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Brief analysis of Sabarimala Temple case Indian Young Lawyers Association v/s Kerala

Sabarimala temple is situated at Sabarimala in Pathanamthitta district, Kerala. It is a Hindu temple dedicated to Lord Ayyappa and their followers Ayyappan. This temple is managed and administered by statutory body Travancore Devaswom Board created under the Travancore-Cochin Hindu Religious Insitution Act, 1950. In the past women devotees between age of 10 to 50 years were not permitted to exercise their right to worship[1] in this temple.

This restriction on women is justified on the ground that Lord Ayyappa is �Naishtik Brahmachari� and for preservation of character of deity Ayyappa it is necessary. So, as per notification by Travancore Devaswom Board, women belonging to age of 10 to 50 years are not permitted to enter into the temple. On the other hand, some gender right activist thinks that this exclusionary practice which is based upon the biological factor exclusive to the female gender amount to discrimination and violates various fundamental right guaranteed under Indian Constitution.

Sabarimala Temple row is all about the conflict between tradition and women rights. As per traditions and customs, women between 10 and 50 years of age were not allowed to enter into Sabarimala Temple but this restriction is not in accordance with the constitutional morality. Constitutional morality and Individual or social morality is different things. In a democratic country like India, if there is any conflict between constitutional morality and societal morality, farmer should prevail over later.

Fact of the Case
In 1990, a petition was filed in Kerala High Court seeking a ban on entry of women inside the Sabarimala temple. The Kerala High Court had upheld the restriction of women of certain age entry inside the holy shrine of Lord Ayyappa. In 2006, A petition under Art 32 of Indian Constitution was filed in the Supreme Court by the registered association of Indian Young Lawyers seeking entry of women between 10 to 50 years.

In 2008 after two years matter was referred to three-judge bench. In January 2016 Supreme Court of India raise questions against such restriction and said that this is not in accordance with constitutional morality. In April 2016, Kerala government replied that it is under obligation to protect the right to practice the religion[2] of Sabarimala devotees. In 2017 Supreme Court of India referred the case to Constitutional bench.

In writ petition it was argued that Rule 3(b) of Kerala Hindu places of public worship (authorisation of entry) rules, 1965 (hereinafter referred as 1965 rules) framed in exercise of the powers conferred by section 4 of the Kerala Hindu places of public worship (authorisation of entry) act, 1965 (hereinafter referred as 1965 Act) is unconstitutional because it violates Articles 14,15,25 and 51A(e) of Indian Constitution.

  1. Whether the exclusionary practice, which is based upon the biological factor exclusive to the female gender amounts to discrimination and violates very core of Articles 14,15 and 17 and not protected by morality as used in Articles 25 and 26 of Indian constitution?
  2. Whether this exclusionary practice constitutes an essential religious practice under Art 25 of Indian constitution?
  3. Whether the Ayappa Temple is Religious denomination under Art 26 of Indian constitution? If yes then whether such denomination managed and administered by statutory body and financed under Art 290A of Indian constitution, is allowed to indulge in such derogatory practices violating constitutional morality/principles guaranteed under Articles 14,15(3),39(a) and 51A(e).
  4. Whether Rule 3 of 1965 Rules permits religious denomination to prohibit entry of women between age of 10 to 50? And if so, would it not against the Articles 14 and 15(3) of Indian constitution?
  5. Whether rule 3(b) of Rules of 1965 is ultra vires to Act of 1965? If consider it as intra vires, whether it will be violative of the provisions of Part III of constitution?

Arguments of Petitioners
  • It was argued by the petitioner that exclusionary practice results in discrimination against women as a class, since the significance section between the age of 10 to 50 years are prohibited from entry. Petitioner also trusted on impact test articulated in Bennett Coleman and Co. & Ors. v.Union of India & Ors.[3] And said that this discrimination is only on the ground of sex because the biological feature of menstruation emanates from the characteristics of particular sex.
  • Is was also argued that such practice which is solely based on the sex� violates Art 15(1) and because the Sabarimala temple is a public place so it also violates Article 15(2)(b).
  • It was argued that such exclusionary or customary practice which is codified in Rule 3(b) of Rules of 1965 and the notification issued by the statutory body does not in accordance with the tests of Articles 14,15 and 21. This customary practice violates article 14 because the classification lacks a constitutional object.
  • It was also argued that such customary practice is also violates the individuals right to worship or follow any religion.[4] Petitioner contended that Act of 1965 passed to achieve the goals enshrined in Art 25(2)(b) as a measure of social reform and act of 1965 contains no such provision which prohibit a women of specific age to enter into public temple. But rule 3(b) of 1965 Rules is ultra vires the act of 1965 insofar as it bars the entry in the public temple on the basis of sex.
  • Rule 3(b) of 1965 rules says that Women at such time during which they are not by custom and usage allowed to enter a place of worship and it was the basis of the practice of excluding women of the age group of 10 through to 50 years. Here petitioner contended that expression at any such time in rule does not mean total or complete bar or prohibition/exclusion of any women. Petitioner also contended that any other interpretation of that expression would result that rule as invalid because any other interpretation may conflict with the act of 1965 and various fundamental rights of Indian constitution.
  • Petitioner argued that followers of lord Ayyappa do not constitute �religious denomination� under art 26 of Indian constitution because they don�t have a common faith or distinct name. Only a slight difference in rituals and ceremonies does not make them a separate religious denomination.
  • Petitioner argued that even if we suppose that devotees or followers of Lord Ayyappa form a religious denomination, their rights under Art 26(b) should be subject to Art 25(2)(b).[5]
  • Even if devotees of Lord Ayyappa constitute a Religious denomination, the restriction on the women is not an essential religious practice. That prohibition on women of specific age can not be considered as core foundation of assumed religious denominations and any custom or usage to be protected under Art 26 should have Constitutional legitimacy.
  • Petitioner also argued that such practice also violates article 21 of constitution because it cast a stigma on the women as they are polluted.
  • Petitioner also contended that such customary practice also violates also violates Art 17 which is available against state and non-state, because prohibiting entrance of women in public place is a direct form of untouchability.
  • Petitioner also contented that temple is managed and administered by a statutory authority and it receives a financial assistance from the consolidated fund of India.[6] So it is fall under the term other authority[7] and therefore under obligation to respect fundamental rights.
  • Petitioner argued that right to worship and religion is available to both men and women equally under constitution,[8] so right of women to enter into temple as a devotee for worship is protected as fundamental right. This right could not be diluted by the state for providing social reform or welfare under Art 25(2)(b).

Arguments of Respondents
  • Respondent contended that the expression throwing open to all classes and sections of Hindus under article 25(2)(b) shows that there should be no discrimination of caste basis. That expression cannot be interpreted in specific manner to overlook the custom which is essential part of religion. Also, article 25(2)(b) have no importance here because there is no total ban, but only a limited period restriction based on custom, faith and belief which has been observed since time immemorial.
  • Respondent also argued that girls below the age of 10 year and women after 50 years can freely enter into temple and exercise their right to worship so the partial restriction does not amount to social discrimination. And also, there is no restriction on the entry of women at other temple of lord Ayyappa, so classification has a reasonable nexus with the object sought to be achieved, which is to preserve the identity and manifestation of the Lord Ayyappa as a Naishtik Brahmachari.
  • Respondent contented that this practice is continued since time immemorial without any interruption so it becomes usage and custom which is pre constitutional. And according to art 13(3)
    (b) law includes custom or usage.
  • Respondent also contended that Art 26 is only subject to public order, morality and health and not to other provisions of part III, so fundamental right of religious denomination is not subject to Articles 14 or 15. Rights to profess, practise and propagate religion of devotees of Lord Ayyappa can be protected only when the character of deity as a Naishtik Brahmachari is preserved.
  • It was also contended by the respondent that restriction on the entry of women is a part of the essential practise of this temple. It is restricted with the intention to keep away pilgrims from any distraction related to sex.
  • Respondent also argues that restriction on entry is not resulted in derogation, because its only object is to protect the manifestation and form of deity which is scared and divine.
  • Respondent contended that this case contains issues of law and fact both and fact should be decided by competent civil court, after examination of documentary and other evidences.
  • Responded also argues that devotees of Lord Ayyappa constitute a religious denomination because they follow Ayyappa Dharma, all the devotees are called as Ayyappans and all female eligible devotees are called as Malikapurams.
  • It was also observed that the devotees of Lord Ayyappa are religious denomination is already held by the Kerala high court in S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors.[9] The High Court decided the case after recording both documentary and oral evidences. This judgement which decides the status of the temple as a religious denomination is judgment in rem, this judgment was not challenge by any party. So, it is binding on all parties including petitioner.
  • Respondent also said that main object of Art 17 is to prohibit untouchability based on caste in Hindu religion. No such caste based or religion-based untouchability is practised at temple.

Findings of the Court
  • Court held that art 25 of Indian constitution provide right to religion to every person irrespective of their gender or sex. Such exclusionary customary practice violates right of women to visit a public temple to freely practice Hindu religion and to exibit her devotion towards lord Ayyappa.
  • Court also observed that various evidences which are presented in the court shows that devotees of Lord Ayyappa does not constitute a separate religious denomination under art 26. For a separate religious denomination there must be new methodology provided for a religion. But the various practices of devotees show that it is common in Hindu religion. Mere observance of certain practices from time immemorial does not make it distinct religion.
  • Court made its opinion that, In the absence of scriptural or textual evidence court denied to accept the exclusionary practice as essential part of religion. By allowing the women in Sabarimala temple will not resulted in any alteration or change in the fundamental concept of Hindu religion.
  • Court find out that the term morality under Art 25 means constitutional morality, not societal or individuals� morality. When there is violation of fundamental right the wrd morality naturally implies constitutional morality.
  • Court held that plain reading of rule 3(b) of 1965 rules shows that it is ultra vires to the sections 3 and 4 of 1965 Act

Dissent opinion of Indu Malhotra, J:
  • According to her devotees of Lord Ayyappa constitute a religious denomination so they are entitled to be protected under Art 26.
  • In this case there is a mix question of Law and fact so this need to be decided by the competent court of civil jurisdiction. As in writ question of fact cannot be decided.[10]
  • Right to move SC under art 32 for violation of Fundamental right to worship in temple should be based on a pleading that petitioner�s personal right to worship have been violated.
  • Rule 3(b) is not ultra vires of section 3 of act of 1965, because this restriction is provided for the benefit of any religious denominations.
  • She observed that equality doctrine enshrine under Art 14 does not override the fundamental right under Art 26. Issue of what constitute an essential religious practise is for the religious community to decide.
  • Follower of Lord Ayyappa constitute a separate religious denomination because they follow Ayyappa Dharma and they have identifiable set of belief, customs and usage and code of conduct which is practised by them since time immemorial.
  • She also observed that restriction on the women is partial and it is essential part of their religion. Any interference with the same would conflict with their right guaranteed by art 25(1) to worship Lord Ayyappa in the form of a Naishtik Brahmachari.

There is a sharp distinction between the societal morality/individual morality and constitutional morality. I case where, there is violation of fundamental right, we should have to focus on the constitutional morality. Whether any practise is essential part of the religion or not? It can be found out only through the documentary evidences. So, as Indu Malhotra j. right observed that this case involves the mix question of fact and law and question of fact can not be decided in writ petition hearing.

Question of fact need to be solved by competent court of civil jurisdiction. There is also lack of documentary evidences with regard to the question whether devotees of Lord Ayyappa constitute a religious denomination under art 26 or not? So there are various lacuna in this judgment, so review petition was filed later and 5 judge bench (3:2) referred this matter to 7 judge bench.

  1. The Constitution of India, Art 25
  2. The Constitution of India, see Articles 25, 26
  3. 1973 AIR 106, 1973 SCR (2) 757
  4. The constitution of India, Art 25
  5. Sri Venkataramana Devaru & Ors. V. State of Mysore & Ors. 1958 AIR 255, 1958 SCR 895
  6. The Constitution of India, Art 290 A
  7. Supra, Art 12
  8. Supra, art 25
  9. AIR 1993 Ker 42
  10. Paragraph 12.10 of Justice Indu Malhotra�s Judgement. Pg.53

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