This article has been written by Rahul Sinha pursuing Diploma in Legal English Communication – oratory, writing, listening and accuracy and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

Conditions for women differ depending on their culture and where they belong. It may be traced from east to west and from north to south. Another difference is also remarkable in the context of the economy and education.

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The famous feminist and existential philosopher of France, Simone De Beauvoir, discusses in her book “The Second Sex” the treatment of women in society as well as throughout history. However, it covers mostly the scenario after the industrial revolution.

On the other hand, the ancient concept of marriage in Hindu society developed with the moral principles of the sages ‘Swetketu’ and ‘Uddalak’.

Recently, Geeta Oberoi wrote about gender justice. Her research touches on some grey areas. Arun Shourie, a famous journalist, writes about his experience while coming across the situation under which his handicapped wife was kept in trauma in his book “Anita Gets Bail”.

History tells us how the women of our society have fought bravely against various ill practises that were prevalent in our society, whether it be the practise of Sati, polygamy, devdasi or other such kinds of male dominated customs and practises. These practises were somehow linked with the authority of the almighty by citing various religious texts. But as we know, those citations and origins were merely illusory. We are also aware of how Raja Ram Mohan Roy was able to prove that the practise of the Sati System didn’t find any solid or authoritative mention in any religious texts. These practises owe their origins to the male dominated world, where some ill minded people seem to be afraid of the progressive minds of women, who, as we know, are continuously marking a new history in the context of this scientific and developing world.

If we consider the rights of women in light of equality before the law, then, as our constitution mandates, they are to be treated equally and can’t be restricted or prohibited from exercising their constitutional rights merely on the ground of gender. However, they can’t be put on equal footing when muscular strength is calculated. In India, it is said that muscular power is the worst power, mental power is better than muscular power and the power of the soul is the supreme power. The soul does not discriminate between males and females, just as the law doesn’t allow any discrimination between males and females.

The case of Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors. (2018) also highlights one of such miseries and the unequal treatment that was put on the women on unjust grounds. These unequal treatment and the discrimination faced by them on unjust religious grounds form the background and history of the case, which have been dealt with in brief in the next heading, “Background and facts of the case.”

Background and facts of the case

The present case comes into existence because of a writ petition filed under Article 32 of the Constitution in the Supreme Court of India. The writ is filed against the Government of Kerala, the Devaswom Board of Travancore, the Chief Thantri of Sabarimala Temple and the District Magistrate of Pathanamthitta.

Among the various issues raised by the petitioner and denied further by the respondent in their respective pleadings, the primary issue revolves around the right of entry of the women aged 10 to 50 years to the Lord Ayyappa Temple at Sabarimala, Kerala.  

Lord Ayyappa, as per the famous saying, is said to be born out of the union of Lord Shiva and Lord Vishnu (the form of Mohini). This divine lord, Ayyappa, is worshipped by almost all the Hindus and therefore many temples have also been built in his name as a mark of respect and to do pooja or worship. However, the temple of Lord Ayyappa situated at Sabarimala is special and distinct. The Sabarimala Temple is said to be of divine origin, as Lord Ayyappa himself is said to have instructed King Rajasekara, the Pandalam King, to build his temple at Sabarimala by shooting an arrow that  fell at the spot where the temple presently lies. It is further said that Lord Ayyappa had himself directed the King as to how the Sabarimala pilgrimage would be undertaken and the methodology to be adopted for his worship. This methodology, as directed by the Lord, includes the system or practise of ‘Vratham’ or penance. 

The Vratham is a form of penance that the devotee of Lord Ayyappa has to undergo for 41 days for his darshan. This form of penance entails many things, like abstaining from physical relation with one’s spouse, cooking one’s own food, walking barefoot, living in isolation from the rest of the family, etc. However, the essence of Vratham lies in the Sathvic lifestyle and brahmacharya, which are believed to make a person pure and unpolluted both physically and mentally.

This practise of Vratham basically restricts any woman from visiting the Sabarimala Temple because it is believed that a woman can’t maintain her purity and perform the practise of Vratham for 41 days. As the women have to undergo a menstrual cycle during the gap of these 41 days, their purity is said to be disturbed, and that’s why they are prohibited from entering the temple to maintain the purity of the temple.

Another reason on the ground of which the women are restricted is the belief that the divine god Lord Ayyappa is a Bramchari deity and is present in the temple in the form of a Nasthik Bramchari. As such, the entry of the women can disturb the celibacy of the Lord Ayyappa.

This fact of the prohibition of women from entering the premises forms the root cause of this writ petition. The writ petition filed under Article 32 of the Constitution raises the concern of the Supreme Court by asking the Hon’ble Court whether these prohibitions violate the rights enshrined in Articles 14, 15 and 17 and whether these prohibitions are in any way protected by the usage of the word ‘morality’ in Articles 25 and 26 of the Constitution.

It is also important to mention here that this writ petition filed by the group of five women lawyers was filed against the decision of the Kerala High Court, which earlier concluded in its judgement that the prohibition of entry of women into the temple is not unconstitutional but valid. The High Court concluded that such a restriction was non-violative of Articles 15, 25 and 26 of the Constitution of India and also held Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, to be valid and not in violation of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act.

The ruling of the High Court reported as S. Mahendran vs. The Secretary, Travancore…(1991) was challenged by the petitioner on various grounds and therefore this case in the form of a writ petition came up in the year 2006 before the Supreme Court of India.

Composition of the bench and parties involved

Bench: The Constitutional Bench of the case consisted of Chief Justice of India Dipak Misra, Justice A M Khanwilkar, Justice R F Nariman, Justice D Y Chandrachud and Justice Indu Malhotra.

Petitioners: The Indian Young Lawyers Association, Dr. Laxmi Shastri, Prerna Kumari, Alka Sharma, and Sudha Pal constituted the list of petitioners.

Respondents: The alleged rights were claimed against The State of Kerala; Travancore Devaswom Board; Chief Tanthri of Sabarimala Temple; District Magistrate of Pathanamthitta; Nair Service Society; Akhil Bhartiya Ayyappa Seva Sangham; Ayyappa Seva Samithi; Ayyappa Pooja Samithi; Dharma Sanstha Seva Samajam; Akil Bhartiya Malayalee Sangh; sabarimala Ayyappa Seva Samajam; Kerala Kshetra Samarak Shana Samithi; Pandalam Kottaram Nirvahaka Sangham; sabarimala Custom Protection Forum.

Petitioner’s lawyers: The petitioners were represented by R.P. Gupta, Raja Ramachandran (Amicus Curiae), and K. Ramamoorthy (Amicus Curiae).

Respondent’s Lawyer: The respondents were defended by Jaideep Gupta, Liz Mathew, Venugopal (Travancore Devaswom), V. Giri (State of Kerala), Rakesh Dwivedi, and K. Radhakrishanan.

Issues of the case

The primary issues dealt with under this writ petition are as follows:

  1. Whether the exclusionary practise of prohibiting women from entry to the temple premises is in violation of 14, 15 and 17 of the Constitution and not protected by the provisions of Articles 25 and 26 of the Constitution?
  2. Whether such an exclusion of women from entrance forms part of the “essential religious practise” under Article 25?
  3. Whether a religious institution is justified and empowered to impose such a prohibitory restriction in light of the right to management given under Article 26 of the Constitution?
  4. Whether the ‘Sabarimala Temple has a denominational character. 
  5. Whether Rule 3(b) of the  Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, permits such a proclaimed ‘religious denomination’ from imposing such an exclusive ban on women between the ages of 10 and 50, and if it does, whether its stand is valid as per the constitutional mandates of Article 14 and Article 15(3) of the Constitution?

Arguments by the parties

Arguments by the petitioners

The petitioner argued that the women have the right of entry into the temple and the prohibition restricting their entry is in violation of Articles 14, 15, and 17 of the Indian Constitution.

The petitioner submitted that the restriction is in violation of Article 14 as it is discriminatory in nature and such a restriction of entrance even lacks the existence of intelligible differentia and the rational nexus with the object of preventing the deity from being polluted. The petitioner, citing the case of Shayara Bano vs. Union of India and Ors. (2017), said that the exclusionary practise is arbitrary in nature as it is based upon physiological factors that fail the test of reasonable classification under Article 14 of the Constitution.

It was further submitted by the petitioner that, as such, exclusion is based on sex; therefore, it is discrimination based on sex, which is prohibited as per Article 15(1) of the Constitution and therefore it violates the said Article. 

Article 17 was also said to be violated by the petitioner by such a restriction, as Article 17 prohibits untouchability in any form and the discrimination being done upon women on the grounds of their menstrual cycle is in violation of the said Article.

On the next issue, which is whether such an exclusion of women from entrance forms part of the “essential religious practise” under Article 25, the petitioner pointed out that it fails the test of essential religious practise, which was laid down in the case of The Commissioner of Police and Ors. vs Acharya Jagdishwarananda…(2004), and argued that such a practise is not an integral part of the said religion. To substantiate their arguments, they contended that the exclusion of women from being called an essential practise lacks proof of continuity and submitted that women were earlier allowed in the temple for the purpose of first rice feeding their children and this practise of exclusion of women has been in prevalence for the last 60 years only.

The petitioner in his next argument submitted, citing primary the case of S.P. Mittal Etc. Etc. vs. Union of India and Ors. (1982), that the Sabarimala Temple is not a religious denomination and the practises performed in the temple are similar to any other Hindu temple. Here, it must be mentioned that Article 26 of the Constitution guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes.

The other Act, the Kerala Hindu Place of Public Worship Act, 1965, was argued to be in violation of Articles 14, 15 and 25 as it imposes a restriction on the entry of women into the temple. The petitioner submitted that if the expression ‘at any such time’ mentioned in the said act is interpreted to be imposing a complete ban on the entry of women, then it can very well be challenged to be unconstitutional as being in violation of Articles 14 and 15 of the Constitution.

Arguments by respondent

The respondent, by denying the submission of the petitioner, said that the respondent’s act is not discrimination against women and, as such, is not in violation of Articles 14, 15 or 17 of the Constitution.

The respondent submitted that the restriction imposed on the entry of women is only for the purpose of maintaining celibacy and the purity of the deity. As per the submission of the respondent, the practise of Vruthum is the essential part and fulfilling criteria of entering the temple, which can’t be performed by the women due to their menstrual cycle; therefore, their entry is banned, and such a ban is not arbitrary but bears religious textual grounds. The respondent thus submitted that there is a reasonable nexus between the restriction on women and such a ban upon their entry.

The respondent further submitted that the Sabarimala temple is a religious denomination because the worshippers of Lord Ayyappa have to follow certain holy practises that are distinct from the practises of others who are basically Hindus.

Section 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965, is not unconstitutional as it does not impose a complete ban but a ban only for 60 days and therefore it doesn’t violate Articles 14, 15 and 17 of the Constitution.

Judgement of the Court

The five judges, in their judgement by a majority of 5:1 concluded their judgement in favour of the petitioner, thereby allowing the entry of the women into the Sabarimala temple.

The Chief Justice, Hon’ble Deepak Mishra, along with Justice R. F. Nariman, Justice A M Khanwilkar and Justice D. Y. Chandrachud (who formed the majority), along with Justice Indu Malhotra, held that the restriction on the entry of women into the temple premises was in violation of Articles 14, 15, 17, 19(1) and 25 of the Constitution.

The Apex Court declared that the Sabarimala temple is not a religious denomination as such to restrict the entry of women on the grounds of its religious tenets. The Chief Justice, his holiness Deepak Mishra, further concluded that the prohibition of women ageing 10 to 50 years doesn’t constitute a part of essential religious practises and, as such, is not protected by the constitutional provision of Article 25, thereby making it unconstitutional.

The restriction of women on the basis of their natural menstrual cycle for maintaining the purity of the deity was found to be unethical, arbitrary and violative of Article 17 and therefore was held to be unconstitutional.

Also, Rule 3(b) of the Kerala Hindu Places of Public Worship Act, which mandates a complete ban on the entry of women between the ages of 10 and 50, was declared invalid as it was found to be in violation of Article 25, which restricted the women from exercising their fundamental right to practise their religion.

However, Justice Indu Malhotra dissented from the view of the majority by concluding in her judgement that the question of what constitutes the essential religious practises can’t be decided by the rational mind of the court and that the essence of a religion depends upon the faith of the people who follow that particular religion. 

She said that the personal viewpoint of the court can’t determine the essence of a religion as such and therefore, Hon’ble Justice Mrs. Indu Malhotra, in her dissenting opinion, ruled that the ban on women between the ages of 10 and 50 is right as it constitutes the essence of the religion in question.

Ratio decidendi and obiter dictum 

Ratio decidendi is a Latin phrase that means “the reason or rationale behind the case.” The ratio decidendi thus acts as a rule of law and is legally binding on the subsequent court exception being the larger bench of the Supreme Court. 

In the case of Smt. Bimla Devi vs. Chaturvedi and Ors, the Supreme Court held that all contents of a judgement are not binding but only the part forming the ratio decidendi is binding as per Article 141 of the Constitution. 

Coming back to the Sabarimala case, the ratio decidendi of the case, acting as a rule of precedent, decided that the exclusionary practise of non-entry of women is in violation of Articles 14, 15, 17, 19(1) and 25 (1) of the Constitution. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, which banned the entry of women on the arbitrary grounds of their menstrual cycle, was declared unconstitutional and thus struck out. 

Thus, the final outcome resulted in the allowance of women in the temple and the practise of discrimination on the grounds of sex was said to be derogatory to the prestige of the women. Moreover, the Supreme Court declared that “devotion can not be subjected to gender discrimination.” 

Obiter dicta is also a Latin phrase and means “that which is said in passing”, It does not form part of the essential judgement and thus is not binding. 

The Hon’ble Chief Justice, while making his judgement, said that “the attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender.” 

Justice D.Y. Chandrachud, not commenting on the essence of the case but highlighting the importance of the preamble of the Constitution, said that the fundamental principles of the Constitution are reflected in its preamble. 

The bench, while delivering the judgement, made the remark that “devotion can’t be subjected to gender discrimination” and that Article 25 of the Constitution basically conduces to spiritual well-being. 

Current status of the case

The review petition, which was filed against the judgement of this very case, was upheld by the Apex Court and a nine-judge bench led by former Chief Justice S.A. Bobde was formed in the year 2019. After the retirement of Hon’ble Justice Bobde in the year 2021, the bench is now led by the present chief justice, his holiness Justice D.Y. Chandrachud.

The review bench as constituted is still determining the issues involved and thus the review petition remains pending.

Conclusion

The freedom to practise a religion is a fundamental right of an individual and it can’t be infringed on either by the state or a non-state entity. The proviso of Article 25 empowers the state to impose certain restrictions on the right to practise religion on the grounds of health, morality and public order. But whether such a restriction is for social welfare, public order or to maintain health and morality is to be determined by the court at last.

The Supreme Court is the final interpreter of the Constitution and as such, what constitutes the essence of a religion and whether any temple as such in question in this case constitutes a religious denomination is to be best decided by the Apex Court.

Women form an essential part of the society and any discrimination based only on the grounds of sex is not only unconstitutional but, by its very nature, arbitrary and against natural justice. Any such act, under the umbrella of Article 26, which gives the right of management to a religious denomination, can’t go on infringing on the fundamental right of equality provided under Article 14 of the Constitution on arbitrary grounds, and there must be constructive harmony between Articles 25 and 26 of the Constitution. Article 25 provides freedom of conscience  and free profession, practice and propagation of religion and Article 26 gives the right to manage religious affairs. They are not in conflict with each other but are to be read in harmony with each other.

References

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