In our country, The class of women is always downtrodden in our society and after independence, many social activist, and government try to uplift the class of women but, in today times also women’s right is curtailed in name of customary practices and one of the biggest tool to discriminate the women in India is religion, there are many religious activities that curtail the fundamental right of women in India such as sati pratha, dowry, etc.
One such case of discrimination came before the supreme court in which women of the age group from 10 to 50 were denied to enter into the Sabarimala temple.
Legal principle that used under this case
Law that in favour for women
Article 25 (1): It is a fundamental right under Right to freedom of religion in our constitution, which clearly says that all person has freedom of conscience and right to freely profess, practice and propagate any religion.
Article 14: It is also a fundamental right under Right to equality in our Constitution, which says every person is equal before the law (Means if the prime minister and sweeper committed the same crime then they are equal in the eyes of law to give punishment) and this article also says equal protection of law by the state means state have a responsibility to make laws with reasonable classification.
Article 15 (1): It is also a fundamental right under Right to equality in our constitution which says that state can prohibit any person cannot discriminate on the basis of their caste, sex, gender, colour, religion, place of birth or any of them.
Law that in favour of temple administration
Article 26: it is a fundamental right under the right to freedom of religion, all religious denomination has the right to manage their own affairs.
Rule 3(b) framed by the government under the authority of Kerala Hindu (place of worship Authorization of entry act) 1965:
Facts of the Case
The Sabarimala temple, considered as the home of lord ayyappan also known as Dharma Sastha who according to the belief of Hindu, son of Shiva and famine incarnation of Lord Vishnu, is located in the Periyar Tiger Reserve in the Western Ghat Mountain ranges of Pathanamthitta District Kerala. It prohibited the entry of women in their menstruating years (Between the age of 10 to 50) on the ground that it is the rules and regulation [rule 3(b)] by temple administration and appropriate government and this rule is made because According to the Thantri of the temple, the deity in Sabarimala temple is in the form of Naisthik Bramchari that’s why the young women are not permitted to offer prayer in the temple.
Temple administration has said the rule of non-entering women is valid statutory law, according to the rule 3(b) of Kerala Hindu (place of worship Authorization of entry act) 1965 that I have mentioned above in the article, and Article 26 of our constitution (Mention above in the article).
In 1991, A case has come before Kerala high court named S.Mahendran v. The secretary Travancore, in this case, the exclusion of women is challenged on the basis that it violates their Article 15 and 25, but the court held that The exclusion was legal and justified because it was long-standing custom prevailing since time immemorial and it is the matter that controls by the temple administration (Travancore Devaswom board).
In 2006, After the judgement of the high court, The Indian young lawyer Association Filed a PIL before the supreme court and re challenging the Sabarimala temple custom of excluding women.
In the case of Indian young lawyer association v. the State of Kerala, the appellant (Association) contended that the temple infringing the fundamental rights of women that is Article 14, 15 and 25 of our constitution. And, the respondent (State) contended that the Temple’s priest has the final authority in this matter, The Travancore Devaswom Board has the legal authority to manage the Sabrimala Temple’s Administration, Article 26 of the constitution, guarantees a religious denomination have the right to manage its own internal religious affairs. And, the exclusion is also governed by Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965, (Public worship rules) The rule clearly allowed the exclusion of women from public places of worship, if the exclusion was based on custom.
Issues Before the Court
- Whether the Sabarimala temple is a religious denomination and falling under the ambit of Article 2?
- Whether the rule 3(b) of Kerala Hindu Places of Worship (Authorization to the entry) Act 1965, is constitutional or not?
- Whether the exclusionary practice against women is part of a religion or amounts to discrimination?
Decision of the court
On 7th March 2008, the matter was referred to 3 judge bench and after 9 years later the court viewed this case expressly and inclination to refer the case to a constitutional bench which comprises of 5 judges namely;
- CJI Deepak Mishra
- Justice Khanwilkar
- Justice Nariman
- Justice Chandrachud
- Justice Indu Malhotra
On dated.28 September 2018, Constitutional bench gave judgement by 4:1 ratio, that the Sabarimala exclusion was violated the fundamental rights of women between the ages of 10 to 50 years and, rule 3b of the statute; Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965, is unconstitutional because it violates the Article 14, 15 and 25(1), of women. it said that women have equal right to pray as man, and restriction of women is discrimination that breaks the right to equality under Article 14.
In the landmark case of Indira Sawhney v. Union of India, it was also held that the right to equality is one of the basic features of our constitution and no one can infringe it.
The main opinion in this case given by CJI Deepak Mishra and Justice Khanwilkar was; one side we pray to goddesses, on the other hand, women of certain age group are considered as impure and this simply shows that the patriarchy prevalent in the religion this ban shows that how the religion becomes the tool to discrimination in our society.
Interpretation of religious denomination by CJI Deepak Mishra:
The respondent contended that the temple was a religious denomination and it has the right to manage its own affairs under Article 26 of our constitution, they contended this on the basis that the temple was functioning under Devaswom board and it was not funded by any governmental organization.
CJI Deepak Mishra held that Sabarimala temple was not a Separate Religious denomination as it is only a public place and there is no concept of private Mandir as such, once a temple is opened it considered as a public place and Any person went into it without the barrier of religion the main thing was only their faith and the Sabarimala temple draw it funds by consolidated funds of India. So hence it is a public place.
The dissenting opinion was given by Justice Indu Malhotra, she was the only one who has a dissent opinion according to it, it was not the court’s job to determine that what is the practice of religion or what is not, except in the evils like sati, dowry etc. They said if the court decided that what is the practice of religion so it would curb the freedom of religion according to their belief and faith. It also said that if the court can change the essential religious practice of a community then it gets conflicting every time because both have different interpretations.
After the decision of apex court, More than 56 writ petition was challenging the verdict, The case is going to a higher bench comprising of 7 judges to hearing review petition on February this year, and there is no stay order of 2018 judgement to restrict the entry of women Sabarimala temple until the larger bench judgement comes and the court says it is not the matter of only this temple because also the prohibiting of Muslim girls in Mosques and Dargas, in this matter due to a massive protest by people in Kerala can make this matter pendency and it is pending in today times also.
- It is a landmark judgement of gender equality
- The most comprehensive differentiation of religious denominations and public places is given by CJI Deepak Mishra in this case.
- After this judgement, many women are entering into the temple and this shows clearly the power of the judiciary.
- By the apex court judgement, it is clearly stated that religious activity is not a path of discrimination.
Author: RAHUL SHARMA,
Ideal Institute of Management and Technology affiliated to GGSIPU/ 2nd Year/ Law Student