This Case Summary is written by Nupur Misra, a student at Army Law College, Pune
The Sabarimala Temple, the dwelling of Lord Ayyappan, is located in the Periyar Tiger Reserve in the Perinad Village of Pathanamthitta District, Kerala. It prohibits the entry of women in their ‘menstruating years’ (between the ages of 10 to 50), out of respect to the celibate nature of the deity.
In 2006, Indian Young Lawyers Association filed a public interest litigation petition before the Supreme Court challenging the Sabarimala Temple’s custom of excluding menstruating women. The Association argued that the custom violates the women’s rights against discrimination under Article 15(1) and freedom of religion under Article 25(1) of female worshippers. The author, through this research work, tried to comprehend the Court’s decision regarding the same.
Sabarimala is a temple of great antiquity devoted to Lord Ayyappan, an avatar of Lord Vishnu, born out of the union of Lord Shiva and Mohini, where Mohini is the female form of Vishnu. Sabarimala is supposed to delineate “Naishtika Brahmacharya” which means undertaking a vow to remain a celibate till one’s death or a student celibate; therefore women belonging to menstruating age are not permitted to enter the temple. This temple is managed by Travancore Devasvom Board (an affiliate authority of the Government of Kerala) and the main stakeholders of the temple are Travancore Devasvom Board, Tantri (head priest), Pandalam royal family, Ayyappan Seva Sangram etc. The issue of restriction on the entry of menstruating women in the Sabarimala temple has been a topic of national argumentation for quite a while now. This issue of restriction on women from entering the shrine was first challenged before the Kerala High Court in 1991 in the case of S. Mahendran v. The Secretary, Travancore Devasvom Board, Thiruvananthapuram and others. The division bench of the Kerala High Court had upheld the ban on women of a particular age group offering worship at the shrine and gave an edict asserting that the restrictions have been existing since time immemorial and the restriction by the Travancore Board does not infringe the Constitution of India or the pertinent 1965 Kerala Law. In 2006 a subsequent petition was filed by Indian Young Lawyers Association before the Supreme Court challenging the Sabarimala temple’s age-old custom of excluding women. The association argued that the custom violates the right guaranteed under Article 15 and 25 of the Indian Constitution. In which the state contended that the Temple’s priests have the final authority in this matter. The Travancore Devasvom Board has the legal authority to manage the Sabarimala Temple’s administration. Article 26 of the Constitution, guarantees a religious denomination the right to handle its internal religious affairs. Furthermore, the Sabarimala ritual was protected by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (“Public Worship Rules”). The rule legitimized the exclusion of women from public places of worship if the exclusion was based on ‘custom’. The Supreme Court later determined and drew a parallel between Right to Religion and Right to Equality as the basic fundamental rights given by the Constitution of India and through its judgment uplifted the ban which prohibited women from entering the shrine.
FACTS OF THE CASE
In 2006, a group of five women lawyers challenged the constitutional legitimacy of Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965 (that restrict the entry of women into the Temple). This legislation was ratified by the state government to regulate the entry of different sections of Hindus into places of public worship. The petition stated that the ban enforced (restricting entry of women) be removed as it was ultra vires the Constitution. On 28th September 2018, a Constitution Bench allowed the entry of women irrespective of their age into the Shrine on the grounds that the ban violated the fundamental right of freedom of religion as per Article 25 of the Constitution. The provision restricting the entry of women in the state legislation was struck down and adjudged unconstitutional.
Senior Advocate Indira Jaising, who represented the petitioner’s side, said that the restrictions violated Articles 14, 15, 17 and 51A (e) of the Constitution. She reasoned that the custom is discriminatory in nature and stigmatised women and that women should be allowed to pray at the place of their choice.
The issues that were raised by the petitioner are as follows
1. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules allows a ‘religious denomination’ to ban the entry of women between the ages of 10 and 50 years. Does this practice violate Articles 14 and 15(3) of the Constitution by restricting entry on the grounds of sex?
2. Whether the custom constitutes an ‘essential religious practice’ under Article 25? Whether a religious institution can assert its claim to do so under the right to manage its affairs in the matters of religion?
3. Whether the exclusionary practice based on a biological factor exclusive to the female gender amounts to ‘discrimination? Whether this practice violates the core of Articles 14, 15 and 17?
4. Whether the Sabarimala Temple has a denominational character and, if so, is it allowed on the part of a ‘religious denomination managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality rooted in Articles 14, 15(3), 39(a) and 51A (e)?
In September 2018, the Court delivered its verdict on Sabarimala Temple Entry. A 4:1 majority held that the temple’s practise of excluding women is unlawful. It held that the ritual violated the fundamental right to freedom of religion – Article 25(1) – of female worshippers. It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if it was based on ‘custom’.
The Court delivered four separate opinions: Chief Justice Misra, Justice Nariman, Justice Chandrachud, and Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the opinion of Chief Justice Misra. The dissenting verdict in the case was delivered by Justice Indu Malhotra.
The Sabarimala judgment is a tussle between Fundamental Rights and Tradition. Like any other case, the Sabarimala Case has two sides to it. On one hand, the women are happy that they are being allowed to enter the temple. On the other hand, the women of that religion, for whom this temple was constructed and who worship the deity are the ones who oppose the upliftment of the ban as it goes against their religious ideals and refuses to accept the order of the Supreme Court. They argued that this verdict was a violation of their right to religious freedom.
Practice started in the ancient past and continued since time immemorial without any interruption, becomes a usage and custom. Reliance, in this regard, can be placed on the judgments of Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, and Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. Moreover the judgement also violates Article 21, of the people who worship Lord Ayyappan, which also includes the right to protection of one’s tradition, culture and heritage. A religion can lay down moral codes, and also prescribe rituals, ceremonies etc. which are also regarded as an essential part of religion and hence are to be protected as a religious belief. Therefore, the ban laid down by the temple on menstruating women was justified as it was in pursuance of an ‘essential religious practice’. The temple was just following an age-old tradition.
‘Equality should be made available to all persons irrespective of their caste, sex and other discriminatory grounds’- a familiar line uttered frequently by many self-proclaimed modern era intellectuals. But what do they mean by ‘gender equality’; fascinatingly everybody has a different narrative, each with a somewhat ambivalent logic. ‘Women should be treated at par with men’, appears to be the popular notion, even though there are several cases where men are not treated at par with women. A few examples of such instances are, women’s reservation- which makes the female section of the society a privileged class, as per section 375 of the Indian Penal Code rape is something that only a man can do to a woman there is no room for adult male victims, much less female perpetrators. When the temple was constructed there was a reason why the Travancore Devasvom Board was formed i.e. to regulate the entire authority which was concerned with the temple, now it’s not just this temple that said that there is a restriction on women there various temples like Kumari Amman Temple in the Kanyakumari region that strictly ensures that men are not allowed within its premises at any point of time and then there are certain temples like Kapaleeswarar Temple where any foreigner and/or non-Hindu person are not allowed inside the temple simply because they follow the mythology of that particular state that is what the Sabarimala Temple was also doing, hence it violates Article 25 and 26 together of the people of that religion. As far as the women’s right to offer their worship is concerned, it is safeguarded as there are at least a thousand temples of Lord Ayyappan where he has not manifested himself in the form of a ‘Naishtika Brahamachari’ allowing women of all ages to visit the temple. In order to preserve the character of the deity and the sanctity of the idol at the Sabarimala Temple, the limited restriction is imposed on the entry of women only during the period specified by the Travancore Devasvom Board; there is no absolute restriction on women per se.
Even though the social exclusion of women from entering the Sabarimala shrine is a violation of several dimensions, the deep religious sentiment of the people should not be interfered with by the courts, unless there is truly a distressed party pleading attention to the same (social evil like Sati). Courts should not impose their personal views on morality or rationality concerning the form of worship of a deity. People should be given the freedom to practise their faith following the beliefs of their religion, irrelevant of the fact that whether the practise is rational or irrational. Asserting the court’s morality and rationality on religion would repudiate the freedom to practise one’s religion according to one’s faith and belief which would lead to rationalising religion, faith and beliefs, which is outside the ken of Courts. The doctrine of equality can’t supersede the fundamental right to worship under Article 25 of the Constitution. Sabarimala has its own unique mythology, tradition and rituals and it is not about discrimination at all. It is all about the belief of both women and men who worship Lord Ayyappa. While the debate about discrimination and inequality is welcome, we must not forget that most Hindu traditions practised in most Hindu temples are not documented, unlike Islam and Christianity, which are more recent religions and therefore more codified. Traditions that have been held close for so many years cannot be discarded by one judicial ruling. They simply cannot be kept aside in the name of ‘female empowerment’. For our secular society to thrive, it is of utmost importance that all religions thrive side by side. While one might argue “what about women’s empowerment”, we have seen that obsolete practices like Sati and child marriage are no longer in practice and that is what counts.