The women’s in India has come from a very long way when it comes to discrimination on the ground of sex and equality of status. But now it is hard to think that how a women can be disallowed to enter into a temple just because of the problem of menstruation. Sabarimala Sree Dharma Sastha Temple is one of the most famous Hindu temples in India, located in the Pathanamthitta district of Kerala which is dedicated to the ancient god Ayyappa, who is also known as Sasta and Dharmasastra. People of all caste and belief are allowed in the temple except women between 10 and 50 years of age. As per customs and traditions, Lord Ayyappa is popularly celebrated as “Naishtika Brahmachari” which means a celibate for life and according to lord, menstruation is impure and made Devaswom Board to ban the entry of women of menstruating age. So Sabarimala case is all about the conflict between tradition of the temple and women rights to freedom which is explained below.
FACTS OF THE CASE
In 1991, the Kerala High Court banned the entry of women from the age of 10 to 50 from entering the shrine. It was said by the High court in its verdict that the ban on women entering the temple had originated from the distant past. It was mentioned that in the olden days it was only the priests who had the power to decide on matters relating to customs and tradition. On following this, the restrictions on women’s was challenged by a group of lawyers on the ground that the following ban violates the principles of the right to equality, religious freedom and that it was discriminatory in nature under the Indian constitution. The case reached the Supreme Court in 2016, after filling of a Public Interest Litigation (PIL) by the Indian Young Lawyers Association. Subsequently, the case was referred to the five-judge Constitution bench which was led by the then Chief Justice of India Deepak Misra. The bench comprised of R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
ISSUES RAISED BY THE PETITIONER
- Prohibition of entry of women between 10-50 age leads to untouchability: Senior counsel Indira Jai Singh by opposing the ban stated that prohibition of women entry on the basis of menstruation is a form of untouchability.
- Reason of Restriction is not connected to religious practice in the temple: The petitioners argued that restriction on the entry of women nowhere linked with the performance of religious practices in the temple.
- Sabarimala Temple not a separate religious denomination: It was argued that the religious practices performed in Sabarimala Temple at the time of ‘Puja and other religious ceremonies are not distinct and are similar to any other practice performed in any Hindu Temple.
The Travancore temple management expresses in the court that there should not be any hindrance by the state and petitioners. They had every right to frame rules for the temple and this right existed from the very beginning as according to them, Ayyappa swami’s devotees form a denomination which comprises of a body with a definite recognized number. It was further laid down by the temple that the tradition was born out of the belief that the deity is an Eternal Celibate and is not discriminatory in nature. Further, the campaign ran by the women devotees named ‘Ready to wait’ was also highlighted by them to think about. They emphasized that only women of a certain age were barred from entering the temple. According to them, it is fine to wait till 50 years of age to enter the temple. In addition to this, they even argued that the petitioners were confusing the issue by connecting diversity of Hinduism with Discrimination.
KERALA GOVERNMENT STAND
Initially the Kerala Government in 2016 opposed the entry of Women in the shrine, but subsequently in 2019 when the case reached to the Supreme Court, advocate Jaideep Gupta representing the state government stood in favour of women’s of all ages to allow them to enter and worship in the shrine.
DEBATES AND DISCUSSION IN THE COURT
Views supporting Women’s’ Entry
- There is a prohibition of Articles 14, 15, 19 and 25 of the Indian Constitution which deals with Right to Equality, Right against Discrimination based on Gender, Freedom of Movement and Freedom of Religion.
- It was observed that restrictions are more on the basis of patriarchy and partiality refraining the entry of women in the religious shrines.
- The right to practice religion itself, has been guaranteed by the Indian Constitution and cannot be override by the right to manage its own religious affairs under Section 26
- The restricted women claimed that barring them access to inner sanctum sanatorium stands in violation of their fundamental Right to worship which is guaranteed to every citizen under Article 25 of the Indian Constitution.
- It is believed that everyone is equal before God in India so restrictions in the shrine is discriminatory, stands against the very ideology and discriminatory as well.
.Views opposing Women’s’ Entry
- The supporters of ban believe that Sabarimala is built on a story. A story which predict that the main god is a celibate and the presence of a menstruating woman would cause hindrance to his meditation.
- In our Hindu dharma, many of us profess faith and belief towards deity and no one try to interfere towards religious, so it is evident that Sabarimala was not created by any Act of Kerala State Assembly or by any Parliament but is based on faith and if this faith is not respected then it would not be the same Sabarimala today.
- According to the opposing party, Article 15 does not mention right to access public temples i.e. religious institution, but only provides right to access places such as hotels, shops etc.
SUPREME COURT VERDICT
In 2018, the Supreme Court in the most debated issue lifted the ban on women entry to the Sabarimala shrine. It was held that women’s of all ages could enter the shrine. The court with a majority of 4:1 ruled that women of all ages could enter the shrine. It was held that excluding women’s from temples practices is unconstitutional and violates the fundamental right to equality, liberty and freedom of religion. The then chief justice held that temple’s practices promotes gender discrimination and violates the right of Hindu women’s. The patriarchal notion cannot be allowed to pick over equality and they should not be disallowed just due to the reason of menstruation. Justice Indu Malhotra was the only judge in the bench who give dissenting opinion and laid down that the deep rooted religious implications should not be subject to changes and not doing so would further help in maintaining a secular atmosphere in the society. The bench also struck down, Rule 3(b) of the Kerala Hindu places of public worship act as unconstitutional as this rule disallowed women from public places of worship if it is based on custom. So the Supreme Court verdict was viewed as another victory for the women’s in terms of gender equality and the barriers were removed for women’s to profess religious practices.
Chief Justice Deepak Misra’s judgment
CJI Deepak Misra on behalf of other majority judges observed that religion is naturally linked to the life and dignity of an individual. Practices which are patriarchal in nature excluding one gender to do something infringes fundamental right of freedom to practice and profess one’s religion as Article 25(1) of the Indian constitution guaranteed freedom of worship to everyone. The CJI gives the prominence to Anand Marga Pracharaka Sangha v. Commissioner of income tax, where it was held that public performance of tandava dance was never an essential part of the religion of the Anand Marga sect even though it was mention in their holy book. According to him the ban of women’s between 10-50 years of age was never existed from the beginning and it started only after the enactment of subordinate legislation. In the past, the female members of the Travancore family was allowed to enter into the temple as well.
He held that the Article 25(2) (b) provides that the state can make laws to reform Hindu denomination. So the provision constitutionally allows state to make laws that opens a public Hindu institution to all classes and sections of any gender.
CHALLENGE TO 2018 VERDICT
The 2018 verdict of the case had called the practice of restricting women’s of a particular age group as unconstitutional which triggered the mass protest by the temple priest and the traditionalists in the state. There were approximately 65 petitions, 56 review petitions, four fresh writ petitions, five transfer pleas after the apex court verdict of 2018 which sparked violence protest in Kerala. In 2019 the bench led by CJI Ranjan Gogai with the 3:2 majority verdict observed that restrictions on women in religious shrines were not limited to Sabarimala alone and are found in other religions as well. Both the sections of the same religious group have a right to freely profess and practice their religious beliefs and sentiment as being the integral part of the article 25. Meanwhile justice R F Nariman and D Y Chandrachud stuck to their previous decision of quashing the customs barring the entry of the women’s.
The court also framed the 7 questions and referred them to a larger bench of judges. A nine judge bench led by current chief justice of India Sharad A. Bobde said that its objective was not to review the Sabarimala women entry but will examine larger issues of law like prohibition of women from entering mosques and temples etc. the bench would also examine the legality and essentiality of religious beliefs which prohibit women’s from entering into mosques and temples. The chief justice explained that the basis of the bench’s enquiry would be the 7 seven questions referred by the 5 judge bench.
The sensitive religious issue of Sabarimala temple needs a proper finding of the reasons and facts and the court handled this opportunity very well. The task was very difficult where the court have to review the old age traditions with regard to equality and discrimination of gender which is very prominent historically. The court have to deal with both right to freedom and faith & belief of the devotees where the judges re-studied the constitution very minutely in order to prevent the violence which may erupt as a consequence of such judgments but as now the issue is referred to a larger bench it will be an interesting and might be a nail-biting task for the judges.
Author: Raman Saxena,
Delhi metropolitan education affiliated to GGSIPU (2nd year)