Sabarimala Verdict by Vidhi Sharma

ABSTRACT

‘When men are opposed to, it is termed as a tragedy, but when women are opposed it is termed as age old traditions’

While we expect our Constitution to bring clarity in the system, the society is still hanging between age old practices. Customs in the country are prevailing for decades. In some famous temples of India, women are debarred from entering due to some really conservative reasons such as deity is celibate and biological cycle that ever woman undergoes. In a similar case judgement by the Maharashtra HC, which permitted women to enter in Haji Ali[1] has turned into a symbol of hope in cases of other shrines around the country.

While discussing the topic we need to look for the constitutional validity and the stand of the judiciary in such matters. Keeping such backward practices at bay the paper looks forward in making a point against such restrictions and bring an end to such injustices. It emphasises on the need of gender equality and gender justice in the constitution.

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Moreover the author wishes to emphasise on how man worships a female divinity, who signifies women power but fails to respect women devotees by depriving a certain age group from entering temples and questioning their devotion, further a strong emphasis is being laid on the fact that such restrictions have no justifications in the eyes of law.

INTRODUCTION

India is often known as the land of customs, traditions, religions and rituals. When the constitution of Indiadidn’t hold any existence it was these religious books which guided people to their paths, but even after the constitution was drafted people still seem to follow the same.  Even decades later, these religious books are being kept at par with the constitution of India. Women are considered to be a vulnerable part of the society and have always been discriminated, which has been sanctioned through these religious books. Their sexuality seems to have been a problem across all religions and they have not been allowed to have positions in temples nor been allowed into the inner sanctum of shrines and often purification ceremonies were held so as to withhold the purity of a place. The constitution has everything under its ambit but where the question is about religion it gives authority to the religious denominations to decide, this has been the case here since liberty to take decisions were given to a certain group they have led to misusing it in the name of faith and the same is evident in the present case.

ENTRY IN SHRINES AND RELIGIOUS SCRIPTURES

In a religious text ‘Hadith’[2] of the Muslim religion the Prophet says that it was better for women to pray at home rather than going to the mosque this was not because they believed women to be impure but merely for the fact that it would help them save time to do the household chores but people till date use those lines as a restriction. Similarly the Hindu Vedas have never stated that awoman’s body is impure or she should not be a part of a ceremony during menstrual cycles. Restrictions on women from entering a shrine or declaring them impure is against the teaching of the Vedas. There is no truth or proof of banning women from temples.

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Where in one case we glorify women as goddesses on the other hand we impose restrictions upon them, this mind-set of the society has led to making the section of women being vulnerable to crimes, to living in an undignified state and losing their respect. Women are constantly fighting battles for equality, the Constitution reads that all its citizens are equal but are women actually treated equally? Are they given the same choices or the same amount of opportunities that men in the society receive? Women today have become so helpless that they have been deprived of their Right to Worship, the irony of the society being that in temples we bow our heads in front of goddesses but deny women from entering the temples. All the traditions in the country lay emphasis on worshiping the goddesses, be it Kali Puja or Durga Puja, Navratri or Kanya Puja, why do we do these when we are the people who stand in the way of women from worshiping an idol at the temple? Why is it only men can worship a God and not women?

CONFLICT BETWEEN RIGHT TO RELIGIOUS WORSHIP AND WOMEN- IS BAN ON ENTRY OF WOMEN AN ESSENTIAL PRACTICE?

‘You can tell the condition of a nation by looking at the status of it women’

Equality is never really an available concept to women, women are usually the victims and men rule the society. Men have always been given the status of family bearer, development bearer while women are overshadowed by the men in the society. The religious rights are conferred in Article 25[3] which provides for freedom of religion for individuals whereas Article 26 gives shape to these freedoms as a group right, under clause (b) of the Article every religious group has the right to manage its own affairs in matters of religion.[4]The Lakshmindar case[5] interprets the phrase ‘matters of religion’ which are essential practices which could be determined only by the impact and essence of such practices. Thus religious texts are the documents to be referred in cases of banning of a section from entering shrines. The Vedas for instance emphasises on Agnihotra Havan or daily havan by men and women, clearly implying that women could perform the same on menstrual days. When these religious texts do not consider women to be impure how can man decide the purity of a woman?

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Superstitions hold great value to people, they have time and again let superstitions overrule their thinking process which has led to women becoming victims to not just discriminations but also various crimes. Menstruation is a highly stigmatized topic in the society and the stigma has built due traditional beliefs and customs and the society’s unwillingness to discuss such matters. We still have no reasons as to why women were declared impure or unclean during such periods. Hindus believe that girls should not enter temples or offer worship to God at that time, but why? It is something that has been given by God himself. There have been crazy beliefs such as touching pickles in such cycle shall spoil it or watering a plant in the menstrual cycle shall kill the plant, in some regions women are not allowed to touch their husbands when menstruating and are made to sleep on the ground. A survey in 2011 revealed that over 30% girls drop out from schools after they start menstruating. Sikhism however condemns such practices and allows women to practice their duties.

Another belief is that women were not allowed to enter temples because they were seen as a distraction by men and thus it was a method to ‘protect’ them. Is this even a valid reason? In such cases women should not be allowed to go anywhere because men could be distracted anywhere. The term ‘tradition’ has been used in all possible wrong manners so as to discriminate between the two genders and demean women,calling them impure or second class citizens and making women feel unworthy of offering their worships.

“Where women are honoured, there the Gods are pleased. But where they are not honoured, no sacred rite yields rewards.”[6]

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Customs are inconsistent with Article 13

Any custom which in force is inconsistent with the fundamental rights mentioned in the Constitution shall be void[7], many such so called traditions like sati, devadasi were abolished cause of the same reason. Further the court in N. Adithyan V Travancore Devaswom Board & Ors[8] stated where ‘any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be considered as a source of law to claim any right when it is said to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament’[9]

The custom must be abolished as it violates Article 14 as the question of entry to a shrine is a question on inequality further Article 15(1) in age classification becomes a main reason for discrimination. Further there is violation of rights under Article 21 to live with dignity and Article 25 which is related to freedom of religion. A custom cannot be a law if it is not reasonable, it must not oppose to morality, public policies and the legislature of course. It is said that the Queen of Travancore had visited the Sabarimala Temple in 1940 when she was about 45 years old so how could this custom be 1500 years old?![10]

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Clause 2(b) of Article 25 gives powers to the state to reform practices which are inconsistent with the Constitution unlike the case of Sabarimala Temple state in exercising this rule-making power by legislating Kerala Hindu places of public worship (authorisation of entry) Act, 1956 for the objective of facilitating temple entry to all classes and sections of Hindus in temple without discrimination ended up doing exactly the opposite.

Menstruation has been made to feel like a curse to girls who has been targeted and tagged as impure and treated as an untouchable. Denying a person to enter into place of worship and the reasonbeing purity and sacredness of a woman,

We should not portray a woman as goddess if we cannot give her right to pray, further Article 51 A (e) aims to renounce to reserve dignity of women.

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LEGAL FRAMEWORK

The Constitution assures Right to Equality and Right to freedom of religion in Part III under the Fundamental Rights. Article 14 states that ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’ when men of all ages are allowed to worship why is there discrimination towards women? Article 25(1) promises the right to practice, profess and propagate any religion to all persons. Further, Article 15 of the Constitution states that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth.

Article 25 (2) empowers the State to make any law or restrict the operation of any existing law for regulation or restricting any economic, financial, political or other secular activity which may be associated with religious practice or for providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections. In spite of the expressed provision in Article 25(2), the State choses to turn a deaf ear towards its duties to enhance a decision towards a reform.

A controversy began when Jayamala, a Kannada actor, claimed in 2006 that she had entered the sanctum sanctorum and touched the idol of the presiding deity in Sabarimala, the Kerala government had then ordered a crime branch probe but the said case was dropped in times come.[11] This clearly shows the attitude and mind-set of the authorities and shows how it failure towards Article 25(2).

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The supreme court needed to prove this Kerala High Court decision as incorrect and ensure that the rights of women are not sabotaged, a clue could be taken from the judgement of the case of The State of Maharashtra & Ors[12] , where a 400-year-old ban on entry of women into the shrine’s core area was lifted following the agitations of Bhoomata Brigade group against gender inequality.

About Sabarimala temple

“When it comes to temple, each has its own set of beliefs and traditions that have been followed over the years”

Sabarimala is a Hindu pilgrimage centre which is believed that Lord Ayyappa was born out of the union between Lord Shiva and the mythical Mohini, who is also regarded as an avatar of Lord Vishnu, it is believed that Lord Ayyappa the deity of Sabarimala had his human sojourn at Pandalam, known by the name of Manikandan- the son of the King of Pandalam. A temple was so constructed at Sabarimala and the deity was installed there. Lord Ayyappa is believed to have explained the manner in which the pilgrimage to the Sabarimala Temple is to be undertaken, after observing a 41-day Vrath. The whole process must replicate the journey of the Lord. It is further said that the process was revealed by the Lord himself and is embedded in the Bhuthanatha Geetha.[13]

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ENTRY OF WOMEN IN THE SABARIMALA TEMPLE

The practice of not allowing women between the ages of 10 to 50 years inside the temple cannot be termed as a valid custom since there is no proof of it being followed continuously. Earlier, women irrespective of their age were permitted to enter the temple for the first ceremony of the children, however, in the year 1955-56 the Travancore Board passed an order barring the entry into the temple. As per the past court order in the case of S Mahendran vs The Secretary, Travancore[14] in 1991 presented the following questions before the apex court:

(1) Whether woman of the age group 10 to 50 can be permitted to enter the Sabarimala temple at any period of the year or during any of the festivals or poojas conducted in the temple.

(2) Whether the denial of entry of that class of woman amounts to discrimination and violative of Articles 15, 25 and 26 of the Constitution of India?

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 (3) Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman to the temple?

 The court held that the deity in the shrine is in the form of a Yogi as said by the tantric and it is thus believed that young women must not offer their prayers in the temple so that no deviation from celibacy is caused. It was further held that women till menopause must not be permitted in the temple as they were anyway not in the position to observe the 41 days Vrath. Such restrictions by the Devaswom Board cannot be said to be violative of Articles 15, 25 and 26 of the Constitution of India. Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 as there was no restriction between the sections or between the classes of Hindus as to entering the temple and the prohibition was related only to women of a particular age group.[15] However, later in the case of Young Lawyers Association which filed a PIL in the Supreme Court to protect the rights of women by allowing them entry in the shrine as it violated their rights to equality under Article 14 and freedom of religion of female worshippers of the said age group under Article 25 of The Constitution of India.

It was further observed that the temple did allow entry to women on certain shooting occasions and this clearly showed the unfairness towards mankind, and injustice for those who were not permitted.This was clearly not an essential practice nor was it a custom.  The matter was thus referred to a three bench judge and came for hearing in 2016. The judgement was finally pronounced on 28th September 2018.[16]

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PRESENT DAY VERDICT

INDIAN YOUNG LAWYERS ASSOCIATION AND OTHERS VERSUS STATE OF KERELA AND OTHERS [W.P. (CIVIL) 373 OF 2006]

The petition under Article 32 of the Constitution against the Government of Kerala, Devaswom Board of Travancore, Chief Thantri of Sabirimala Temple and the District magistrate of Pathanamthitta ensures entry to female worshippers of the age group 10 to 50 years at Sabarimala, and further declared rule 3(b) of Kerala Hindu Places of Public Worship rules,1965 framed in exercise of the powers conferred by section 4 of Kerala Hindu Places of Public Worship Act,1965 unconstitutional as being violative of the Articles 14,15, 25 and 51A(e) of the Constitution. The four male judges pronouncing decision in favour of the community while Justice Malhotra gave a dissenting opinion on the same. It further discussed if the same were violative of fundamental rights of right to equality[17], freedom of conscience and free practice profession, propagation of religion[18] as well as abolition of untouchability[19]. It also challenged the Rule 3(b) of Kerala Hindu Places of Public Worship rules, 1965and powers under Section 4 of Kerala Hindu Places of Public Worship Act, 1965.

In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[20] the term ‘religious denominations’ has been defined, it was held as a collection of individuals classed together under the same name with common faith and designated by a distinctive name. Sabarimala clearly doesn’t coincide with the aforesaid conditions. It was further challenged that whether or whether not the 41 day Vrath was an essential part of the religion, clearly the same was not an essential practice as it was nowhere mentioned as an obligatory one. Also if a practice is optional then how could it be essential?

As per Article 26 of the Constitution:

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

The 4 judges of the bench dissent to accept that Ayyappa and the Sabarimala Templeto be a religious denomination, also since customs are not essential it shall be subjected to provisions of the Constitution. Women of a particular age group cannot freely profess their right to equality, certainrules are as discriminatory as this where women cannot enter but men could. The actions on the part of the temple authorities are clearly against the rules bestowed via the fundamental rights as observed in the constitution. Women of a particular age group are barred and their right to equality and freedom to profess the religion is hampered, which is not the case for the other sections of the society. It only gives the observant the sense of untouchability and inequality. However, Justice Malhotra believes this has not been the case, the only condition in which Article 26 shall become applicable are when it is matter of public order or health, it is only a particular section of the women who are not allowed to enter the temple and that too because of the customs of the shrine, hence it cannot be termed and inequality.

The petition has also challenged rule 3(b) of Kerala Hindu Places of Public Worship rules,1965 framed in exercise of the powers conferred by section 4 of Kerala Hindu Places of Public Worship Act,1965 unconstitutional as being violative of Articles 14,15,25 and 51A (e) of The Constitution, here the judge states that the rule causes the religious denomination to become ultra vires and thus is unconstitutional but however Justice Malhotra doesnot agree with the same.

However, since majority of the judges believed that women regardless of their age or psychological factors must be permitted in the shrine, the bench in 4:1 ratio upheld the same, and further declared provisions of Kerala Hindu Places of Public Worship rules,1965 framed in exercise of the powers conferred by section 4 of Kerala Hindu Places of Public Worship Act, 1965 as ultravires and unconstitutional.

Now before we come to a conclusion already, the author would like the reader to understand or think if God could actually discriminate amongst its own children? The court observing all the pleadings uplifted the ban on entry of women,and the judgement has been termed as a landmark judgement which seems to have strengthened the foundations of the judiciary thereby giving everyone an equal opportunity. It also depicts how the society is slowly changing and heading towards true democracy.

CONCLUSION

A country like ours has the basic foundation bricks instituted in beliefs such as freedom,equality,liberty and secularism. The preamble of our constitution also bestows the same upon its citizens. The case of the Sabarimala which restricted women of the age group 10-50 years from entering, was challenged and the same had been upheld as nothing can bar any section from practicing religion of their choice. It clearly depicts as to how the Judiciary bestows the rights of women and ensures to protect it now and in the future to come. The dissenting judgement of Justice Malhotra stating that logic and rationality cannot be found in the customs of a particular religion.

Our Preamble calls India a Secular state, what it seems that we have forgotten what it actually means! Secularism is not being irreligious but being together and respecting all religions, every religion has some blind faith being followed and most of these faiths have an axe falling on the women. We as citizens need to get past the managements of these religious places so that these discriminatory practices can be lessened just not to let women enter into religious places but to also let them feel empowered to choose if they wish to become priests or pundits or bishops or maulanas, they should be permitted to be one.

In the fast growing society like ours, where sex and porn seem to have been gaining popularity taking about masturbation and premature ejaculation are becoming a popular topic, menstruation still is a taboo. Shrines help to create a sacred relation between God and its devotees, the authors fail to understand how a restriction being imposed upon a section of the society either an s a whole or partly shall help or refrain it from impurity? Further all these restrictions do is to take away the rights from women, who themselves do not enter these places of worship on days of menstruation.

Women have been depicted as Goddesses for ever, worshiped powerful and gentle, emotional and strong, angry and loving but these have been contradictory views about women in the society, it is different from how women are actually looked upon today.

True equality means holding everyone accountable in the same way, regardless of race, gender, faith, ethnicity – or political ideology. – Monica Crowley

With the society changing and developing, we need to strike down any law or custom which promotes discrimination in any form, these should be held as unconstitutional. And the legislature must ensure the right to worship and the right against discrimination do not just remain as mere rights in the Constitution but are actually adhered with for the betterment of the society today and in future.

[1] Bombay HC lifts ban on women’s entry to inner sanctum of Haji Ali Dargah (26-08-2016)

[2] Why are women, not allowed in the Mosque? Available at :

zakirnaikqa.wordpress.com,https://zakirnaikqa.wordpress.com/2013/07/02/q-why-are-women-not-allowed-in-the-mosque/

[3] Part III of The Constitution of India (fundamental rights)

[4]Article 26(b) of Indian constitution

[5] The Commissioner, Hindu vs Sri Lakshmindra Thirtha Swamiar, 1954 AIR 28

[6] Manu Smriti 3.56

[7]Article 13 Constitution of India (MP Jain 7) (2016)

[8]  N. Adithyan v. Travancore Devaswom Board & Ors. 2002 8 SCC 106

[9] The State Of Bombay vs Narasu Appa Mali AIR 1952 Bom 84

[10] Kerala for allowing women of all ages into Sabarimala temple, Article The Hindu FEBRUARY 08, 2008 available at : HTTP://WWW.THEHINDU.COM/TODAYS-PAPER/TP-NATIONAL/KERALA-FOR-ALLOWING-WOMEN-OF-ALL-AGES-INTO-SABARIMALA-TEMPLE/ARTICLE15160720.ECE

[11] https://www.hindustantimes.com/india-news/banon-entry-of-women-facts-controversies-about-keralas-sabarimala-temple/storyK4Xi6GKMacPDmQO2jAmjNO.html

[12] PIL No.55 of 2016 in Bombay High Court

[13] Story of Sabarimala, Available at: https://www.ndtv.com/kerala-news/the-story-ofsabarimala-origin-beliefs-and-controversy-onwomen-entry-1933477

[14]  S Mahendran vs The Secretary, TravancoreAIR 1993 Ker 42

[15] Indian Young Lawyers Association vs The State Of Kerala on 28 September, 2018

[16]4Sabarimala  temple entry case, available at: https://scobserver.clpr.org.in/court-case/Sabarimala -temple-entry-case

[17] Article 14 of The Constitution of India

[18] Article 25 of The Constitution of India

[19] Article 17 of The Constitution of India

[20]Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR 282, 1954 SCR 1005

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