https://www.newslaundry.com/2018/09/29/what-justice-malhotras-dissenting-verdict-on-sabarimala-gets-wrong

This article is written by Akshat Agrawal, student of School of Law, Christ University, Bangalore. The author, in this article, has critically analysed the judgment of Indian Young Lawyers Association & Ors v. The State of Kerala & Ors.

Introduction

The debate on the issue of Sabarimala has been a burning topic in recent times and the temple has been in news due to its age-old customary practice. The temple of Sabrimala is situated in Kerala and is one of the most famous and well-known temples for the Hindus. The ancient temple is dedicated for the worship of Lord Ayyapan who is also referred to as ‘Dharmashastha’ who according to a belief is the son of Shiva and Mohini, the feminine incarnation of Vishnu. The Sabarimala temple is managed by the Travancore Devaswom Board. The priests of the temple and the authorities due to their traditional and conservative mindset excluded the admittance of menstruating women from the age of 10 to 50 years in the temple premises as it was believed that it questioned the sanctity and purity of the deity of the temple. This was an ancient and customary practice by the authorities for not allowing the women to enter into the temple which was continued from a long period.

This century’s age-old restrictive practice by the temple authorities was challenged through a Public Interest Litigation (PIL) by Indian Young Lawyers Association, a group of five women lawyers in the Hon’ble Supreme Court of India. It was contended that Rule 3(b) of the Kerala Hindu Places of Worship (Authorization 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” is in violation of basic fundamental rights given by the Constitution of India.

The petitioners have prayed in the PIL for issue of appropriate writ or direction commanding the Government of Kerala and Devaswom Board of Travancore, to ensure entry of female devotees between the age group of 10 to 50 at the temple at Sabarimala which has been denied to them on the basis of certain custom and usage and to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution. The Supreme Court accepted the petition and on 28 September 2018, overturned the restriction on the entry of women, declaring it unconstitutional and discriminatory. The Supreme Court in a 4:1 majority said that the temple practise violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.  

Background

Customs and Traditions have always been an essential and integral part of every religious and cultural sect in the Indian context. Different customary practices in various religions have existed in India for a long time. Some of these practices are considered and given that level of importance that people even agree to sacrifice their lives. The practice of not permitting and allowing entry to the women in the Sabrimala temple is another example of such customary practices that have been prevailing for a long time.

This issue of restriction of women from entering the temple was challenged before the Kerala High Court in 1991 in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Tiruvanathpuram and others. The division bench of the Kerala High Court ruled in favour of the defendants and gave a decree stating that the restrictions have been existing since time immemorial and the prohibition by the Travancore Board does not violate the Constitution of India or the pertinent 1965 Kerala Law.

There have been several incidents and cases over the decades where the matter came up questioning as to what constituted a religion and its practices and the courts have come a long way in determining these practices. There is a need to determine what constitutes a religion and also the difference between religious practices and superstitious beliefs and it can be ascertained only with the doctrines of that religion itself. Thus, it can be primarily said that the views of followers of the religion are important and crucial to determine what the essentials of that particular religion are.  

There have been several cases in the past that led to the establishment of doctrines that would determine the essentials of religions. In the case of Sri Venkataramana Devaru v. State of Mysore the trustees of the temple of Sri Venkataramana of Moolky, challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple to the Harijans. The petitioners claimed the right to exclude other communities from entering their temple as a matter of religion. The Court recognised that the exclusion was under the ceremonial law of the Hindus and was, therefore, an essential practice.

In another case of Mohd Hanif Quareshi v. State of Bihar, the Qureshi Muslims of Bihar petitioned to the Supreme Court challenging the ban on cow slaughter on the ground that it infringed on their fundamental right to religion as they were compelled by their religion to sacrifice cows on Bakrid. The Court, looking into the Islamic religious texts, found that there was no evidence to show that sacrifice of cows on Bakrid was essential practice for the Qureshi Muslims.

Thus there have been several instances where the court had to distinguish between the practices of religion and mere adornments to it. The courts through its decisions could be seen distinguishing between religious practices and superstitious beliefs. The case of Sabarimala is one such example where the Supreme Court determined and drew a parallel between Right to Religion and Right to Equality as the basic fundamental rights given by the Constitution of India and through its judgment uplifted the ban which was imposed on women from entering the temple.   

Click herehttps://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution

Analysis of the Sabarimala Judgment

India, being a country of diverse culture and people, society and religion are an inseparable part. The case of Sabarimala is a controversy between Fundamental Rights and Religion. The status of women in Indian society has always been less than that of men due to the domination of patriarchal philosophy and mindset of people. Women had to fight and struggle to attain their position equally as men at various public platforms. The case of Sabarimala is also an example of women fighting against the patriarchal philosophy of religious order which prohibits their entry to the temple.

The five-judge bench of the Supreme Court who decided upon the matter and gave the verdict reasoned different things and had various opinions for the same. Justice Indu Malhotra had a dissenting opinion regarding the matter. Several arguments were brought in front of the Supreme Court from the petitioners and the respondents. The petitioners contended that this restrictive practice by the temple authorities by not allowing women to enter the temple is clearly violative of their fundamental rights given by the Constitution of India and is discriminatory to them.

The Constitution of India guarantees the right to freedom of religion for every individual and groups under Article 25 and Article 26 where every person is free to practice propagate and profess any religion of his choice. Moreover, Article 15 of the Constitution prohibits the state from discrimination against any citizen on the grounds of religion, race, caste and sex.  

The respondents, on the other hand, defended that the constitution also grants to every religious denomination the right to determine its own rules and stated the primary reason for not allowing the entry of women to the temple as the naisthika brahmacharya nature of the deity Lord Ayyapan. It was claimed that the presence of women questioned the purity and sanctity of the deity and also it distracts the devotees. The Court dismissed the reason on the ground of equality and perpetration of stereotypes in the society. It was of the view that both men and women are equal and no one should be discriminated or restricted in any form. The ideology of purity and pollution of the temple authorities for not letting the menstruating women enter the temple was clearly in violation of Article 17 which talks about abolition of untouchability in any form.

The Supreme Court took into consideration the Essential Practices Test which has been consistently used by the courts from time to time. It empowers the court to determine whether a religious practice is an ‘essential practice’ or not as per the notions and beliefs of that religious community. This test was coined by the Supreme Court in 1954 in the case of The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindra Thirtha, Swamiyar of Shri Shirur Mutt. The test lays down that what constitutes an essential part of religion will be ascertained with reference to the tenets and doctrines of that religion itself.

The five-judge bench of the Supreme Court gave their verdict on the majority of 4:1. Chief Justice Dipak Mishra and Justice Khanwilkar believed that devotion could not be subjected to gender discrimination and exclusion on the grounds of biological, physiological features like menstruation is unconstitutional and discriminatory. Both men and woman have a right to worship bestowed on them and the practice by the temple authorities was discriminatory and violative of the Indian Constitution. Justice Chandrachud opined that any religious practice or custom that violated the dignity of women by denying her the entry just because she menstruates was completely unconstitutional.  The judgment contained lines as “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood (Para 5).”

In the five bench judge of the Supreme Court, Justice Indu Malhotra, being the only woman judge, to a much surprise gave a dissenting opinion. She based her judgment on the notion that issues of deep religious sentiments and morality, the courts should not intervene even if it seems discriminatory. It is a matter of personal faith and India is a land of diverse faiths. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. A religious denomination has freedom to believe and even practice even if their beliefs are illogical or irrational. She held that the fundamental right to equality guaranteed to women under Article 14 cannot override Article 25, which guarantees every individual the right to profess, practice and propagate their faith.

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. The judgment of the Supreme Court on Sabarimala had multiple effects. On one hand, many people have supported the decision and on the other, many people including many women have criticized the Supreme Court for such a verdict in a belief that the court had infringed their religious beliefs and morals.

The implications of this judgment by the Supreme Court are far fledged. After the verdict, many changes mainly gender-specific would be seen in the infrastructure of temple premises. Moreover only be pronouncing the verdict would not ensure its applicability at the ground level. The court needs to make sure about the happenings at ground level and needs to ensure that the women are not denied entry. Sabarimala is not the only temple where discrimination exists on the ground of religious beliefs, but there are many other temples in the country where men are not allowed. This verdict has opened the floor for the Supreme Court as to analyze whether the judiciary needs to intervene in these aspects as well and are these practices also discriminatory.           

Conclusion

The judgment of Sabarimala records for the battle between religious beliefs and practices and notions of equality for every citizen. The Sabarimala decision is bold and empathetic in its kind. There are different notions of morality, customs and religions but through the case, the Supreme Court highlighted the highest notion of morality that is the Constitutional Morality. In this era of 21st Century where on one hand we talk about development, growth, prosperity, global leader and world power, on the other hand, we are still tied with the chains of our deep-rooted conservative ideologies of certain customs and beliefs and hence fail as a society and as a nation.

The women in the society are discriminated on grounds of gender and sex and they are still considered submissive to men due to the patriarchal mindset of the people at large. The movements of feminism have come a long way in ensuring and giving rights to the women but we still have a long way to go. India being a country of diverse people and culture, the area of religion is a sensitive topic to touch upon. The Supreme Court through its judgment cleared the tussle between fundamental rights and traditions. Traditions have always been an important and essential part of our society and it is one of the famous things for which the country holds its identity. But traditions which hamper the basic essence of the constitution and rights of a particular class of people in the society due to mere natural biological process certainly needs to be questioned. The Constitution of India guarantees certain fundamental rights to all the citizens wherein Right to Equality and Right to Religion are two of them. The Supreme Court through its verdict of removing the ban on women from entering the Sabarimala temple again established the supremacy of Constitution above all other aspects and ensuring that the rights of women are not violated due to certain long-prevailing customs and traditions.  

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY