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Freedom of Religion and Sabrimala Judgement (2018)

Mankind, since time immemorial, has been searching for explanation or justification to substantiate a point of view that hurts humanity. The theoretical human values remain on paper. Historically, women have been treated with inequality and that is why, many have fought for their rights. Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests. Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practice and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.

Women are exploited since existence of the human kind, they were treated as chattel. They always treated as lower than men hence discrimination was made from the very beginning. Now days we cannot discriminate women on the basis of gender or weakness because they made various improvement in various field such as law, economic, space, political, law making etc etc. Apart from these there are various laws which prohibit the discrimination and individual as well as state are forbid to make discrimination on the basis of gender or caste or on any ground under the constitution of India and various other laws. It is clear that state as well as individual cannot make discrimination but there will be question mark if question is regarding whether God can make discrimination between human being on the basis of gender.

History of Sabrimala Temple[1]
Sabarimala Temple is one of the most revered and most popular shrines of Kerala. Located at village of Sabarimala, Sri Ayyappa Temple falls in the eastern part of Kerala bordered by Tamil Nadu. One can easily reach Sabarimala Temple by taking regular buses or by hiring taxis from the major towns and cities of Kerala. The nearest airports are located at Thiruvanathapuram and Kochi at a distance of 115 kms and 106 kms from Sabarimala. The nearest railway stations to Sabarimala are found at Kottayam and Chengannur. The temple lies on a hill Pampi is the last destination, where transport can be reached after that one has to travel a distance of 5 kms on foot.

The village of Sabarimala got its name from 'Shabari', a devotee who did rigorous penance with the intention of meeting Lord Rama. Sabarimala Temple is dedicated to Lord Ayyappa, who is regarded as the unification of Lord Shiva and Lord Vishnu. As per the local folklore, Lord Parasurama placed the deity at the base of Sabari Hills. Even the great Hindu epic of 'the Ramayana' confirms this fact. The two branches of Hinduism i.e. Shaivism and Vaishnavism come together in the form of Lord Ayyappa. Also famous as Dharma Shasta, Lord Ayyappa is also regarded as Lord Buddha, though there is no data to verify this fact.
The dome of Sabarimala Temple is covered with gold. In the vicinity of the temple, there is shrine dedicated to Vavar (Muslim by religion), who was an ardent devotee of Lord Ayyappa. Suggesting the religious tolerance, the tour to Sabarimala is said to be incomplete without the worship of Lord Vavar. From Sabarimala Temple, People can also see Makara Vilakku, which is a holy light on the close by hill. This light is regarded as a sign of the divine presence.

Sabarimala Sree Dharma Sastha Temple, dedicated to Lord Ayyappa, is the most famous and prominent among all the Sastha temples in Kerala. The temple is situated on a hilltop (about 3000 feet above sea level) named Sabarimala in Pathanamthitta district, which is unique. The temple is open to people belonging to all religions. There is a place near the temple; east of Sannidhanam (the abode of Lord Ayyappa), dedicated to Vavar (a close friend of Lord Ayyappa) which is called Vavaru Nada, an epitome of religious harmony. Another unique aspect of this temple is that it is not open throughout the year. It is open for worship only during the days of Mandalapooja, Makaravilakku and Vishu. It is said that the pilgrims have to observe celibacy for 41 days before going to Sabarimala. Pilgrims take the traditional forest routes as well as the one from Pamba which is less physically challenging to reach the temple.[2]

Why Women(10-50 year) are Prohibited to enter:-[3]
It's nothing like related to menstruation period or being unclean myth of women that they are stopped from being entering in the temple.For the answer, we need to go back to the legend. According to the puranas, Ayappa was born to destroy a female demon who, thanks to a boon, could only be vanquished by a child born of both Shiva and Vishnu. When Ayappa fulfils his destiny by killing her, a beautiful woman emerges from the body. She had been cursed to live as a demon, but her killing reversed the curse. Now free, she asks Ayappa to marry her. He refuses, explaining to her that his mission is to go to Sabarimala where he would answer the prayers of his devotees. However, he assures her, he will marry her when kanni-swamis stop coming to Sabarimala. She now sits and waits for him at a neighbouring shrine near the main temple and is worshipped as Malika purathamma. With hundreds of thousands of new devotees pouring in every year, hers will be a long wait. And that is why women do not go to Sabarimala. It is partly out of empathy for Malika purathamma and her eternal wait and it’s also out of respect for Ayappa's commitment to answer the prayers of his devotees. Since he is celibate, he should not be distracted. For hundreds of years, devotees had bought into this story. It has nothing to do with menstruation or being unclean. Anyone who goes to Sabarimala knows that.

Before visiting Sabarimala every devotee has to take upvratham (penance) for 41 days and should stay away from alcohol, smoking, non-vegetarian food and all othertamasicthings including sex, cutting body hair, shaving and even trimming the nails and should not sleep on bed. They are expected to bath twice in a day and visit the local temples regularly and only wear plain black or blue colored traditional clothing during this time.

Case Summary
A group of five women lawyers has challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization 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.[4]

1990- S. Mahendran files plea in Kerala HC seeking ban on women’s entry to temple.

Apr 5, 1991- Kerala HC upholds age old restriction on women of a certain age group entering the temple.

2006- A petition challenging the ban was fi led in the Supreme Court by Indian Young Lawyers Association on the grounds that the rule violates the freedom to follow and propagate religion, listed in Article 25 of the Indian Constitution.

Nov 2007- LDF government files affidavit supporting PIL questioning ban on women’s entry.

Jan 11, 2016- Two-judge bench of SC questions practice banning entry of women at the temple.

Feb 6- UDF government takes U-turn, tells SC it is duty bound to “protect the right to practice the religion of these devotees,”

Apr 21 Hind Navotthana Pratishtan and Narayanashrama Tapovanam files plea in SC supporting entry of women.

Nov 7- SC Rejects Plea for Independent Probe into Arrests Nov 2007 LDF government files affidavit supporting PIL questioning ban on women’s entry LDF government files fresh affidavit in SC saying it favored the entry of women of all age groups.

Nov 7, 2016- LDF government tells the top court that it favors entry of women of all ages.

October 13, 2017- Case is referred to a SC Constitution bench.

Oct 27- Plea filed in SC for gender equal bench to hear the case.

July 17, 2018- Five-judge constitution bench starts hearing the matter.

January 2018- Temple authorities make it mandatory for female devotees to furnish their age proof while visiting. The decision came after a number of women from the banned age group were detained while entering Sabarimala.

July 24- SC made it clear that the ban on entry of women would be tested on “constitutional

July 26- The Pandalam Royal family challenged the petition seeking entry of women into the temple, terming it “mischievous” on grounds of being against practices of the Hindu faith. The lawyer appearing on their behalf had told the court that the temple deity, Lord Ayyappa, is an eternal celibate and therefore women of menstruating ages should not be allowed in the premises.

August 1, 2018- The five-judge Constitution bench reserved its judgment on the petitions challenging the ban after hearing the case for eight days.

September 28, 2018- 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.

Issues Involved:
1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to "discrimination" and thereby violates the very core of Articles 14, 15 and 17 and not protected by morality‟ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules permits 'religious denomination' to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 isultra virusthe Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 and , if treated to beintra virus, whether it will be violative of the provisions of Part III of the Constitution?”

Brief Judgment of the Case:
A five-judge Constitutional bench has ruled in favor of allowing women of all ages to enter Kerala's most famous temple. Afive-judge Constitution bench, headed by Chief Justice of India Dipak Misra, said that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorised the restriction, violatedthe right of Hindu women to practice religion. It also said that patriarchy in religion cannot be allowed to trump the right to pray.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, had reserved its verdict in the case on August 2 this year. Justice Malhotra, who penned a dissenting verdict, said the petition does not deserve to be entertained.

Four judges on the bench ruled in favour of lifting the ban on women entering Sabarimala temple. CJI Dipak Misra and Justices Khanwilkar, Nariman and Chandrachud found the practice discriminatory in nature and that it violates Hindu women's right to pray.

Here are top quotes from the majority judgment:
# CJI said devotion cannot be subjected to discrimination. "Patriarchal rules have to change. Patriarchy in religion cannot be allowed to trump right to pray and practice religion", he said. Justice Khanwilkar concurred with the CJI's verdict.
# Justice Nariman: "To exclude women of the age group 10-50 from the temple is to deny dignity to women. To treat women as children of lesser god is to blink at the Constitution"
# Justice Chandrachud: "Religion cannot be used as cover to deny rights of worship to women and it is also against human dignity." "Prohibition on women is due to non-religious reasons and it is a grim shadow of discrimination going on for centuries."
# All judgesruled that devotees of Lord Ayyappa do not constitute a separate religious denomination.

# Justice Indu Malhotra,who wrote the dissenting judgment in the Sabarimala case, said that the notions of rationality cannot be brought into matters of religion. She added that the shrine and deity are protected under Article 25 of the Constitution and that it was not upto the court to decide which religious practices should be struck down, except in issues of social evil like 'Sati'. Justice Malhotra, the only woman on the bench, was of the view that the petition does not deserve to be entertained.[5]

Effect of the Judgment:
A Malayalam meme doing the rounds post the Supreme Court’s judgment on Sabarimala depicted Kerala Chief Minister Pinarayi Vijayan (actor Jayaram in the meme) inside a police station lock-up, pleading with people to trust him that he was not the one who allowed the entry of women of all ages into the Sabarimala temple, but the Supreme Court.

This was a meme made by the CM's supporters aimed at those who overlooked the fact that the judgement was pronounced by the top court, as there are many social media posts and comments which say that the verdict is the result of progressive thinking of the Left government.

It should also be noted that the previous United Democratic Front (UDF) government, led by the Congress, had said that the entry of women into the temple should be restricted. During the tenure of the UDF government from 2011 to 2016, the Travancore Devaswom Board (which controls the affairs of the temple), led by its president and former Congress MLA Prayar Gopalakrishnan, had also said in its affidavit that the ban shouldn’t be lifted.

How political parties make use of the verdict
A section of Hindu voters believe that right-wing organisations protect their traditions and rituals. Post the Sabarimala verdict, this has been used as a tool against the CPI(M)-led Left government, primarily because the LDF government had informed the court that they were not against women's entry.

On the other hand, the CPI(M) also played a tactical game. While the Left Democratic Front (LDF) government said that it was in support of lifting the ban, the Travancore Devaswom Board, now under its direct control, took the opposite stand.

The Congress has also been playing a double game. Though Opposition leader Ramesh Chennithala, in his initial response, had said that everyone is bound to obey the SC verdict, he changed his stand later.
“The entry of women into Sabarimala had never been banned, but there were restrictions in the name of certain rituals," he said on the day of the verdict. But, he later changed his stand and said that the Devaswom Board should file a review petition against the verdict. He also said that the Supreme Court had not taken into consideration the social impact of the judgment.[6]

Conclusion
In last it may be concluded that Sabrimala Judgment brings great changes in relation to entry of women in the Sabrimala temple. Side by side it created controversy between the individual as the priests of the temple are not favor in the judgment rather they against the judgment and make protest against the judgment, from the date of the judgment the priest of the temple protesting against the judgment together by sitting in front of the temple.

In my opinion Supreme Court has no authority to interfere in the internal matter of any particular religion. Because under Article 25 freedom of religion is there in which one can practice, propagate, follow any religion of his choice, since India is a secular democratic country it has no religion of its own and it cannot interfere in any internal matter of the religion. It is true that there is violation of Article 14, 15, 17 of the constitution in the sabrimala temple since it prohibit the entry of woman of ages of 10 to 50 years on the basis of gender, but these violations are the internal matter of the religion and what is the reason for such discrimination may be immaterial because this not under the purview of the constitution because it has freedom under Article 25 of the constitution. For example in Muslim Law male are allowed to marry up to four wives if he can make justice among his wives but such rights is not there to the woman, here also Supreme Court has no authority to interfere and to alter any rule or any spiritual followings. Religion is the different thing which is based on the faith and worship so there cannot be question of violation because religious law is kind of divine in nature and also sacrament, however sometime some people shows the manmade law as religious law that is different thing. Let them free to practice and propagate their own religion and freedom worship.

End-Notes
[1] History of Sabrimala Temple, available at: https://www.culturalindia.net/indian-temples/sabarimala-temple.html/ (Visited on 3rdNov 2018)
[2] About Sabrimala temple, available at: http://sabarimala.kerala.gov.in/ (Visited on 03rdNov 2018)
[3] Regarding women entry in the Sabrimala temple, available at: https://www.firstpost.com/india/why-women-are-barred-from-sabarimala-its-not-because-they-are-unclean-2583694.html (Visited on 03rdNov 2018)
[4] Case summary, available at: https://indianexpress.com/article/what-is/what-is-the-sabarimala-case-5376596/(Visited on 03rdNov 2018)
[5] Young Indian Lawyers Association V. State of Kerala sc18956 / 2006 (decided on 28thSept 2018)
[6] Effect of Sabrimala judgment, available at: https://www.thenewsminute.com/article/political-impact-sabarimala-verdict-how-will-parties-use-judgement-89341 (Visited on 03rd Nov 2018) 

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