Rights of Women vis-à-vis Sabarimala Temple Case Law by Vimarsh at Lexcliq

Rights of women: Discrimination against women’s entry in Sabarimala Temple

A writ petition preferred under Article 32 of the Constitution, sought issuance of directions against the Government of Kerala and other respondents to ensure

  • Entry of female devotees between the age group of 10 and 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which had been denied to them on the basis of certain custom and usage;
  • To declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51-A(e) of the Constitution; and further
  • To pass directions for the safety of women pilgrims. On the other hand, the respondents claimed that the said temple, though open to all member of the public regardless of caste, creed, or religion, was a denominational temple and therefore it has a fundamental right to manage its own affairs in matters relating to religion.

A five-judge Constitution Bench[1], by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple was unconstitutional. The proceedings arose after a three-judge Bench in India Young Lawyers Assn. v. State of Kerala[2], keeping in view the gravity of issues involved, referred the matter for consideration to Constitution Bench.

The right to practice religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equality available to both men and women of all age groups professing the same religion. Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practice and propagate religion was available, though subject to the restriction delineated in Article 25(1) itself, to every person including women. Women of any group have as much a right as men to enter a temple in order to freely practice Hindu religion and to exhibit their devotion towards Lord Ayyappa. The term “morality” occurring in Article 25(1) of the Constitution could no be viewed with a narrow lens so as to confine the sphere of definition of morality, to what an Individual, a section or religious sect may perceive the term to mean. The notions of public order, morality and health could not be used as a colourable device to restrict the freedom to freely practice religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala Temple for the simple reason that public morality must yield to Constitutional morality.

 

  1. Followers of Lord Ayyappa do not constitute a religious denomination

Though the respondents urged the court to identify the pilgrims coming to visit the Sabarimala Temple as Ayyappans and to hold them a separate religious denomination, but this was held unacceptable by the court. There was no identified group called Ayyappans. Every Hindu devotee can go to the temple. There is no identified sect; Sabarimala Temple is a public religious endowment and there are no exclusive identified followers of the cult. Devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

 

  1. Exclusionary practice: Whether essential practice as per Hindu religion?

What constitutes an essential part of a religion is ascertained with reference to the tenets and doctrines of that religion itself. It had to be determined whetherthe practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion, and whether the nature of the said religion would be altered without the said exclusionary practice. The answer to these questions was in the firm negative. On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, it cannot be accorded the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala Temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

 

Conclusions of the matter by the majority is delineated hereinafter:

 

  1. Custom or usage of prohibiting women between the ages of 10 and 50 years from entering the Sabarimala Temple is violative of Article 25(1) of the Constitution and of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu
  2. Places of Public Worship (Authorisation of Entry) Act, 1965 is unconstitutional being violative of Articles 25(1) and 15(1) of the Constitution of India. (Per R.F. Nariman J)

 

  1. Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. The language of both the provisions, i.e. Section 3 and the proviso to Section 4(1) of the 1965 Act, clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. (Per CJ Dipak Misra and A.M. Khanwilkar J)

 

  1. Devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (Per CJ Dipak Misra and A.M. Khanwilkar J)

 

  1. Freedom of conscience and the right to freely profess, practice and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. (Per CJ Dipak Misra and A.M. Khanwilkar J)

 

 

 

Dissenting opinion

Indu Malhotra J at as many as 10 places in her dissenting opinion, referred to the deity in Sabarimala Temple as Naishtika Brahmachari. She held that the belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of fundamental rights, must be based on a pleading that the petitioners’ personal rights to worship in the temple have been violated. The petitioners herein did not claim to be devotees of the Sabarimala Temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect or denomination. In the present case, the worshippers of this temple believe in the manifestation of the deity as a “Naishtika Brahmachari”. They themselves have not challenged the practices followed by this temple, based on the essential characteristics of the deity.

Therefore, the writ petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the petitioners and intervenors involved herein.

 

The equality doctrine enshrined under Article 14 does not override the fundamental rights guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion. The prayers of the petitioners if acceded to, in its true effect, would amount to exercising powers of judicial review in determining the validity of religious beliefs and practices, which would be outside the authority of the courts. The issue of what constitutes an essential religious practice should be for the religious community to decide.

The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of “places of public resort” under Article 15(2) cannot be accepted.

 

Verdict

In the light of all that has been discussed, as per the majority judgment, the practice of not allowing the entry of women of the age group of 10 to 50 years was held to be unconstitutional being violative of fundamental rights.

 

 

 

 

 

 

 

 

 

[1] Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC Online SC 1690, decided on 28-9-2018.

[2] (2017) 10 SCC 689

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