A five judge Constitution Bench of the Supreme Court commenced hearing the case pertainig to women’s entry inside the Sabarimala Temple on July 17, 2018. The Court proceedings are as follows:
Advocate R P Gupta is tracing the history of Sabrimala temple.
— The Leaflet (@TheLeaflet_in) July 17, 2018
Advocate R P Gupta is reading out referral order passed by three judges bench in October 2017.
— The Leaflet (@TheLeaflet_in) July 17, 2018
Advocate R P Gupta commences arguments on behalf of petitioner.
— The Leaflet (@TheLeaflet_in) July 17, 2018
Backstory of the Sabarimala dispute
The furore around women’s entry, more specifically of women who are in the age group of 10 to 50 years into the Sabarimala temple, isn’t a recent one. This issue was first broached upon by a public interest litigation by S Mahendran, where he complained of young women trekking Sabari hills and offering prayers at the Sabarimala Shrine. This case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors. was decided on April 5, 1991 by the High Court of Kerala in favour of the petitioner.
The Kerala High Court concluded that the restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine was in accordance with the customs that had been followed since time immemorial and did not violate women’s fundamental rights. The court concluded that:
“(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.”
Photo credit: Indian Express
Before this case, restriction of women’s entry was only during the Mandalam, Maharavilakku and Vishu days. They were permitted to enter the temple during the 5 days of each month that the temple was opened and poojas were conducted. But, in this case, the Kerala High Court pronounced its judgment and restricted women’s entry into the Sabarimala temple, completely.
This judgment went unchallenged and unnoticed, so to say, for way more than a decade. Until in the month of July, 2006, several articles spoke about this exclusionary practice of restricting women of menstruating age from entering the Sabarimala temple. The Times of India (New Delhi Edition), Hindustan Times and The Week, all published such articles highlighting the alarming customs that were being followed in one of the most sacred of Hindu temples. The newspaper articles stated that entry of female devotees between the age group of 10 to 50 was restricted and their touching the feet of Lord Ayyappa (the main deity inside the shrine of the temple) was taken as a desecration of the Hindu deity.
This is where the writ petition filed in public interest by Indian Young Lawyers Association on July 28, 2006 arose from — in order to ensure entry of female devotees between the age group of 10 to 50 at the Sabarimala Temple in Kerala. The petition also sought to declare the Rule [Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which provides that women at such time during which they are not by custom and usage allowed to enter a place of public worship, shall be included in the class of persons who shall not be entitled to offer worship in any place of worship] which prevented women from entering the Temple to be violative of the Fundamental Rights ensured by the Indian Constitution and also beyond the scope of the very Act [Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965] under which the Rules were framed.
Questions before Constitution Bench
On August 18, 2006, the Supreme Court issued notices to all the parties. The matter was then referred to a three-judge Bench on March 7, 2008. Indian Young Lawyers’ Association and Ors. v. The State of Kerala ad Orscame up for hearing seven years later, on January 11, 2016 where the counsel for the State prayed for some time to file an additional affidavit. On February 20, 2017, the Court expressed its inclination to refer the case to a Constitution Bench. On October 13, 2017, a bench comprising Chief Justice Dipak Misra, Justice RBanumathi, and Justice Ashok Bhushan, heard the matter. It was held that the matter would be referred to a larger Constitution Bench and the following questions were raised for consideration by the same:
- 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 is not protected by “morality” as used in Articles 25 and 26 of the Constitution?
- 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?
- 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 Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
- Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation 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?
- Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?
Why blame women for men’s transgressions?
One major reason which is very frequently cited in Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors. and Indian Young Lawyers’ Association and Ors. v. The State of Kerala ad Ors.by the supporters of the ban on women’s entry into the Sabarimala Temple is that inside the Temple, the deity of Lord Ayyappa is in the form of a “NaastikBrahmachari” (a celibate) and presence of women between the age group of 10 to 50 years may cause “deviation from celibacy and austerity observed by the deity”. This contention raises some potent questions like — how does the mere presence of a woman (of presumably a fertile age) hinder a deity’s celibacy vow? Why is that men (and even deities) can’t be held responsible for their own actions? Why does the onus always fall on a woman’s shoulder? This Eve-provoked-Adam-to-eat-the-apple trope is getting really old and jaded now. This is how society has enabled men to very conveniently shirk off any and all liability that stems from their transgressions (Read: victim blaming, but that’s an issue for another time).
Gender stereotyping and misogyny
Another one of the contentions of the Respondents was that the devotees of Lord Ayyappa visit the Sabarimala temple after observing penance for 41 days and women between the age of 10 and 50 were usually not in a position to observe penance for 41 days due to physiological reasons and hence, shouldn’t be allowed to enter the Temple. Moreover, it was also stated that menstruating women were “impure” and “polluted” and would lead to the desecration of the sacred spirit of the Temple. Indira Jaising, learned counsel for “Happy to Bleed” — the interveners in the case,stated that these two contentions reeked of gender stereotyping and misogyny. She relied on the judgment in the case of Anuj Garg v. Hotel Association, where a legislation which discriminated against women based on gender stereotypes was struck down as it stereotyped women to be “seductive sexual objects who would provoke men into assaulting them”. The judgment also stated that:
“It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy.”
Hence, it’s safe to say that the Constitution of India does not condone gender stereotyping.
Jaising submitted that both our constitutional and international obligations mandated the State to eradicate taboos relating to menstruation based on customs or traditions and women should not be portrayed as objects of temptation that needed to be kept away from “brahmacharis”. The alleged custom tended to perpetuate a stereotype of women which is discriminatory. Hence, the Impugned Rule and the notifications issued thereunder were violative of principles of equality and gender justice manifested in Articles 14 and 15.
Freedom to manage religious affairs cannot denigrate Constitutional morality
The Respondents also contended that since the devotees of Lord Ayyappa formed a religious denomination, they had the right to administer and maintain their religious institutions as they pleased and therefore could ban the entry of women of menstruating age inside Sabarimala Temple. The Petitioners stated that Sabarimala Temple was not a separate religious denomination, it was simply a Hindu temple which allowed all manner of Hindus to enter the temple, regardless of their denomination. It had to be noted that like all other fundamental rights, the freedom to manage religious affairs under Article 26 of the Constitution wasn’t an absolute freedom. It was subject to “public order, morality and health”.
Raju Ramachandran, the amicus curiae (“friend of the court”) in this case contended that this practice of denying women entry inside the Temple cannot be justified based on the above mentioned grounds of “public order, morality and health”, because morality as visualised in Article 25 or Article 26, was not based on individual or sectional perception of every religion and its customs and practices. The morality in this context referred to constitutional morality (as was laid down in National Legal Services Authority v. Union of India) and should be in tandem with Articles 14 (Right to Equality), 15 (Right to Non-discrimination), 17 (Right against Untouchability), 21 (Right to Life), 38 (Promotion of welfare of the people) and 51A (Fundamental duty to abide by the Constitution) of the Constitution. Gender justice is an essential part of it.Denying entry to women inside a temple on the basis of their sex goes against this very morality and violates the very core of Articles 14, 15 and 17. It was contended that the right to manage affairs of religion must be exercised in a non-discriminatory manner.
The Petitioner cited the case of Sri Venkatramana Devaru & Ors. v. State of Mysore & Ors., where it was held that the religious denomination cannot completely exclude the members of any community. They can restrict their entry in certain rituals but cannot completely restrict entry of a particular community. Hence, the custom of completely barring women’s entry inside the Temple wasn’t protected under Article 26 (b) of the Constitution.
Indira Jaising, contended that The Kerala Hindu Places Of Public Worship (Authorization Of Entry) Act, 1965 (the 1965 Act) had been put in place in furtherance of the object of throwing open temples to all classes of Hindus and was protected by Article 25(2)(b) of the Constitution of India. Hindu women formed a part of a “section” or “class” of “Hindus” and hence should be allowed to enter the temple in accordance with the Act and the Constitution.
Jaising took the stand that Rule 3 was hence ultra vires the 1965 Act inasmuch Section 4 of the 1965 Act:
“Section 4 — Power to make Regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship: (1) The trustee or any other person in charge of any place or public worship shall have power, subject to the control of the competent authority and any Rules which may be made by that authority, to make Regulations for the maintenance of order and the decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein:
Provided that no Regulation made under this Sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular or class.”
Jaising further contended that the 1965 Act restricts the authorities from making any Rule that discriminates against any Hindu on the ground that he belongs to a section or class.Like Ramachandran, she too emphasised on harmonious interpretation of constitutional provisions, that is, Articles 14, 15, 25 and 26 of the Constitution and stated that the right to manage the affairs in the matter of religion does not encompass the right to ban entry inside a temple.
She further submitted that constitutional legitimacy superseded all religious beliefs (as was laid down in Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu and Ors.) and therefore, prohibition on entry of women between the ages of 10 to 50 years made a mockery of the constitutional principle.
Photo credit: Countercurrents.org
Not an ‘essential practice’
Furthermore, Ramachandran stated that the State of Kerala and the Devaswom Board contended that the practice was based on age old religious custom and the same was essential to religious practice. He contended that it was fundamentally erroneous as such a religious practice cannot be essential to the religion and it had in reality been only imposed by subordinate legislation. The custom that had stemmed from it was not a part of the essential religious practice and the constitutional validity of said practice had to be gauged in accordance with the religious rights as expressed under Articles 25 and 26 of the Constitution.
Ramachandran also contended that Sabarimala Temple is a public temple and members of the general public are allowed inside the temple no matter which denomination of Hinduism they might belong to. As entry to a public temple is a legal right, the temple authorities have no authority to curtail the said right. He stated that the right of a woman to enter the Temple is a crucial part of her right and denying her entry inside the temple would amount to infringing the very right which is protected under Article 25 of the Constitution.
Constitution is a ‘living document’
It is said that the Constitution of India is a living document and since it is the document that governs the law of the land, it is safe to assume that law in India is also dynamic. In this day and age, it is pertinent that our laws remain relevant and protect the rights of the people that have been disenfranchised for far too long. The issue of denial of entry of women between the age group of 10 to 50 needs to be put to rest once and for all because it’s not just about the religious freedom of women but it’s about the broader topic of gender justice in our country. It’s about how menstruation is still seen as something “impure” and “profane”. It’s about how women are still being blamed for sexually provoking men (and deities) by their mere presence. It’s about how women are believed to be incapable of performing the same tasks as their male counter parts, like observing a fast for 41 days. It’s about how women are still seen as less than men. It’s about all the other places of worship, work, enjoyment, etc., which deny entry of women based on their sex. It’s about all this and more. Add the word stigma and how our cultural barrier brings so-called “shame” to the biological phenomenon.
Using Constitution for gender justice
Men have managed to subjugate women for so long by reinforcing the notion that women are somehow weaker than them, that women are somehow “lesser” than them. Why is it assumed that men will be able to observe penance for 41 days but women of the same age group won’t? What physiological reasons stop women from observing this fast? Is there any scientific finding or is it just an assumption stemming from nothing but sexism and misogyny?
And the bit about menstruation making women “impure” and “polluted” which in turn might desecrate the sacred spirit of the Temple is nothing but an ancient superstition which has been debunked over and over again. Menstruation is a very natural process which people with ovaries and a uterus go through. To discriminate against them on the basis of such a natural phenomenon is wrong and should not be backed by the laws of the State. The stigma around menstruation has been perpetuated for ages and can be witnessed very evidently in our daily lives. By allowing women entry into the Sabarimala Temple and deeming the impugned rule as discriminatory and sexist, we will be taking a huge step forward in the right direction. Menstruation has long been a taboo in our country and it’s time we leave all the superstition behind and let our women bleed in peace.
In the conflict between the rights of a denomination and the rights of an individual, the rights of the individual should take precedence. The rights of women need to be considered as more important than those of a religious group infringing on the fundamental rights of the former.The fact that women devotees of the Temple haven’t come up and spoken against this practice doesn’t mean that they are happy with how things have been going on. It might just be the case that they have resigned themselves to the old customs and traditions due to the internalisation of misogyny that all of us have grown up with. The Constitution Bench’s decision could possibly give these devotees a new ray of hope and may very well establish a precedent for women empowerment and gender equality.
In the case of Sri AdiVisheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P, it was held that-
“The denomination sect is also bound by the constitutional goals and they too are required to abide by law; they are not above law. Law aims at removal of the social ills and evils for social peace, order, stability and progress in an egalitarian society.”
This is to say that law has to be dynamic and progressive and should first and foremost look out for the marginalised population in order to strive towards an egalitarian society. Here’s hoping that the decision of the Constitution Bench endeavours to do just that.