In the Supreme Court of India Civil Original Jurisdiction Case No. Writ petition (Civil) no. 373 of 2006 Petitioner Indian Young Lawyers Association & Ors. Respondent The State of Kerala & Ors. Decided on 28 September 2018 Bench Dipak Misra, A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachu, Justice Indu Malhotra
Background:-
Sabarimala Sree Dharmasastha Temple is a temple complex located at Sabarimala inside Periyar Tiger Reserve in Pathanamthitta District, Kerala, India. It is the largest annual pilgrimage in the world with an estimate of between 17 million and 50 million devotees visiting every year. The temple is dedicated to the Hindu celibate deity Ayyappan also known as Dharma Sastha, who according to belief is the son of Shiva and feminine incarnation of Vishnu.
The deity in Sabarimala temple is in the form of a Yogi or a Bramchari according to the Thanthri of the temple. The God in Sabarimala is in the form of a Naisthik Bramchari, and this is the reason why young women are not permitted to offer prayers in the temple. Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.
The temple is open for worship only during the days of Mandalapooja (approximately 15 November to 26 December), Makara Sankranti” (14 January) and Maha Vishuva Sankranti(14 April), and the first five days of each Malayalam month.
The pilgrims have to observe celibacy for 41 days before going to Sabarimala. They are also required to strictly follow a lacto-vegetarian diet, refrain from alcohol, not use any profanity and allow the hair and nails to grow without cutting. They are expected to bath twice in a day and visit the local temples regularly. They wear black or blue clothes, do not shave until the completion of the pilgrimage, and smear vibhuti or sandal paste on their forehead.
The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).
In response to a PIL filed in 1991, the Kerala High Court had judged that the restriction of entry of women ages 10-50 to the temple was in accordance with the usage prevalent from time immemorial, and it directed the Devaswom Board to uphold the customary traditions of the temple.
However, on 28 September 2018, the Supreme Court of India overturned the restriction on the entry of women, declaring it unconstitutional and discriminatory. The Supreme Court had ruled that women, of all age groups, can enter Sabarimala temple in Kerala. The apex court in a 4:1 majority said that the temple practice violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.
On 2 January 2019, two women under the age of 50 finally entered the shrine for the first time since the Supreme Court verdict, after attempts by many others failed due to protests by devotees.
Facts
The Sabarimala temple is one of Kerala’s most famous temples and it is dedicated to the worship of Lord Ayyappa, who is also referred to as ‘Dharmashastha’ or Lord of Dharma and is worshipped as a ‘Naishtika Bramhachari’ or a celibate for life. Therefore, as per a notification by the Devaswom Board that manages the temple, women belonging to the menstruating age are not permitted to enter the temple. The Sabarimala temple is managed by the Travancore Devaswom Board. The centuries-old restriction that restricts women of menstruating age from temple entry had been challenged now and then.
1991: Kerala High Court upheld an age-old restriction on women of a certain age-group entering Sabarimala temple. A two-judge bench decreed (on April 5) that the prohibition by the Travancore Devaswom Board that administers the hill shrine does not violate either the Constitution or a pertinent 1965 Kerala law.
2006: A famed astrologer conducted a temple-centric assignment called ‘Devaprasnam’, and declared having found signs of a woman’s entry into the temple sometime ago. Soon, a well known Kannada actress-politician Jayamala claimed publicly that she had entered the precincts of Sabarimala in 1987 as a 28-year-old. Even she claimed to have proudly touched the deity inside the sanctum sanctorum as part of a film shoot, adding doing connivance with the priest.
2006: The allegation led the Kerala government to probe the matter through its crime branch, but the case was later dropped.
2008: Kerala’s LDF government filed an affidavit supporting a PIL filed by women lawyers questioning the ban on the entry of women in Sabarimala
2016: The India Young Lawyers Association filed a PIL with the Supreme Court, contending that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 that states “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship” violates constitutional guarantees of equality, non-discrimination and religious freedom.
November 2016: Kerala’s Left Front government favoured the entry of women of all age groups filing an affidavit to the effect.
28 September, 2018: The hon’ble Supreme Court of India, by a 4:1verdict, granted women, of all age groups, entry into Kerala’s Sabarimala temple, breaking the temple’s age-old tradition of restricting menstruating women from entering its premises.
The five-judge bench, headed by then CJI Dipak Misra with Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra pronounced the verdict, with Malhotra dissenting.
Issues Raised
The issues raised in this case were:-
1. The rule that disallows women from entering temples for the sake of custom was challenged so as to prove that it violates Articles 14 and 15(3) of the Constitution on the grounds of sex.
2. Whether the practice constitutes an ‘essential religious practice’ under Article 25?
3. Whether a religious institution could assert its claim to do so under the right to manage its own affairs in the matters of religion?
4. Whether the exclusionary practice based on a biological factor exclusive to the female gender amounts to ‘discrimination’?
5. Whether Sabarimala temple had a denominational character?
Arguments Advanced:-
Prohibiting entry of women from 10 to 50 amounts to untouchability:
Senior counsel Indira Jaisingh stated that prohibition of women entry is a form of untouchability. “The sole basis of restriction is menstruation of women. To keep away menstruating women is a form of untouchability. Menstruating women are seen as polluted.”
Restriction to entry not connected to religious practice:
The petitioners argued that restriction on the entry of women in the Sabarimala temple is nowhere connected with the religious practices performed there. The question of it being the essence of the said religious denomination does not arise at all.
Sabarimala Temple not a separate religious denomination:
It was argued that the Lord Ayyappa temple was not a separate religious denomination for the purpose of Article 26 because the religious practices performed in Sabarimala Temple at the time of ‘Puja and other religious ceremonies are not distinct and are akin to any other practice performed in any Hindu Temple.
Article 25(2) (b) was not a mere enabling provision:
Senior Advocate Raju Ramachandran who was appointed as amicus curiae in the matter stated that the right of women to enter temple and offer worship flowed from Article 25(2) (b) as it was not a mere enabling provision which permitted enactment of law to make Hindu temples accessible to all sects and classes, but granted a substantive right.
Justice Indu Malhotra cited example of a temple which ban entry of men:
Justice Malhotra had cited the example of Attukal Bhagavathy Temple in Kerala, which is exclusively for women devotees, and asked whether exclusion of men was discriminatory. Responding in affirmative, Surendranath submitted that it was equally discriminatory.
How did Travancore Devaswom Board justify the ban?
Lord Ayyappa was a celibate for life, a ‘Naishtika Brahmacharya’:Senior Advocate Abhishek Manu Singhvi, who argued for the Devaswom Board, justified the impugned practice as being a bonafide one, one originating from the character of the deity at the Sabarimala Temple. Lord Ayyappa was a celibate for life, a ‘Naishtika Brahmacharya’, and the practise was firmly rooted on this belief of hordes of devotees.
Woman cannot complete 41 days of penances:
Observance of 41 days of penances was essential for undertaking a pilgrimage to Sabarimala. It was an essential religious practice. It was not physiologically feasible for women to complete the 41 days of penances.
Sabarimala temple case: Written submissions supporting women’s entry
In the written submissions, senior advocate Ms. Indira Jaising had submitted that prohibiting women from entering the temple is similar to the practice of untouchabilty because menstruating women are perceived as ”impure” and “polluted.” She further submitted that the restriction offends the concept of gender justice, psychologically impacts women and their ability to have normal social interactions with the rest of the society as well as family members and perpetuates practices that are derogatory to women. The devotees of Ayyappa do not constitute a religious denomination as they are Hindus and even if one were to assume they are a religious denomination, such a practice still cannot disallow Hindu women from entering a temple.
- Senior Advocate Ms Indira Jaising pointed out that since this is the sole reason for restricting women from temple entry, it is a form of untouchability. Her arguments supporting women’s entry was centred around Article 17 of the Constitution of India.
- Senior Advocate Mr. Raju Ramachandran had been appointed as the amicus curiae in the matter. His submission was that women’s right to enter the temple comes from Article 25(2) of the Constitution and that a restriction on women’s entry is also invasive of a woman’s right to privacy as it amounts to making a disclosure that she is no longer menstruating.
Sabarimala temple case: Submissions against women’s entry:
Representing the Nair Service Society, senior advocate Mr. K. Parasaran dismissed arguments pertaining to patriarchal mindsets being a reason for the restriction on women’s entry in Sabarimala temple. He pointed out that Kerala follows a matrilineal system. Therefore, it is incorrect to assume the practice related to Sabarimala as one that is based on patriarchy.He also stated that the women of the state are known for being well-educated, socially forward and independent in their roles as decision makers. Referring to the presiding deity Lord Ayyappa as a Naishtika Bramhachari, he pointed out that it is the celibate nature of the deity that forms the basis of the practice and not misogyny.
- Article 15 of the Constitution does not apply to religious institutions and Article 25(2) pertains to only secular aspects and it is only pertaining to social issues, not gender or religious based issues. In particular, the senior advocate also pointed out that Article 15(2) provides citizens with the right to access to places such as hotels, shops and so on but nowhere does it mention public temples. He asked the SC bench to consider the deity’s unique nature while going into the details of the constitutional validity of the temple practice.
- The Hindu religion, as per senior advocate K. Parasaran’s argument, has always upheld the right to equality and he cited the example of Lord Shiva being worshipped as ‘Ardhanarishwara’ which embodies half-male and half-female.
- Representing ”People for Dharma”, Advocate J. Sai Deepak, in his written submissions, pointed out that the petitioner’s position suffers from a grave error as it fails to distinguish between diversity in religious traditions and discrimination and that the petitioner has turned a discussion on the deity’s celibacy into alleged notions of impurity associated with menstruation. He further submitted that the rules of Bramhacharya when it is observed by women devotees, also requires them to avoid all contact with men. He further stated in the written submission that the practice of Naishtika Bramhacharya has been given a misogynist hue in a baseless, ignorant and extremely mischievous manner.
- The bench, on September 28, 2018, lifted the ban and ruled that women, of all age group, can enter Sabarimala temple in Kerala. With a 4:1 majority, the bench in its verdict said that the temple practice violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.
Significance of the Verdict
By the majority judgment, it is amply clear that the underlying basic principle that the Constitution of India is supreme. The hon’ble Chief Justice and his companion judges in different words unequivocally upheld that even in matters of religious faith, Governments, religious and other institutions and the people of India are bound by the constitution of the country.
This historic verdict supersedes all other laws of the land and customary practices and beliefs and traditions of different religions/faith which are contrary to it. Thus, on the one hand, it proclaims the triumph of women’s rights towards equality with men and on the other it establishes the supremacy of Constitutional morality over customary laws, rituals and traditions. The far reaching socio-economic and political consequences of this historic verdict will unfold themselves as the country moves forward.
Critical Analysis of the Judgement
Religion has morphed into different configurations in modern societies and hence we need more holistic approaches to comprehend its complexities.
The rationality of any religion or a particular ritual is mostly determined and propagated by the male leaders and members in the group. In order to perpetuate their domination, they tend to devise customs, often by the irresponsible interpretation of traditional texts, which consequently results in the subordination of women.
Justice Malhotra sets a dangerous precedent by stating that courts should not delve into the rationality of religious practices. One should not forget that if it were not for the judiciary’s activism, the rigid societal structures would have still clawed on to the unbending orthodoxy. A prerequisite of this judgment, however, would have been to find ways to sensitise the community and garner support from men and women equally.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
