SABARIMALA CASE JUDGEMENT
24, Sep 2018
Prelims level : Mains level : G.S. Paper - II Laws constituted for the protection and betterment of vulnerable sections.
Why in News?
- The Supreme Court granted women of all ages the right to enter the Sabarimala temple, reversing the Kerala shrine’s tradition of barring girls and women of menstruating age—10-50 years.
History of the Case:
- 1991- HC of Kerala upheld the state’s ban on Menstruating women from entering the temple
- 2006- A PIL against the Kerala HC order was
- filed by the Indian Young Lawyers Association,
- contending the ban violated constitutional rights of women.
- 2016-The Devaswom said, there is a reasonable
- classification by which certain class of women
- are excluded. The SC enquired if the defence was implying that menstruation was associated with purity of women.
- 2017- The SC referred the Sabarimala case to the Constitution Bench.
- July 17, 2018: Five-judge Constitution bench starts hearing the matter.
- July 19: Supreme Court says women have a fundamental right to enter the temple and questioned the rationale behind the age group.
- July 24: Supreme Court made it clear that the ban on entry of women would be tested on “constitutional ethos”.
- July 25: Nair Service Society tells Supreme Court the celibate nature of Sabarimala temple’s presiding deity Lord Ayyappa is protected by the Constitution.
- July 26: Supreme Court observes it can’t remain oblivious to ban on entry of women as they were barred on “physiological ground” of menstruation.
- July 31: Supreme Court says constitutional scheme prohibiting exclusion has “some value” in a “vibrant democracy”.
- August 1: Supreme Court reserves verdict.
- September 28: Supreme Court, in 4:1 verdict, allows entry of women in Sabarimala temple, says banning females’ entry into the shrine is gender discrimination and the practice violates rights of Hindu women.
- Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation 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 the entry of women on the grounds of sex?
- 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 17?
- Whether Sabarimala temple has a denominational character? If it does, is it permissible on the part of a ‘religious denomination’ managed out of the Consolidated Fund of Kerala and Tamil Nadu, to indulge in practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
Supreme Court Judgement:
- The verdict was passed by 4:1 majority by a bench with the sole woman on the bench and the author of a dissenting opinion.
- It held that the practice violated the fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu
- Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.
- ”Right to pray” in the temple for women between 10 and 50 years of age won over the ‘right to wait’ campaign as the Supreme Court condemned the prohibition as “hegemonic patriarchy”. Patriarchy cannot trump freedom to practice religion, it said.
- Supreme court observed that one side we pray to goddesses; on the other, women of a certain age are considered ‘impure’. This dualistic approach is nothing but patriarchy practised in religion. The ban ‘exacts’ more purity from women than men.
- It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional. It amounted to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women.
- In a separate, but concurring opinion, the apex court held that to treat women as the children of a lesser God was to blink at the Constitution, the prohibition was a form of untouchability. The logic behind the ban was that presence of women deviated men from celibacy. This was placing the burden of a men’s celibacy on women thus, stigmatising women and stereotyping them. Individual dignity of women could not be at the mercy of a mob. Morality was not ephemeral. It transcended biological and physiological barriers.
- The Creator was a transcending one. Physiological and biological barriers created by rigid social dogma had no place.
- The Sabarimala prohibition was a prejudice against women, which was zealously propagated and was not an essential part of religion.
- SC allows women of all age groups to enter temple. Rules custom of barring women is violative of Art 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worship. The majority view declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which mandates the prohibition in Sabarimala temple, as ultra vires the Constitution.
- The Rule violated the fundamental right of a Hindu woman to offer worship at a place of her choice. Right to worship is equally available to men and women. The majority on the Bench agreed that Ayyappa devotees do not form a separate religious denomination.
- Ayyappa devotees do not form a separate denomination just because of their devotion to Lord Ayyappa, but it was only a part of Hindu worship.
- Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion, held that the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints.
- She held that essentiality of a religious practice or custom had to be decided within the religion. It was a matter of personal faith. India was a land of diverse faiths. Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages.
- Also observed that the freedom to practice their beliefs was enshrined in Article 25 of the Constitution. Harmonisation of fundamental rights with religion included providing freedom for diverse sects to practise their customs and beliefs.
- The Judge held that there were strong, plausible reasons to show that Ayyappa devotees had attributes of a religious denomination. They have a distinct name, properties. Besides, the Sabarimala temple was not funded out of the Consolidated Fund.
Some other Places where women are restricted to visit:
- Haji Ali Dargah, Mumbai: Haji Ali Dargah, located along the coast of Mumbai and one of its most prominent landmarks, has equally remained in news because of an ongoing legal battle for women to gain access to it.
- The 15th-century Sufi saint dargah does not also women devotees close to the grave. The trustees said they are in a unanimous decision that a woman near the grave of a male Muslim saint is a sin as per Islam. Also, according to Article 26 of the Constitution, the Trust has the fundamental right to manage its own religious affair. Similarly, at the Nizamuddin Dargah in Delhi, women are allowed close to the door but not where Hazrat Nizamuddin Auliya is buried.
- Patbausi Satra, Assam: Situated in the Barpeta town in Assam, the shrine which is the abode of various Vaishnav gurus, cites the “purity” of the temple as a reason to deny women entry. Menstruation is another reason.
- Lord Kartikeya Temple, Pushkar: The temple that dates back to 5th century BC, worships the bachelor God Kartikeya. People believe that the God curses women who enter the temple premises resulting in the ban.
- Ranakpur Temple, Rajasthan: The spectacular temple complex, built in the 15th century AD, is one of the five major Jain pilgrimage sites. The complex, made of 1,444 white carved marbles, is dedicated to the Tirthankaras. However, a large board outside the temple has clear instructions as to when and how can a woman visit here. While the temple requires women to cover their knees, they can’t visit while on their periods.
- Shree Padmanabhaswamy Temple, Thiruvananthapuram: Known as the richest temple in the world, the Shree Padmanabhaswamy temple which is the home of several treasure troves, has a weird rule. Women devotees here too aren’t allowed inside the temple chambers. A few years ago, the authorities even barred a woman expert from the Archaeological Survey of India from going inside the temple.