BY: Simran Saha & Angshuman Pareek
BACKGROUND OF THE CASE
Religion and faith never imposes discrimination on its subjects but then sometimes the religious practises in the veil of religion tends to perpetuate patriarchy wherein they negate the very essence of devotion. The expression of devotion cannot be circumscribed by adamant notions of biological factors prevalent in the society and can be a root of discrimination wherein it passes the tests of the constitution. The attributes of devotion and divinity cannot be subjected to gender disparity.
The Sabarimala Temple in Kerala restricted the entry of women of age 10-50 years. Taking this into consideration a review petition was filed in the Supreme Court by the petitioner Indian Young Lawyers Association against the Government of Kerela, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate Pathanamthitta to revert the decision of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram which upheld the restriction of women of a particular age group. The Division Bench of Kerala High Court after taking into consideration the issues raised in the S. Mahendran case opined the view that as the deity in the temple is in the form of a naishtik brahmachari therefore young women in their menstruating age, i.e. the age of conceiving should not offer worship in order to avoid any sort of deviation from austerity in the deity because of their offering.
The aforementioned restriction was backed by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short, “the 1965 Rules”) framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”). It was argued that the above provision was unconstitutional as it was violative of Article 14, 15 and 25 of the Constitution of India. The Court further added that the Rule 3(b) was not ultra-vires to the Part III of the constitution because the restriction is made on women of a particular age group rather than on the basis of women being a class of the society and mentioned that the Devaswom Board has complete authority to issue guidelines in regard of the same.
The petitioners were of the view that the centuries old custom of the Sabarimala Temple was against the Fundamental Rights under Article 14, 15, 25 of the Constitution for the women who were restricted to enter into the Temple in order to offer worship. They opined upon the thought that such a restriction were the individual ill-practices of any temple contrary to the basic tenets of Hindu Religion and therefore this should be impermissible. The court was further questioned that whether such restrictions were in par the principle of “essential religious practices” which is again a questionable matter observed in plethora of cases starting Mohd. Ahmed Khan v. Shah Bano Begum to Shayara Bano v. Union of India and Others.
Therefore all the aforementioned instances gave rise to the landmark case of Sabarimala Temple which was later disposed by a five-Judge Bench of Supreme Court on 28th September 2018.
FACTS OF THE CASE
- The Sabarimala Temple, considered the abode of Lord Ayyappa, is located in the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta District, Kerala. It prohibits the entry of women in their ‘menstruating years’ (i.e. between 10 to 50 years), on the grounds that it is a place of worship.
- At several times women have tried to enter the temple but could not because of the threat to their physical assault.
- In 2006, a group of five women lawyers by the name of Indian Young Lawyers Association filed a Public Interest Litigation in the Apex court challenging the Kerala High Court’s decision which upheld the Sabarimala Temple’s century-old custom of excluding women of a certain age period.
- The Association argued the custom was violates the Right to Equality under Article 14 and Freedom of Religion under Article 25 of the Indian Constitution of the female worshippers.
- The State contended that the Temple’s priests have the final authority in this matter. The Travancore Devaswom Board has the legal authority to manage the Sabarimala Temple’s administration. Article 26 of the Constitution, guarantees a religious denomination the right to manage its own internal religious affairs. Furthermore, the Sabarimala custom was protected by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 (“Public Worship Rules”). The Rule allowed the exclusion of women from Public Places of Worship, if the exclusion was based on ‘customs’.
ISSUES OF CONTENTION :
- Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules permits 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 gender?
- Whether the practice 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 own affairs in the matters of religion?
- 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 25?
- Whether the Sabarimala Temple has a denominational character?
The Hon’ble Supreme Court on 28th September, 2018 delivered it’s verdict on the Entry of women into the Sabarimala Temple in Kerala. In a 4:1 majority, the Court ruled that Sabarimala’s exclusion of women violated the Fundamental Rights of women between ages of 10-50 years and Rule 3(b) of the Public Worship Rules was unconstitutional.
The five-Judge Bench comprising of the former Chief Justice of India Dipak Mishra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice R.F Nariman and Justice Indu Malhotra delivered four separate opinions of which the other three Justices concurred with the opinion of the CJI whereas Justice Indu Malhotra while delivering a dissenting opinion observed that in a secular polity, it was not for the Courts to interfere in the matters of religion and the same must be left to those practicing the religion.
CHIEF JUSTICE DIPAK MISHRA’S OPINION
CJI Dipak Mishra speaking on behalf of himself and Justice Khanwilkar observed that the religion being a way of life have an in-depth relationship with the dignity of any individual and any patriarchal practice based on exclusion of any gender in the veil of religious practice will infringe the Fundamental Right to Religion of the individual. Therefore he opined that the custom in Sabarimala Temple of excluding women of a particular age group was violative of Article 25(1) of the constitution.
Further he added that the devotees are all Hindus as they failed to pass the constitutional test to be termed as a separate religion. The Temple’s denominational right to manage its own religious affairs was again subjected to the State’s Social Reform Mandate under Article 25(2)(b) which provides power to the State to make laws in respect to reform Hindu religious Denominations (laws specifically for making the religious institution open for all “classes and sections”. In conclusion he said that the custom of the Temple was subjected to State Mandate reforms.
He also put forth that the Devotees being Hindu, the custom of excluding women of age 10-50 years does not falls within the ambit of “essential religious practices” of Hindus.
Finally while striking down the Rule 3(b) he said that the Rule not only violates the Constitution but is also ultra-vires to Sections 3 and 4 of it’s parent Act because the Rule stands in conflict with the Act which says to make open the Hindu Public Places open to all sections and classes of the society.
JUSTICE NARIMAN’S OPINION
Justice Nariman while concurring the opinion of the CJI said that the devotees being Hindu their right under Article 26 is subjected to the State’s Social Reforms mandate under Article 25(2)(b).
He emphasized saying that the right of the women of age 10-50 years to worship their Lord in Sabarimala Temple is guaranteed to them under Article 25(1) and the exclusion of the same from entering the Temple premises were terminating their Fundamental Right. He further mentioned that the Court has enough materials to conclude that the exclusion was violative of the Article 25(1).
While concluding his decision he stroked down Rule 3(b) saying that it was unconstitutional.
JUSTICE D.Y CHANDRACHUD’S OPINION
Justice Chandrachud while providing a concurring opinion mentioned that the exclusion was contrary to Constitutional morality which in a way subverted the ideals of autonomy, liberty and dignity. Moreover he mentioned that the concept of morality under Article 25 and 26 of the Constitution cannot erode the Fundamental Rights mentioned under the same. Further he added that the devotees of Lord Ayyappa are regarded as Hindus as they failed to satisfy the Judicially enunciated requirements to be regarded as a separate Religious Denomination. He also emphasized on the point that the practice of exclusion is not a “essential religious practice”.
Justice Chandrachud further added that the physiological character of an individual in this case the menstruation of a women cannot be a valid constitutional ground to terminate her dignity and Fundamental Rights. To this he also added that any kind of Stigma associated with the menstruation of an women holds no position in the constitutional order. He also put forth a very salient argument that such kind of grounds for exclusion of women is a form of untouchability which is forbidden under Article 17 of the Constitution and if such practice continues to happen this shall be the worst violation of the prohibition of untouchability principle under Article 17.
JUSTICE INDU MALHOTRA’S OPINION
Unlike the other four Judges Justice Indu Malhotra gave a dissenting opinion. She said that the secular polity like India requires ‘harmonisation’ of various claims of Fundamental Rights. She also said that the Court must respect the Religious denomination of the institution to maintain their religious affairs irrespective of rationality and the Court shall not intrude into it.
She said that the Sabarimala Temple satisfies the Constitutional test to be regarded as a separate Religious Denomination and therefore they have the Right to manage their own religious affairs under Article 26(b) and also it is not subjected to Social Reform Mandate under Article 25(2)(b). She further opined that India being a pluralistic society we need to understand the concept of constitutional morality under Article 25 and 26 taking that into consideration. She also said that the State needs to respect the individual faith of a particular religion, class or section.
She also put forth a very impactful decision that Article 14 Right to Equality cannot override Article 25 which guarantees an individual a right to profess, practice and propagate his/her religion.
She further added that Rule 3(b) was not in conflict with the parent Act as it carves out the public worship and rather it was consistent to Article 26 of the constitution.
She while concluding her decision dissented with the opinion of Justice Chandrachud saying that the exclusion in not violative to Article 17 as she pointed out that untouchability under Article 17 is based on caste and does not extends to gender. Article 17 is purely based on discrimination on the basis of impurity which is not in the case of this custom. She concluded saying that untoucability does not extend to gender.
CRITICAL ANALYSIS OF THE CASE
The fact of the case is that the ‘Sabarimala Temple’ is situated inside the ‘Periyar Tiger Reserve’ in the state of Kerala. The Temple has a Deity which is said to be ‘Naishtika Brahmachari’. In Hinduism the concept of God is different from the Western concept of God and which is herein misunderstood and misrepresented. Hinduism is not only a religion but also “a way of life” (Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Others and Manohar Joshi v. Nitin Bhaurao Patil and Another) and also referred to as ‘Sanatana’. In Hinduism it is believed that every living being has ‘prana’ (soul), likewise the Deities are also considered to be living; having their own Rights, Customs and Needs which are to be interpreted through the Priest of respective temple. The Deities are believed to have human like needs of air, food, shelter, which are taken care of by the temple priests. The temple is considered to be the residence of the Deity and the Right, Title and Interest of the respective land rests in the hand of the Deity; managed by the Priest on behalf of the Deity. Every temple has their own customs, rules and regulations which are to be followed by the devotees and should be left untouched by the Courts.
In Hinduism, the Hindu traditions dictate that the life of a man is divided into four phases: the celibate student or ‘Brahmachari’, the married house holder or ‘Grihastha’, the forest dweller or ‘Vanaprastha’, and the religious renuciate or ‘Sanyasa’. A man who opts a life of a simple itinerant ‘yogi’ at age 25, he becomes a ‘Naishtika Brahmachari’. Naishtika Brahmachari must only perform the bare minimum required for incorporeal renaissance. The five senses: sight, hearing, touch, smell and taste must not be seduced. A Naishtika Brahmachari is a man who opines for a life free of sexual and material desires and must seclude himself from a women of the fertile age range.
There are five temples in the state of Kerala, dedicated to Lord Ayyappa representing each ashrama or phrase of his life. At Kulathupuzha in Kollam district he appears as a ‘balaka’ or child and is known as ‘Manikantan’. At Aryankavu in Kollam district Lord Ayyappa appears as ‘Brahmachari’. At Achankoil Sasta Temple in Tathanamthitta district the Lord is worshipped in his ‘Grihasta’ stage which his two consorts Poorna and Pushkala. At Sabarimala the Lord is depicted as ‘Naisthik Brahmachari’. At Ponnambala Medu or Kantamala, the Lord appears as a ‘Yogi’. As of herein mentioned that Lord Ayyappa is not a permanent Brahmachari in the general sense,but the Deity of the Sabarimala Temple is considered to be Naishtika Brahmachari out of its five forms and it is believed that it was pronounced by the Deity itself to the Priest of the temple. Therefore, to avoid slightest of deviation from celibacy and austerity this custom was been followed only in the Sabarimala temple out of the Five temples of Lord Ayyapa in the State of Kerala. So, for the devotees five of the temples of Lord Ayyapa are always opened except Sabarimala Temple where there is a prohibition for woman of fertility age range to enter into the temple respecting the Naisthik Brahmachari status of Lord Ayyapa.
The Judgement passed by the Hon’ble Supreme Court is seen from the light to rescue the rights of the female devotees of Lord Ayyappa and to remove the ‘Patriarchy’ from the society. But, the ages old custom of the temple was not respected and the temple been represented as the torch bearer of Patriarchy which is not a fact. A devotee is someone who trusts someone or have faith on something, so if woman are supposed to be the devotees of Lord Ayyapa, then they are also expected to respect Lord Ayyapa’s Naisthik Brahmachari status. The Hon’ble Supreme Court’s invasion into the working of the temple leads to another important fact, whether the Supreme Court will also take the cause of Men of Kerala, as their rights are being violated from ages as entry of men is prohibited inside the ‘Bhagwati Maa Temple’ in Kanyakumari, Kerala and remove matriarchy and set an example of ‘Equality’. Considering equality, the Muslim Woman should also be allowed to enter into a Masque for their Freedom of Religion which is promised under Article 25 (1) of Indian Constitution. The custom of the Sabarimala Temple was being followed since centuries until it was impugned by the Hon’ble Supreme Court in the year 2018.
The word feminism actually means equality but not partiality. Some decisions are to be taken from the light of conscience, as it is not mentioned in the constitution to not allow the women into men’s toilet but it solely rests upon the conscience of the women. The Fundamental Rights are not absolute in nature, likewise the custom that is backed by the Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules does not violate the Article 14, 15 and 25 of the Indian Constitution because there was no discrimination on the basis of class or gender rather the custom was only meant to preserve the very essence of Lord Ayyappa by restricting the entry of women of certain age group which again falls under the rights of the temple authority to maintain their own religious institutions.
The dissenting opinion of Justice Indu Malhotra was in the light that the court shall not intrude into the matters of Religious institution when it comes to customs which include the nature of the temple and the Deity being worshipped therein. Although the Judgement was passed in regards with 4:1 majority but then it is somewhere believed that the facts were misinterpreted and misrepresented by the learned counsel in the chops of feminism.
 AIR 1993 Kerala 42
 AIR 1985 SC 945
 (2017) 9 SCC 1
 1996 AIR 1113
 1996 AIR 796