Consider what would be the consequences if a judge in the Indian Supreme Court were to ask these questions.
"How is it that there has been no female Pope or Cardinal in the Catholic Church? Are women incapable of being popes or cardinals? Why is it that the Church of England, despite having a Queen as it head, has never had an woman Archbishop of Canterbury? Are women fit to be heads of state, but not a religious institution?
Why is it that there are almost no women ulema? Why has there been no woman Grand Mufti at the Mecca mosque despite 1,400 years of Islam's basic egalitarian principles? Are women incapable of heading Islam's holiest shrines or leading the ulema?
Assuming our eager-beaver secularists did not immediately denounce the Supreme Court as infiltrated by Sanghi elements, the thinking types would wonder why a Supreme Court should meddle in matters of religion, faith and tradition that go back centuries as long as there is no fundamental injustice done to anybody. Its job is to protect individuals against the might of the state or powerful institutions, not meddle in how various religions should interpret their traditions.
Unfortunately, this is exactly what the Supreme Court bench comprising Justice Dipak Misra, Justice PC Ghose and Justice NV Ramana is trying to do in the hearings in the Sabarimala case. The public interest litigants in this case are making out a case of discrimination against women by the Devaswom Board. As per the traditions of the Sabarimala temple, abode of the celibate Lord Ayyappa, mentruating women can't enter the sanctum sanctorum of the temple, and this, according to the petitioners, amounts to gender discrimination.
The questions the bench is asking of the defendents focus attention on the alleged discriminatory aspects of the Sabarimala rule. Among the questions it has raised, according to a report in The Times of India, are the following: "Is spirituality solely within the domain of men? Are you saying that women are incapable of attaining spirituality within the domain of religion?"
These questions are beside the point. Nobody, including the Devasowm Board, is questioning the spiritual capabilities of women. The question is whether the board should keep out menstruating women purely for maintaining a tradition.
Then the bench observed: "Temple comes in public religious domain. It has to be within constitutional parameters. You can have rules for fixing visiting hours for devotees and other issues. But that rule has to be for all. We are debating about rules which are based in gender discrimination"
Again, the bar on the entry of mentruating women is not comparable to having different visiting hours for men and women. It is about a centuries-old tradition, about the uniqueness of Lord Ayyappa worship.
The bench went on: "You read Gita and Max Mueller's comments on Gita to know that there is no discrimination on the basis of gender."
That the bench has to read Max Mueller's comment on the Gita - and not our own traditional gurus - to understand its message itself shows that the court wants to look at gender discrimination purely from a western lens.
A case for discrimination would be made out if women were routinely barred from all temples or places of Hindu worship. But 99 percent of temples are not in this category, and so no general case of gender discrimination can be made out just because we have exceptions like Sabarimala or Shani Shingnapur.
The fact that there are many temple rituals and institutions that focus on women also militates against the idea of discrimination as defined in the west. Our Supreme Court does not stop to ask whether any US or European court would deal with religious traditions in the way it is doing. The Mormons continue to have their own practices, including the right to bigamy, and Jehovah's Witnesses are allowed to refrain from saluting the US flag in keeping with their religious faith that asks believers not to bow before any human institution. This same logic has given Muslims the right to not sing the Vande Mataram, though the community's real reason for opposing this seems to be political in nature.
In the Sabarimala case, the court needs to ask itself some questions: why should there be no temple where male spiritual bonding is venerated in the worship of Lord Ayappa? If, tomorrow, a woman sets up a temple for women worshippers to worship Shakti, will it be banned? Is every tradition retrograde, when it is not a practice that specifically seeks to discriminate? The "discrimination" at Sabarimala is, for example, restricted to menstruating women, and not all women.
Or consider other questions. Why do men and women compete in separate groups at the Olympics? (Obviously due to different average physical attributes). But will a woman who wants to compete with men be allowed to do so? (This happens in golf, but not cricket or football). Is all of this discrimination? Why do we have separate boys' and girls' schools, or separate hostels for them? All these ideas are relics from the past, but that is no reason why we should call it discrimination.
But are we trying to say that women are not discriminated against at all in matters of religion? Of course not. They are. Few women are allowed to become priests or officiate in religious ceremonies. The practice of treating menstruation as some kind of disease is deplorable in today's world. It made some sense when feminine hygiene aids were unavailable in the past, and women themselves felt discomfort in doing normal work during days of peak menstrual bleeding. Today, with tampons and sanitaru pads widely available, that sense of lack of hygiene and disconfort is gone. It is now entirely upto women to decide whether they are comfortable attending to religious work (or any work) during their monthly periods.
The real question is this: are rules like the one in Sabarimala really worth maintaining?
My answer is in two parts: first. It is not the Supreme Court's business, and if the women worshippers of Lord Ayyappa are determined to worship him like the men, they should fight it out within the community. The courts have no role in this as women have many temple options beyond Sabarimala and no case of discrimination is made out under constitutional laws.
The second part is the importance of tradition. Sabarimal is what it is because of its tradition and not inspite of it. It would be a pity to break with judicial force a quaint tradition that is centuries old. It would be cultural vandalism that does nothing for gender equality in general.