices. 16.67% have no

previous experience. Among the fiveDevaswom Boards, MDB has the highest percentage

(40%) of employees who haveno previous experience. In GDB and TDB the highest

percentage of employees has20-30 years of experience.

63
Selection of Devaswom Board Staff

Selection and appointment of staff in DBs are generally by Kerala PublicService Commission

or by deputation basis or by Devaswom Boards itself. Someare employed on temporary basis

by employment exchange.

In MDB73.33% are selected by KPSC. Only 8.33% are appointed on deputation basis.

15%got employment under Dying in harness ground. Other category includes those whoare

appointed under special government order. In all Devaswom Boards, exceptMDB, the highest

percentage is selected by Devaswom Boards itself. In MDB,KPSC directly recruited about 73

Percent of the staff.

Pre- service training

Training is essential for effective and efficient working of the staff in anyoffice. Devaswom

Boards are no exception to this. Here an attempt has been madeto analyse the employees of

DBs on the basis of their participation in pre-servicetraining.

In-service training

Not only pre-service training, but the in-service training of employees is alsosignificant.

Recognising this, an effort has been made to categorise the employeeson the basis of in-

service training programmes attended by them.Result of analysis shows that 41.67% of staff

under DBs attended in-servicetraining progamme. The highest percentage of employees

attended in servicetraining belongs to GDB followed by MDB and TDB. CDB provided in-

servicetraining only to 26.67% of employees.

Level of job satisfaction

64
Productivity of employees, to a greater extent depends on job satisfaction.Job satisfaction

depends upon various factors affecting jobs. Job satisfaction isaffected by a number of factors

in the organization. Here job satisfaction ismeasured in 3 point Likert scale.

Analysis shows that nobody has low level of satisfaction. 73.33% indicates high level of

satisfaction . Highest percentage of respondents whoindicates high level of satisfaction

belong to CDB and TDB and lowest to MDB.Discussions with respondents reveal that

majority of staff are staff of earst while HR& CE and the Board is functioning from the

budget allocation of Kerala Governmentbasically. They think that they have no consistency

in DBs.

Pay

The staff of DBs earns return as scale, consolidated pay, daily wages, etc. Ananalysis of the

primary data reveals that 93.33 percentages of the respondents getpayment on the basis of

scale.The result of analysis shows that 11.67% of respondents have a role indecision making

in DBs. This is mainly because only 10% of sample respondentsare from top level. Majority

of the staff, ie., 88.33% do not have any role in thedecision making of the DBs.

Opinion of Devaswom Board Staff regarding Proper Accounting

Temples under the DB are many. This variable is included purposefully tofind the accounting

inefficiencies of temples under the DBs. Accounting oftransactions of temples is a big matter

to be considered urgently. Even income andexpenditure statement are not prepared separately

for temples under CDB. Focusgroup discussion, with the officials reveals that in future,

accounts in detail will beavailable by installing software. The old method of recording and

maintainingtransactions is still in existence.

65
Majority of the staff (53.33%) agreed that they have no opinion about theproper accounting

in the temples under the DBs. 38.33% opines that there is properaccounting. Only 8.33% staff

agreed that there is no proper accounting in thetemples under the DBs. This reveals the fact

that there are many temples under theDevaswom Boards especially TDB, GDB and MDB

which do not maintain accountproperly.

Income and expenditure of Devaswom Boards

Annual financial statements of DBs consist of receipts and payments. Thereis no uniformity

in the statements of receipts and payments among DBs. DB’s worksextend from temples to

schools, colleges, hospitals, hotels, restaurants, etc exceptMDB. As such component wise

analysis is not at all meaningful, an attempt hasbeen made to analyse the total income and

expenditure of Devaswom Boards inKerala.

Income of Devaswom Boards

Income of DBs consists of vazhipadu, investment income, receipts fromland, hotels and

restaurants, schools, colleges, receipts from other institutions,anakotta, gogulam, publication,

etc except MDB. MDB depends on the Budgetedincome / fund from the Government and

division wise earnings from temples that isannuities received.

ANOVA has been used to test whether there is any significant difference inthe income earned

by DBs. Average income of DBs and their SDs are calculated byusing Statistical Software for

comparing the incomes of four basic DBs in Kerala.Average income of all DBs is 166.62

crores. Highest average income is tothe TDB 386.07 crores and the lowest is to MDB Rs

31.43 crores. Analysis ofvariance shows the F value 51.1882 which is greater than the table

value of “F” at0.01 level of significance. So there exists significant difference in the

averageearnings of DBs in Kerala.

66
The ANOVA result shows that there is considerable difference in the DBsearnings.

Therefore, the Research has to be accepted. There exists considerabledifference in the

earnings of DBs under study.

Expenditure of Devaswom Boards

Expenditure of DBs consists of revenue expenditure, temple expenditure,expenditure of

schools, colleges, other institutions, etc except MDB.ANOVA is used to analyse whether

there is significant difference inexpenditure of DBs. Average expenditure of DBs and their

SDs are calculated byusing Statistical Software for comparing the expenditure DBs in Kerala.

CHAPTER - IV

JUDICIAL RESPONSES TO THE MANAGEMENT OF HINDU TEMPLES IN

KERALA

INTRODUCTION

Temples were the centers of Hindu religious life. Their influence on the society has always

been enormous. A temple is conceived to be the representation of God in a cosmic form. It

has occupied the most central place in the Hindu society for centuries. Building temples was

considered to be an extremely pious act, bringing great religious merit. All matters concerned

with temples were performed with religious overtones. Temples were autonomous

institutions, having immense wealth derived through its lands and by way of offering from

devotees. Kings and noblemen always made considerable donations for the benefit of various

temples. However, none of them had ever thought of appropriating the wealth of these richly

endowed holy institutions. Usurpation of the property of temples was thought to be a grave

sin.

67
The rulers of Travancore considered it to be their solemn right and duty to maintain Hindu

religious institutions in good condition. The traditional melkoima vested in them, made them

responsible for this vital matter. But it did not empower them to meddle in the financial

affairs of the Devaswoms. Unfortunately, the whole picture began to change with the advent

of colonial expansionism. The treaty of 1805 brought Travancore under the Subsidiary

Alliance. It stipulated an annual subsidy of eight lakhrupees. This amount had fallen into

arrears. Moreover, the State was asked to bear the entire expenses of the war waged against

the partisans of VeluThampi, in 1808-9.

These demands bore no fruit. In order to ensure the speedy liquidation of all the arrears, the

British had even contemplated the annexation of Travancore.40 Finally, as a consequence of

manifold political conspiracies, the then British Resident, Colonel John Munro took over the

office of the diwan.

The resources of the State Government were limited and it offered no scope for improvement.

Meanwhile, the huge assets of the temples caught the attention of the regime. As a prelude to

their usurpation, allegations of mismanagement and embezzlement were fabricated against

the trustees of temples.2 Munro's order of 1811 led to the assumption of Devaswoms in

Travancore. On the eve of the takeover, the income from immovable property of the latter

was nearly sixteen lakh para of paddy and about 53,000 rupees. In addition, 70,000 para of

paddy and 43,000 rupees were earned through sanchaayam and kanikka, respectively.

Substantial income from cheerikkal lands, whose extent was unascertained, was not taken

into account in the above calculation.41 The thirattu of 1811 mentions the assumption of 348

major and 1123 minor Devaswoms.

40
R.N. Yesudas, Colonel John Munro in Travancore, p.10.
41
K.P. Sankaran Nair, Kerala Devaswom Administrative Reforms Commission Report, p.17.

68
The kariakars were ordered to collect rents and profits from Devaswomproperties within their

jurisdiction. All such collections were credited by them in the Sirkaraccounts and they

eventually merged in the public exchequer. Income from Devaswoms gradually became

absorbed in the general revenues of the State. Most ofThe Settlement Proclamation of 1906

led to the substitution of rents in paddy with that in cash. Though intended for

pandarapattom lands alone, Devaswom lands also came under its sway. As a result, the latter

began to have a reduction in their income. It became a cause of concern for Hindus of

Travancore. This prompted the regime to initiate sensible and meaningful measures for the

betterment of Devaswoms.

In 1907, M.K Ramachandra Rao, a judge of the Travancore High Court, was deputed to

study the vexing problems concerning Devaswoms. His report clearly stated that the

assumption of the temples had proved prejudicial to the interests of those institutions, by

merging their properties in those of the Sirkar. The treatment of Devaswomlands on the same

footing as the Sirkar lands was criticized. He affirmed that the relation of the Government to

the Devaswoms must be deemed to be wholly that of a trustee. His report revealed the virtual

indebtedness of the State to the Devaswoms to the extent of a crore of rupees. It was finally

submitted in 1908.42

In pursuance of the findings of M.K. Ramachandra Rao, the Government undertook vigorous

initiatives. In 1912, attempts were strenuously made to identify Devaswomlands and to

separate their revenue from that of the Sirkar. The attempt at complete identification failed

and no further steps were taken in that direction. However, the Government stated its

intention to regulate the next revenue settlement in regard to Devaswom lands, so as to ensure

full legitimate income to the latter. The fundamental difference between the lands of the

Devaswoms and those of the Sirkar was also diligently noted by the regime.The separation of

42
K. Kuttikrishna Menon, op.cit., p.17.

69
the Devaswoms from the Land Revenue Department was a foregone conclusion. However,

the agitation launched by the Civic Rights League acted as a catalyst, in this regard. These

agitators demanded the exclusion of Devaswoms from the Land Revenue Department, in

order to facilitate the entry of all classes of Travancoreans into the ranks of the latter. A

DevaswomSeparation Committee was constituted, consisting of both Hindus and non-

Hindus.43 The Committee came to the conclusion that by the merger of Devaswom resources

with that of the State, the Government has incurred an obligation to maintain them efficiently

forever. All the members agreed in fixing an absolute obligation on the State to maintain

Devaswoms in efficient condition. The State was persuaded to declare all Devaswom lands as

pandaravaga and to compensate for the loss of revenue to the Devaswoms. There was a

divergence in opinion within the Committee. A dissenting note by a member portrayed the

relation of the State with respect to the Devaswoms, as that of a trustee. On the contrary, the

majority felt that the confiscation and annexation of Devaswom property by the State was an

application of the melkoimainherent in the Maharaja.44

The Devaswom Proclamation of 1922 led to the formation of an independent Devaswom

Department. While apportioning 40% of the State land revenue towards Devaswoms in

proportion to the lands merged with the Government, the enactment allowed the grant of

pattas to holders of Devaswom lands, irrespective of community and creed. The policy laid

down in the Government proceedings dated 25 October, 1912, of separating Devaswom lands

from Sirkar lands and assuring the Devaswomstheir full revenue at the next settlement was

finally abandoned by this Proclamation. In 1946, the 40% prescribed in 1922 was converted

to a fixed amount of Rs.25 lakh.

43
K.K. Kusuman, The Abstention Movement, pp.14-18.
44
K. Ananthanarayana Aiyar, op.cit., p.43.

70
As far as the princely State of Cochin was concerned, when Colonel Munro assumed charge

of the administration, Devaswom property began to be treated as Sirkarproperty. All

Devaswom receipts were merged in the general revenues of the State. Since then, Devaswom

lands in Cochin came to be assessed nearly in the same manner as pandaravaga lands. The

assessment was levied in money at the same commutation rates. On the other hand the

Unincorporated Devaswoms were self supporting and their incomes were not merged with

that of the State. The settlement of Devaswom lands in the same manner as that of Sirkar

lands and the levy of rent at a fixed commutation rate made the income of the Devaswoms

most stationary.

Gradually, the expenditure increased beyond their means. In order to correct the anomalies

involved in Devaswom matters the Cochin Government deputed a Special Officer, to make

suitable investigation in this regard; he submitted his report in 1908.45

A new scheme of Devaswom administration was enforced in September 1909. A

Proclamation was issued in this respect on 11 February, 1910. All Devaswomsunder Sirkar

management both Incorporated and Unincorporated were amalgamated and constituted into a

separate endowment. This involved the restoration of the properties and funds of such

institutions annexed to the Sirkar. The receipts and expenditure of theseDevaswoms were

entirely separated from the general revenues. The Land Revenue Department was relieved of

all Devaswom work except the collection of rent of Incorporated Devaswom properties. Soon

Devaswoms came to be divided into groups. By a Proclamation on 5 September, 1916, the

income from the Incorporated and Unincorporated Devaswoms were constituted into a

common trust fund. The financial distinction between group funds was done away with.46

45
C. Achuta Menon, The Cochin State Manual, pp.421-24.
46
K. Kuttikrishna Menon, op.cit., pp.31-33.

71
With the passage of time, movements for responsible government gathered strength in

Travancore and Cochin. This was a part of the rising tide of popular aspirations throughout

India. The Instrument of Accession and the Standstill Agreement, based on the Indian

Independence Act, led to the Centre taking over the subjects of Defence, Finance and

Communications. The Representative Body Proclamation of Travancore ,on 4 September,

1947, excluded Devaswoms and Hindu Religious Endowments from the ambit of any

legislation. The Devaswom (Amendment) Proclamation of 23 March,1948, provided for the

allotment of Rs. 50 lakh in the State Budget annually, for the Devaswoms Similarly the

Travancore Interim Constitution Act of 24 March, 1948, set aside a sum of Rs. 1 lakh for the

sreepandaravaga. The rulers of Cochin enjoyed complete control of Devaswoms in their

domain. It was kept outside the purview of the legislature. Ministers exercising executive

control over Devaswomswere subject to the control of the Raja.

On 1 July 1949, Travancore and Cochin were integrated to form the United State of

Travancore- Cochin. This was the result of the Covenant entered into by the rulers of both

the States. The Maharaja of Travancore became the Rajpramukh. 47 The United State took

over the obligation of Travancore to make annual contributions of Rs.50 lakh and Rs.1lakh,

to the Devaswom Fund and SreePandaravaga, respectively. The Covenant vested in the

Travancore Devaswom Board, obligations which were hitherto attended by the King of

Travancore for the wellbeing of Hindu Religious Institutions and Endowments. The

administration of SreePadmanabha Swamy Temple and its properties were kept under the

control and supervision of the Ruler of Travancore, who was empowered to appoint an

Executive Officer and a three member committee to advise him in this regard. The

Travancore Devaswom Board was to make an annual contribution of Rs.5 lakh towards the

47
V.P. Menon, The Integration of the Indian States, p.21.

72
expenditure in the SreePadmanabha Swamy Temple. The Devaswoms and Hindu Religious

Institutions under the Ruler of Cochin under Section 50 G of the Government of Cochin Act,

1938, and the provisions of the Cochin Hindu Religious Institution Act, 1906, and all other

properties were handed over to the Cochin Devaswom Board. However, the regulation and

control of rituals and ceremonies in the Temple of SreePoornathrayeesa at Thrippunithura

and in the Bhagavathy Temple of Pazhayannore were to be exercised by the Maharaja of

Cochin. The Devaswom Boards of both Travancore and Cochin came into being as a result of

an Ordinance. Soon, there arose a need for an Act of the Legislature for replacing the

Ordinance. This led to the enactment of the Travancore-Cochin Hindu Religious Institutions

Act.

The Devaswom Boards of Travancore and Cochin were to be corporate bodies having

perpetual succession. Each of them had a common seal with power to hold and acquire

properties for and on behalf of the Hindu religious institutions under its management. They

were empowered to make bye-laws for the conduct of all their proceedings and business.

Both the Devaswom Boards consisted of three Hindu members each. Two of them

represented the Hindus among the Council of Ministers and Legislators of Travancore-

Cochin. A third member was nominated to each Board by the erstwhile rulers of Travancore

and Cochin. Only a permanent resident of the United State, of atleast 35 years of age, was

eligible to be a member of DevaswomBoard. Office holders of the Government or local

authorities, members of Parliament or State Legislature, and convicted criminals were not

eligible for election or nomination as members of a Devaswom Board. Similarly, persons

interested in a subsisting contract for making any supplies to or executing any work on behalf

of any religious institution under the Devaswom Board, were too disqualified.48

48
The Travancore-Cochin Code vol.1, pp.379-422.

73
If a person elected or nominated as a member of a Devaswom Board is declared by a court to

be under in such disability, he ceased to be a member. The Secretary to each Board convened

its meetings and kept the minutes of the proceedings of each meeting. He was to represent the

Board in suits instituted for and against the Board. No suit was to be instituted against a

Devaswom Board, until the expiration of two months after a notice in writing has been

delivered at the office of the Board. The President and members of the Travancore

DevaswomBoard were to receive as their honoraria, Rs.450 and Rs.400, respectively. Their

Cochin counterparts got Rs.300 and Rs.250, respectively.

The Act provided for the interference of the High Court in matters concerning theTravancore

and Cochin Devaswom Boards. Sections 8 and 67 provided for the removal of the members

of the two Boards, on finding them to be unfit under the clauses of sections 7 and 66 of the

aforesaid Act. The District Courts of Trivandrum and Trichur were authorized to issue an

order disqualifying a member of the Devaswom Boards of Travancore and Cochin,

respectively. An appeal against such an order lay to the High Court, to be heard by the

Division Bench. Members of the two Boards were liable to be removed from their office by

the High Court on grounds of proven misbehavior or incapacity. Applications in this regard

were to be made before a single judge, at the first instance. On being convinced of the

presence of a prima-facie case, the petition was to be referred to the Division Bench.

The High Court was authorized to appoint a suitable agency for auditing the accounts of both

the Devaswom Boards, annually. Every auditor appointed under sections 32 and 102, of the

Hindu Religious Institutions Act was deemed to be a public servant within the meaning of the

relevant sections of the Penal Code. The auditor was to send his report to the High Court. On

receipt of the audit report from the apex court of the State, the Travancore and Cochin

Devaswom Boards were duty bound to remedy defects or irregularities pointed out by the

auditor and report the same to the High Court. If either of the Boards or any of its members,

74
were found guilty of misappropriation or willful waste of funds, the High Court was

empowered to pass an order of surcharge against the Board or a particular member. The order

of surcharge executed against a member or members of a Board was to be done as if those

were a personal decree passed against them by the High Court. An order of surcharge under

sections 32 and 105 of the 1950 Act was not to be an obstacle for a suit for accounts against

either of the two Boards or the members concerned in respect of the matter finally dealt with

by such order. For the ensuring transparency, provision was made for the supply of audit

reports to any applicant. All legal proceedings taken on behalf of or against the Devaswom

Boards or Hindu Religious Institutions or Endowments were to be continue for or against

those entities.

Eligibility for election:

In 1954, the High Court considered a very important case in this realm. A petition challenged

the election of Balakrishna Marar (the first respondent) to the Cochin Devaswom Board on

the ground that he was not eligible for election as a member of the Board under section 66(iii)

of the Travancore-Cochin Hindu Religious Institutions Act, 195028. The petitioner

Govindankutty Menon was defeated in the above election. The first and foremost prayer in

the petition was for the issuance of a writ of quo warranto against the first respondent. The

latter was asked to furnish information regarding the authority under which he functioned as a

member of the then Cochin Devaswom Board. Prayer was also made for a declaration from

the High Court, to the effect that the first respondent was not authorized to occupy that office

on grounds of him being not elected legally and properly.

75
Section 66 (iii) of the Hindu Religious Institutions Act had provided that a person could not

be eligible for election if he happened to be an office-holder of a local authority. Balakrishna

Marar was the Chairman of the Trichur Municipality on 4-6-1954, the date of his nomination

and election under the rules in schedule II to the Act and till 12-61954, when his resignation

by the letter dated 5-6-1954, was accepted by the Municipality. The term "local authority"

was defined by section 2(20) of the TravancoreCochin Interpretation and General Clauses

Act29, in the following words-"A Municipal Corporation or Council a Town Council, or

other authority legally entitled to or entrusted by the Government with the control or

management of a Municipality, constituted under the Cochin Municipal Act, 1938, was a

local authority whose 'office – holders' were disqualified for membership of the Board under

section 66(iii) of the Hindu Religious Institutions Act 1950.

The first respondent contended that the term "office holder" in section 66(iii) of the Hindu

Religious Institutions Act meant only an 'officer', and that the Chairman was not an officer of

a Municipality under the Cochin Municipal Act30. Even the term "officeholder" in section

66(iii) of the Hindu Religious Institutions Act had to be resolved with reference to the

provisions of that Act itself. Section 87(i) of the said Act referred not merely to office-

holders but also officers and servants. After a deep examination of various sections of the

above Act, the Bench opined that while the words „officers‟ and „servants‟ were created as

interchangeable or as denoting two gradations in the official hierarchy, the word "office-

holder", was kept distinct and separate by the legislature as denoting its superior status, as

being quite different from an employee serving under a contract of employment.

The first respondent further contended that nothing should be termed an "office" unless there

was a remuneration attached to it. The Court was told that the Chairmanship of the Trichur

Municipality carried no remuneration but only a conveyance allowance, resulting in it being

outside the purview of the Hindu Religious Institutions Act, 1950. But, the High Court

76
negated this contention and held that the only fact which needed to be known was whether

the particular office was the creature of a statute. The conditions under which an office

should satisfy for information in the nature of a quo warranto to lie were as follows: -

(i) it must have been created by charter or statute

(ii) its duties are of a public nature,

(iii) it must be substantive in character or independent in title, whether permanent or at

pleasure and not merely that of a deputy or servant functioning at the will and pleasure of

others.

On the basis of section 70(1) of the Hindu Religious Institutions Act, the first

respondentfurther contended that even if he was found to be an office holder of a local

authority and thus within the mischief of section 66(iii) of the above Act, the disqualification

could operate only if it was present on the date he assumed office as a member of the Cochin

Devaswam Board. Balakrishna Marar's resignation was accepted by the Trichur Municipality

on 12-6-1954 and he had assumed office as a member of the Devaswam Board only on 15-6-

1954. Therefore it was claimed that the disqualifications was removed nearly three days

before his joining the Board. Disagreeing with the above contention, the High Court opined

that, the crucial date under the Act was not the date on which the first respondent assumed

office as a member of the Board but the date of his nomination and election under the rules in

Schedule II to the Hindu Religious Institutions Act 1950.49

Section 63 of the above Act had provided for electing one of the three members of the

Cochin Devaswam Board by the Hindu members of the Legislative Assembly of the United

State of Travancore-Cochin. Section 64 of the same Act read as follows: - "A meeting of the

Hindus among the members of the Legislative Assembly of the State of Travancore-Cochin
49
1954 KLT.723

77
shall be summoned under the authority of His Highness the Rajpramukh by any person

authorized in this belief by the Rajpramukh to meet at such time and place and on such date

may be fixed by him in his behalf for the election of a member to the Board. The election

shall be held in accordance with the rules specified in Schedule II by the person

commissioned by the Rajpramukh to preside over the meeting".

The second respondent was the person commissioned by the Rajpramukh to preside over the

meeting at which Balakrishna Marar (first respondent) was elected as a member of the

Cochin Devaswam Board by the Hindus among the members of the Legislative Assembly of

the United State of Travancore-Cochin. Balakrishna Marar was nominated in accordance

with the provisions of rules of Schedule II on 4-6-1954.

The petitioner, Govindankutty Menon who was the only other candidate, so nominated,

secured only a lesser number of votes. As a result the first respondent was declared elected on

the very same day by the second respondent according to rule 7 of the Schedule II. The said

Provision read as follows:- "Where only two candidates are nominated for election as the

member to the Board the candidate who obtains at the ballot the larger number of votes shall

be declared elected by the Chairman".

The High Court stressed on the need to resolve the case by a proper construction of various

sections of the Hindu Religious Institutions Act 1950. Another remedy was told to be in the

hands of the Rajpramukh who could ensure the elections were held only subsequent to the

arising of the vacancy by the efflux of four years from the date of the prior election. The

Legislature was advised by the Court to introduce suitable amendments to the 1950 Act, in

this respect. Attention was drawn to the provisions of section 70(3) of the Act which read as

follows- "A member of the Board shall on the expiration of his term of office continue in

78
office until the vacancy caused by the expiration of his term of office is filled up".

Meanwhile, the High Court asserted that the plain mandate of the statute was that the material

date for appraising the existence or otherwise of a disqualification was the date of election

itself.

Another contention of the first respondent was based on Section 67(4) of the Hindu

Religious Institutions Act, 1950. It read as follows: - "Until an application has been made

under sub-section (2) and final orders are passed thereon, the member who is alleged to be

subject to the disabilities stated in clauses (i), (ii), (iii), (iv), (v) and (vi) of Section 66 shall be

entitled to act as if he were not disqualified".

According to the first respondent the above provision was an effective answer to the petition

itself which was under Article 226 of the Constitution. Subsection (1) (2) and

(3) of the above section of the 1950 Act read as follows:- (1) If a person elected or nominated

as a member of the Board is or subsequently becomes subject to any of the disabilities stated

in clauses (i) (ii), (iv) and (v) of section 66 and is declared by a court to be under such

disability as hereinafter provided or becomes subject to the disability mentioned in clause (iii)

of (v) of section 66, or ceases to profess the Hindu religion, he shall cease to be a member.

(2) Any person interested may apply to the District Court Trichur for an order that a member

of the Board has become subject to any of the disabilities stated in clauses (i) (ii) (iii) (iv) and

(vi) of section 66 and the court may after making such enquiry as it deems fit by order

determine whether or not such member is disqualified. (3) An appeal shall be to the High

Court against an order under sub section(2) and such appeal shall be heard and disposed of by

a Division Bench".

After examining the relevant sub-section (i), the High Court opined that the use of the word

"becomes" was explicitly indicative of the fact that the said sub-section was not pertaining to

79
a disqualification under section 66(iii) which existed at the time of the election but which

arose later. The marginal heading of section 65, section 66 and section 67, were

"Qualification for membership in the Board", "Disqualification for membership in the

Board", and "Supervening disqualification", respectively. The Bench considered these

marginal headings to be proper descriptions of the ambit of the above three sections.

Unlike sub-section (1), sub-section (2) did not provide for the obtaining of the declaration in

those cases where disqualifications existed at the time of the election, but merely confined the

declaration possible to those cases where those disabilities arose subsequent to the election.

The Court also noted that the disqualification enumerated in sub-section (v) of section 66

(conviction by a criminal court of any offence involving moral turpitude) had been totally

omitted from sub-section (2). The very same disqualification was found to be present in

section 8 (2) of the Hindu Religious Institutions Act 1950, which dealt with the Travancore

Devaswom Board. The Bench opined that section 67 had nothing to do with the

disqualification enumerated in section 66(iii), if it had existed at the time of the election

itself.

Finally, the election of the first respondent, Balakrishna Marar was declared void on the

ground that he was disqualified at the crucial date, the date of his nomination and election on

4-6-1954, as he was the then Chairman of Trichur Municipality. This was the consequence of

him being an office-holder of a local authority, within the meaning of subsection (iii) of

section 66 of the Hindu Religious Institutions Act, 1950. However, the second prayer in the

petition, which was for the High Court to declare the petitioner Govindan Kutty Menon as the

properly authorized person to fill in the office of the member of the Cochin Devaswam Board

was not accepted. In this regard, the Court opined that in cases where the returned candidate

was found wanting in a qualification, and if the voters were ignorant of this deficiency, then

the candidate next on poll was not entitled to be seated and that there would merely be a fresh

80
election. The case was decided by Justices, SubramoniaIyer and M.S. Menon, on 7

September, 1954.

On ownership:

The dispute over the ownership of a temple was decided by the High Court on 10 December,

1961. SreeBhoothapuramKottale Temple, situated in Paralam Village, in Trichur was owned

by the Venmaniillom. One GovindaKaimal was the karyastha of the temple under the illom,

till his death. Later, there were disputes which led to civil and criminal cases between the

Venmaniillom and the relations of GovindaKaimal. At the instance of Kunju Kaimal and

Raman Nair, who were sons-in-law of GovindaKaimal, a petition dated 17 August 1951, was

submitted to the Cochin Devaswom Board for taking over the management of the temple and

properties. The Board raised the contention that the temple did not belong to the

Venmaniillom and that the latter was only a trustee of the shrine. The temple was told to have

been used as a place of public worship by the Hindus of the locality. The District judge of

Trichur, accepted the contentions of the Cochin Devaswom Board and dismissed the suit

instituted against the latter by KunhunniNambudiripad, who was the then karanavan of the

Venmaniillom. Soon, the plaintiff went on for appeal before the Kerala High Court, against

the above decree.50

The two pertinent questions considered by the High Court were, whether the said temple was

owned by the appellant's illom and whether it was dedicated to or used as of right by the

Hindu Community as a place of religious worship. Differing from the decision of the District

Judge, Justice Velu Pillai opined that the temple was owned by the appellant's illom. This

realization was based on various documentary evidences. A receipt for rent in favour of the

illom had described the properties as belonging to that household itself. Two other

documents, which were counterparts of demises of the year 1077 M.E (1901-02) and 1088
50
1964 KLT.1034

81
M.E (1912-13), contained a similar description. The agreement for management of the

temple, which the appellant's illom had given to GovindaKaimal, in1944, did describe the

temple as 'our……. Devaswom‟. Documents of the year 1945, too contained a similar

description. There was a receipt executed by the heirs of GovindaKaimal (his two daughters)

in favour of the appellant's illom under which they gave up all documents in their possession

to the illom. An account book that was maintained by GovindaKaimal clearly had referred to

the temple as belonging to the illom. The High Court laid stress on documents, especially

those of the years 1879, 1902 and 1903, which pointed to only a single conclusion that the

temple was owned and not merely managed by the illom. The illom was nowhere mentioned

as an uralee or trustee. Terming the District judge's assertion that the origin of the was lost in

antiquity, as being an improper one, Justice Velu Pillai opined that the issue was not how or

when the temple was constructed but was as to its ownership.

The witnesses who swore that some of the villagers used to worship at the temple, were in

some way or other, concerned in the litigations and disputes which arose after the death of

GovindaKaimal. There was nothing in the oral evidence adduced by the respondent to alter

the inference that the temple was owned by the appellant's illom. There was no evidence to

indicate any dedications of the temple for the benefit of the public. The High Court opined

that even if worshippers have attended or they used to attend the temples and were not turned

out by the illom, no presumption could be made that such worship or user was of right, once

the temple was proved to be belonging to the illom. It was told that once the private character

of the temple was proved, its use by the public could not be presumed to be as of right. The

High Court also declared that the facts such as the temple's location nearly 30 miles away

from the seat of the illom, the existence of a lane formerly and a public road now, by the side

of the temple compound, and the presentation of a lamp-post to the temple by a stranger,

were by themselves insufficient to deprive the illom of its ownership of the temple. After a

82
thorough examination of all aspects of the case, the court concluded that the

SreeBhoothapuram temple was a private temple of the appellant

KunhunniNambudiripad'sillom and that it had not been dedicated to or used as a place of

Public worship as of right by the Hindu Community. Accordingly, the order of the Cochin

Devaswom Board declaring the temple to be on 'institution' was set aside and the suit decreed

with costs against the Board.38 The case was decided by Justice S. Velu Pillai.

Transparency and Accountability:

Justices, K.S. Paripoornan and K.A. Nayar had together decided two notable cases

concerning the Hindu religious institutions. One such case was about the lack of transparency

in the Travancore Devaswom Board. The Examiner of Local Fund Accounts had submitted a

special report which related to the audit of special funds of the Travancore Devaswom Board.

It was pertaining to the Sabarimala Improvement Fund, for the period from 17-11-1967 to 31-

3-1976. The above audit was done in response to the orders of the High Court dated 4-1-

1975. On 27-3-1987, the Division Bench passed an orders after examining the Audit Report,

especially paragraphs 20 to 23. It dealt with the sale of Sabarimala Improvement Fund

Tickets, Ayyappa Jyothi Tickets and Deepa Dakshina Tickets. While the first of the above

were printed directly by the Devaswom Board, the rest were printed by the Sabarimala

Amenties Implementation Fund Committee. The Bench observed that a sum of Rs 7,

25,830.47 was due from several persons to whom tickets were issued. In its earlier orders

dated 29-8-1979 and 19-12-1979, the High Court had directed the Devaswom Board to

submit report on the action taken by the latter for recovering the said amount. The then

Advocate General had opined that legal action was barred by limitation. Unveiling the above

facts, the Division Bench ordered the issuance of show cause notices to the members of the

Devaswom Board as well as the Sabarimala Amenities Implementation Fund Committee, to

83
show cause why the amount should not be surcharged against them. The Board was asked to

furnish the names and addresses of such of these persons who were alive.51

Notices were issued to M.K.K. Nayar, Swami Athuradas, PrakkulamBhasi, V.

HariharaSubramony, P.K. Chandranandan, T.V.V. Pathy, P.R. Rama Varma Raja, and M.C.

Menon. The above individuals were directed to show cause why the amount involved in the

distribution of 8322 pictures of Lord Ayyappa and a sum of Rs. 7,25,830.47, which was due

from persons to whom Sabarimala Improvement Fund (SIF) tickets were issued, should not

be surcharged from them. Out of the eight persons to whom notices were issued, M.K.K.

Nayar and M.C. Menon had already passed away. Except PrakkulamBhasi, V.

HariharaSubramony and P.K. Chandranandan, who were the President and members of the

Travancore Devaswom Board, the rest were merely members of a committee formed in

connection with the Sabarimala Improvement Fund. Objections were filed on behalf of the

above persons. The Board too, filed a statement before the High Court.

The said notice issued by the Court on 27-3-1987 was in accordance with the section 32 of

the Hindu Religious Institutions Act, 195052. The above section read as follows- Audit:-

(1) The Board shall keep regular accounts of all receipts and disbursements in respect of the

institutions under its administration.

(2) The accounts of the Board shall be audited annually.

(3) The audit shall be made by auditors appointed by the High Court.

(4) Every auditor appointed under this section shall be deemed to be a public servant within

the meaning of section 15 of the Travancore Penal Code.

51
1990(1) KLT.349
52
The Travancore-Cochin Code, Vol.1, pp.377-422.

84
(5) After completing the audit for any year or for any shorter period or any transaction or

series of transactions, as the case may be, the auditors shall send a report to the High Court.

(6) The auditor shall specify in his report all cases of irregular, illegal or improper

expenditure, of failure to recover moneys or other property due to the Board or to the

institutions under their management or loss or waste of money or other property thereof

caused by neglect or misconduct.

(7) The auditor shall also report on any other matter relating to the accounts as may be

prescribed or on which the High Court may require him to report.

(8) The High Court shall send to the Board a copy of every Audit Report and it shall be the

duty of the Board to remedy any defects or irregularities pointed out by the auditor and report

the same to the High Court.

(9) If, on a consideration of the report of the auditor or otherwise the High Court thinks that

the Board or any member thereof was guilty of misappropriation or willful waste of the funds

of the institutions or of gross neglect resulting in a loss to the institutions under the

management of the Board, the High Court may, after giving notice to the Board or the

member as the case may be to show cause why an order of surcharge against the Board or the

member , and after considerating the explanation, if any, pass an order as surcharge against

the Board or the member as the case may be.

(10) The order of surcharge may be executed against the member or members concerned of

the Board as if it were a personal decree passed against them by the High Court.

(11) An order of surcharge under this section shall not bar a suit for accounts against the

Board or the member concerned except in respect of the matter finally dealt with by such

order.

85
(12) A copy of the Audit Report shall be supplied to any person who duly applies for the

same.

Section 32(9) of the Hindu Religious Institutions Act 1950, had empowered the High Court

to pass an order of surcharge only against the Board or its members. This contention was

fully accepted by the Bench. As a result the proceedings against some were dropped as they

were only members of the Sabarimala Improvement Fund Committee which was an ad hoc

body. The Court found it unable to proceed against them on the basis of section 32(9) of the

1950 Act.53

The President and members of the Travancore Devaswom Board at the relevant time were

PrakulamBhasi, V. HariharaSubramaony and P.K. Chandranandan. They were represented by

counsels, Mr. Babu, K.S. Rajamony and Siri Jagan. They highlighted the fact that the various

aspects which formed the basis of the said legal proceedings had taken place more than two

decades ago. The adverse state of health of the former President and members of the Board,

referred to and others concerned with the case, was brought to the attention of the High

Court. However, it was also asserted on behalf of the above parties that they had only worked

for the development of Sabarimala. The High Court took serious note of the lapse of 22 years

which had become an impediment in the way of a satisfactory and effecting adjudication. At

this juncture, the Court threw light on the need to have the audit report submitted at the end

of each year. It was observed that the provisions of the 1950 Act were insufficient to saddle

liability on persons who deal with the funds of the Board or on behalf of it. The loose

provisions in the said Act were told to have made the audit a meaningless ritual. The Court

drew the attention of the Government towards the need to have effective statutory provisions,

in this regard.

53
1990(1) KLT.349

86
During the sixties, the inflow of pilgrims to Sabarimala increased substantially. In order to

provide the necessary amenities for the pilgrims, the Travancore Devaswom Board held

informal discussions with the AyyappaSevaSangham and other organizations dedicated to

render service to the pilgrims. As a result, a Sabarimala Development Committee was

constituted. The then members of the Devaswom Board, the Devaswom Commissioner, the

Works Engineers of the Board and 150 representatives hailing from different parts of Kerala

and outside the State, attended the meeting. It was held on 23-10-1967 at the Sri Chitra

Central Hindu Religious Library at Thiruvananthapuram. M.K.K. Nayar was the organizing

Chairman and one P. Sadasivan Pillai functioned as the Chairman of the Implementation

Committee. The then President and members of the Travancore Devaswom Board took part

in various deliberations and thus showed active interest. Subsequent meetings of the

Sabarimala Development Committee took place in various dates. On many occasions,

M.K.K. Nayar presided over such meetings. The participation of the President and members

of the Devaswom Board was seen in all those meetings. Soon, an Executive Committee was

formed with M.K.K. Nayar as its Chairman. The President and members of the Devaswom

Board were the members of the above Executive Committee. The Secretary of the Board

functioned as the ex-officio Chairman of the Committee.

The collection of funds was made by the Sabarimala Amenties Implementation Committee.

P. Sadasivan Pillai was its Chairman, and in that capacity he appointed many organizers

within and outside Kerala. Tickets were printed by the Board for the collection of funds. The

President and members of the Board, including its Secretary and the Works Engineer were

participants in the deliberations which took place from time to time. As such they were fully

aware of the developments in this respect. The funds collected by the Sabarimala

Development Committee were entrusted to the Travancore Devaswom Board for the

utilization of that amount for the developmental works at Sabarimala.

87
The accounts of the said committee were kept separately. They were told to be not part of the

Devaswom funds. It was argued on behalf the President and Members of the Devaswom

Board that the proceeding initiated under section 32 of the Hindu Religious Institutions Act,

1950 was ill-conceived as the funds dealt with were neither Devaswom funds nor those

belonging to the institution under the management of the Board, as envisaged by section 25

of the 1950 Act. It was told that the committee for the Sabarimala Improvement Fund was not

composed of the President and Members of the Devaswom Board alone. It was an ad hoc

committee formed by the pilgrims and leading public figures. It was further stated that the

mere presence of the President and Members of the Board in the deliberations of the

Committee could not in any way render the funds of the latter as one belonging to the

Devaswom Board or any institution under its management. It was argued that the President

and members of the Board could not be proceeded against under Section 32 of the 1950 Act

for misappropriation of non-accounting of the funds collected by an ad hoc committee.

In this regard, the High Court drew the attention of all to the provisions of section 25 of the

Travancore-Cochin Hindu Religious Institutions Act 1950. The said section read as follows.

"DevaswomFund:- (a) The Devaswom Fund constituted for the Devaswom mentioned in

Schedule I shall consist of

(1) the sum of fifty one lakhs of rupees mentioned in Article 238(10)(ii) of the Constitution of

India as payable to the Devaswom Fund;

(2) the money realized from time to time by the sale of movable properties belonging to the

said Devaswom;

(3) all voluntary contributions and offerings made by devotees.

88
(4) profits and interest received from investments of funds belonging to the said Devaswoms

and

(5) all other money belonging to or other income received by the said Devaswoms.

(b) Out of the sum of fifty one lakhs of rupees mentioned in clause (1) of the proceeding

subsection, an annual contribution of six lakhs of rupees shall be made by the Board towards

the expenditure in the SreePadmanabhaswami temple".

The Travancore-Cochin Hindu Religious Institutions Act, 1950 had the following preamble:-

"WHEREAS it is necessary to make provision for the administration, supervision and control

of incorporated and un incorporated Devaswom and of other Hindu Religious Endowments

and Funds".

The Bench observed that all collections made in any manner including all offering and

contributions were to form part of Devaswom Funds. However, they added that the liability

of the Board or its members or officers would depend upon the facts and circumstances of

each case, in the light of section 32 of the 1950 Act. The Board was told to have a duty to

oversee such collections and to take appropriate steps to ensure the proper utilization and

accounting of such funds. The Court told the members of the Board that the latter could not

plead for protection from proceeding under section 32(9) of the 1950 Act. Highlighting the

fact that the President and members of the Board were the members of the committee which

had collected the funds, the Court held them accountable and responsible. It was also

observed that the collection was made in connection with an institution under the

management of the Board. By quoting section 25, the Court observed that all voluntary

contributions and offerings made in connection with an institution under the management of

89
the Board would constitute the Devaswom Fund. The President and members of the Board

were told to be trustees of the said funds. The High Court held that the Board and its

members could not escape from their accountability regarding the wastage of funds relating

to the Sabarimala Improvement Fund. The Court pronounced them liable to be proceeded

against under Section 32(9) of the 1950 Act, for acts of omissions or commission specified by

section 32(9) of the Act. The Court sought to fix statutory liability on the member of the

Board. The various activities and collections pertaining to the Sabarimala Improvement Fund

had taken place over twenty years ago. This delay was considered by the Court, to be a

serious lapse. The Bench also observed that the funds collected were utilized for the

projects envisaged by the Committee which had improved the facilities for the pilgrims

at Sabarimala. This was told to have augmented the recurring income of the great shrine.

The Audit Report had shown that a sum of Rs.7, 25,830 was due from several persons, to

whom tickets were issued. No steps were taken to collect the amount Tickets were entrusted

to the members of the Implementation Committee. The persons who were having an overall

supervision of the whole matter were men of stature who volunteered to collect funds with a

philanthropic motive. The Court refused to believe that such individuals had worked

dishonestly. It was observed that the committee as well as M.K.K. Nayar and others, had

voiced their concern in some members not having rendered detailed accounts or in not having

remitted the amounts that could have been collected and for not having returned the unsold

tickets and such. The High Court however admitted that it had no evidence to show that the

President and members of the Board had willfully shut their eyes to any act

ofmisappropriation. Section 32(9) of the Act was told to have referred to intentional acts of

commission, and not accidental ones.

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 Finally, on 25 July, 1989, the High Court held that the President and members of the Board

could not be surcharged on account of lapses told in the Audit report. At the same time, the

Bench reminded these office bearers of their public accountability, and the need to submit

audit report, periodically. The authorities were reminded of the need to enact appropriate

legislation in order to earn the confidence of the Public in institutions such as the Devaswom

Board.

The question of religious belief:

On another occasion, Justices, K.S. Paripoornan and K.A. Nayar decided a different case

which the question of religious belief of the persons elected to the Devaswom Boards was

raised. In 1989 when vacancies arose in the Travancore and Cochin Devaswom Boards, K.K.

SankaraGanakan, who was formerly a District Judge, acted as the authorized person under

sections 5 and 64 of the Travancore-Cochin Hindu Religious Institutions Act 1950 and issued

a notice dated 13-6-89 to all Hindu Legislators of the State of Kerala. The latter were thereby

asked to attend a meeting on 6-7-89 at the Durbar Hall of the Government Secretariat at

Thiruvananthapuram. The purpose of the above meeting was to elect a member each to the

Travancore and Cochin Devaswom Boards. It was stated that the election would be held

according to the following Rule-"3(b) The person nominated shall affix his signature to the

nomination paper before it is delivered to the Chairman, stating that he believes in God and

professes the Hindu Religion and believes in temple worship and that he is willing to serve as

a member of the Board, it elected".

It was later told that Rule (b) as extracted above was a mistake crept in because the Rules

amended by Ordinance No.86 of 198454 were wrongly adapted. The amendment had not

taken effect as the ordinance had lapsed. As a result the mistake was rectified by a circular

dated 28-6-1989. This led to persons submitting nomination papers not having to declare his
54
The Acts and Ordinances of Kerala, 1984, pp.813-18.

91
belief in God and temple worship. Section 6 of the 1950 Act had only provided for such

persons to be permanent residents of the Travancore-Cochin region, having attained 35 years

of age and professing Hindu religion.

Hence, the correct Rule 3(b) read as follows-3(b) Any Hindu member of the Legislative

Assembly of the State of Kerala may nominate to duly qualified person who is not subject to

any disqualification for election as the member of the Board by delivering to the Chairman

between the hours fixed by the Chairman for the receipt of nomination papers a nomination

paper signed by the propose and another Hindu member of the Legislative Assembly of the

State of Kerala as seconder and staffing the name of the person nominated. The person

nominated shall affix his signature to the nomination paper before it is delivered to the

Chairman stating that he is willing to serve as a member of the Board if elected".

On 15-4-1989, Muraleedharan Nair (petitioner) sent a memorandum to the Governor of

Kerala requesting the latter to permit only those Hindu legislators who give declaration that

they believe in God and temple worship to participate in the process of electing a member to

the Devaswom Board. The memorandum further stated that the term "Hindu Members"

meant only those persons who professed Hindu religion and believing in God and temple

worship. Apprehending that non-believers might be permitted to participate in the election,

the Governor was requested to fill up the membership in the Travancore Devaswom Board

which had fallen vacant due to the expiry of the term of the outgoing member of the Board,

Saraswathi Kunjukrishnan. The authorized representative commissioned by the Governor for

the conduct of the election, was requested to be given necessary directions in its regard.

However, this request did not materialize. Hence, the petitioner filed an Original Petition

praying to quash the notice issued to Hindu Legislators which had allowed them to participate

92
in the said election, without giving a declaration that they had belief in God and Temple

worship.55

When the above Original petition came up for admission on 5-7-1989, the High Court

allowed the proposed election to the Devaswom Boards of Travancore and Cochin by the

members of the Kerala State Legislative Assembly, to go on as scheduled on 6-71989.

However, it was directed that the elected candidates could not take charge until the issuance

of further orders by the Court. The said election was held as scheduled. V. Akhileswaran and

K.G. Venugopal were elected to the Travancore and Cochin Devaswom Boards, respectively.

Originally, the petitioner had challenged the election to both the Devaswom Board of

Travancore and Cochin. However, in the light of the fact that the member to the Cochin

Devaswom Board was elected unopposed, the argument was confined selectively to the

Travancore Devaswom Board. The argument on behalf of the petitioner was that the

legislative intent behind the Travancore-Cochin Hindu Religious Institutions Act, 1950 was

to confer the right to vote and stand for election for election for membership of the Board to

only those Hindus who believed in God and temple worship. It was contended that if the term

'Hindu' occurring in the 1950 Act was interpreted as any person being a Hindu by birth

irrespective of any belief in God and Temple worship then the very purpose of the Act would

be defeated. In this context, attention of the Court was drawn towards the Travancore -Cochin

Hindu Religious Institutions (Amendment) Ordinance, 1984. The purport of the said

Ordinance was to define Hindu as person who believed in God and Temple worship and

Hindu religion. Unfortunately, the Ordinance lapsed and it was not substituted by an

Amending Act. The petitioner opined that any other interpretation to the term Hindu was

liable to violate the guarantee provided under Articles 25 and 26, of the Constitution. It was
55
1990(1) KLT.874

93
further contended that a large number of members of the then ruling party, CPI(M), who

happened to be Hindu by birth, did not believe in God or Temple worship, and that the

administration of temples should not be entrusted to a Board elected by them. The very same

argument was applied in the matter of the nomination made by the Hindus among the Council

of Ministers. The petitioner expressed his fear that nonbelievers would destroy the temples

and such religious institutions.

Contrary to the above view, the respondents submitted that the duties and functions of the

Devaswom Board were purely administrative in character and that religious aspects were

decided by the thantris. Harping on the point that the 1950 Act was not intended to meddle

with religious matters, it was claimed that belief in God and temple worship, were not

essential for a person to be a member of the Devaswom Board. Turning to the pages of

history, the Advocate General reminded the Court that an amendment defining the term

'Hindu' intended to exclude those who do not believe in temple worship, was once introduced

in the Legislature of the erstwhile United State of Travancore-Cochin. The above amendment

was put to vote and defeated by a huge majority. The Kerala State Legislature had also made

an attempt in 1984, to define the term Hindu. However, it too did not fructify into an Act of

legislature.

The High Court examined same of the provisions of the Hindu Religious Institutions Act,

1950. The preamble of the Act read as follows- "WHEREAS it is necessary to make

provision for the administration, supervision and control of incorporated and unincorporated

Devaswom and of other Hindu Religious Endowments and Funds". Section 2(b) had defined

Hindu Religious Endowment, in the following words:-

"(i) every Hindu temple or shrine or other religious Endowment, dedicated to, or used as of

right by the Hindu community or any section thereof; and

94
(ii) every other Hindu endowment or function, by whatever local designation, known and

property, endowments and offerings connected therewith, whether applied wholly to religious

purposes or partly to religious and partly to charitable or other purposes and every express or

constructive trust by which property or money is vested in the hands of any person or persons

by virtue of hereditary succession or otherwise for such purposes".

Section.3 provided for the vesting of the administration of incorporated and unincorporated

Devaswoms and of Hindu Religious Endowments, including their properties and funds in the

Devaswom Board. Section 4 dealt with the composition of the Board while section 5

pertained to the procedure for the election of the members of the Board. Section 6 explicitly

stated that a person shall not be qualified for nomination or election as a member, unless he

professes the Hindu Religion. The High Court observed that only those who had faith in God

and Temple worship were to be meant by the term 'Hindu' in the 1950 Act. The Court stated

that only such persons could be aware of the efficacy, necessity and importance of Temple

worship.

An important contention which rose before the Court was that any persons professing Hindu

religion were not necessarily believers in Temple worship and rituals. However the Bench

opined that if the purpose of section 4 and 6 of the 1950 Act was only to see that Board

consisted of Hindus merely professing Hindu religion, then, the exclusion of non-Hindus

among the Ministers and Legislators from participation in the election process to the Board

would not have been there. It was observed that the qualification to be a member of the

Devaswom Board and to be a member of the Electoral College was intended to be one and

the same, namely, faith in God and Temple worship. After examining the constitutional

powers and duties of the Board, the High Court opined that if the administration of the Board

falls in the hands of nonbelievers, the result would be disastrous. While considering various

interpretations given to the word 'Hindu', the Court declared that in the normal practical and

95
meaningful sense, idol worship could be regarded as the core of the prevalent Hindu religion

and that it was too late to be questioned. Attention was drawn to the fact that the erstwhile

ruler of Travancore, who was a devout Hindu, ruled the State as the servant of the presiding

deity of SreePadmanabhaswami Temple. Moreover all the Devaswom properties were vested

in the Ruler not by way of confiscation but as a trustee for its proper and efficient

management. Temples were told to have flourished because of the unabated faith and will of

the denomination which comprised the Hindus who had faith in God and Temple worship.

Finally, the High Court declared that only those Hindus who believed in God Temples could

get nominated or vote at the election to elect the members of the Devaswom Board. As a

result, the election conducted to the Travancore Devaswom Board was quashed and

directions were issued, on 10 April, 1990, to the respondents to conduct fresh elections.

Priesthood and caste:

In 1995, the Kerala High Court delivered a significant verdict concerning priesthood in

temples. The Kongorpilly Siva Temple at Alangad village in Ernakulam District was

administered by the Travancore Devaswom Board. On 6-8-1993, one K.S. Rajesh, a non-

Brahmin, was appointed as the Santhikaran (Poojari) of the above temple in the vacancy of

one MohananPootti. On 8-10-1993, a letter was sent by the Assistant Commissioner of the

Devaswom Board to a subordinate officer of the locality informing the latter about the new

appointment.

Adithayan, a Malayala Brahmin objected to the appointment of a non-Brahmin as the

santhikaran of the said temple. He brought the issue before the High Court of Kerala by

96
invoking Article 226 of the Constitution65. It was claimed that the appointment of a person

who was not a Malayala Brahmin as poojari of a temple was opposed to the recognized usage

followed. The petitioner contended that none other than a Malayala Brahmin had conducted

poojas in the said temple and that it had become a recognized usage. The case was confined

to the Siva Temple in question and the counsel for the petitioner did not press for the

application of the usage to the other temples in Kerala.

Quoting sections 24 and 31 of the 1950 Act, it was told that the Devaswom Board was duty

bound to follow the aforesaid usage prevalent at that place. The petitioner further contended

that his fundamental right as enshrined in Articles 25 and 26 of the Constitution was in

danger if he was unable to offer worship in accordance with the recognized practice. The

prayer in the petition was for questioning the said appointment.

The above Original Petition was found to be one of public importance. Hence the single

judge who admitted the petition referred it to a Division Bench. However, the single judge

himself stayed the operation of the order appointing K.S. Rajesh as the santhikkaran of the

Siva Temple. The Division Bench which considered the matter referred it to a Full Bench.

The contentions of the petitioner were repudiated by the Travancore Devaswom Board

through the affidavit sworn to by its secretary. The Sree Narayana Dharma ParipalanaYogam

was also allowed to be impleaded as a party for it had came forward to defend the decision of

the DevaswomBoardElaborating its stand, the Board threw light on the existence of two

categories of poojaries. The karaanmasanthikars held office on the basis of hereditary rights

while, the non-karaanmasanthikars were appointed on the basis of selection made by the

Board after interviewing the candidates. A panel comprising the President and members of

the Devaswom Board, the Devaswom Commissioner and a competent thanthri, was the body

designated to interview the candidates. The Board unequivocally asserted that there was

never an insistence on the santhikaran to be a Brahmin. On the contrary, it was revealed that

97
candidates, irrespective of their caste had been appointed as priests in various temples. As

early 1969, the Devaswom Board had approved a programme for training santhikars under

the direction of Swami Vyomakesananda who was the then President of Ramakrishna

Ashramam. In the beginning ten Hindu students irrespective of their caste were selected for

imparting training as santhikars. Successive batches began to have eleven trainees. On their

completion of the course, the trainees were subjected to a ceremony of upanayanaminorder to

enable them wear the "sacred thread". To substantiate its contention the Devaswom Board

submitted details of non-Brahmins who were appointed as santhikars during the previous

decade.The High Court analysed the appointment of K.S. Rajesh in the light of sections 24

and 31 of the Hindu Religious Institutions Act 1950.

Section 24 read as follows:-

" The Board shall, out of the Devaswom Fund constituted under section maintain the

Devaswoms mentioned in schedule I, keep in a state of good repair the temple buildings, and

other appurtenances thereto, administer the said Devaswoms in accordance with recognized

usages, make contribution to other Devaswoms in or outside the State and meet the

expenditure for the customary religious ceremonies and may provide for the educational

uplift, social and cultural advancement and economic betterment of the Hindu Community".

Section 31 read as follows:-

" Subject to the provisions of this part and the rules made there under the Board shall manage

the properties and affairs of the Devaswoms, both incorporated and unincorporated as hereto

98
before; and arrange for the conduct of the daily worship and ceremonies and of the festivals

in every temple according to its usage".

The High Court opined that the word "usage" employed in the above provisions could not be

understood as capsulating the caste identity of the persons holding any office. The Court

refused to construe it as an entitlement of a person to hold a particular office. Reference was

made to Article 13 of the Constitution of India60, in this regard. While defining the word

"law" for the purpose of the Article, "custom" and "usage", were treated differently. It was

finally told that the word "usage" in section 24 and 31 of the 1950 Act was not capable of

legalizing the practice if any, of appointment of a person on the basis of his caste in respect of

any office. The High Court refused to approve any usage by which persons belonging to one

particular caste alone were employed in any office, be it priesthood or otherwise. Attention

was drawn to the peremptory language contained in Article 13(2) of the Indian Constitution

which interdicted the making of any law abridging the fundamental rights. Moreover, Article

15 (1)61 was told to have forbidden the State from discriminating against any citizen on the

grounds of race, religion, caste etc. Under Article 16(2)62 the State was restrained from

discriminating against citizen on the above grounds, regarding the eligibility to hold any

employment or office under the State. The exception provided in sub-article (5) of Article

1663 was told to be incapable of insulating any usage based on caste. It was also stated that

the right under Article 25 of the Constitution64 existed subject to other fundamental rights

enumerated in Part III of the Constitution.

Taking the clue from Article 17 of the Constitution, the Parliament had passed the Protection

of Civil Rights Act, 195565. Section 3 of the above Act had prescribed a punishment of

imprisonment for not less than a month for persons obstructing any religious service on the

ground of untouchability. Finally, the counsel for the petitioner took refuge under Chapter

VII of Volume I of the "Travancore Devaswom Manual," claiming it to be the authority

99
which had designated priesthood solely to Brahmins. However, this contention too, failed to

impress the Bench. As a result, the stay order passed at the admission stage of the petition

was vacated and the concerned authorities were directed to allow K.S. Rajesh to hold the

office of santhikaran to which he was appointed by the Travancore Devaswom Board. This

historic judgement was delivered on 4 December, 1995.

CHAPTER - V

RELIGIOUS FREEDOM AND GENDER JUSTICE: WOMEN ENTRY ISSUESIN

SABARIMALA TEMPLE

INTRODUCTION

Restricting women’s entry to places of religious worship has become a highly contentious

issue of late. Though such practices have been persisting for decades in India, movements

across the country have recently espoused these concerns, leading to several petitions being

filed in High Courts and in the Supreme Court. Demonstrating an encouraging trend, courts

have emphatically upheld rights of women to equality and freedom of religion, thus striking

down the restrictions imposed. The Bombay High Court, for instance, ruled that the inner

100
sanctum of the Shani Shingnapur temple in Ahmednagar, Maharashtra be opened to women,

as it is the fundamental right of women to enter all places of worship that allow entry to men,

and the duty of the state to protect such right. 56 The Court relied on the Maharashtra Hindu

Places of Public Worship (Entry Authorisation) Act, 1956, which prohibits obstructing a

section or class of the Hindu population from entering places of worship.

In September, 2016, in a landmark decision, the Bombay High Court permitted the entry of

women entry into the sanctum sanctorum at theHaji Ali Dargah, terming the ban on entry

unconstitutional. Traversing several constitutional principles, the Bombay High Court

strongly dismissed the protectionist approach adopted by the state towards gender equality,

reaffirming the state’s constitutional obligation to guarantee equality and non-discrimination.

Women between the age of ten and fifty have been denied entry to the Sabarimala shrine in

Kerala for over sixty years. In 1991, the ban on entry of women was challenged before the

Kerala High Court, which upheld the ban. Currently, the India Young Lawyers Association

has sought a review of the issue through public interest litigation before the Supreme Court,

arguing that the ban violates women’s rights to equality, non-discrimination and religious

freedom.57 The petition presents a crucial opportunity for the Supreme Court to clear the path

for equal rights for women in matters of religion.

Through this note, we analyse the main issues before the Supreme Court in the Sabarimala

dispute, relying on the principles advocated by the Bombay High Court in the Haji Ali

Daragha case.

II. A BRIEF SUMMARY OF THE HAJI ALI CASE

56
Reuters in Delhi, Indian Temples Cannot Bar Women, Rules Supreme Court, April 12, 2016, available at
https://www.theguardian.com/world/2016/apr/12/indian-temples-cannot-barwomen-rules-supreme-court (Last visited on
January 17, 2017).
57
Satya Prasoon, The Sabarimala Case Has the Potential to Be a Constitutional Watershed, November 7, 2016, available at
https://thewire.in/77640/sabrimala-temple-case-constitutional-watershed/ (Last visited on January 17, 2017).

101
In what is hailed to be a progressive judgment, the Bombay High Court upheld the right of

women to access the inner sanctum of the Haji Ali Dargah. The Haji Ali Dargah Trust, while

claiming that the Islam prohibits all women from accessing the inner sanctum of the Dargah

and menstruating women are impure, sought protection under Section 26(2). The Court

refuted these arguments by holding that these propositions are unsubstantiated by religious

texts and cannot be said to be sinful under Islam. However, the most intriguing aspect of the

judgment was that the Court justified its horizontal application of Articles 14, 15 and 25 by

holding that the Trust is a ‘public charitable trust’ and the Dargah is a public place of

worship. While interpreting Article 25, it invoked the contentious ‘essential religious

practices test’ and held that the exclusion of women from the inner sanctum of the Dargah

was not an essential practice of Islam. This was supported by the fact that women were

allowed inside the dargah till early 2011-2012. This public character argument of theCourt

impliedly excluded the question of application of §26(2). Additionally, the Court imposed a

positive obligation to upon the State to prevent a private party from infringing upon another

private party’s fundamental right. This judgment gave rise to two issues: first, whether the

essential practices test is a suitable test for interpreting the right endowed by Article 25.

Second, whether the horizontal application of Part III of the Constitution was an example of

judicial transgression.

III. ANALYSIS OF THE HAJI ALI CASE

A. GENDER EQUALITY

The Bombay High Court examined the justifications provided by the Dargah Trust for

prohibiting women’s entry. The Trust claimed that women wearing blouses with “wide

necks” bending down on the Mazaar would be exposing their breasts. Fearing the safety and

security of such women, the Trust opted to bar their entry entirely.

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Placing emphasis on the constitutional obligation of the State to ensure that there is no gender

discrimination, and thereby ensure equal protection of the law to all persons, including

women, the Court dismissed the argument advanced by the Trust. The Court opined that

discrimination against women cannot be legitimised under the guise of providing security and

protecting women from sexual harassment. Further, the Court identified that to prevent

harassment of women, the Trust ought not ban entry of women, but instead adopt effective

measures reducing the threat of harassment, including a mandate for separate queues for men

and women.

The justification for banning the entry of women of a given age group from the Sabarimala

shrine is sourced from the Kerala Hindu Places of Public Worship (Authorisation of Entry)

Act 1965 (‘Act’) and the accompanying Kerala Hindu Places of Public Worship

(Authorisation of Entry) Rules 1965 (‘Rules’). While §3 of the Act states that no section of

Hindus shall be prevented from entering place of public worship, §4(1) empowers the trustee

or persons in charge of the place of worship to issue regulations for the “maintenance of order

and decorum” in the place of worship, and for the “the due observance of the religious rites

and ceremonies performed therein”. Further, Rule 3(b) of the Rules provides that “Women

who are not by custom and usage allowed to entera place of public worship shall not be

entitled to enter or offer worship in any place of public worship.” In exercise of their power

under §4(1) read with Rule 3(b), the TravencoreDevaswom Board issued notifications on

21st October, 1955 and 27th November, 1956, prohibiting women between the ages of ten

and fifty from entering the temple premises.

In 1991, this ban was challenged as unconstitutional before the Kerala High Court in S.

Mahendran v. Travancore Devaswom Board (‘Mahendran’), 58 contending that Rule 3(b)

violated constitutional guarantees of equality and non-discrimination under Articles 14 and

58
S. Mahendran v. Travancore Devaswom Board, 1991 SCC onLine Ker 43 : AIR 1993 Ker 42.

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15. The nature of the ban in Sabarimala differs from the ban in Haji Ali – the former applying

to only a specific age group of women while the latter applies to all women. This distinction

was relied on by the Kerala High Court to uphold Rule 3(b). Dismissing the concerns of

discrimination, the Court stated that since entry is prohibited only with respect to “women of

a particular age group and not women as a class”, the differential treatment did not amount to

constitutionally prohibited discrimination.

The Court however acknowledged that the ban sought to exclude women who were

menstruating from the temple premises. In fact, the Court sanctioned such exclusion,

accepting the argument that the sanctity and purity of the surroundings would be evaded if

women within this age group were allowed to enter. The Court stated that women would not

be able to undertake the requisite penance of forty-one days prior to entering the temple, as

“physiological reasons” prevented them from maintaining the “purity of thought, word and

deed” necessary during this period. The Court also agreed that the deity, being a

“NaisthikBrahmachari” has to observe certain rules of conduct, including refraining from

“casting lustful eyes on females.” Young women, offering worship at the temple, the Court

argued, would cause deviation from the “celibacy and austerity” to be observed by the

deity.Finally, the Court added that the journey to Sabarimala is highly rigorous, involving

“arduous trekking” in forests, which women would not be able to undertake. Citing these

reasons, the Court upheld the ban.

The rationale adopted by the Kerala High Court is flawed as it ignores that fact that

classifying on the basis of menstruation is in effect discrimination on the basis of sex, since

only women undergo the physiological process of menstruation. Thus, even if merely a sub-

category of women (women between the age group of ten and fifty) are excluded, and not

women as a whole, the basis for exclusion is still their sex, thereby amounting to prohibited

discrimination under Articles 14 and 15.

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The Court attempts to justify such classification stating that it is “reasonable”, though the

Court does not provide reasons for the same. Admittedly, Articles 14 sanctions classification

as long as it is reasonable, satisfying the twin tests: (a) the classification is based on an

intelligible differentia, a common characteristic which distinguishes one group from the other

(b) the differentia has a rational nexus to the object sought to be achieved by the impugned

provision.

The differentia, in the Sabarimala dispute, is the natural, biological process of menstruation,

present in women and absent in men. The differentia is however based on certain

stereotypical notions of women, notably that women are impure and polluted during the

menstruation cycle, women cast “lustful eyes” and distract the deity, and women do not have

the physical ability to undertake the trek. It ought to be noted that object of the Act is “to

make better provisions for the entry of all classes and sections of Hindus into places of public

worship.”59 By permitting the exclusion of menstruating women, Rule 3(b) propagates gender

stereotypes, violating the letter and spirit of the Actwhich attempts to reduce discrimination

and increase access. Therefore, the differentia in this case does not bear a rational nexus to

the objective of the legislation.

The Court, in Mahendran, fails to examine Rule 3(b) on the basis of this constitutionally

mandated twin test, and thus concludes incorrectly that the ban is intra vires the constitution.

However, the Supreme Court, before which the case is currently, has identified that by using

menstruation as the differentiating criteria, a classification has been made based on sex. The

Court also remarked, “Is menstruation a tool to measure the purity of women? How will you

measure the purity of men?” Though the hearings are still in progress before the Court, and

the final order has not yet been issued, the language adopted by the Court reveals a shift in

perspective, indicating a favourable result for gender equality.

59
The Kerala Hindu Places of Public Worship (Authorization Of Entry) Act, 1965, Preamble.

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B. ESSENTIAL RELIGIOUS FUNCTION

The essential religious practices test has long been criticised for giving undue power to the

judiciary to determine what is an essential practice of any particular religion which can be

protected under Article 25 of the Constitution. This test does not originate from the

Constitution as Article 25 only deals with the limitations relating to public order, morality

and health, and other fundamental rights.60 This test has been evolved by the Supreme Court

and is loosely based on Dr. B.R. Ambedkar’s speech in the Constituent Assembly debates.

The subjectivity of application of the test is evident from the trend of judicial cases

interpreting this test. In M. Ismail Faruqui v. Union of India, 61 the Supreme Court held that

visiting a mosque is not an essential Islamic practice. Further, it opined that if a place of

worship had a “particular significance” in that religion, the same would come within the

purview of Article 25. Additionally, in another case, the Supreme Court relied upon Quran to

hold that cow sacrifice on Bakr’id was held not to be an essential part of Islam. 62 However,

this test suffers from three inherent flaws. First, the courts do not possess the competence or

legitimacy to rationalise a practice as an essential or non-essential religious practice. The test

is not grounded in the Constitution and is an interventionist approach developed by the courts

in interpreting Article 25. Second, each Bench’s interpretation of the essential religious

practices of a particular faith would be different. These shortcomings were coherently

expressed by Justice B.P. Banerjee, who observed that “if courts started enquiring and

deciding the rationality of a particular religious practice, then there might be confusion and

the religious practice would become what the Courts wished the religious practice to be.”

Third, it is difficult to identify the methodology and sources to be used in determining

whether a practice qualifies as an essential religious practice or not. Many a times, actual
60
The Constitution of India, Art. 25.
61
M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
62
See Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 : 1959 SCR 629.

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customs are not aligned with the scriptural interpretations of religious texts. It has been

observed that the courts have placed paramount reliance upon the religious scriptures, which

can lead to arbitrary and biased results.

The courts have also failed in distinguishing between a community practice and an

individual’s assessment of the crucial tenets of his faith.

Recently, Rajasthan High Court in Nikhil Soni v. Union of India declared Santhara, 63 a Jain

practice of voluntary fast-unto-death, to be punishable under the Indian Penal Code and not

protected under Article 25. The Court opined that it cannot be inferred from any of the

“scriptures, preaching, articles or the practices followed by the Jain ascetics” that Santhara is

necessary for the pursuit of immortality.48 Similarly, the Supreme Court, in Mohd. Zubair v.

Union of India,64 while upholding the discharge of a Muslim airman, held that keeping of

beard is not an “essential” religious Islamic practice.

This test gives undue power to the courts to narrow religious freedom on the basis of

arbitrarily holding that the practice is not essentially religious. The courts have evaded the

responsibility of interpreting the scope of constitutional limitations such as “public order,

morality and health.” It is argued that limiting religious freedom and freedom to manage

religious affairs on these grounds would be less subjective and arbitrary.

In the Haji Ali decision, the Court used Articles 14 and 15 to restrict religious freedom under

Article 25. However, unlike Article 25, the Constitution does not subject Article 26 to any

fundamental right. A differentiating factor in the Haji Ali judgment was the fact that Article

26 was impliedly excluded. However, Article 26 can possibly be applicable in the Sabarimala

dispute. In that case, principles of equality and non-discrimination as enunciated by Articles

63
Nikhil Soni v. Union of India, 2015 SCC onLine Raj 2042.
64
Mohd. Zubair v. Union of India, (2017) 2 SCC 115 : 2016 SCC onLine SC 1472 .

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14 and 15 would be inadequate in limiting the freedom to manage religious affairs under

Article 26.

It is argued that ‘morality’ as used in Articles 25 and 26 should be interpreted as

‘constitutional morality’ rather than public morality. The distinction between the two was

elucidated upon by the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi. 65 The

Court rightly observed that public morality or disapproval is not a valid restriction on Article

21. Constitutional morality denotes core principles of the Constitution i.e. the principles of

equality, non-discrimination, dignity, rule of law etc. Subjecting Article 26 to constitutional

morality in the Sabrimala dispute would result in the discriminatory practice of restricting

women’s access to be scrapped, as non-discrimination is a fundamental pillar of the

Constitution. Thus, though the ratio of Haji Ali cannot be applied to the Sabrimala dispute

due to variations in facts, the adoption of constitutional morality can serve as a vehicle for

gender equality. This limitation may be looked upon by the Supreme Court in Sabrimala,

since arguments have been made upon the same.

C. HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS

Fundamental rights have traditionally been enforceable only against the state, and not directly

against private bodies. However, in Haji Ali, the rights under Articles 14, 15 and 25 are

sought to be enforced against the Dargah Trust, which does not constitute State under Article

12.66 In this regard, the Bombay High Court declared that it is the duty of the State to ensure

that the principles of equality and non-discrimination are not violated, and therefore the

“State would then be under a constitutional obligation to extend equal protection of law to the

petitioners to the extent, that it will have to ensure that there is no gender

discrimination.”Thus, the Court interpreted the duty of non-discrimination, imposed on the

65
Naz Foundation v. Govt. of NCT of Delhi, 2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1.
66
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.

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State under Articles 14 and 15, to mean not merely a negative duty to abstain from

discrimination, but a positive duty to prevent others from discriminating.

Here, instead of the traditional vertical application of fundamental rights, the Court applied

the right to equality horizontally. Horizontal application of fundamental rights may be direct

or indirect. Direct horizontal application occurs in cases where the right may be enforced

directly against a private party, without any role of the state. For instance, the

obligationsunder Articles 15(2), 17 and 23 are directly binding on both the State and private

parties. In Haji Ali however, the Court adopted a form of indirect horizontal application of

the fundamental right to equality. In this form, instead of directly seeking relief against a

private party - here the Dargah Trust - relief is sought against the state, for violating its

obligation to protect individuals from discrimination.

Courts have previously applied fundamental rights in this manner. In Vishaka v. State of

Rajasthan (‘Vishaka’),67 the Supreme Court reiterated the right of women to a safe working

environment, drawing from rights under Articles 14, 19 and 21. The Court argued that such

rights were violated through sexual harassment at the workplace, and imposed an obligation

on the state to protect women from sexual harassment at all workplaces, whether public or

private. To this extent, the Court mandated that the State formulate laws against sexual

harassment, to ensure compliance with its obligations under Articles 14, 19 and 21. Here,

though the Court did not apply fundamental rights directly toprivate parties, the Court held

the State responsible for the violation of rights by private individuals, and thus in effect

regulated conduct of private persons. Similarly, in Medha Kotwal Lele v. Union of India, 68the

Supreme Court observed that despite the passage of fifteen years after the Vishakha

judgment, the legislative framework against sexual harassment remained incomplete, with the

67
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
68
Medha Kotwal Lele v. Union of India, (2013) 1 SCC 311.

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Protection of Women Against Sexual Harassment at Work Place Bill, 2010, pending in the

Parliament. Consequently, several instances of sexual harassment of women, including those

in private establishments, have been recorded. The Court, therefore, directed the State to

quicken the legislative process, to ensure a comprehensive legislative regime against sexual

harassment. The Bombay High Court in Haji Ali resorted to a similar indirect application of

fundamental rights, by holding the State responsible for the discriminatory practice by the

Dargah Trust.

In contrast, in the Sabarimala dispute, the vires of a legislative measure - Rule 3(b) - is under

constitutional challenge. This would necessitate the application of the second form of indirect

horizontal enforcement of fundamental rights. Under this form, the challenge is not to the acts

of the private person, but to the law that the individual relies on to justify his/ her acts. In this

manner, the conduct of private parties becomes indirectly subject to the constitutional

mandate. By striking down the impugned provision as unconstitutional, the Supreme Court

could detract the source of the authority exercised by the TravencoreDevaswom Board,

thereby ensuring that the Board’s conduct is not discriminatory, while not directly enforcing

fundamental rights against the Board.

Sabarimala temple is an epitome of religious harmony and a great centre of pilgrimage that

attracts people not only from the southern states of Kerala, Tamil Nadu, Karnataka and

Andhra Pradesh but also from other parts of the country and abroad. It is estimated that about

4 to 5 crore devotees offer prayer in the temple every year. It is one of the few historically

significant temples in Kerala. We can see that the temple is referred in many foreign accounts

like that of Xuanzang, Lt. Ward etc. Xuanzang calls it as Churulimala and Lt.Ward in his

Memoir of the Survey of Travancore and Cochin States (1891), refers it to Chourymulla

Pagoda.69 Scholars regard that Sabarimala was a Buddhist shrine before converting it in to
69
Ward,B.S. (1891).Memoir of the survey of Travancore and cochin states.P.70
,http://statelibrary.kerala.gov.in/rarebooks/index.php

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Ayyappatemple, like many of the Hindu temples in Kerala.3 According to Amarakosha, the

word Sastha or Dharmasasta is one of the eighteen synonyms of Gautama Buddha . But

renowned historian MGS Narayanan in an interview stated that there is no need to associate

Sree Buddha with Lord Ayyappa. According to him Buddha had renounced his kingdom and

everything else for peace, while Ayyappa was a warrior.

The temple located in PerunadGramaPanchayat, Pathanamthitta District in Kerala is

a part of the Periyar Tiger Reserve in the Western Ghats mountain ranges. It is managed by

Travancore Devaswom Board, an autonomous body constituted under the provisions of

Travancore Cochin Hindu Religious Institutions Act XV of 1950. Earlier the temple

governing body has a woman member above 50 years of age who shall be nominated by the

Hindus among the council of Ministers, later this provision has been omitted from the Act.

Sabarimala temple is the major source of income for Travancore Devaswom Board and in the

year 2016-17 the income from this temple was Rs.243.69 crore.

Temple administration in Kerala today confronts several grave issues. The issue of temple

entry of the marginalized is becoming widely discussed in the socio- political arena of the

state. The issues like the appointment of priests in temples on the basis of merit than birth,

entry of women of a particular age group at Sabarimala temple, entry of non Hindu believers

in selected temples etc are the major issues that have been debated today. Sabarimala is

perhaps the only Hindu shrine where a man is not banned from entering on account of caste;

creed or religion. However, there is discrimination based on gender. 70 This discrimination in

the hill shrine is not between men and women but between women and women. The issue is

that of temple custom versus constitutionalism.

Issue of women entry

70
KR Vaidyanathan, (1996), Pilgrimage to sabari, Bharatiya Vidya Bhavan Mumbai. p.175

111
Sabarimala temple is located in the erstwhile Travancore which is famous for the historical

Temple Entry Proclamation. It is unfortunate that such issues like ban on women to enter into

a particular temple is happening in the land of the Temple Entry Proclamation. It is the only

major Hindu temple, where a man is not prohibited from entering on account of caste; creed

or religion. But there are restrictions for women in pilgrimage. As far as women is concerned,

it is stipulated that only those who have not attained the age of puberty and the menstrual

cycle and those who are past menopause alone should undertake the pilgrimage. The entry of

women in the age group of 10 to 50 years is prohibited in the shrine because the presiding

deity Lord Ayyappa is considered to be a „naishtikabrahmachari‟ (perennial celibate).

Sabarimala temple has justified the ban on entry of women of a certain age saying that the

restriction was enforced under Rule 3 (b) of the Kerala Hindu Places of Public Worship

(Authorisation of Entry) Rules, 1965.

Hindu organizations and bodies like the AkhilaBharatiyaAyyappaSevaSanghom have come

out in public against the move to give the womenfolk entry at Sabarimla shrine. In 1982, the

volunteers of AyyappaSeva Sangam blocked the entry of two girls on the ground that they

had attained the age limit and would be violating the traditional restriction by entering the

temple. Again in1986 the entry of women hit the headlines when an actress entered into the

sannidhanam( temple premise) for the purpose of a Tamil movie. The controversy was taken

to the court in 1992 and the court fined the actress.8 The entry of women at the forest shrine

becomes again an issue in 1990 in connection with the visit of a lady officer of the

Devaswom Board to the temple with members of her family including women, for the

naming ceremony of her grandson. This incident was then brought to the attention of the

High Court and the court issued an order prohibiting the entry of women in 10-50 age groups.

Following this, lady doctors, women police and devaswom guards were posted at vantage

points to prevent the entry of women. In 1990, S. Mahendran, a devotee, filed a petition in the

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Kerala High Court protesting against the entry of young women to the shrine (which was

contrary to the temple's customs). He cited the example of S. Chandrika, the Board's former

commissioner. She had conducted the first rice-feeding ceremony at sannidhanam for her

granddaughter in the presence of several women. The Court accepted the contention of the

petitioner that the restriction imposed on women of a particular age group from entering the

temple is a matter of religion and a matter of religious faith under Article 26 (b) of the Indian

Constitution. It was observed that a religious denomination or organization enjoyed complete

autonomy in the matter of deciding as to what rites and ceremonies were essential according

to the tenets of the religion and no outside authority had any jurisdiction to interfere with the

decision of such religious denomination. In 1991, the court issued a direction to the

Travancore Devaswom Board not to permit women above the age of 10 and below the age of

50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala

temple and from offering worship at Sabarimala Shrine during any period of the year.9 A

direction was also issued to the Government of Kerala to render all necessary assistance,

inclusive of police and to ensure that the direction issued to the Devaswom Board was

implemented and complied with.10 In 1994, the then Pathanamthitta District Collector

B.Valsalakumri, visited the temple by obtaining a court verdict in order to see the civic

amenities there, sparked off another controversy.11

The next phase took place in 2006. A team led by a noted astrologer conducted a four-day

"devaprasnam" (astrological observation) at the Sabarimala temple. It was pointed out that

there happened the presence of a woman at the sanctum of the temple. Subsequently, one

famous film actress from the State of Karnataka, Jayamala, made a public disclosure that she

had entered the temple and she was pushed into the sanctum sanctorum by the surging crowd.

Later, it was alleged that the whole episode was part of a conspiracy to earn fame for the

astrologer. A criminal case was then filed against him, his assistant and the actress

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forhatching a conspiracy and hurting religious sentiments of the people of the state. 12. With

the incident leading to a storm, the Kerala government had then ordered a crime branch probe

but the case was subsequently dropped.13 However, in July 2012, the Kerala High Court

quashed the charges against the accused actress on the ground of insufficient evidences.

However, the temple tantri (chief priest) performed a purification ceremony at the temple.

In 2006, the Indian Young Lawyers Association challenged the constitutional validity of Rule

3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, which

bars women from entering the temple and sought removal of the ban in the Supreme Court.

This Public Interest Litigation was filed on the ground that such rules and notifications

violate the right to religion of women (Article 25), and the right to equality (Articles 14 and

15) challenging the constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public

Worship (Authorisation of Entry) Rules, 1965, and the notifications issued by the Travancore

Devaswom Board. However, the Travancore Devaswom Board argued that the restriction did

not discriminate women against men but women against women on the basis of age. This

view has been taken as regressive by gender-equality activists who raised the argument that

menstruation did not make a woman impure. Critics say the restriction violates women‟s

fundamental right of protective discrimination.

In November 2007, the LDF government had then filed an affidavit stating that “it is not fair

to deny a section of women entry into Sabarimala.” That affidavit had questioned the rituals,

customs and observances followed in the temple. With this, Kerala has signalled its return to

the side of women fighting for equal right to worship with man at the temple. 71 There

happened a shift in the policy of the government when UDF came to power, favouring the

ban on the entry of women on the ground that the restriction had been in place from “time

immemorial” and was a part of the temple‟s “unique idol concept.” It reasoned that since the

71
The Hindu, 7th . November, 2016.

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presiding deity, Lord Ayyappa, was a celibate or „NaisthikBrahmachari,‟ even the “slightest

deviation” caused by the presence of young women on the temple premises was undesirable.

After that, the LDF Government which came to power favoured the entry of women of all

ages at Sabarimala temple in the Supreme Court. In the affidavit, the Government had stated

that “it is not fair to deny a section of women to enter in Sabarimala” and questioned the

rituals, customs and observances pursued in the temple. By doing so, the government has

taken a U-turn, since early in the year it opposed the entry of women of the 10-50 age groups

into the temple citing the temple‟s tradition since time immemorial.

Twenty five year long legal battle on this issue has created concern among the Hindu

devotees. The Supreme Court in its observation stated that no temple or governing body can

bar a woman from entering the shrine where lakhs of devotees throng annually to worship.

The court questioned how a temple managed by a statutory board and financed out of the

Consolidated Fund “can indulge in practices violatingconstitutional principles”. K. Parasaran

and. K.K. Venugopal, senior counsels appearing for Devaswom Board submit that the

religious questions posed in this Writ Petition can be determined finally only by the

“Thanthri” concerned.The Supreme Court in its observation stated that no temple or

governing body can bar a woman from entering the shrine where lakhs of devotees throng

annually to worship. The court questioned how a temple managed by a statutory board and

financed out of the Consolidated Fund “can indulge in practices violating constitutional

principles”. K K. Venugopal justified the ban on women's entry in Sabarimala temple in tune

with the tradition of the shrine. He argued that allowing women of a certain age in the shrine

would require reinterpretation of Article 25 and more importantly Article 26 of the

Constitution. Article 25 guarantees freedom of conscience and free profession, practice and

propagation of religion. Article 26 deals with the rights of a religious denomination.. The

counsel referred to the peculiar custom in the temple, associated with the 41 days of penance

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to be undertaken by the devotees, during which they are under voluntary restraint from

indulging in worldly pleasures. He then referred to the Muslim shrine within the temple

complex, and the history associated with it, making it a unique characteristic of the temple.

Justice Dipak Misra said that they have to rise above the spiritual considerations, and address

the Constitutional issues involving in it and not any spiritualism associated with the temple.

Justice Misra also observed that the temple can‟trestrict the right of entry except on the basis

of religion, and whether the temple can claim constitutional protection on the ground of being

a separate religious denomination. The Supreme Court appointed senior lawyers Raju

Ramachandran and K Ramamurthy as amicus curiae in connection with the plea to allow

entry of women to the Sabarimala Ayyappa temple. .Finally the Supreme Court referred to

this case to a five-judge Constitution Bench. The Supreme Court referred to this case to a

five-judge Constitution Bench. Ramamurthy, in his submission has put forth the view that

the restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of

the Constitution, Articles 25 and 26 contains a guarantee for rituals and observations,

ceremonies and modes of worship which are integral parts of religion. Religious practice

based on religious faith adhered to and followed by millions of Hindus for over a millennium

in consonance with natural rights of men and women is not violative of Fundamental Rights

Raju Ramachandran argued that entry to a public temple is a legal right but not a permissible

right and, therefore, the temple authorities have no authority to curtail the said right. The ban

was affected women during their most active years and thus had the impact of discriminating

against women as a class. And the ban just because of their biology was detrimental to their

dignity. This was merely an “interpretation created by those who have run the temple.

Justice Dipak Misra said that they have to rise above the spiritual considerations, and address

the Constitutional issues involving in it and not any spiritualism associated with the temple.

Justice Misra also observed that the temple can‟trestrict the right toentry except on the basis

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of religion, and whether the temple can claim constitutional protection on the ground of being

a separate religious denomination. Finally the Supreme Court referred to this case to a five-

judge Constitution Bench. The Supreme Court referred to this case to a five-judge

Constitution Bench. This issue has created a storm in state politics creating divided opinions

on “Right to pray Vs Ready to wait” positioning. While activists seeking women‟s entry have

came out with social media campaigns like „Right to Bleed‟ and „Right to Pray‟, other

Hindu women organisations have entered the battle through a „Ready to Wait‟ campaign.

The women‟s group, led by Pune-based gender rights activist Trupti Desai, has called for a

march to allow the entry of women of all age groups to Sabarimala on January 14, 2017.

Travancore Devaswom Board chief Prayar Gopalakrishnan stated that “We will not allow

Sabarimala to become Thailand. Even if the court opens its doors, I don‟t think self-

respecting women will dare to go up to the hill shrine.” This comment was criticized by

Minister for Devaswoms in his Face book post that the TDB chief considered women who go

to Sabarimala as shameless and so he has to apologise for this remark. The issue made the

relations between the Devaswom President and the government at loggerhead and through the

Devaswom Amendment Ordinance, he has been overthrown before the commencement of

2017-18 Sabarimala pilgrim season.

MASCULINITY ANDTHE SABARIMALA PILGRIMAGE IN KERALA

In this chapter, we discuss South Indian arenas of masculine performance andsenses

of ‘being a man’ by considering the role of religious activities and devotionin the

construction of male identities, focusing specifically on the annualpilgrimage to Sabarimala,

the main temple of Ayyappan, visited every year bymillions of male devotees from Kerala

and from South India as a whole. Sabarimala pilgrimage is an almost exclusively male arena

of religiousperformance, highlights masculinity while constructing a particular style

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ofmaleness or being a man which draws creatively on an antagonistic relationshipbetween

transcendence and immanence – between the characteristicSouth Asian figures of the ascetic

renouncer and the worldly householder.Thepilgrimage forges entanglements between

renouncer and householder, bringinginto the realm of everyday life a sense of transcendence

that is specific tomen, with clear masculine-heroic overtones. This transcendence is

highlightedby a period of asceticism before and during the pilgrimage, and by progressive

identification of pilgrims with the deity, but I argue that it does notstand in opposition to the

mundane world in which men are enmeshed. Onthe contrary, it acts not only as a source of

power in the form of blessingsfrom Ayyappan but also as spiritual, moral, and bodily strength

displayed andaugmented by participation in the pilgrimage, power which can then betapped

into in everyday life. The pilgrimage, undertaken as marker of devotionto the deity and in

fulfillment of specific vows, acts as signifier of a man’sresponsibilities, as son or husband,

towards the general welfare of the family.

Notably, this pilgrimage is a gender-specific ritual activity involving twoseparate forms of

union. On the one hand, it merges individual men with ahyper-masculine deity – himself born

from Shiva and Vishnu, two male deities.

On the other, it merges each mate participant with a larger community ofmen: other male

pilgrims with whom one goes to Sabarimala; the mass ofpilgrims one encounters en route to,

and at, the shrine; and, ultimately, thecategory of men as a whole. This is a particular kind of

male community: itis ostensibly an egalitarian devotional community – all pilgrims call

themselves‘holy man’ (swami) – but at the same time a hierarchical one, whereby

individualpilgrims surrender themselves to a superior spiritual leadership – that of Lord

Ayyappan himself, but also to that of their guruswami, the more experiencedleader of pilgrim

groups. Finally, both the pilgrimage itself – fromwhich women of child-bearing age are

barred – and also popular mythsassociated with Lord Ayyappan, highlight important aspects

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of the relationshipbetween men and women. Lord Ayyappan, born from two male gods, is

acelibate deity, a perennial brahmachariya(celibate student), his great powers derive

specifically from his ascetic endeavour, in particular abstention fromsexual activities, a

practice also followed by pilgrims before and during thepilgrimage. While pre-pubescent

girls and post-menopausal women mayattend the pilgrimage, they are very few in number,

marginal to the great mass of male pilgrims and are, and it is relatively ungendered in

comparison to thecategory specifically barred from participation: mature fertile females. It is

believedthat it is important to identify the pilgrimage as a gendered ritual, both inview of the

markedly different participation rates for men and women andalso its overwhelmingly

masculine ethos.

AYYAPPAN’S STORY

When the milk-ocean was churned, and all the good things in the world were generatedout of

it, the demons had stolen from it the amritha[ambrosia, eternal life-givingfood], properly the

property of the gods. The god Vishnu took the form of Mohini[literally desire, passion, in

personified feminine form] the irresistibly beautiful temptress,in order to trick the demons

into handing back the ambrosia. He went to the demon’skingdom, where they were all sitting

at tables, waiting. There was no woman to servethe food, so the demons could not eat. [Men

are always served their food by women inKerala – mother, sister, or wife.] Mohini/Vishnu

told them, ‘You are all men: who willserve this food? Close your eyes to preserve my

modesty and I will come and serve eachof you in turn’ [Mohini being unrelated and unknown

to the demons, she would feelshame at being in their presence]. She/He then ran off with the

elixir.When Vishnu laterrecounted his trick, the god Shiva insisted upon seeing the form of

Mohini. Vishnuprotested; Shiva insisted.When Vishnu became Mohini, he was so beautiful

and irresistiblethat, as he had feared, Shiva forgot that this apparition was in reality Vishnu,

was overcomeby lust and made love to Mohini. The resultant child, Ayyappan, product of

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twomales, was born from Vishnu’s thigh. Shiva and Vishnu were ashamed. They arranged

forthe child to be found lying in a basket on the bank of the Pamba river, and henceadopted,

by the childless Pandalam king.

After some years, the Pandalam queen gave birth to her own child, whereupon shebecame

jealous of the foundling Ayyappan – the first son, the future king and heir.With the court

physician she hatched a plot. The Pandalam king was told that the queen wasextremely ill and

dying, and that the only cure was tiger’s milk. As the queen had hoped, the unsuspecting and

good-hearted Ayyappan, by now an adolescent in his brahmacharyaperiod, volunteered to

make the arduous and dangerous journey to the hill-forest to gettiger’s milk for his adoptive-

mother. On the way, in the hill-forest, he encountered afierce Mahishi[she buffalo], whom, he

fought and killed. He was helped by a Muslim –Vavarswami – and a ‘tribal’ –

Karruttaswami. The she-buffalo became transformed intothe goddess Ganga, who explained

that because of a curse she had been transformed intothe buffalo and that Ayyappan’s reward,

as her slayer and liberator, was to marry her. Shealso explained to him his divine origin and

his mother’s trick. Both agreed that he couldnot stay, as he had to fulfill his [divinely-

ordained, fated] mission to acquire tiger’s milkfor his mother [some informants add here that

he did not want to marry anyway, beingin brahmacharya and being a celibate god who would

lose his divinity and power if hehad sex]. Promising to return, Ayyappan continued his

journey, obtained the tiger’s milk,and returned to Pandalamriding on a tiger. By now

everyone had realized his truedivine identity. Bidding his adopted family farewell, he set off

again for the hill-forest,went to the top of the mountain – Sabarimala – and achieved his

divine form, whereuponmany male devotees started to come on pilgrimage to worship him.

Every first-time Sabarimala pilgrim is a kanni swami (kannimeaning, literally, ‘virgin’).

Pilgrims follow Ayyappan’s journey through the forest and act outhis story. Ayyappan could

not neglect his devotees, so he made a pact withthe goddess that on the day when no

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morekanniswamis come to worship himhe would marry her; in the meantime she sits near

him and is known asMalikappurattamma (the ‘jasmine bush outside/nearby woman’). It is an

explicit duty of Malayali (and other South Indian) men to go on pilgrimageto Sabarimala and

to take with them a new kanniswami, to prevent the celibateAyyappan from having to marry

the goddess, thereby losing his powersand his capacity for helping humans.

SABARIMALA TEMPLE

Ayyappan is one of the most popular deities in Kerala and in South India asa whole: every

year between 6 and 10 million pilgrims from the southernstates of Kerala,Tamilnadu,

Karnataka, and Andhra Pradesh and Telangana visit Sabarimala.Thisgenerates an income for

the temple, from offerings and the sale of take-homeprasadam. Moreover, both thenumber of

pilgrims and temple income are increasing, according to templeadministrators, every year.

These figures are even more impressive given thatthe temple is only open for around 120

days a year: the main pilgrimageseason lasts about sixty days, from mid-November to the

second half of January(the rest of the time the temple opens to devotees only for the first five

daysof each Malayali calendar month, as well as at ten days for Vishu, summersolstice). The

festival season begins on the first day of the Malayalam month

of Vrischikam (from mid-November to mid-December) and lasts for fortyonedays – this

being referred to as the Mandala period. Then the temple isclosed for five days, during which

no puja (worship) is conducted, as Ayyappanis said to be resting after forty-one days of

giving darshan (divine gaze).

The temple opens again for about another three weeks and after fourteen daysthere is the

culmination of the festival season, makaravilakku(Makaram lights), which is described

below.

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On the first day of the Malayalam month of Makaram (from mid-Januaryto mid-February), a

movable image of Ayyappan is enthroned on an elephant and taken in procession to the

Pamba river where arat(holy bath) is performed.Once bathed, the image is conveyed once

more to receive ‘divinegold ornaments’ (thiruvabharanam) which arrive in another

procession from thetown of Pandalam, which is the seat of the Ayyappan’s adoptive father,

theerstwhile Pandalam Rajah, whose descendants ruled one of the region’s formerprincely

states. (During this period the temple is closed and the sanctumsanctum purified). Huge

crowds of pilgrims accompany the procession up intothe mountain from Pandalam, together

with two divine eagles which are saidto circle the sky for the duration of the journey.The gold

ornaments are thentaken to the temple and placed on Ayyapan’s main image.The principal

shrineis closed while the chief Brahmin temple priest and his assistants performpujas; outside

a great mass of pilgrims waits, calling Ayyappan’s name. At 6.30p.m., while the doors of the

main shrine are still closed, a bright light (MakaraJyothi) appears on top of one of the hills

surrounding the temple and a brightstar appears in the sky, signs indicating the presence and

satisfaction ofAyyappan. After a few minutes, the doors of the main shrine open and

whiledeepharadana– the circling of holy flame in front of the deity which concludesevery act

of puja – is performed, the light in the sky disappears. At12.30 a.m. the main festival

continues with the movable image of Ayyappantaken out again in procession to visit the

nearby shrine of Malikappurattamma,his hopeful, waiting bride who has meanwhile also been

decorated withgold ornaments brought from Pandalam. But when Ayyappan

reachesMalikappurattamma’s shrine, all torches miraculously extinguish themselves:

Malikappurattamma has started her menstruation and a red cloth is drapedover the rear part of

her shrine. As the goddess is in a state of pollution,Ayyappan is forced to turn back without

even seeing her.

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The temple is then open for a further seven days, during which a numberof rituals connected

to the deity’s mythology are performed. In particular,during the two following evenings

(Makaram 2 and 3), there are processions ofa number of deities to the main shrine of

Ayyappan: first, Malikappurattammathen, the following evening,Vavarswami,

Karuppaswami, and Kaduttaswami.Thelatter three are important minor deities who helped

Ayyappan in his fight against

Mahishi. In local versions of the Ayyappan myth,Vavarswami is identified as a

Muslim brigand and Karuppaswami as the chief or leader of one of the region’sso-called

forest ‘tribal’ populations. Both fought against Ayyappan, weredefeated, and became his

devoted allies and disciples.4 Kaduttaswami was adwarf created by Shiva – by throwing a

hair from his leg on the ground – tohelp Ayyappan defeat Mahishi. In the middle of the battle

against the demon, Kaduttaswami barged in, shouting loudly; when Mahishi heard the

shouting shefelt dizzy, lost her strength, and thus Ayyappan killed her with an arrow.

ForVavarswami, Karuppaswami, and Kaduttaswami’s loyalty and courage, Ayyappan

decided that they should sit forever next to him at Sabarimala. On the seventhday after

makaravilakku, the Sabarimala pilgrimage season draws to a closewith the performance

ofgurudi– mock blood-sacrifice using a cucumberas substitute for a live animal – for all the

Sabarimala deities. The mainBrahmin priest performs the sacrifice outside the main temple,

just north ofthe Malikappurattamma shrine. After that the temple is finally closed to

thepilgrims.

PREPARATIONS FOR PILGRIMAGE

Preparations for pilgrimage usually start on the first day of the Malayalam month of

Vrischikam (mid-November), a particularly auspicious day forworship which is marked by a

flurry of other temple festivals and special pujaswhich continue throughout the forty-one

dayMandala period. Preparationsbegin with the handing over to the pilgrim of a neck chain

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by a guruswami– an experienced senior man who has been to Sabarimala many times:

pilgrimswear the chain around their neck until return from Sabarimala. Fromthe moment of

putting on the chain, pilgrims should follow the mandatoryvratam– a forty-one-days period

of votive abstinence – which means no meat,alcohol, sex, anger, coarse language, and so on;

moreover, pilgrims should notshave and should go regularly to the temple for worship.

During this periodpilgrims become transformed: they are all swamis (holy men), incarnations

ofAyyappan himself, and are to act, and be treated, as such. They wear a black

or orange lungi (waist-cloth), address each other as swami, greet each other onthe street with

the cry and response, ‘Swamiye!’ (the vocative form of swami),‘Saranam Ayyappan!’

(Ayyappan is my sanctuary/refuge), and attend evening,men-only, devotional singing groups.

In practice, however, and especially in the southern part of Kerala, theperiod of votive

abstinence may be much shorter: pilgrims put on the chainand start abstinence just a few days

before the pilgrimage: enough to show aclearly unshaven face, one of the most apparent

symbols of a man undertakingvotive abstinence.The distinctive black or orange waist-cloth

may be wornonly on the day of the pilgrimage itself, while other strict prescriptions – suchas

regular visits to the temple and attendance at devotional singing – may befollowed only by a

few enthusiastic devotees. In Valiyagramam, some people commented that current casual

attitudes towards votive abstinence reflected adecline in ‘proper’ devotion in Kerala.

Pilgrims often undertake the journey barefoot, on foot; they seem more intense andobservant

of votive abstinence than in the south. In the south, it is found thatthe majority looked with

some degree of suspicion and bemusement at thosepilgrims – especially those from

neighbouring Tamil Nadu, Andhra Pradesh and Telangana – who are somewhat‘too keen’,

strict adherence to ritual prescriptions being taken as a signof ‘backwardness’ and lack of

sophistication.

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For those pilgrims who come from more distant places,it is more of an adventure. They also

have to be more observant. But regardless of whether pilgrims follow votive abstinence

strictlyor not, everyone agrees that some form and period of abstinence – from

sexualintercourse in particular – must be observed. Many villagers and the locals explain that

Ayyappan is a celibate deity and that his miraculous powers derive from hiscelibacy; stories

were recounted of misfortunes befalling men who did notabstain from sex before or during

the pilgrimage. For example, the death ofa local guruswami– also known for dabbling in

sorcery (mantravadam) – wasattributed to his alleged extra-marital relationship with a

woman who persuadedhim to take her to Sabarimala; overtaken by lust he agreed to take

herdisguised as a man, but on his return he fell ill and died.

After a period of votive abstinence, a date is set to go to Sabarimala. Older men tell that in

the past pilgrims would leave after the Mandala periodand a full forty-one days of votive

abstinence to arrive at the temple in timefor the culmination of the festival season –

makaravilakku– when Ayyappanappears to devotees in the form of a light in the sky above

the hills.

Nowadays, however, makaravilakkutends to be avoided, since the temple onthat day will be

so crowded that it would take many hours of queuing, andmuch pushing and shoving, to get

sight of Ayyappan, make offerings andreceive prasadamof honey-balls (unniappam).

Alternative dates are chosen –usually sometime during the Mandala period – relying on the

knowledge andexperience of guruswamis to select a time when crowds would be

relativelyless dense and numerous.

The pilgrimage is always conducted in groups, and never individually,villagers explaining

that in the past the journey to the temple – across mountainsand forests populated by wild

animals – was so dangerous as to make itunsafe for lone pilgrims. Indeed, the whole rhetoric

of the pilgrimage is oneof communality and equality before the deity, of large groups of men

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travellingtogether under the absolute leadership of a guruswami, where personalidentity

(remember that all pilgrims address each other as ‘swami’) and differencesof caste, class, or

religion disappear (remember that the ‘helper’ deity,Vavarswami, was Muslim); note also

that, unlike other temples in Kerala,non-Hindus are not barred from visiting Sabarimala.The

pilgrim, as renouncer,is ideally dead to the differentiated social world of caste/community.

Groups of pilgrims are normally relatively small, composed of friends, relatives, or

neighbours, andseldom include people of different castes. The majority of the pilgrims in

thegroup are people whowould be identified locally as coming from low- to middle- or high-

rankingcaste groups. Few are Dalits (ex-untouchables) or Brahmans; most were

Nayars (traditionally a superior landed group) or Izhavas (a caste of traditionally

low status, formerly associated with coconut cultivation).When larger,multi-caste parties are

formed – usually through temple/devotional associationswhich hire transport to take pilgrims

to the site where the pilgrimageproper starts – they tend to split into smaller groups once the

bus journey endsand the ascent to the temple begins. At the temple itself, there is both a

strongsense of communitas, as men are confronted by and merge with a mass of pilgrimsall

dressed in a similar fashion, all carrying on their heads offerings for the deity and all calling

each other ‘swami’, and a sense of separateness. Groupsof pilgrims, large or small as they

might be, carry on their ritual duties quiteoblivious of each other, with little interaction

between groups, albeit withina general atmosphere of friendship, tolerance, and elation. And

even if anegalitarian community of worshippers is created during the pilgrimage, it might be

an extremely short-lived one especially for those of comparativelylow caste in local terms.

Returning to the pilgrimage preparations, on the evening selected for thejourney – normally

the pilgrimage starts as soon as possible after dusk in orderto avoid walking up the steep hill

leading to the temple in the heat of theday – a group of pilgrims would congregate at the

house of a guruswamiaftervisiting the temple. Guruswamisare older men who have gone to

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Sabarimalamany times – at least eighteen times, are known for their devotion to Ayyappan,

and haveacquired considerable practical and ritual knowledge about the pilgrimage.

While many people in Kerala may undertake the pilgrimage journey itselfunaccompanied by

a guruswami, the latter’s ritual knowledge and expertise areessential to the initiation of

pilgrims and their preparation for the journey.

Either inside a house hold pujaroom or in the courtyard of a home or a temple under a canopy

preparedfor the occasion, a number of offerings (rice, puffed rice, bananas, flowers, andsticks

of incense) and a lighted oil-lamp are placed in front of a garlandedimage of Ayyappan; to

one side, on plantain leaves, are the offerings whichpilgrims will take with them to

Sabarimala (often acquired in bulk in specializedshops which sell ‘Ayyappan bags’). After

performing puja to the deity,the guruswamilights camphor on a plantain leaf to circle in front

of the deity,calling ‘Bhagavane’ (‘Lord!’), then passing on the flame to the pilgrims

sittingcross-legged behind him, who receive it, murmuring ‘Ayyappan’.

Sitting facing the pilgrims, the guruswamibegins irumudikettu(literally, twohead coverings

tied together), filling two cloth pouches (which should be black, white, or red) tied into a

single bundle with ritual offerings forAyyappan and his accompanying deities. The

guruswami begins by pouring clarified butter (ghee) into a number of coconuts which have

been previously bored with one hole and emptied of their liquid; he seals each with a cork.

Each pilgrim then receives a number of items to be placed in the irumudi’s two

pouches.Themain offering to Ayyappan is in the front pouch: one gheefilledcoconut together

with three handfuls of rice placed there by the pilgrimor by non-pilgrim relatives, an areca

nut wrapped in betel leaf, and, for newpilgrims – the kanniswamis – a few coins as

dakshina(ritual ‘payment’). The rear pouch holds another coconut – whole and not filled with

ghee – to be smashed before ascending to the main Ayyappan shrine and a small bag

ofturmeric powder; some camphor balls; a small bag of white rice; some tobaccoand some

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marijuana leaves. A separate bag contains dried grapes, mouldedsugar balls, and bananas to

be offered to the god Ganapathi. As he passes eachitem to them, the guruswamicalls,

‘Swamiye Ayyappan’ and as pilgrims receiveeach item they call, ‘Ayyappa Saranam’

(Ayyappan is my refuge’).

Now the irumudibundles are securely tied with string and pilgrims mix together the

remaining offerings in front of Ayyappan’s image and distributethem as prasadamto all those

who have been present at the preparation. Thepilgrims are now ready to leave. They make the

devotional gesture of touchingthe feet of senior family members, give dakshina– a few coins

wrappedin areca leaf – and receive blessings from non-pilgrim friends and relatives.

The guruswami, standing behind them, balances an irumudipouch on the headof each pilgrim

who in return touches the guru’s feet and offers dakshina.Thepilgrims walk backwards out of

the house or pandal and circle three timesaround a rock placed at the centre of the courtyard

before smashing a coconuton it. They leave without turning to look back, accompanied for a

while bymale relatives and friends, who encourage them with loud shouts of ‘Swamiye

Ayyappan’, demanding the pilgrims’ response, ‘Ayyappan saranam’. Finally, pilgrims set off

in hired coaches and minibuses for Sabarimala, shouting andsinging Ayyappan songs. From

the time of departure until safe return, an oillamp will be kept lit in the puja room of

pilgrims’ houses.

Pilgrimage preparation acts unequivocally as a rite of passage. Pilgrims are separated from

their usual environment and social relations, and their bodies are marked out in particular

ways – unshaven, barefoot, wearing a black or an orange waist-cloth, and carrying irumudi

bundles on the head. They lose their social identity and become sannyasis (renouncers)

incorporated into a wider undifferentiated community of men, while at the same time

‘becoming like’ Ayyappan himself. This process of separation, transformation, and

incorporation we interpret as death. Funerary symbolism is evoked at many moments of the

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ritual: pouring rice onto the ghee-filled coconut in the irumudi which will later replace the

pilgrim himself resembles that part of funerary rites when rice is poured onto the head/mouth

of the deceased;walking backwards away from house or pandal recalls that dead bodies are

taken backwards – head first – out of the house on their way to the funeral pyre; walking

around a rock in the courtyard three times is like the turning around of the corpse three times

before it is taken off for cremation. Associations of death and cremation are again evident in

the performance of azhitullal– fire-walking – optionally undertaken by pilgrims before filling

the irumudi. None of this is surprising, given the ritual transformation of pilgrims into

renouncers: like renouncers, pilgrims perform their own death rituals in an act of

selfsacrificeand self-annihilation – a recurrent pilgrimage theme – which allowsthem to

merge with Ayyappan himself.

To Sabarimala and Back

There are two routes to Sabarimala: the long and the short. The first route, some sixty-five

kilometres long and taking several days to complete, starts atErumeli, the small town where it

is said that the dead body of Mahishi landedafter having been tossed in the air by Ayyappan.

At Erumeli there is a mosquededicated to the Muslim Vavarswami and an Ayyappan temple.

From Erumeli, pilgrims begin an arduous climb through forests and steephills, encountering

along the way a number of sacred sites associated withAyyappan’s journey to find tiger milk

for his mother and with his battle againstMahishi. By following Ayyappan’s footsteps,

pilgrims eventually arrive atPambaNadi, on the bank of the Pamba river, where the final

ascent toSannidhanam (Ayyappan’s temple) begins. Until the 1960s, the long route wasthe

only one to Sabarimala, and remains popular among particularly devotedpilgrims or as a

‘special’ vow. The majority now arrive by bus or car directlyto PambaNadi, following a new

road built by the Kerala government alongthe Pamba river valley. From PambaNadi,

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however, all pilgrims must continuetheir journey on foot, carrying their irumudibundles on

their headsalong the way.

Having crossed the Pamba, pilgrims take a purificatory river bath and thenperform a sacrifice

(bali) for their ancestors. Pilgrims pass many tea-stalls andstores selling religious

paraphernalia as well as ‘ladies’ items’ (men usually take back gifts to

wives/daughters/mothers), before reaching and making offeringsat the shrine to the elephant-

headed deity Ganapathi which marks the beginningof the ascent.After a few hundred metres

climb, they encounter a memberof the family of the former Pandalam Rajah who sits in a hut

a waitingdakshinain token of his descent from the god’s adoptive family.The path thenclimbs

up Appachimeeda, an extremely steep hill which many pilgrims climb running, while

continuously invoking Ayyappan’s name. At the top they reacha small shrine, Sabaripeedam:

here, pilgrims throw moulded sugar balls downinto the forest below to pacify the Mala

Devans, dangerous forest-dwellingdeities. From then on the path is on flat ground, and after a

couple of kilometers pilgrims encounter SaramkuthiAal, a big baniyan tree around which

newpilgrims – the kanniswamis – deposit a wooden arrow. It is said that an arrowthrown by

Ayyappan to indicate to his followers where the temple shouldbe constructed landed here. At

the conclusion of the pilgrimage season, Malikappurattamma/Mahishi is taken in procession

to this tree to checkwhether first-time pilgrims have visited Ayyappan. Every year she finds

thousandsof arrows, indicating that many kanniswamis have come and thus that shecannot

marry Ayyappan: in sombre mood she returns to her shrine.

Eventually, the Sabarimala temple complex comes into sight: pilgrims queuefor hours under

a hangar-like shelter and finally arrive in a large square leadingto the pilgrimage’s

culmination, the Pathinettapadi, the holy eighteen goldensteps up to the main temple. Before

going up the steps, pilgrims first makeofferings from their irumudisto the shrines of the three

key disciple divinities,Vavarswami (the deified Muslim brigand), Karuppaswami the ‘tribal’

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chief,and the ‘dwarf ’Kaduttaswami, then break a coconut against a special tank onthe side of

the steps. This coconutused to be broken on the holy eighteen steps which are ascended by

pilgrims beforereaching the main shrine. Since 1986, however, the steps have been decorated

with abright gold covering. Pilgrims are not permitted to break their coconuts on this but

mostdo it off to the side, before ascending the steps.

The shells of the coconuts are collected and burned on a huge sacrificial firenearby

(homakundam). Loudly calling Ayyappan’s name and taking blessingsfrom each of the steps,

pilgrims finally reach the Sannidhanam, Ayyappan’smain shrine.6 Here, the ghee-filled

coconut is taken to a special counter whereit is broken up and the ghee, collected by temple

officials, used for abhishekam(anointing the deity). Pilgrims join another long queue taking

them in frontof the main shrine, where they have a brief darshan (sight) of the golden deity.

It is an extremely emotional moment: with joined hands, pilgrims pray, callAyyappan’s name

and put money – sometimes large wads of cash – or goldornaments into a large container

before the deity. These offerings are on sucha vast scale that the temple administration has

installed a conveyer belt whichtransports every item directly to a room below the shrine for

sorting, counting, and storing. From here, pilgrims move on to take offerings to other

deitieswithin the temple complex, Malikappurattamma in particular, and to collecthoney

balls, the main prasadam.

Exhausted from the long journey, from heat and from the long hours ofqueuing, but elated

and joyous after receiving the auspicious sighting (darshan) of Ayyappan, pilgrims return to

Pamba and from there proceed have by car or bus. On coming home, they go to their

household puja room to worshipAyyappan and then remove the neck chain they have been

wearing throughoutthe period of the pilgrimage, beginning with the initial period of

votiveabstinence. They distribute honey balls to family, friends and neighbours.

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Women also receive the small presents, such as hairclips or bangles, whichhad been bought

in Pamba. Votive abstinence is finally broken; havingrenounced meat-eating during the

pilgrimage, pilgrims now eat their firstnon-vegetarian meal, prepared by the women of the

house.

Talking about Sabarimala

A number of recurrent themes emerge when talking with men who havegone to Sabarimala.

The fatiguing and dangerous nature of the pilgrimage,rendering it a trial, is always stressed –

even exaggerated. Notably, men invariablyreferred to the possibility of being killed by wild

animals (especially tigersand elephants) while in the forest.That this hardly seems likely (the

men keepto well-used tracks; there is plenty of noise; tigers have all but disappeared),and

appears never to have actually happened, does not detract from thegenuine apprehension

which people seem to feel at the prospect of enteringdeep into ‘the forest’, that symbolically

loaded space of Hindu mythology.Thisis heightened among kanniswamis, the first-time

pilgrims: characterization of the journey through ‘forests infestedwith elephants, bears,

leopards’. By talking about, and ‘talking up’, the dangersof the pilgrimage, men explicitly

identify with Ayyappan’s perilous journeythrough the forest and with his bravery, while

coding the pilgrimage as anordeal, an act of masculine heroism.The women are barred from

the pilgrimage for their ownsafety, or suggested that women lack the physical and mental

strength toendure such an arduous journey. Others reminded us that women could notkeep

forty-one days’ votive abstinence because menstruation would take place, and hence impurity

ensue. But even manly courage, strength, and purity maybe insufficient to pull the participant

through the ordeal: men talk aboutmiraculous encounters with Ayyappan helping them along

the arduous wayto Sabarimala. In pilgrims’ tales, the deity, in various guises, comes to

therescue of imperilled pilgrims, typically those who become lost in the forestor are attacked

by wild animals. Ayyappan also manifests himself to offerencouragement and strength to

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exhausted pilgrims whose resolve is flagging. Miraculous encounters with Ayyappan are

affirmationsof pilgrims’ spiritual and moral worthiness: Ayyappan will only help those

whofollow votive abstinence and surrender themselves to him.In their accounts of pilgrimage

experience, many men also highlight a particular atmosphere that is experienced at

Sabarimala. When you keep vrattamfor some days, you forget passions and bad things. The

bodybecomes healthier, and so does the mind: you think of Ayyappan and forget all

yourtrouble. You go to Sabarimala to fulfil a vow, sometimes you are sent there

becausesomeone else has made a vow – your mother or a brother. But you also go there

forpersonal pleasure in the experience.

‘There is a special atmosphere at Sabarimala, becauseeveryone has only Ayyappan in mind

and there are no such tensions andpressures as you normally experience at home.’ The sense

of merging withAyyappan (or of taking refuge in him – swami saranam) is heightened by

thepilgrimage’s sacrificial symbolism. Pilgrimage preparations are a self-sacrificial death

which blends individual men into a community of swamis/renouncersand, importantly, into

Ayyappan himself. This process becomes most apparentin the final stages of the pilgrimage.

First, pilgrims should break a coconut on the holy eighteen steps. Until thepractice was

discontinued in 1986, this involved a direct reference to theindividual’s pilgrimage

experience: on the fourth pilgrimage, you would havebroken a coconut on the fourth step and

so on. Coconuts in Kerala are normallyused in rituals and sacrifices as substitutes for people,

a relation ofhomology being drawn between coconut trees and the human body, coconutsand

human heads. The ritual breaking of coconuts is generally understood in Kerala as a

sacrificial offering, where the fruit stands as substitute for thesacrifier. At Sabarimala, the

coconut’s broken shell is then destroyed on a hugesacrificial fire reminiscent of a funeral

pyre. Many Sabarimala old hands toldus that in the past, once a pilgrim had been to

Sabarimala eighteen times, hewas allowed to plant either a coconut or an areca sapling in the

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temple compound,in the same way that Malayali Hindu mourners plant coconut or

arecasamplings on the spot where a dead relative has been cremated.That the second coconut,

filledwith ghee, is also broken up and its contents used to anoint Ayyappan in thetemple,

suggests not only death but also merger with the deity.

The Sabarimala pilgrimagefocuses on its cosmological and physiological dimensions.

Pilgrims, progressively shed various layers of self as they proceed along their

journey,experiencing pain, discomfort, and tiredness, ultimately achieving completemerger

with the deity once they climb the holy eighteen steps – each onesaid to be associated with

particular elements making up the gross and subtlebody – and find themselves in front of

Ayyappan. The understanding is thatidentification with Ayyappan might occur at a rather

earlier point, indeed fromthe point when the pilgrim undergoes the initial preparation ritual,

and isthen heightened by sudden miraculous encounters with the deity along theway. Pilgrims

do not just go to Sabarimala ‘to Ayyappan’, but also ‘as Ayyappan’ and ‘with Ayyappan’.

Yet that transcendence via merger with Ayyappan does not in any sense erase worldly

concern. Pilgrims go to Sabarimala not with self-transformationand certainly not with

moksha (final release) in mind, but hoping to receivethe blessing of Ayyappan, seeking

concrete help in resolving mundane problemssuch as having a child, finding a job, prosperity

in business, and so on.

Significantly, one commonly stated reason for going to Sabarimala is thedesire for children.

Having children – sons in particular – is of course one ofthe most important duties of the

householder and a clear marker of havingsuccessfully attained full manhood.Whilethe

pilgrimage stresses asceticism and especially sexual abstinence, sexual desireand sexual

potency often become emphasized during the return journey.

Young Malayali men in particular find it entirely appropriate to round offtheir period of

abstinence and pilgrimage by asking the bus driver to makea detour to allow a pleasure-trip to

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the beach resort of Kovalam, the trip’sexplicit intention being to provide sexual gratification.

Kovalam stands in starkcontrast to the austerely masculine environment of Sabarimala. It is a

bustlingresort outside the state capital, frequented by tourists, both foreign and Indianmiddle-

class urbanites, and holds heady promises of glamour and squalor inequal measure.The main

tourist season, around Christmas, conveniently coincides with the Sabarimala season. At

Kovalam, beach cafés sell European foodand two illicit substances, beer and marijuana,

whilescantily dressed tourist women wander around and can be ogledfreely.

The devotees’ visits to Kovalam tend to involve sea excursions in hired local boats,during

which they chant and sing songs in praise of Ayyappan, studiouslyignoring the undraped

women all around them.

Sabarimala represents a particularly masculine way to explore andresolve some of the

tensions of the male position within the household andwider social life. If the pilgrimage, by

emphasizing renunciation, distances anddetaches men from everyday life and offers a respite

from the demands ofdomesticity – ‘there are no such tensions and pressures as you normally

experienceat home’ – at the same time, it allows men to draw on the powers ofrenunciation

itself successfully to fulfil their role as masculine householders,providers, and begetters of

children. But at the same time, the ascetic deity isheavily reliant upon the help of his

householder devotees: as was seen above, Ayyappan needs annual visits of new pilgrims in

order to remain celibate andhence retain his ascetic power.

The ‘householder’ and the ‘renouncer’ revisited

The pilgrimage has something particular to do with men, andwith men in their relationships

to other men and to women.This in turn hasimplications for a long-standing issue in South

Asian studies: the apparent culturaltension between the householder and ascetic impulses.

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Hindu social life rests upon several pivotaloppositions. Among the most important is that

between the householder’sdomain of caste and interdependence and the arena of individual

selfcontainmentassociated with the renouncer.

In Buddhism, on the other hand, ‘the very existence of therenouncer assumed the necessary

presence of the lay householder … uponwhom he was materially dependent’.

While the householder ideal has thus effectively won out as the dominantorientation for men

approaching maturity, and while historically and withinthe different South Asian religious

traditions there have been many interpretationsof the relative importance or status of the

householder and renouncer, and of the relationship between them, the idea of a tension or

oppositionbetween the two has generally been felt useful. Complementarily within early

Buddhism grows into conflict and downright hostility by the time we reach current

ethnography: ‘[R]enouncers… are usually accorded respect in face-to-face encounters…

When talking about them generally, however, they are reviled … ‘The virtues of the life of

the householder [are] … said to flow from “detachment in enjoyment” which is the essence

of renunciation’.While this assertion, concerned as is with balancing out the ethnographic

record and affirming the value of the life of the man-in-the-world, his remark makes clear

that we are then faced with two apparently antithetical values whichrefuse to stay apart and

inhabit separate domains: the true house holder should cultivate virtuosity in the arts of

renunciation in order most fully to enjoy his non-renunciation.

All this means two things for our purposes here: first, that we can discount such classic

Dumontian characteristics of ‘true’ asceticism as individualism, lackof social ties, flouting of

caste, and so on; secondly, that the world of the householder and the renouncer are clearly not

hermetically sealed off from each other either socially or ideologically, regardless of

insistence upon ‘two conceptual universes’. The Sabarimala pilgrimage suggests a particular

articulation of the relationship between householder and renouncer: here, in the first place,

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through a relationship of reciprocal empowerment, both householder and renouncer acquire

the means to fulfil their separate socio-cultural roles. The lesson learnt from Sabarimala is

that the man-in-the-world (the pilgrim) needs the power of the renouncer to be a successful

householder, just as the man-outside-the-world (the celibate Ayyappan) requires the support

of the householder in order to maintain his ascetic powers. At the same time, the man-in-the-

world must actually himself take on the mantle of the man-outside-the-world in order to fulfil

his (productive and reproductive)responsibilities effectively.With an act of pilgrimage, a

householder becomes an ascetic and moves into an all-male community of ascetics; with no

kanni swamis to visit him, Ayyappan would marry Malikapurattamma and becomehimself a

householder. His potential bride waits perpetually nearby, and the story’s conclusion is

forever deferred. Ayyappan’s myths do not end with his spurned lover disappearing, leaving

him to retreat into the forest: rather, the couple and the promise of marriage are held in

timeless tension and deferral, dependent upon the annual pilgrim cycle. The world of the

renouncer andthat of the householder are not incompatible but continually impinge and

spillover onto each other, while being co-dependent and mutually transformable.

Sabarimala and masculinity

So far we have suggested that the Sabarimala pilgrimage – a virtually all-maleevent – under

scores and enhances some specific masculine qualities of bothdeity and visiting devotees.

This leads us to consider, on the one hand, some works of psychological anthropology which

explore men’s relationships with women and theformation of the gendered male psyche and,

on the other, anthropological theories which connect individual religious/ritual experiences to

the long term reproduction of power relations in society.

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While autonomy and individualism have been put forward as healthy norms under classical

Freudian theory, in manysocieties, including India, this sort of self-centredness is not widely

regardedas normal or healthy.

At Sabarimala, a first stage of violentseparation expressed through the symbolism of death, a

violence reiteratedthroughout the journey through the real (or imagined) hardship

experiencedby pilgrims; a second stage of merger with a powerful deity; and a final phaseof

reincorporation when devotional tunes sung on the way to Sabarimalamight be replaced by

sexually explicit and obscene ‘boat’ songs (vallampattu), and when we see an emphasis on

sexual desire and sexual potency and, especiallyin the case of young men, aggressive

behaviour towards women.Sabarimala is anopportunity for men to return to the cross-sex

world of the householderrenewed in potency: it is actually via renunciation and association

with othercelibate males that an individual man gains the strength to become and actas a

successful householder. This process of production of an (illusionary) allpowerful male –

empowered by the merging with a hyper-masculine deity and with other men –

simultaneously impinges upon the exclusion of womenand underscores their subordination as

hierarchical inferior – women haveneither the same degree of purity nor the moral strength of

men.

This process is reiterated in several ways: first, the pilgrim becomes part ofa wider,

exclusively male body, bound to the group of men alongside whomhe undertakes the

pilgrimage and its preparations; secondly, membership ofa pilgrimage group involves

voluntary submission to a senior male, theguruswami; thirdly, the male pilgrim also actively

seeks identification with, andproximity to, the extraordinarily and impeccably male deity

Ayyappan; andeventually the pilgrim is dissolved within and connected to a sea of men

who,by their sheer numbers, seem to suggest the entirety of male humanity. Buteven in the

midst of activities which focus on celibate renunciation, mattersof progeny and householder

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responsibilities were uppermost in pilgrims’minds. The blessing that men most hoped for was

often to do with concernsabout birth and fertility. Men tell that they go to Sabarimala with

children in mind: toprotect those already born; to ask for the conception of those desired but

yetunborn; to ensure easy births for pregnant wives. Another preoccupation isemployment

and wealth: men go hoping to get jobs, improve their prospects,or keep their businesses

running smoothly. In the end, then, the core prizedesired by these renouncers is that of

successful mature male householdership:to be a good husband and father, a provider. And

yet, while men almostuniversally undertake the pilgrimage in their role as (actual or would-

be)householders, thus as men (potentially) connected via sex and procreationto women, the

pilgrimage denies altogether connection to, and dependenceupon, women.For the whole year,

the (spiritual and practical) well being of the householdrests primarily on women, who visit

temples regularly, who light thesacred lamp outside the house every day at dusk, who fast.

During the mandalaperiod – the time of the Sabarimala pilgrimage – temples hold special

dailypujas, bhajana(devotional songs) singing and seven- or nine-day-long publicreadings

from religious texts, such as the Bhagavan Gita. During this periodof intense devotional

activity, the crowds attending temples are composedmostly of women.Yet it is the blessings

accrued by men through renunciationand pilgrimage which are endowed with the special

powers of promotinglong-term household prosperity, and in particular securing

progeny.Theseblessings come through immersion in a more potent and larger imaginarymale

body, a body at once connected to the masculine group, to the guruand to the hyper-male

deity. They are blessings passed from men to womenand dependents: when returning

pilgrims bring ‘ladies’ items’ (gifts boughtwithin the temple precincts); and when they

distribute the deity’s prasadamofhoney balls, conscientiously gathered by men to take home.

Predictably,women’s quiet, continual spiritual work for the benefit of their families

isovershadowed – and actually said to be activated and protected by – the moreconspicuous

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ritual activities of men, that is the one-off or occasional act ofall-male pilgrimage. Finally, the

Ayyappan myth evokes an all-too-familiartheme of the transformation, taming, or

containement of potentially dangerous,and yet powerful, unmarried females (here a she-

buffalo; blood-thirstygoddesses in other stories) through the intervention of a male deity.

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 CHAPTER VI

CONCLUSIONS AND SUGGESTIONS

Defining the word ‘gender’ is a simple task but, when we emphasize on the meaning of

‘equality’ then it is a bit complex task. In simple language, Gender means any sex – be it

male, female or any transgender and Equality means treating everyone equal in the eyes of

law irrespective of any caste, colour, race, sex, religion, and region. A blend of these two

words leads to a wider concept of “Gender Equality”. ‘Access’ means entry or way to reach a

particular thing and ‘Worship place’ denotes any place to which some religious sentiments

are attached or is specially designed structure or consecrated space where individuals or a

group of people come to perform acts of devotion, veneration, or any religious study. By

putting some legal reflections on these terms, we get some wider connotations related to

Gender equality and Access to worship places. According to our Indian Constitution,

Equality before the law means that equality among equals and that the law should treat

everyone equal be it while giving punishments or while protecting rights. The right to sue and

be sued, for the same kind of action should be same for all citizens of full age.

Our Constitution also gives us Fundamental rights which explicitly prohibits any form of

discrimination and also gives liberty to Indian citizens. Right to freedom of religion is one

such Fundamental right which includes freedom of conscience and free profession, practice,

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and propagation of religion, freedom to manage religious affairs or freedom from religious

instructions in certain educational institutes.

Women are constantly fighting a battle for this equality irrespective of the fact that our

constitution expressly provides it. Also, they are currently fighting to be treated as equals in

the eyes of their gods. Indian feminism has always been a unique debate, owing to various

ethnic influences that are characteristic of the cultural minefield that India is. However, this

issue encompasses not only feminism, but also religious practices and their conflict with our

constitutional law.

Banning menstruating women to enter places of worship by priests is not a new thing in

India. What is an amazing fact is that a few fundamentalist forces want to nurture and

continue this bad practice in the name of religion and cultural practices. What requires be

questioning or arguing is whether these priests or fundamental forces have the right to decide

the right or apt behaviour for women in religious places. Secondly, are these various forces

are or see themselves above the Constitution and the constitutional rights given to its citizens

by the state expressly? Finally, what is the role of the state in protecting and ensuring the

rights of its citizens? Also, we need to raise a question that Mystifying gender equality – Are

we accepting the change?

Historical Flashback

Since the time immemorial, god as well as worship places have been in existence. Each

religion has its own worship place according to their gods and a particular procedure stating

who can enter and worship the idol. These places differ in their infrastructure, idols,

structures, priests, prayers to have their own significance. But the common thing in all ofthem

is that most of them ban women to access to this worship places. It is rightly quoted by Letty

Cottin that,

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“When men are oppressed, its tragedy. When women are oppressed, its tradition”

Since ancient times, all this has been the same and nothing has changed. Women are always

considered to be weak and incapable for doing those jobs which men can do. All we could

see is male priests in temples, mosques, churches, etc. and we rarely could have seen any

female priestess. If a woman cannot become one, that is another issue, but main question is

why mere access is banned for them? Isn’t God same for all humans? Be it male, female or

any transgender.

In this patriarchal society, men have always been the first choice, be it to write an epic or

become a priest. Men are the ones who have decided everything for themselves and for

women and for whole family according to their own convenience.

As stated in a poem of Maithilisharan Gupt,

“Narkritshastronmein sab bandhan, hainnaari ko hi lekar; Apneliyesabhisuvidhayein, pehle hi

karbaithenar.”

This is exactly what we see when it comes to worship. Men are the ones who make rules for

worshipping still and women are bound to follow them without questioning. It seems like a

dictum which has to be followed and nobody can raise his or her voice against it. This has

been going since a very long time and women have accepted it. Even if they don’t want to,

they ought to because there are many myths associating to this issue in every religion which

people still rely upon and are adamant in not making an alteration.

Notion of Women’s Impurity

One main notion is about menstruation, in which it is believed that women are unclean, filthy

and possess negative energy during this time, so they should be in solace or must remain

outside or far away from any worship place. The common thread that runs through these

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excuses is patriarchy which is postulated upon the notion of women’s inferiority and

impurity, which then becomes a justification for their subordination and subservient position.

The other connected thread is the perception that women are devilish seductresses who have

the strength to tempt men even while they are engrossed deeply in prayer and worship or in

simple words women can become an obstacle in meditation or prayers of priests. The

recurring aim of Eve, who brought about the fall of the mankind by luring Adam into sin and

was ejected forever from the Garden of Eden, a concept rooted in JudeoChristian tradition,

becomes a theme across various civilizations and religions.

The concept seems to have been brought up during the later period of civilization when

patriarchy was taking roots, when political power came to be conferred in kings and private

ownership of agricultural lands was introduced, ousting the previous civilization of the food

gathering stage, with common living and common ownership of land as its main essentials. It

is during this passage of time that women appeared to have lost their superior position which

they had at the dawn of civilisation. It was a belief that women are spurred with the divine

power of reproduction and the incarnation of this power was their menstrual cycle which

coincided with lunar cycles. Hence, the seeds which were sown were blended with the life

providing menstrual blood. The Vedas refer to menstrual blood indirectly as kusum (flower),

pushpa (bloosom) and jivarakta (the giver of life). The woman was the embodiment of

strength or power, — Shakti — and could even kill evil spirits in the form of Durga and Kali.

There is also mention of women like Gargi who challenged a profoundly wise person

Yajnavalkya on religious philosophy. In ancient Greek religion, there were women

priestesses who organised and managed many festivals and performed religious rituals.

Women priestesses worked as oracles, the most famous of them was the Oracle of Delphi.

The prominence of the priestess of the Temple of Apollo at Delphi had unfurled throughout

the Greco-Roman world. Feminist anthropologists and historians endorse to the belief that

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patriarchy introduced the idea of women’s impurity to reinforce male supremacy over them.

Gradually, as patriarchy took root, women were chastised for their strength of healing and

foreseeing, and during the medieval ages, many healers and midwives were burnt as witches.

Worship Places where access of Women is Banned.

There are many varied places in India where entry or access of women to worship the idols of

their respective religions is banned. This ban is not restricted to worship places only but also

to educational institutions as well. One biggest example of this is very prestigious Aligarh

Muslim University “There would be four times more boys in the library if girls were allowed

in because boys will get attracted to them and discipline issues will crop up”.

So, these kinds of statements undermine the very essence of EQUALITY of our constitution.

Few main worship places where entry of women is banned are as follows:-

i. HAJI ALI DARGAH SHRINE, MUMBAI-The Dargah is open to women but its most

sacred inner sanctum is barred to females. The shrine’s authorities claim that it is "un-Islamic

under the SHARIA LAW” for women to see or visit graves and that they were rectifying a

mistake that had allowed women to enter this area.

ii. LORD AYAPPA TEMPLE, SABARIMALA-The Lord Ayyappa temple in Sabarimala in

the state of Kerala ban the entry of women aged 10 to 50, the age in which they are most

likely to be menstruating.

iii. JAMA MASJID, DELHI-At Jama Masjid Delhi women are not allowed to enter after

sunset.

iv. SREE PADMANABHASWAMY TEMPLE, KERELA-Women are not allowed to enter

the temple vaults. Even a female official from the Archaeological Survey of India was barred

from entering the chamber for inventorying the treasures.

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v. LORD KARTIKEY TEMPLE, PUSHKAR- According to myth, women who visit this

temple in will get cursed instead of being blessed by the lord; hence the ban was put on entry

of women.

vi. PATBAUSI SATRA, ASSAM- Women aren't allowed inside the temple to preserve its

"purity" and “sanctity”, particularly as menstruating women are considered "unclean" and

“filthy”. In 2010, JB Patnaik decided to break the rule and he entered with some women, but

the ban was again re-imposed.

vii. JAIN TEMPLES, GUNA, MADHYA PRADESH- Jain community leaders in Guna

district of northern Madhya Pradesh do not allow women who wear “western” attire, mainly

jeans and tops, from entering any of the Jain temples.

viii. NIZAMUDDIN DARGAH, NEW DELHI - Nizamuddin Dargah, women are not

allowed enter into the sanctum and they are confined at the periphery of the Dargah.

ix. BHAVANI DEEKSHA MANDAPAM, VIJAYAWADA-

Jayanthi Vimala was appointed as a priestess at the temple following death of her father, a

hereditary priest. As her father had no sons, the government appointed her " v a m s a p a r a

m p a r y aarchaka" (hereditary priest) at the temple in 1990. She is the only woman priest

appointed by the government in that state but she too is not allowed to enter into the sanctum

of the temple, like all other women of the respective state.

x. SHANI SHINGNAPUR TEMPLE, MAHARASHTRA- According to a 400-yearold

tradition followed by people of India, women are restricted from entering the inner sanctum

of the shrine. But, over the past few months, women from all over Maharashtra as well as

from other parts of India have been storming the village to protest against gender bias.

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xi. RANAKPUR TEMPLE, RAJASTHAN- A large board is put outside the entrance of the

temple defying when and how women can enter the temple.

Legal Perspective

There are many places where the access of women is completely banned. Some of them are

in limelight for barring women from worshipping and entering the temples and for

infringement of their constitutional right. Article 25 (1) provides and guarantees to all persons

(citizens of India) the right to freely profess, practice, and propagate their religion. Article 26

(b) grants to religious denominations the right to manage their own affairs in the matter of

religion. However, Article 25 (2) allows state intervention in religious practice, if it is for the

determination of “social welfare or reform or the throwing open of Hindu religious

institutions of a public character to all classes and sections of Hindus”. But these provisions

do not, however, entirely resolve the isue.

The right to freedom of religion under Article 25(1) is enforceable against the state, and not

against other individuals, or corporate bodies. But this does not mean that one cannot file a

suit relating to this article as the Supreme Court has held in the Sabarimala temple case that if

one private party chokes another private party from exercising her constitutional right, then it

is the duty of the state to accomplish or protect her right by restraining the former from

continuing with its obstruction. This prohibition of entry to women in Sabarimala shrine was

being protested by many women from whole of India and contested by lawyers in the

Supreme Court which will open a Pandora’s Box for other faiths too. Actually, the

management of the temple was not interested in the modern approach ofallowing women to

fight for themselves or procure their fundamental rights; they were obsessed only in the

patriarchism and in old traditions. At another level a group of Muslim women staged a protest

demanding their entry into the inner sanctum sanctorum of the historic Haji Ali dargah,

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claiming that the ban is of recent origin and is arbitrary or unreasonable since several dargahs

in Mumbai allow women to enter the inner sanctums of a dargah. In response to a petition

filed by two Muslim women which is pending before the Bombay High Court, the

representatives of the trust which manages and controls the affairs of the dargah stated that

women are provided with separate entrances to “ensure their safety”. They also claimed that

if men and women are allowed to mingle, it would not only distract men but also would be

against the tenets of Islam. But the women have spurned at this claiming that the

discrimination is based on patriarchy and not religion. The trustees also said that the ban was

aimed at ‘protecting’ female worshippers from sexual attention because when they bowed,

the pallu [loose end] of their saris fell, exposing their chest area which seduced the men who

might be looking at them and get distracted. The case was filed by Bharatiya Muslim Mahila

Andolan.

The question of gender justice in religious institutions is the charter of state which is

accountable to enforce the constitution. Being a secular state, the governments have not and

have never interfered in the areas of individual religions which are administered by their

respective religious bodies. The ramification of judgement in these 2 cases will be then to

find means or ways which will advance the constitutional assurance of equality, non-

discrimination and freedom of religion. This issue needs a special attention and wide

dissection from legal point of view because, only then we can save the basic sanctity of our

Indian state of being a ‘socialistic’ and ‘democratic’ state.

Some Important Cases and Rulings

S. Mahendran vs. the Secretary, Travancore (Sabarimala Temple Case) A threejudge had said

that denying entry to women based on traditions are completely against the principles of the

Constitution. The court was hearing a Public Interest Litigation (PIL) filed by the 'Indian

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Young Lawyers' Association', probing access of women in the Sabarimala temple. The

hearing came close on the heels of the Bombay High Court order directing Maharashtra

Government to ensure and take care that women are not denied entry at any temple.

Defending the ban, the Sabarimala temple administration earlier said the tradition is

connected to some paramount religious practice. Supporting the temple administration, the

Kerala Government told the court that beliefs and customs of devotees cannot be modified

through a judicial process and that the opinion of the priests is and will always remain final in

matters of religion.

Dr. NoorjehanSafia Niaz & Another V/s State of Maharashtra & Others (Haji Ali dargah

shrine case) a petition in the Court had sought an interim relief by way of allowing women to

enter the inner sanctum at Haji Ali Dargah.

Smt.Vidya Bal & Anothers Vs The State of Maharashtra & Ors ( Shani Shingnapur Temple

case ) a 400-year-old ban on entry of women into the shrine’s core area was vanished by the

temple trust following advocacy group Bhoomata Brigade’s agitation against gender bias and

the Bombay High Court order upholding the equal rights to worship.

Kerala Hindu places of Public Worship (authorisation of entry) Rules, 1965: The ban on

entry of women inside various Hindu temples was enforced under Rule 3 (b) of the Kerala

Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (women at such time

during which they are not by custom, tradition and usage allowed to enter a place of public

worship). But, the Kerala High Court had upheld this ban under the above mentioned rules in

1991 and directed the Devaswam Board to implement it.

S .P. Mittal Etc. vs. Union of India and Others Chinnappa Reddy, J. Gave his views on

religion stating that –Every person has a particular religion, or at least, a view or a window on

religion, be he a bigot or simple believer, philosopher or pedestrian, atheist or agnostic.

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Religion, like ‘democracy’ and ‘equality’ is an elusive expression, which everyone

conceptualizes according to his preconceptions. What is religion to some is perfect and real

dogma to others and what is religion to others is pure superstition to some others. As a

worshipper at the altar of peace, I find it complex to reconcile myself to religion, which

throughout the ages, has justified war calling it a Dharma Yuddha, a Jihad or a Crusade. I

believe that by getting blended up with religion, ethics has lost much of its point, much of its

drift and a major portion of its spontaneity.

Climbing Question -Why this Discrimination?

It was Manu who firstly talked about subservient position of women in our India society.

Before Manu’s works, all philosophers have talked or written about the strong roles of

women like Kali, Durga etc. When god created this universe, he included Human species on

earth but, he proposed the concept of equality not gender inequality. All of us are equal in the

eyes of law and in the eyes of God as well. So, why we humans consider ourselves above the

almighty god and started treating people unequal or discriminate on varied basis of class,

colour, religion, sex etc.

Although this discrimination or subservient position of women is a part of our society from

time immemorial but, it took rigid and cruel shape since the concept of patriarchal

societyarose. The conflict is obvious and also expected, where priests are openly announcing

strictures or rules that menstruating women will not be allowed to enter the place of worship.

But the rapacious thing in this conflict is that the state has become a mute spectator and

playing in the hands of priests. Although the Supreme Court in its various judgements has

pronounced that such a prohibition is unconstitutional and arbitrary; still the Kerala state

government stood to defend the ban on the entry of women in Sabrimala temple and this is a

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very surprising and parsimonious step on part of a government whose duty is to treat its

citizens equal in a democratic state.

In a secular and democratic country like India, which promises and gives surety that it will

protect the rights of its citizens to practice religion and faith of his or her choice, such rulings

are a violation of one’s rights. The recent ruling by the Sabrimala temple in Kerala is that it

will only allow women to enter into the temple if a scanning machine is designed and placed

outside the entrance of the temple to ensure none of them are menstruating. The temple has

currently prohibited the entry of all women in the menstrual age group (10-50) because it

believes that bleeding makes them impure and unhygienic which is not only an attack on

women’s rights, but it is a question of one’s privacy. We can call this Hindu majoritarianism,

where a few wants to edict what should be done and what not.

It is a serious issue where these forces like temple managements authorities or some other

concerned religious committees which are proclaiming themselves as supreme power above

the State, although not in words but in acts. We actually do not know whether the state is

supreme or these fundamentalist forces, but surely we want to know.

In today’s 21st century modern world, where we talk about a woman as our prime minister,

astronaut, scientist, fighters, judges etc., how one could see them not as equal as men. If

males think that menstruation is impure then, they should not expect children from women.

Because women are given equal rights of access to worship places and to do prayers or offer

anything of their choice to their respective gods or goddesses by our Constitution expressly.

It is rightly said by Japleen Pas Richa that,

“This isn't about if I want to go to a temple or mosque or church or if I'm religious or not; this

is about my right to walk into any building, institution, temple regardless my vagina is

bleeding or not.”

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But, no where it is written that they are obliged to give birth to children in order to continue

the lineage of their husbands. If males can’t see women equal to them or call the creator of

human race as impure then, I think males should stop marrying any female and should also

stop expecting any successor or any children in their families. Also, one of the greatest lies of

patriarchy is claiming and framing the father as life giver. In relation to this a Muslim

philosopherhas rightly quoted that, “Women does not emerge from a man’s rib’s, not ever,

it’s he who emerges from her womb”

So, it was the old time when women were oppressed by males but today, women are no more

subservient as they are very well familiar with their rights and duties.

The state should take strict action against those brahmanical zealot forces; otherwise they are

developing the ground for Hindutalibanization. Different groups of women and organisations

have come forward and challenged this whole notion of “purity-impurity” and are protesting

against this unjust commanding by the temple heads in the name of god, religion, culture and

practices. However, one should not forget that it is not their fight only. There is a need to

fight against this whole design of fundamentalist forces to break the social web of society.

Patriarchal impulses are re-emerging to marginalise, exclude and control women’s mobility

and access to institutions. Today, it’s for women only, tomorrow it will be for others,

particularly the marginalised and excluded population groups.

Although traditions go out of date very hardly in a country like India, but it will take some

time to accept new traditions. People should be made aware that India is a country of villages,

and to make it prosper, education is needed so that people can be aware of their rights and

fight for them. Government is also taking many initiatives to open schools and colleges. Also,

they are giving girls more scholarships and stressing on it. Therefore, girls altogether have

been accepting the odds and are aware of their rights. They have started educating other

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women and are fighting for themselves and others too for their rights. The First lady Michelle

Obama has rightly highlighted the women power through her saying that,

“Girls sometimes think words like power have nothing to do with them - but that couldn’t be

further from the truth. The truth is, being you is powerful. Doing the thing you love, whether

that is coding an app or writing a poem or earning money for college at an after school job, is

powerful. Helping others, whether it’s helping a younger sibling with homework or reaching

out to folks struggling in your community or standing up for a classmate who is being bullied

is powerful and most of all, communising to your education and working as hard as you can

is powerful because that’s how you will ensure that you can be anything you imagine and

make sure your voice will be heard in this world.”

Only women can empower women. Today, emphasis is laid on empowering women and

gender equality, but how do we plan on achieving it in a country where women have always

been laid down and seen subservient. Change can only happen if there is awareness at our

individual level. We need to make females aware of their rights, educate them and make them

realize that they are equally important. We need to shake them and let them know that it’s

okay to say no to your husband, brother, son or father. It’s okay to want to live your life on

your own terms. If women themselves do not realize their worth, then very little can be

expected from the opposite gender people. It is agreeable and is equally important to know

and to take a note of that men and society play an important role in empowering women but

that is exactly why we must profess women to treat their own kind better.

It is only in Christianity today that, women are allowed to insinuate to the church during their

periods. Obviously this was not the case before. In the light of the recent observations in

Supreme Court on women’s equal right to worship, a section of Christians takes a hard look

at the patriarchal notions in the church. So why cannot we allow them in temples and

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mosques or any other worship place. Also, there is no such ban in Sikhism from entering any

Gurudwara’s while menstruation. It was rightly embedded by GURU NANAK DEV JI in

Shri Guru Granth Sahib that,

“So keomandaakhiye, Jittjanmerajaan”

So, we need to make a modification to this age old traditions and norms, so that this world

can be a better place for women to live in. “Deeds not words” will help us in reaching this

goal of empowering women. Also, it is important to affirm and work for a secular India and

work with all women of all faiths, especially with women of minority religious communities,

to dismantle patriarchy and caste in all religions and to work for economic, political and

social justice for all in the country. The quest for equality of status, not only for women but

for the socially unprivileged too, has always been the prime driver of change. The challenge

to status quo is a mark that the society is intellectually alive and kicking. The hope for change

is still burning inside and not dead yet.

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 CHAPTER VII

BIBLIOGRAPHY

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United Nations Development Programme: www.undp.org

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