Citation: Writ Petition (Civil) No. 373 of 2006, 2018 (8) SCJ 609
Decided on: September 28, 2018
Court: Supreme Court of India
Bench: Hon’ble Chief Justice of India (Retd.) Mr. Dipak Misra, Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Mr. Justice R.F. Nariman, Hon’ble Mr. Justice D.Y. Chandrachud and Hon’ble Ms. Justice Indu Malhotra
Introduction
In a path breaking move, the Supreme Court allowed access to women in the age group of 10-50 years into the Sabarimala Temple situated in Kerala. The 5-judge bench comprising CJ Dipak Misra, A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Justice Indu Malhotra, in a 4:1 majority decision, affirmed the contentions put forth by senior advocate representing the petitioners -Ms. Indira Jaising, , thereby allowing women of all age groups to enter the premises of the temple dedicated to the worship of Lord Ayyappa and putting to rest the long-drawn dispute as to what holds more importance – Constitutional morality or rituals and religious practices of various communities.
Background of the case
Sabarimala SreeDharmasastha Temple is a temple complex located at Sabarimala inside Periyar Tiger Reserve in Pathanamthitta District, Kerala, India. The temple is dedicated to the worship of the Hindu celibate deity Ayyappan who according to belief is the son of Shiva and an incarnation of Vishnu. Lord Ayyappan is in the form of a NaisthikBramchari i.e. a man opting to live a simple life observing celibacy and austerity. Due to this, young women are not allowed to offer their worships to the deity to not cause even the slightest distraction to the deity. This ancient custom has been justified by Rule 3(b) of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry) Act, which serves as an exception to Section 3 of the Act. The section requires that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations while Rule 3(b) of the same act provides for the exclusion of women at such times where the custom and usage so demands.
In S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and Ors.,[1] which was a PIL filed in 1991, the validity of the restrictions imposed upon women in the age group of 10-50 years was debated upon, in legal parlance, for the first time. According to the Travancore State Manual, the Tanthri of the temple has the sole authority to answer questions on the customary practices associated with such temples. Tanthri Sri Neelakandaru testified that women belonging to the age group of 10-50 years had not been allowed access to the temple even before 1950. The two-judge bench comprising K. Paripoornan and K.B. Marar, relying on this testimony, gave a final order stating that the restriction imposed on women in the age group of 10-50 years was as per the customs of the temple and did not run counter with Article 15, 25 and 26 of the Constitution of India. The court thereby directed the Devaswom Board to uphold the customary traditions of the temple.
An interesting point to be noted here is that the prohibition imposed upon women from entering the temple was not absolute in any way. The judges presiding over the case, in their judgment, stated the following –
“For the last 20 years, women irrespective of their age were allowed to visit the temple when it opens for monthly pujas. They were not permitted to enter the temple during Mandalam, Makaravilakku, and Vishnu seasons.”[2]
- Chandrika, the then Commissioner of the Devaswom Board also based her statement on similar lines, clarifying that the entry of young women in the temple during monthly poojas was not against the customs and practices followed in the temple. These statements run counter with the inflexible testimony given by the Tanthri of the Sabarimala Temple.
With the demands of women entry in temples growing in the 1990s, N. Bhaskaran Nair, the former President of the Devaswom Board, had hinted at the need for a marked change in approach by saying –
“I respect all the temple conventions but, I think a change is inevitable. Once the lower caste people were denied entry into the temples. The ban on women may also change.”
On this note, the author now aims to dwell into the writ petition filed by the Indian Young Lawyers Association in 2006, the contentions of the parties to the dispute, the dissenting opinion of Justice Indu Malhotra and the nature of precedent that her statements set as well as the ramifications on the historic judgment given by the Supreme Court of India.
Issues
The issues raised in the case were –
- Whether Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965 that disallows women from entering temples for the sake of customs is violative of Articles 14 and 15(3) of the Constitution of India?
- Whether the practice of prohibiting women from entering the temple constitute an “essential religious practice” under Article 25?
- Whether the Sabarimala temple had a denominational character under Article 26?
Contentions given by the counsels
Senior Counsel Indira Jaisingsubmitted that the prevalent social stigmas attached to menstruating women, which classify them as “impure” and “polluting” are provocative and destructive. The action of prohibiting women from entering the temple is a form of untouchability due to the dogmas attached to menstruation in general. According to the counsel, there is a violation of Article 17 of the Constitution of India, which condemns and prohibits untouchability in every form. The restriction further violates the principle of gender equality and perpetuates practices that are derogatory to women. On the issue of the Sabarimala temple having a denominational character, the counsel contended that the religious practices performed in the temple at the time of ‘pujas’ and other religious ceremonies are akin to any other practice performed in any Hindu temple.
Senior Advocate Raju Ramachandran, appointed as amicus curiae in the matter, stated that Article 25(2) (b) is not a mere enabling provision but a substantive right. The right of women to enter the temple and offer worship flows from the aforementioned Article.
In response, senior advocate K. Parasaran, representing the Nair Service Society, pointed out at the outset that the restrictions imposed upon women were not a result of patriarchal mindsets. Rather, the celibate nature of deity Lord Ayyappan formed the basis of the practice. The counsel reasoned that Kerala follows a matrilineal system. The women of the state are known for being well educated and independent in their roles as decision-makers. He thus claimed that the prohibition imposed upon young women was not a result of misogyny but mere adherence to the customs and usages of the Sabarimala temple. In addition to this, the counsel for the defendant pointed out that there lacks an express mention of temples under Article 15(2) of the Constitution of India, which provides citizens with the right to access public places.
Advocate J. Sai Deepak, representing “People for Dharma”, an organization oriented towards maintaining a separation between government and temple administration, criticized the opposing counsel for failing to distinguish between diversity in religious traditions and discrimination. He claimed that the petitioner turned a discussion on the deity’s celibacy into alleged notions of impurity associated with menstruation.
Decision
The Supreme Court, on September 28, 2018, lifted the ban and ruled that women, of all age groups, can enter Sabarimala temple in Kerala. With a 4:1 majority, the bench in its verdict said that the temple practice violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.
It becomes clear from the majority judgment that the basic principles enshrined under the Constitution of India are supreme. The Hon’ble Chief Justice and his companion judges in different words unequivocally upheld that even in matters of religious faith, Governments, religious communities, and citizens are bound and must adhere to the Constitution of the country. This historic verdict supersedes all other laws of the land and customary practices and beliefs and traditions of different religions that are contrary to it.
Dissenting opinion
The dissenting opinion came from Justice Indu Malhotra. Deeming the petition as frivolous and not something to entertain, the Justice reasoned that courts have no jurisdiction to determine which religious practices are to be struck down unless issues of social evil like ‘Sati’ are in question. Justice Malhotra opines that Constitutional morality would allow all to practice their beliefs and what constitutes essential religious practice is for the religious community to decide.
Indu Malhotra cautiously states in her dissenting opinion that the decision to remove the restrictions on women would not be limited only to Sabarimala but would have wide ramifications that would amount to unnecessary interference in religious sentiments of various communities.
The Constitutional side of her argument is that the temple and well as the deity are protected by Article 25 of the Constitution of India. She is of the view that religious practices cannot be tested solely based on Article 14.
Author’s comments
The preamble to our Constitution is a beautiful prelude to a wonderful document. It talks about justice, liberty, equality as also fraternity. While the first three can be ensured constitutionally, fraternity requires a self-conscious move on the part of citizens. It requires a self-conscious move from elemental passions and entrenched prejudices to brotherhood and sisterhood. Sabarimala verdict in its philosophical aspect underlines this emphasis on fraternity.
The Supreme Court has proven its mettle on several occasions in the past. This judgment is no different. The decision given by the five-judge bench triumphs on various levels. On the one hand, it serves as a major boost for the ideals of gender equality and the empowerment of women. On the other hand, the decision also gives the Constitution its due importance by reiterating its status as the supreme law of the land, by establishing the superior status of Constitutional morality over customary rituals, laws, and practices. On a completely different level, the case, as well as the judgment, also deals with the social stigmas attached to biological processes such as menstruation that are considered “impure” and “polluting”. Senior Counsel Indira Jaising makes a bold and valid point by condemning the exclusionary practice of the Sabarimala temple as a form of untouchability.
The author respects the dissenting opinion and the lack of bias depicted by Indu Malhotra towards her gender. Indu Malhotra makes a valid point regarding the gravity of the decision and its subsequent consequences on the practices of various religious communities. Yet, she sets a dangerous precedent by stating the need for mutual exclusion among judiciary and religion. India adopted the model of Principled Distance while envisioning the ideal of secularism. This empowered the State to interfere in religious matters of various communities to get rid of the social evils that may plague the members of such communities in the form of “sacred, divinely ordained religious practices”. In light of this statement, Indu Malhotra’s dissenting opinion can be viewed as highly conservative. If it were not for the judiciary’s activism, the rigid societal structures would still stand tall and modern ideas and conceptions would not have bestowed upon us.
The rationality of any religion or a particular ritual is indeed determined and propagated mostly by the male leaders and members in the group. In the light of this unavoidable fact, Indu Malhotra’s dissenting opinion serves as a bad precedent as to perpetuate their domination, men tend to devise customs, often by the irresponsible interpretation of traditional texts, which consequently results in the subordination of women. Under such circumstances, it becomes the duty of the judiciary to interfere and respond to the plight of women suffering from the dictates of patriarchal norms.
While the verdict is groundbreaking in every sense, the enforcement has been lacking. Protesters comprising of men and even women have not let women in the age group of 10-50 years enter the Sabarimala temple to offer their worships to the beloved. Violence has become the order of the day. Even when two women were finally successful in making their way through the hooligans surrounding the premises, purification rituals had to be conducted within the premises to get rid of the “impurity” these women caused. All of this points to one thing – a judgment may coerce you to follow a set norm or pattern, but it has zero immediate effect when it comes to changing people’s inflexible mentality and point of view. The author is of the view that the judgment would have been more fruitful had there been ways to sensitize the community and garner support from both men and women equally. Notwithstanding the enforcement aspect, the verdict is bound to serve as a good precedent for years to come.
By-
[1]AIR 1993 Ker 42.
[2] Ibid.
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