WHAT IS THE ISSUE ALL ABOUT?
- Supreme Court recently put an end to a centuries-old tradition barring women of menstruating age from entering Sabarimala temple, Kerala.
- The top court pronounced its verdict on a bunch of pleas seeking permission for women aged between 10 and 50 to enter the 800-year old Sabarimala temple in Kerala.
- The Supreme Court, in a 4:1 judgment, has ruled that women of all ages should be allowed the visit the Sabarimala shrine and stuck down the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which prohibited entry of women aged between 10 and 50 in Sabarimala, as unconstitutional.
WHAT IS THIS CASE ALL ABOUT?
A group of five women lawyers has challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorizes restriction on women “of menstruating age”. They moved the apex court after the Kerala HC upheld the centuries-old restriction, and ruled that only the “tantri (priest)” was empowered to decide on traditions.
Senior Advocate Indira Jaising, who represented the petitioners, said the restrictions went against Articles 14, 15 and 17 of the Constitution. She argued that the custom is discriminatory in nature and stigmatised women, and that women should be allowed to pray at the place of their choice.
THE CONSTITUTIONAL ANGLE OF WOMEN’S EXCLUSION
- The majority also found that the exclusionary practice at the Sabarimala shrine did not pass the essential practices doctrine test or the principle of constitutional morality
- The court also ruled that Ayyappa devotees will not constitute a separate religious denomination.
- The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings.
- These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief.
- The equality doctrine enshrined under Article 14 does not override the Fundamental justify guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion,
- Constitutional morality in a secular polity would imply the harmonization of the fundamental justifys, which include the justify of every individual, religious denomination, or sect, to practice their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical.
WAS THIS THE justify PERSPECTIVE? IS THERE ANYTHING ELSE?
- That article of faith is the crux of the matter.
- The debate was wrongly pegged on the taboo attached to menstruality of women.
- That, of course, needs to be thrown out.
- The issue before the court was related to Ayyappa’s celibacy.
- The Sabarimala Ayyappa is a Naishtika Brahmachari practicing the severest form of celibacy.
- In that state, he is restricted from being in the presence of women.
- There are other Ayyappa temples where he is not in the Brahmachari form and there are no restrictions on women in those temples.
- The restrictions in Sabarimala are more on Ayyappa than on women and they are self-imposed because he does not want his penance to be disturbed.
- Those below 10 years are children and those above 50 are motherly, hence the age limitations; they have nothing to do with womanly periods.
- The majority view as enunciated by Justice Chandrachud got it wrong when it linked the exclusion of women with the menstrual status and called it a form of untouchability.
- What the court also failed to recognize is that it is not a general exclusion; it is specific to Sabarimala and unrelated to periods.
THE JUDGES OPINIONS
- Chief Justice Misra wrote that relation with the Creator was a transcending one. Physiological and biological barriers created by rigid social dogma had no place.
- The CJI and Justice Khanwilkar held that the Sabarimala prohibition was a prejudice against women, which was zealously propagated and was not an essential part of religion.
- 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 CJI and Justice Khanwilkar held that the Rule violated the fundamental justify of a Hindu woman to offer worship at a place of her choice. justify 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.
THE NARIMAN ANGLE
Justice Rohinton Nariman held that 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’s VIEWS
- Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion. She 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.
NB: The Judge held that there were strong, plausible reasons to show that Ayyappa devotees had attributes of a religious denomination. They have distinct names, properties. Besides, the Sabarimala temple was not funded out of the Consolidated Fund.
PROHIBITION IS A FORM OF UNTOUCHABILITY: JUSTICE CHANDRACHUD
In a separate, but concurring opinion, Justice D.Y. Chandrachud 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.
He said the logic behind the ban was that the presence of women deviated men from celibacy. This was placing the burden of a men’s celibacy on women thus, stigmatizing women and stereotyping them.
The individual dignity of women could not be at the mercy of a mob. Morality was not ephemeral. It transcended biological and physiological barriers.
DOES THE CONSTITUTION OF INDIA REALLY PROTECTS RELIGION?
- The Constitution protects religious freedom in two ways.
- It protects an individual’s justify to profess, practice and propagate a religion, and it also assures similar protection to every religious denomination to manage its own affairs.
- The legal challenge to the exclusion of women in the 10-50 age group from the Sabarimala temple in Kerala represented a conflict between the group justifys of the temple authorities in enforcing the presiding deity’s strict celibate status and the individual justifys of women to offer worship there.
THE FREEDOM OF RELIGION
- The justify to freedom of religion of both individuals and groups is recognised as an intrinsic facet of liberal democracy.
- The Constitution memorializes these guarantees in Articles 25 and 26.
- The former recognizes a justify to freedom of conscience and a justify to freely profess, practice, and propagate religion, subject to common community exceptions of public order, morality, and health, and also, crucially, to the guarantee of other fundamental justifys.
- Article 25(2)(b) creates a further exception to the justify. It accords to the state a power to make legislation, in the interests of social welfare and reform, throwing open Hindu religious institutions of public character to all classes and sections of Hindus.
- Article 26, on the other hand, which is also subject to limitations imposed on grounds of public order, morality, and health, accords to every religious denomination the justify, among other things, to establish and maintain institutions for religious purposes and to manage their own affairs in matters of religion.