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Sabarimala Temple Entry: A quest for Equality

I ask no favours for my sex. All I ask of our brethren is that they take their feet off our necks:~ Ruth Bader Ginsburg

One of the fundamental rights guaranteed by the Constitution also includes the Right to Freedom of Religion. India is a secular nation and therefore every citizen residing within the territory of India has the right to follow the religion they believe in. India, most popularly acknowledged as the land of spiritual beliefs, philosophical thinking and culture. 'Religion' is a matter of choice, perception and belief. India is absolutely neutral, unbiased and impartial when it comes to exercising one's religious beliefs.

The Constitution ensures that no citizen is deprived of this right to profess the religion of his choice peacefully within the Indian territory. Our Constitution has high regard and gives utmost importance to the concept of secularism. Secularism has great significance and also enjoys dignified recognition in the eyes of law. The 42nd Amendment,1976 inserted the word 'Secular' in the Preamble. According to Thomas Jefferson - "The Constitutional freedom of religion is the most inalienable and sacred of all human rights."

The Sabarimala temple restricted menstruating women between the age of 10 and 50 years from entering into the temple. The restrictions and its sources are based on the fact that the temple deity, Swami Ayyappa, is a Naisthik Bhramachari (celibate) and therefore, an epitome of purity which should not violated by menstruating women. Based on this, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, restricts women by prohibiting them from entering the Sabarimala temple premises.

In 2018, a Constitution bench in the case of Indian Young Lawyers Association vs The State of Kerala, the above practice was challenged and the Court allowed the entry of women irrespective of age into the Sabarimala Temple on the grounds that the ban violated the fundamental right of freedom of religion as per Article 25 of the Constitution. The provision restricting entry of women in the state legislation was struck down and deemed unconstitutional.

A group of five women lawyers has challenged Rule-3(b) which authorized restriction on women of a menstruating age. They moved the apex court after the Kerala High Court upheld the century-old restriction and ruled that only the 'priests' were empowered to decide on traditions. Senior Advocate Indira Jaising, who represented the petitioners, said that the restrictions were against Article-14,15 & 17 of the Constitution of India. She argued that the custom is discriminatory in nature and stigmatized women and then women should be allowed to pray at the place of their choice.

Impugned legislation and rules
Two notifications issued in 1955 and 1956 under Section-31 of Travancore Cochin Hindu Religious Institutions Act, 1950. These totally prohibited entry of women between ages 10-50 into the Sabarimala temple on the ground that it was in contravention of custom and practice of the temple

Rule 3 (b) of Kerala Hindu Places Worship (Authorization of entry) Rules, 1965 also barred women from offering worship in any place of public worship or entry into places of public worship, at such time, if they're by custom or usage, not allowed to enter such place of public worship

Freedom of Religion vs judicial review:
During colonial times, the British largely followed a policy of non-regulation of personal law", leaving communities" free to manage their own internal affairs.

It was argued by the respondents that the Supreme Court is entrenching into the territory of the clergymen of the respective religions and it is only the clergymen who should lay down the rules/practices for that religion.

J. D.Y. Chandrachud also was cognisant of the dangers of theological analysis by courts.

The Court, he said, ought not to enter into scriptural or dogmatic analysis, but should only consider whether a practice amounts to a violation of a person's fundamental right or not''.

To achieve this, 'Anti Exclusion test' should be undertaken. Such an approach will allow the courts to respect religious autonomy while, at the same time, striking down practices that impair people's access to basic civil rights.

The Indian Judiciary has an inevitable part in clearing lacuna in law relating to religion. It is very evident that the State can govern only the secular acts whereas with regard to the religious acts, the Constitution of India provides protection from the interference of the State in religious matters.

Ultimately, it is the Judiciary which has the right to interfere in the matters of religion and religious practices. One of the contributions of the Indian Judiciary in that field is the ERP (Essential Religious Practice) test. The essential religious practice test means that any religious practices that are so 'essential' to a religion or form the basis of a religion, will fall within the protection of Article 25 and 26 and should be protected as such.

J. Chandrachud while delivering judgment reminisced the ghost of Narasu (Narasu Appa Mali vs State of Bombay), in which the Bombay HC held that personal law is not included in the expression laws in force used in Article 13(1) of the Constitution. And it also lay that personal law is immune from constitutional scrutiny. The judgment was heavily criticized and considered bad in law.

B.R. Ambedkar during Constituent Assembly Debates clarified that notwithstanding the existence of minority and group rights in the Constitution, its basic unit was the individual; and, more specifically, to remark, during the debates on the religious freedom clauses: What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights." he Constituent Assembly agreed with Ambedkar when he specifically argued that it wasn't merely the State, but the social system, i.e., the community, whose actions conflicted with individual rights and would accordingly have to be reformed"

Analysis of the judgment - Indian Young Lawyers Association vs The State of Kerala (28 September, 2018) - (4:1 majority)
  1. CJI Dipak Mishra (for himself and AM Khanwilkar J.):
    Delivering the judgment in favour of the petitioners, he supported his judgment with conventional theories of law. He held that:
    Followers of Lord Ayyappa do not constitute a religious denomination as required under Article 26 of the Constitution: As they don't satisfy the 3 fold criteria, (as initially laid down in the case of S.P. Mittal vs UOI) i.e. A collection of individuals having common faith which is peculiar to themselves; A common organisation and identified by a distinct name.

    Morality under Articles 25 and 26 refers to Constitutional morality and not Public/Social morality.Exclusionary practice violates Art 25 of the women followers and therefore it is unconstitutional and arbitrary and thus Rule 3 (b) is also ultra vires of sec 3 of 1965 Act.

    CJI Dipak Mishra & J. A.M. Khanwilkar also opined that "Women are not lesser or inferior to men. Patriarchy of religion cannot be permitted to trump over faith, biological or physiological reasons cannot be accepted in freedom for faith. Religion is basically a way of life however certain practices create incongruities." He also held that the exclusion of women between ages 10-50 years by the Sabarimala Temple cannot be an essential religious practice as the Ayappans were Hindus.

    CJI Dipak Mishra struck down Rule-3(b) of the Kerala Hindu Places of Public Worship (Authorisation of entry) Rules of 1965. He said that is both a violation of our Constitution and ultra vires to Section-3 and Section-4 of its Parents Act. Section-3 & 4 of the act were written with the specific aim of reforming public hindu places so that they become open to all sections of Hindus. Rule 3(b) achieves the opposite - it allows public Hindu places of worship to exclude women on the basis of custom. Hence, CJI Mishra concluded that the rule not only violates the Constitution of India but also stands in conflict with the intention of the Parent Act.

    The Supreme Court is the apex court of our country because it is the highest and final judiciary tribunal of the country. It is the final interpreter of our Constitution. Therefore, it will be erroneous to allege that the Supreme Court adjudicating matters under Article - 25 & 26 entrenches into the territory so called 'reserved' for the respective clergymen.

    According to the judgement, also the devotees of Lord Ayappa did not pass the constitutional test to be declared as a Separate Religious Identity. As they are Hindus who worship Lord Ayappa. Then it was also held that the temple's denominational right to manage its own internal affairs under Article-26(b) was subject to the State's social reform mandate under Article-25(2)(b).

    Article-25(2)(b) provides that the State can make laws to reform Hindu denominations. Specifically, Article-25(2)(b) allows the State to make any law that opens a public Hindu institution to all 'classes and sections' of Hindus. Justice Mishra interpreted 'classes and sections' to include the gendered category women. He concluded that the Sabarimala custom of excluding women is subject to state mandated reform.
  2. Justice R.F. Nariman:
    According to Justice Nariman the exclusion of women from the temple effectively rendered their right under Article-25 meaningless. He emphasized that Article-25(1) protects the fundamental right of women between the ages of 10 to 50 years to enter Sabarimala temple and exercise their freedom of worship. He stated that there was sufficient material to conclude that the exclusion of women from Sabarimala violated Article-25(1).

    He focused on the harmonious Construction of Article 25 (2) (b). It is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion

    Morality under Articles 25 and 26 refers to 'Societal morality'. Hindus of all kinds, Muslims, Christians etc., all visit the temple as worshippers, without, in any manner, ceasing to be Hindus, Christians or Muslims. So, all those who worship him do so as part of Hindu religious form of worship, not as denominational worshippers. Thus his followers can't constitute a religious denomination under Article-26.

  3. Justice D.Y. Chandrachud:
    Justice D.Y. Chandrachud held that the exclusion of women between the age of 10-50 years by the Sabarimala temple was contrary to constitutional morality and that subverted the ideals of autonomy, liberty and dignity. He further emphasized that philosophical characteristics of women, like menstruation, have no significance or bearing on the entitlement guaranteed to them under our Constitution.

    The menstrual status of a woman cannot be a valid constitutional basis to deny her dignity and the stigma around the same had no place in a constitutional order. He further held that Article-17 is a powerful guarantee against exclusion and cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.

    He stressed on the fact that Morality under Articles 25 and 26 refers to Constitutional morality and not Public/Social morality.
    He heavily relied on the Anti-Exclusion Test that allows courts to find a just and fair solution to thorny questions of conflict between liberty and equality, while maintaining a fidelity to the Constitution's text and history.He stressed on the fact that this exclusionary practice amounts to untouchability under Art 17. The idea of Purity and pollution that stigmatizes individuals, has no place in a constitutional order.

    Thus, the majority opinion has found that both the notifications as well as Rule 3 (b) violates art 14, 25 (1) and 21 (menstruation as offending to dignity). Additionally, J. Chandrachud has found violation of Art 17 as well. The exclusion was not an essential religious practice.
  4. Justice Indu Malhotra (Dissenting):
    It came as a great shock that the only woman judge on the Bench ruled in favour of the ban on temple entry on the basis of 'Locus' of the petitioners, as they do not claim to be the devotees of Lord Ayappa. So the petitioners lack legal standing.

    Rule 3 (b) is not ultra vires sec 3 of the Act of 1965, because Proviso to sec 3 exempts religious denominations and devotees of lord Ayappa constitutes the same
The Sabarimala case represented not just the hopes of devout women seeking entry into the temple, but also those who wish a strong, cogent constitutional precedent be established for the future. The Sabarimala case gave a golden opportunity to the court to give us a precedent that firmly entrenched constitutional morality in our political vocabulary and liberated individual rights from the checking of group rights.

If we go into the jurisprudential aspect, then we can relate this judgement to Jeremy Bentham' Utilitarianism. Utilitarianism is a theory mainly based on "greatest happiness to the greatest numbers." Secondly, we can also relate this to John Stuart's Harm Principle, which states that the only actions that can be prevented are ones that create harm. In other words, a person can do whatever he wants as long as his actions do not harm others.

Lastly, we can also relate this to Sir Henry Maine's Status to Contract Theory. He often quoted that the "movement of the progressive societies has hitherto been a movement from status to contract." Status is a fixed condition in which an individual finds himself without reference to his will and from which he cannot divest himself by his own efforts. With the progress of civilization this condition gradually gives away to a social system based on contract.

Way Ahead
If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody's personal concern ~Mahatma Gandhi

Every rapist, murderer, thief or delinquent is allowed to enter a temple, but a menstruating woman cannot, this is the only crime she has committed.

In the majority opinion in the Sabarimala review plea in case of Kantaru Rajeevaru vs Indian Young Lawyers Association (14 November, 2019) Chief Justice of India Ranjan Gogoi suggested three other cases pending in the Supreme Court, which were, like Sabarimala, be clubbed with Sabarimala when the review plea is taken up by a larger Bench at a future date.

The 3 cases are regarding entry of Muslim Women in Durgah/Mosque, Parsi Women married to a non-Parsi in the Agyari and including the practice of female genital mutilation in Dawoodi Bohra community.

The judgments like the Sabarimala, Criminalizing Triple Talaq and decriminalising Sec 377 IPC is reaffirming the faith in the judiciary by the citizens. The judgment is a bold narrative that the Supreme Court has adopted a reformist approach and that it does not merely exist to 'cutting the T's and dotting the I's'.

The Supreme Court acknowledged the 'transformative nature of the Constitution' and reiterated that it is a living document that will evolve with the changing needs of the society. It is not a pawn in the games played by the people sitting in the Parliament, but 'it is a Court of the people; for the people and by the people'. Thus, on one hand, it is a step forward in women's rights towards equality with men and on the other it establishes the predominance of Constitutional morality over customary laws, rituals and traditions or social morality.

It is hoped that now the focus of the conversations will shift from menstruation taboos to important issues like menstrual hygiene, more long-lasting sanitary protection, keeping access open to education, sports, travel, social life and all other regular activities.

Written by Shashwata Sahu, Advocate, LLM, KIIT School of Law

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