Case Analysis: Women Entry On Sabarimala Temple By Tanya Arora & Sonakshi Singh

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Sabarimala Temple case
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BACKGROUND:

In 1991, the ban to the entry of women in the Sabarimala Temple was challenged before the Kerala High Court in the case S. Mahendran Vs The Secretary, Travancore. The Kerala High Court claimed that these restrictions have been in existence since the time immemorial and are not discriminatory to the Constitution, and ruled in favor of the continuing with the prohibition of women entering the temple. The said order of the Kerela High Court was implemented and followed for the next 15 years. However, in 2006, this ban was challenged by the Young Lawyers Association,  who filed a Public Interest Litigation with the Supreme Court claiming that rule 3(b) of Kerala Hindu places of Public worship (Authorization of entry) Rules 1965 that states, “women who are not, by usage and custom, allowed to enter a place of public worship shall not be entitled to offer worship or enter any place of public worship”, is a violation of the constitutional ideals of non-discrimination, equality and religious freedom. On April 25 2016, K.K Venugopal, the representative advocate of the Devaswom, said that there is a reasonable classification depending upon which these certain classes of women are excluded from entering the temple. The case was then referred to the Constitution Bench of the Supreme Court.

Further, in 2018, the temple’s authority to deny entry to women was questioned by Dipak Misra, The Chief Justice of India. The case was heard by a constitution bench headed by Dipak Misra along with Justices AM Khanwilkar, Rohinton Nariman, DY Chandrachud and Indu Malhotra. The bench held that the Sabarimala pilgrims shall not be a separate sect or religious denomination and their customs will be subjected to constitutional validity and hence, restricting the entry of women to temple is in violation of the Fundamental Rights. Justice Chandrachud claimed that the right to pray as a woman is not dependent on any law, but it is a constitutional right. He further added that the notification issued under the rules prescribing the age restrictions on women entry as “arbitrary on the face of it”.

BRIEF FACTS

A dedication to the Lord Ayyapa, Sabarimala is a Hindu shrine located at the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta district in Kerala. He is also referred to as ‘Dharmashastha’ or the ‘Lord of Dharma’ and is worshipped as a celibate for life or ‘Naishtika Bramhachari’. Therefore, as per a notification by the Devaswom Board, who is responsible for managing the temple, women belonging to the menstruating age are not restricted from entering the temple. The Sabarimala temple is visited by over 45–50 million devotees every year and is considered one of the largest annual pilgrimages in the world. In 1991, the Kerala High Court banned the entry of the women between the age of 10 and 50 from entering the Sabarimala shrine. However, this ban was challenged by a group of women lawyers on the grounds that prohibiting women from visiting a public place of worship is a violation of ideals of non-discrimination, equality and religious freedom.

ISSUES OF CONCERN

The legal intricacies involved in the Sabarimala case are complex and multi-layered as in a country life India, society and religion is inseparable. On one hand, the petitioners before the Supreme Court argued that the reasons behind banning the entry of women are discriminatory and against the text and spirit of the Constitution while on the other hand, the defenders retorted by saying that the constitution grants to every religious denomination the right to determine its own rules. The main issue here lies in the fact that what it means to be a secular state is the power grant autonomy and freedom to the denominations, from state’s interference.

The issues before the Supreme Court where to determine whether the exclusionary practice, based upon a biological factor exclusive to the female gender, can be deemed as discriminatory and thereby violative of Articles 14, 15 and 17 or will it be protected under morality as used in Articles 25 and 26 of the Constitution and whether the practice of prohibiting such women can be constituted as an essential religious practice under Article 25 of the Constitution and whether it is under the rights of a religious institution to assert a claim in managing its own affairs in the matters of religion?

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The Court was also responsible to determine whether the Ayyappa Temple has a denominational character and whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits such religious denominations to ban the entry of women between the age of 10 to 50 years? And lastly, would it be considered a violation of Articles 14 and 15(3) of the Constitution by allowing the restriction of women on the ground of sex?

CONTENTIONS BY PETITIONERS

The contentions put forward by the petitioners are that the Sabarimala Temple cannot be deemed as a separate religious denomination as the religious practices followed in Sabarimala Temple at the time of Pooja and other religious ceremonies are similar to that performed in any Hindu Temple. The temple is administered by or through a statutory body constituted under the Travancore – Cochin Hindu Religious Institutions Act, 1950 and thus, does not have a separate administrative body. Further, as per Section 29(3A) of the Travancore – Cochin Hindu Religious Institutions Act, 1950 it is necessary for the Devaswom Commissioner to submit reports to the government, once in every three months, with respect to the working of the Board.

To buttress the view that for the purpose of constituting a religious denomination, there needs to exist a strong bondage between the members of such denomination, which must be clearly distinct, following a particular set of practices/rituals/ /usages. They should be having their own religious institutions, which include managing their properties in accordance with law. The petitioners placed their reliance on the decision of this Court in The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[1] wherein it was observed that while giving freedom under Article 26(a) and Article 26(b)[2] of the Indian Constitution, it is crucial it make it clear that the part which is protected is only the essential part of religion i.e. the essence of rituals or practice followed by a religious denomination. Accordingly, the petitioners submitted that before any religious practice is analysed on the touchstone of constitutional principles, it should first be ascertained that the said practice constitutes, in pith and substance, the essence of the said religion. The petitioners also cited the judgment in the case Durgah Committee, Ajmer v. Syed Hussain Ali,[3] wherein Gajendragadkar, J. clarified that clauses (c) and (d) of Article 26 are only safeguarding the right of the religious denominations and not creating any new ones.

The petitioners also contended that discrimination in matters of entry to temples is neither a ceremony nor a ritual associated with the Hindu religion as this religion does not discriminate against women. On the contrary, Hindu religion grants to women a higher pedestal than men and such discrimination is anti-Hindu, as prohibition on the entry of women cannot be deemed as the essence of Hindu religion. Thereafter, the petitioners have contended that the Sabarimala Temple cannot claim the right under Article 26 if it does not come under the category of religious denomination, and it would then fall within the purview of Article 12[4], thus, making it a subject to Articles 14 and 15 of the Constitution. Hence, the State would be restricted from denying equal protection all under law and will be restrained from discriminating on the basis of sex. It has also been submitted by the petitioners that even if the Sabarimala temple is deemed as a religious denomination, their basic tenets cannot be confined to taking the oath of celibacy for certain period of pilgrimage as all pilgrims are allowed in the temple and there is no such ritual of not seeing any women during this period.

Finally, the petitioners submitted that under legal and constitutional parlance, dignity of women under Article 51A(e)[5] is an essential ingredient of the constitutional morality.

CONTENTIONS BY RESPONDENTS:

The respondents put emphasis on the history of the Sabarimala Temple and the practices being followed since time immemorial including the fact that the Temple is supposed to depict Naishtika Brahmachary. It was contended by Mr. Jaideep Gupta, learned senior counsel appearing for the State of Kerala, that the   provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, and the Rules framed thereunder are in agreement with the Article 25(2)(b)[6] of the Constitution. It was further urged by Mr. Gupta that there exists no restriction in view of the legislation in the field. In essence, the State took the stand that it does not conceive of any discrimination as regards the entry of women into the Sabarimala temple where male devotees can enter.

The respondent no. 2 drew the attention of the Court to the fact that the entry in the Sabarimala temple is opened during specific defined periods, that is, on the Malayalam month i.e. 17th November to 26th December and also during the period of Makar Sankranti, i.e. each year from January 1 to mid- January.

The respondent no. 4 drew the attention of the Court to the fact that the traditional science of Ayurveda as well as the religious customs consider menstrual period as an occasion for rest and a period of uncleanliness of the body and during this period, women are suffering from several discomforts. Hence, observance of intense spiritual discipline for 41 days as Vruthum is not possible. The respondent no. 4 also contented that there are pilgrims who practice celibacy and it is for their sake that young women are not allowed in the Sabarimala pilgrimage. He further contended that the restriction is not a social discrimination but is a part of the essential spiritual discipline that is essential for this particular pilgrimage. The respondent no. 4 also presented his view that it is the deity who does not want young women to enter the precincts of the temple and that it is their duty to maintain and ensure that the practice of women of particular age group not participating in the temple rituals.

JUDGMENT ANALYSIS (MAJORITY/CONCURRING)

In a 5-Judge Bench, The Chief Justice of India, Dipak Misra and Justice A M Khanwilkar gave one single judgment while lifting the ban. Justice R Nariman and D Y Chandrachud wrote separate judgments, but had a concurrent view on lifting the ban. Justice Indu Malhotra, the lone woman judge on the Bench however had a dissenting view.

The majority/concurring judgment of the court can be analyzed in the following heads:-

  1. RELIGIOUS DENOMINATION: The court gave a definition of the term ‘religious denomination’ by saying that for anything to be called a ‘religious denomination’, it must be a collection of individuals having a collective common faith, a common organization which adheres to the said common faith, and last but not the least, the said collection of individuals must be labeled, branded and identified by a distinct name.[7] In the present case, the court observed that there is no separate identified group called ‘Ayyappans’ and that every Hindu devotee has been entering the temple. There are no separate collection of individuals having a common faith, besides those common to all Hindus. Therefore, the court said that Sabrimala temple is not a ‘religious denomination’ within the meaning of Article 26 of the Constitution of India, rather, it has been held to be a ‘pubic temple’ as per the fact that Section 15 of the 1950 Act gives the power of direction, control and supervision to the Travancore Devaswom Board, which has been held to be ‘other authority’ under Section 12.
  1. ENTRY OF WOMEN IN TEMPLE: The court said that there is nothing in Article 25(1) to permit the exclusion of a gender due to physiological factors, especially women, from entering the temple. Women of all age groups have the same right to enter the temple as men, to enable them to profess their right to practice religion, which is guaranteed by Article 25. According to the court, such an exclusionary custom undoubtedly violates the women’s right to freely practice their religion as a Hindu. The word ‘morality’ occurring in Article 25(1) does not indicate the meaning given by an individual, a section or a religious sect, but includes ‘constitutional morality’. By constitutional morality, it is meant that the exception must be in conformity with the basic principles and tenets of the Constitution. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practice religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.[8]
  1. ESSENTIAL RELIGIOUS PRACRICE: The court rejected the contention of the Respondents that the prohibition of women of age group 10-50 years from entering the temple of Lord Ayyappa is an ‘essential religious practice’ which requires protection. The court said that although such a practice partakes the characteristics of ‘religious practice’ given in the case of The Durgah Committee, Ajmer vs Syed Hussain Ali And Others[9], since it is found on some superstitious beliefs, it renders such a practice unimportant and not an integral part of religion. The court went on to say that it is impossible to call a practice which is discriminatory towards women, as an ‘essential religious practice’, rather, allowing women to enter and offer their praying in the temple is an essential practice of Hindu religion. Without the evidence of scriptural or textual material identifying such a practice, the court held that it cannot be given the status of an ‘essential religious practice’. The court also observed that there will not be any prima facie fundamental change or alteration in the nature of Hindu religion by allowing these women from entering the temple. Further, the court observed that for any practice to be regarded as an ‘essential religious practice’, it must invariably be followed continually without hindrance for a considerable long period of time. In this case, it had been accepted by the Devaswom Board that the women of age group 10-50 years had been visiting the temple for conducting pujas every month for 5 days for the first rice feeding ceremony for their children and they also accepted the fact that the restriction on the entry of women was only during the Mandalam, Makaeavilakku and Vishnu days. It has also been seen that prior to the passing of Notification in 1950, the said practice was a ‘custom with some aberrations’ as women of all age groups used to visit the temple for rice feeding ceremony. Therefore, the court held that such an exclusionary practice cannot be said to be an ‘essential religious practice’ as there is no continuity in its adherence.

JUDGMENT ANALYSIS (DISSENTING)

The lone dissenting judgment of Justice Indu Malhotra can be summarized in the following points:-

  1. The Judge observed that the prohibition of a particular age group of women is only a method of ensure the adherence to the limited restriction on the entry of women. She went on further to that the gender equality issue does not arise since women of all age groups are allowed to enter those temples of Lord Ayyappa where he has not manifested himself in the form of ‘Naishtik Brahamachari’.
  2. The Judge held that the right to equality guaranteed by Article 14 does not have an overriding effect on the right to practice their religion as given by Article 25. According to the Judge, if the Petition is allowed, it will lead to opening doors of judicial review to question religious beliefs and practices, which is outside the scope of the courts. As per the Judge, it is for the religious community to decide whether a religious practice is an ‘essential religious practice’ or not.
  3. The Judge also held that Ayyappans or worshippers of the Sabrimala Temple satisfy the essentials of being a ‘religious denomination’ under Article 26.

CONCLUSION

For a democratic country like India, the liberty and freedom have to be balanced and kept at par with each other. Therefore, individual and group rights have to be considered simultaneously by the State. The Sabrimala Temple case is a paradigm of an effort by the Supreme Court to blend and balance the contrasts of constitutional ideals and social reality.

The irony of today in our country is that, while we desire to eliminate dependence and wish for the growth of our nation, we fail to change the patriarchal mindset of the people. The ever existing discrimination against women will not end until a step is taken towards it by every individual of the country. People should take initiative like the Petitioners in this case, to come forward and take action against injustice. Justice cannot be met if it is not demanded. By passing this judgment, the Supreme Court has enlightened the people that the doors of the judiciary are wide open to let in any person who demands justice. Justice is a right of every person guaranteed by the Constitution of India.

[1] 1954 SCR 1005

[2] Article 26: Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

[3] 1962 SCR (1) 383

[4] Article 12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

[5] Article 51A(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

[6] Freedom of conscience and free profession, practice and propagation of religion

religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

[7] WRIT PETITION (CIVIL) NO. 373 OF 2006

[8] WRIT PETITION (CIVIL) NO. 373 OF 2006

[9] AIR 1961 SC 1402 

***This paper was selected as 4th in the Justice Hidaytullah Memorial Case Comment Writing Competition, 2019 organized by Law Corner and Lex Research Hub***

About Authors:

  • Tanya Arora, Amity Law School, Amity University, Noida, E-mail: tanya2198@gmail.com
  • Sonakshi Singh, Amity Law School, Amity University, Noida, Email: sonakshi.singh1598@gmail.com