Conflict between Constitutional Law and Customs
Image source - https://bit.ly/2N3816x

This article is written by Pratiksha Sengar.

Introduction

In India women can be anything they wish. They can be fighter-pilots, commanders, paratroopers athletes and also Prime Minister. But they cannot enter the shrine because they will defile it. India has been a place of contradictory beliefs when it comes to religious practices. On the one hand women are worshipped and on the other hand they are considered as impure during menstruation period. India, the largest democracy in the world has not given equal status to its half of the population. Earlier during Vedic period women were given equal status as men but then women status started declining. In the Vedic period women were given equal status as men. Gradually women condition in the society got worsened. Women became subordinate to men and they were not allowed to work and get education. After the Independence there were several measures taken up by the social activist and the state to uplift the status of women in the society but the battle has not won yet. Women have been discriminated in the name of customary practices. Religion has become the tool to justify the discrimination with the women. Several ill religious practices are prevalent today that are violating their fundamental rights of women.

One such case of discrimination that came before Supreme Court was Sabarimala issue in which women of age group of 10 to 50 were denied entry into temple. The Supreme Court struck down the rules which banned the entry of women in the Sabrimala Temple. The five judges’ bench decided the case with 4:1 majority. The dissenting opinion came from the Justice Indu Malhotra on the bench. The majority was of the opinion that banning women of 10 to 50 years of age is a violation of their fundamental right to equality and right of freedom of religion. The court was of the opinion that it cannot give constitutional legitimacy to any practice that is in violation of constitution. Defining religion has always been a herculean task for the judiciary. There are many practices in the various religions that are in contradiction with the constitution. The question arises whether these customary practices should be held superior to constitution. The religion has been patriarchal in many ways. Many practices of the religion put man at an upper pedestal than women. The court also held that banning entry of women into the temple is also violation of right to freedom of religion; they have the right to practice religion of their own choice.

History and Background

Sabrimala is a Holy Hindu shrine of Lord Ayyappa situated in the state of Kerala. Ayyappa is believed to be the son of two other male deities, Shiva and Vishnu, and this communion was made when Vishnu took female form. Ayyappa is therefore also called Hariharaputra, “the son of Vishnu [Hari] and Shiva [Hara] to defeat the female demon. The Kerala Hindu places of public worship act (Authorization of entry rules), 1965 regulate all the temples of Kerala. In Sabrimala ban on entry of women aged between 10 to 50 years was a customary practice. 

In the year 1990, a petition was filed by S Mahendran that women climbing the Sabrimala Shrine and offering prayers is against the customs and usages of religion. The Kerala High Court gave the judgment in the year 1991 banning the entry of women in the Sabrimala shrine. The court mentioned that it is custom since time immemorial and it is enforceable under Section 3 (b) of Kerala Hindu places of worship act (Authorization of Entry Rules), 1965 which states that “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’’. 

The court stated that it is not violative of Article 15, 25 and 26 of the constitution. The Indian young Lawyers Association challenged the rule 3 (b) of Kerala Hindu places of public worship act (Authorization of Entry Rules), 1965 in the Supreme Court on the grounds that it violates fundamental rights of women. Finally in the year 2016 the case of Indian Young Lawyers Association v. State of Kerala was heard by three judge bench which referred the case to the constitutional bench. The five judge bench comprising of Dipak Mishra, A. M. Khanwilkar, R. F. Nariman, D.Y. Chandrachud and Indu Malhotra commenced hearings of this case in July 2018.

Dissenting opinion and essential religious practice test

Justice Indu Malhotra, the only woman on the bench gave the dissenting opinion. She was of the view that this petition should not be entertained as it was not the court’s job to determine the practices of the religion except in cases of social evils like ‘Sati’. She held that banning entry of women in the Shrine cannot be compared to the evil practice of sati. The court determination of practices of religion would curb the freedom of religion and to practice religion according to their beliefs and faiths. It is the prerogative of religious community and not the courts to decide the essential practices of religion. She was of the view that court cannot impose its rationality or morality in the form of worship of a deity. There has always been conflict between court’s interpretation of religion and religious community interpretation of religion. This gives birth to the concept of essential religious practice test. 

In the case of Durgah committee Ajmer v. Syyed Hussain Ali and Ors. it was held that “there are some practices that are considered as an integral part of religion, that might actually be superstitions and not an essential part of religion and therefore it will not be given protection of the constitution”. 

In the case of Indian Young Lawyers Association v. State of Kerala the cause of dispute was whether constitutional morality can be compromised under the veil of religion. Women has been segregated and discriminated on the basis of physiological and biological factors. The petitioners contended that Sabrimala temple’s practice of banning women of menstruating age from entering the temple was in violation of right to equality and was discriminatory in nature. It was also a violation of the right to freedom of religion. On the other hand it was contended by the Respondents that the custom forms the essential practice of religion and it is protected under Article 25 (1) which states that “every citizen has the right to freely profess, practice and propagate its own religion.’’ Also it is separate religious denomination under Article 26 of the constitution and under Article 26(b) “it has right to manage its own affairs in matters of religion.’’ It was also submitted on behalf of respondent that Lord Ayyappa is “Naisthik Brahmachari’’ and allowing the women would affect the celibacy and austerity of the idol. The ban on entry of women was an old custom practiced in the Sabrimala temple and the court interference would led to intrusion into the personal laws of people. The court has to decide the essential practices of the religion. There was outrage in the public regarding the judgment because it was against their religion practices.

At play, the case was of conflicting claims between the temple authorities’ right to decide for itself and the religious community who believes that it is an old practice of their religion and on the other hand women who believe that their fundamental rights which are inscribed in the Indian constitution had been violated.

https://lawsikho.com/course/insolvency-bankruptcy-code-ibc-nclt-sarfaesi
               Click Above

Women’s right of equality and freedom of religion

The Supreme Court in the case of Indian Young lawyers Association v. Union of India consisting of the five judge bench of A.M. Khanwilkar, Chief Justice Dipak Mishra, R.F. Nariman, and D.Y. Chandrachud held that denying entry to women in the Sabrimala temple is violation of their right to equality and right to freedom of religion. Women have equal right to pray as man. Article 14 of the constitution held that “the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.’’ In the case of Indira Sawhney v. Union of India it was held that the right to equality is one of the basic features of the constitution. Restriction on the entry of women is the denial of the right to equality as women were discriminated on the basis of their biological factor. Article 14 prohibits discrimination and discriminatory state laws. 

Article 14 is a bulwark against state any discriminatory or arbitrary actions. In the case of Dr. Noorjehan Safia Niaz and Anr v. State Of Maharashtra And Ors. The Bombay High Court held that the exclusion of women from the inner sanctum of Haji Ali Durgah is not only violation of their fundamental right of religion but it also against right of equality and non-discrimination. The main opinion in the case of Sabrimala shared by Chief justice Dipak Mishra and Justice A.M. Khanwilkar was “one side we pray to goddesses, on the other hand women of a certain age are considered as impure. This dualistic approach only depicts the patriarchy prevalent in the religion. The ban exacts more purity from woman than man”.

Article 25 of the constitution states that “all persons all equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” Justice DY Chandrachud held that logic behind banning of women was that it will disturb the celibacy of the lord Ayyappa. In this way the burden is put on the woman and it is stigmatizing women and stereotyping them. The judges were of the opinion that segregating women on the basis of biological factor is discriminatory and are in contradiction of the fundamental right Article 15 (1). The chief justice also opines that every woman has the right to worship at the place of her own choice and men and women have the equal right to worship. The judgment also ruled that Article 25 is also given protection under Article 25 (2) (b) which states that “the state can make laws for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.’’ 

Justice R.F. Nariman was of the opinion that fundamental rights claimed by the worshippers should be consonance of the fundamental rights given in the constitution. In the case of Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. The Supreme Court struck down the discriminatory customary practice of Muslim religion in which women were not entitled to maintenance. In the Sabrimala case Devaswom board defend the ban on the basis that it is not for promoting misogyny but it is because of the celibate nature of the god. The women due to menstruation cycle cannot practice the penance of 40 days that is why their entry is banned into the temple. There were also contentions regarding the essential practice of religion. The court held that the practice of banning women does not come under the essential practice of Hindu religion and therefore worshipper’s right to practice religion is not violated. Justice Indu Malhotra was of the opinion that essentiality of a religion has to be decided within the religion. It can’t be up to the interpretation of the judges. 

India is a diverse country and in a pluralistic society constitutional morality gave freedom to practice even irrational or illogical custom or usages. In the case of Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and Anr. Vs. the Commissioner, Hindu Religious Endowments, Madras and Ors. The Madras High Court held that regardless of the essentiality of the religion discrimination cannot be allowed in violation of the basic structure of the constitution Women were discriminated on the basis of their biological factors and they were segregated on the basis of their womanhood.

Interpretation of religious denomination

The respondents argued in this case that they are religious denomination and they have the right to manage their religious matters. Article 26(b) of the constitution states that every religious denomination or any section shall have the right to manage its own affairs in matters of religion. The board argued that Sabrimala temple is separate religious denomination as it is functioned under the Devaswom board and they are not funded by any government organization and they have different practices as compared to other Lord Ayyappa temples and the temple does not come under Hindu religion. The court held that Sabrimala temple does not qualify to be religious denomination under Article 26. The CJI Dipak Mishra held that Sabrimala cannot be held as separate religious denomination as it is a public place and there is no concept of private Mandirs as such. 

Once a temple is opened it is a public place and everyone can go to the temple. He also opined that Sabrimala temple has visitors from people of different religions and it drew funds from the consolidated fund of India, hence it is a public place and does not qualify to be a religious denomination. The court held that Sabrimala temple cannot given the status of religious denomination as three things were necessary for qualifying as a religious denomination as held in the case of S.P. Mittal v. Union of India and Ors. To qualify as religious denomination the persons practicing the religion should have common faith, common organization and they should be designated by a distinct name. 

It was not proven by the respondents that Tanthris and worshippers of Sabrimala are designated by a distinct name. The court also referred to the case of Durgah Committee, Ajmer v. Syed Hussain Ali in which it was held that persons of all religions visit Ali Dargah so it cannot be given the title of religious denomination. The clauses (c) and (d) in the Article 26 is not in favor of religious denomination but to protect the rights. Also there are so many ill practices into the religion that became the essential practice of the religion, so freedom of religion is also not sacrosanct, restrictions can be imposed. B.R. Ambedkar once said that public places like temples, public roads are meant for public access and the question of entry is the question of equality. The right to manage the religious affairs cannot override the women’s right of freedom of equality and freedom of religion. In the case of S.R. Bommai v. Union of India it was held that “secularism’’ acts as a bridge between for the country to move from tradition to modernity. 

The judgment also noted that Section 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 declared that every place of public worship of Hindus is open to all sections and classes of Hindus. The Section 3 of the Kerala Act is also protected under Article 25 (2) (b) of the constitution of India. The court also examined the validity of the Section 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965. The ban on the entry of women of a particular age on the basis of custom and usage is in contradiction with Section 3 of the parent act and it is also in violation of Article 25(1) and Article 15 (1) of The Constitution.

Conclusion

B.R. Ambedkar was once asked why he is so much interested in public access for the deprived section of the society, he said that it is not just a mere question of public access it is a question of equality. When women are not allowed entry into the temple because of their biological factor it is assertion of the society status quo that they are not equal to men. Women rights are always sacrificed in the name of religion. The question arises whether constitutional morality can be compromised for public morality. Women have faced the brunt of discriminatory practices of patriarchal society. When Justice Malhotra argued that courts should not delve into the rationality of religious practices it has be understood that the rationality of any religion or a particular custom is mostly determined and propagated by the male leaders in the group. In order to perpetuate their domination and to retain power they tend to devise customs, often by the irresponsible interpretation of traditional texts, which results in the subordination of women. When the Tirumala Tirupati Devasthanam board decided to employ women barbers, there was strong opposition by the people. It was contended that women are impure during menstruation and devotees will be defiled by them. It was not possible to determine the menstrual cycle so the women were debarred from being employed as barbers. 

The Sabrimala temple also banned the entry of women of menstruating age into the temple on the same grounds. These were just the few incidents where women were discriminated on the basis of biological factor violating their fundamental rights. To introduce the concept of purity and impurity while deciding rights of women is against the constitutional right of untouchability i.e. Article 17. Women are discriminated not only on the basis of biological factor but it is because of orthodox ill practices of the Hindu religion in which women impure the upper class environment during menstrual cycle and after child birth. 

The constitution of India is based on the principle of non-discrimination. Judicial activism played an important role in protecting the rights of weaker sections of the society. The reforms that have been introduced into the religious matters are always burdened on the judiciary. The legislative need to make sure that religious practices that are in contradiction of the fundamental rights should be abrogated and religious reforms should be taken up by the legislature.


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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

LEAVE A REPLY