By Ansu Ealias
On 28/9/2018 , the court in this case by majority 4:1 held that the restriction of women in Sabarimala Temple is unconstitutional.
This case is known as Sabarimala temple case. In this case Hon’ble Supreme Court made observations on a rule banning woman from entering the Sabarimala temple in Kerala due to biological reasons.
Three newspaper articles discussed the practice of restricting the entry of women in age group (10-50).
The petition argued that the ban, enforced by Rule 3(b)of the Kerala Hindu Places of Public Work shop (Authorization of Entry) Rules,1965, was unconstitutional. Because it violates the Article 14,25, 26 of the Indian Constitution.
It states that such discrimination against women was not an accepted practice in Hinduism.
BACKGROUND OF THE CASE
- Sabarimala Temple is the largest annual pilgrimage in the world. It is located in Pathanthitta district, Kerala, India.
- According to belief, Ayappan who is the son of shiva and female incarnation of Vishnu is the deity of Hindu’s. The Sabarimala Temple is dedicated to this deity.
- The duty in sabarimala temple is in the form of a yogi or Bramachari according to the Thanthri of the temple the God in Sabarimala is in the form of a naisthik bramacahri, and this is the reason why young women are not permitted to offer prayers in a temple.
- Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple.
- The temple is open for worship only during the days of Mandal Pooja (approximately 15 November to 26 December), Makara Sankranti (14 January)and Maha Vishuva Sankranti (14 April), and the first five days of each Malayalam month.
- 41days celibacy was observed by the pilgrims and also follow vegetarian diet, not use alcohol and any profanity.
- They grow their hair and nails.
- They do not shave, bath two times in a day, visit daily the temple, only wear black clothes, apply sandal daily during that period.
- Rule 3(b) sanctioned the exclusion for women in 10-50 age group for not to entry the Sabarimala temple.
- They considered this prohibition as an old custom.
- Rule 3(b) – Exclusion for women during 10-50age group are not allowed to enter the temple.
- This was against the Article 25(1), 14, 15(1), 26
- A PIL was filed in 1991.
- The Supreme Court held that women in all age group can enter sabarimala temple by 4:1 majority.
- Finally, after the judgment of the sabarimala case, there were two women firstly visit and enter the sabarimala temple. They were under the age of 50.
FACTS OF THE CASE
- Writ petition preferred under Article 32.
- Petitioner have stated that they learned of the practise of restricting the entry of women in age group (10 to 50) in Sabarimala Temple from three newspaper article –
“Scent of a women” article by Burka Dutt in Hindustan Times newspaper.
Touching Faith – Sharvani Pandit – Times of India
” Keeping Faith and Loosing Religion” article by Vir Sanghvi in Hindustan Times newspaper
- Petitioner sought issuance of directions against Government of Kerala, Devasom Board of Travancore, Chief Thantri of Sabarimala Temple and District Magistrate of Pathanamthitta to ensure entry of female devotees between 10 to 50 age group.
- Urged in writ petition to declare 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by Section 4 as unconstitutional. Because it violates the Article 14, 15, 25,51 A (e) of the Indian Constitution. Also, to pass laws for the women pilgrim’s safety.
ISSUES INVOLVED IN THE CASE
- Whether the practice of female exclusion based on biological factor amounts to “DISCRIMINATION” and violates Article 14,15 and 17 and not protected by morality given under Article 25 and 26 of Constitution?
- Whether practise of excluding women constitutes “essential religious practice” under Article 25 and could religious institution can assert such situation as under the umbrella of right to manage its own affair in religious matter?
- Whether Ayyappa Temple has such denomination character as it is permissible on part of “religious denomination” managed by statutory board and financed under Article 290-A of Constitution of India out of the consolidated fund of Kerala and Tamil Nadu?
State indulgence in such practices violates Constitutional principles / moralities embedded in Article 14, 15(3), 39(a), 51 A (e)?
- Whether Rule 3 of Kerala Hindu Places of Public worship permits “religious denomination” to ban woman entry (age group 10 to 50 )?
If yes, then won’t it be violative of Article 14, 15(3) of Constitution by discriminatory on ground of sex?
- Whether Rule 3(b) of Kerala Hindu Place of Worship Rules, 1965 is ultravires Kerala Hindu Places of Public Worship ( Authorisation of Entry Act ), 1965 and if treated to the intra vires, whether it will be violative of Part III provisions of Constitution?
ANALYSIS OF LAW
It held that the practice violated the fundamental right to freedom of religion – Article 25(1) of female worshippers.
Article 25 of the Indian Constitution: –
Freedom to practice, profess and propagate any religion is ensured by this Article.
25(1) – Freedom to practice, profess, propagate any religion and freedom of conscience are equally each and every person freely.
Article 26: – Religious affairs managing freedom is ensured by this Article.
Every religious place or any section have the right –
- For religious and charitable purposes, the religious institutions maintaining right.
- For the management of religious matter affairs.
- For acquire and own both immovable and movable property.
- For the administration of such property with law.
Article 14: – Equality before law –
All persons equally have the right to law. No one is above the law. The state the equality before law to all persons and the protection of the laws for everyone equally.
Article 15: – No person shall discriminate on the grounds of sex, religion, caste, place of birth, language. All these discriminations are prohibited by this fundamental right.
- Centuries old custom of prohibition
- IMPACT TEST – Petitioner relied on “impact test” enunciated by Supreme Court in Bennett Coleman and Co Vs Union of India
– it submitted that discrimination is only on ground of sex since the biological feature of ‘menstruation’ emanates characteristics of particular sex.
- It violates Article 15(1) and 15(2)(b) since sabarimala temple is public place of worship – open and dedicated to public and partly state funded as under Article 290A.
- Discrimination is arbitrary as it is based on physiological factors alone and lacks any valid object.
- It was contended that Lord Ayappa do not constitute a religious denomination under Article 26 as they do not have a common faith, or a distinct name.
- To form religious denomination following attributes:-
- Must have its own property and establishment capable of succession by its followers
- It has its distinct identity clearly distinguishable from any established religion
- It has its own set of followers.
- It has the hierarchy of its own administration, not controlled by outside agency.
- Any law or custom to be protected under Article 26, must have constitutional legitimacy.
- Cast stigma on women as they are polluted, which has huge psychological impact on them, dignity under Article 21
- Exclusive practice is violative under Article 17, untouchability. This article is enforceable against both state as well as non-state actors.
- Partially funded by state, falls under the ambit of “other authorities “under Article 12, it is duty bound to give effect to fundamental rights.
- Fundamental Right to worship under Article 25(1) is a non-discriminatory right and is an available equally to both men and women.
- Submitted that Article 17 prohibits untouchability “in any form” in order to abolish all practices based on notion of purity and pollution.
- Exclusion of menstruating women is on the same footing as exclusion of oppressed classes.
- Constitutional morality is defined under Articles 25, 26 of constitution. Both individual and constitutional morality not described in these articles
- Article 25(2)(b) was intended to redress caste-based prejudices and Article 25(2)(b) would have no application since there is no ban, but only a limited restriction during the notified period, based on custom faith and belief observed since time immemorial.
- Respondents argued that if women as a class were prohibited from entering and participating, that would amount to social discrimination. But in present case, women below 10 and above 50 can freely enter this temple.
Further, there is no similar restriction in other Lord Ayappa Temple. The classification of women (10 to 50 age group), and men of same age group, has a reasonable nexus with object sought to be achieved, which is to preserve identity and manifestation of lord as ‘Naishtik Brahmachari’.
- This practise started in antiquity and continued since time immemorial without interruption, it is now usage or custom.
The custom is preconstitutional and would be included under Article 13(3)(a) of constitution of India.
- Worshippers of Lord Ayappa are entitled to freedom of conscience, right to profess or propagate their religion.
- Exclusion is not absolute; it only bans a particular age group.
- Other Lord Ayappa temples, where deity is not in the form of ‘Naishtik Brahmachari’ women are allowed to worship there.
- Essential practise of temple, intended to keep the pilgrims away from distraction related to sex, for successful practise of spiritual self-discipline.
- Plea of petitioners with reference to Article 17- wholly misconceived
- Objective and core of Article 17 is to prohibit untouchability, based on caste in Hindu religion.
- No such caste or religion-based untouchability is practised at sabarimala
- Impurity or disability is not the basis of custom.
SUPREME COURT’s DECISION
- Custom/usage of prohibiting women under 10-50 age group, is violative of Article 25(1) and violative of Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of constitution.
It was also declared that Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Act 1965 is unconstitutional being violative of Article 25(1) and 15(1) of constitution of India.
- Rule 3(b) of the 1965 Rules is ultra vires 1965 Act. Language of both provisions, section 3 and 4(1) of 1965 Act clearly indicates that custom and usage must take space to the rights of all section and classes of Hindus to offer prayer at places of public worship.
- Devotees of Lord Ayappa are exclusively Hindu’s and do not constitute separate denominations.
- Freedom of conscience and right to freely profess, practise and propagate religion is available, though subject to restrictions delineated in Article 25(1) itself, to every person including women.
- Exclusion of women violates the right to Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayappa.
- Practise of exclusion of (10 to 50 )year age group of women can’t be regarded as essential part of temple.
DISSENTING OPINION (INDU MALHOTRA)
- Ayyappans satisfied the requirement of religious denomination, and therefore are entitled to protection under Article 20.
- Rule 3(b) of 1965 is not ultra vires, since the provision carves out an exception in the case of public worship in a temple for benefit of any religious denomination, to manage their affairs in matters of religion.
- She remarked that equality doctrine under Article 14, doesn’t override Fundamental rights guaranteed under Article 25 to every individual to freely profess, practise or propagate their faith in accordance with tenants of their religion
- As Article 290 doesn’t in any manner take away the denominational character of sabarimala temple, or the fundamental rights under Article 26.
- Practises are considered to be essential or integral to that temple. Any interference with their right guaranteed by Article 25(1) to worship Lord Ayappa in form of ‘Naishtik Brahmachari’.
- Limited restriction on the duty of women during the notified age group doesn’t fall within the purview of Article 17 of Constitution.