The Sabarimala Temple debate is about the conflict between the traditions and faith of devotees on one side, and women's right to worship and constitutional propriety on the other.
Traditions in question?
On account of being a divinated place of a celibate deity, the temple board restricts menstruating women ( aged 10 to 50) from taking the pilgrimage to Sabarimala and worship Lord Ayyappan. The customs in this case as held by devotees cannot be transgressed as it would be against the faith surrounding the deity itself.
Also, there is a view that as the menstrual blood is impure, it would pollute the premises. In this view, the woman herself is not treated as impure, but the blood only.
The legality of traditions?
- Legally, the Kerala Hindu Places of Public Worship ( Authorization of Entry) Rules, 1965, prohibits women from entering the temple as well.
- Then, Kerala High Court in 1991 ordered in favour of the restriction by stating that the restriction had been there throughout history and not in violation of the Constitutional provisions of Right of Worship and Equality.
- Indian Young Lawyers Association challenged this prohibition on women's entry in Supreme Court in 2006.
Alternate legend and history
A shrine deep inside the forest, it is said to be visited by tribals and low castes living near the forest and some pilgrims from Tamil Nadu. It is believed that there were no Vedic rites or any purity rituals. The temple shrine was under the ownership of the Pandalam ruling family. Later, they surrendered their rights over the shrine and forest to the Travancore ruling family. Then the temple came under the management of Travancore Royal Devaswom Commission (TRDC).
In June 1950, poachers set Sabarimala temple on fire and desecrated the shrine. A new temple was then constructed by the Travancore Devaswom Board (TDB). It is said that since then the pilgrim numbers rose steadily which had reached to astonishing 50 lakhs now.
Upper Caste Dominance.
Slowly from the 1970s onward, upper-caste pilgrims began to increase. Steadily, it is argued that it led to the introduction of upper caste rituals and customs of purity and pollution. Thus, the marginalization of tribal and lower caste is said to have begun. It is also said that there were no restrictions on the entry of women as well. Because menstruation is seen as a symbol of fertility and therefore auspicious in the forest dwellers. It is in the upper caste rituals that menstruating women are prone to exclusion.
The total ban on the entry of women came through a High Court judgement in 1991 in S. Mahendran v. The Secretary, Travancore.
Arguments against women's entry said in court
- It would affect the deity's celibacy and austerity.
- The temple has its own traditions and customs which had to be respected. This is similar to any other public place and is not in contravention of Art 26 of the Indian Constitution.
- Sabarimala pilgrim needs to observe 41-day penance essential for the pilgrimage. Such penance would be difficult for the women to undertake.
- Art 25 (2) of the constitution provides access to public Hindu religious institutions for all classes and sections of the society. However, it is applicable to social welfare and reforms only and not to the religious customs and worshipping practices of the temples.
- Art 26 (b)of the Indian Constitution provides the right to every religious group to manage their own religious affairs.
- Guwahati High Court in Ritu Prasad Sharma v State of Assam 2015 ruled that religious customs protected under Art 25 and Art 26 are immune from challenge under other provisions of Part III of the Indian Constitution.
- Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, prohibits women of menstruating age from entering the Sabarimala temple.
Arguments to lift the ban on women's entry said in court
- Moral argument:
- Why would God discriminate towards women on the basis of a natural phenomenon?
- How can devotees pollute God and disturb the sage's austerity?
- There is nothing impure about a menstruating woman.
- Legal argument
- Art 25 of Indian Constitution grants an individual the right to choose own religion and praying in a temple or mosque comes within that right.
- There are hundreds of Ayyappa temples in India where this rule of restricting women does not apply. Women worship Lord Ayyappa at home as well. The practice of worshipping has been since ages.
- Discrimination based on gender violates Fundamental Rights under Art 14 (Right to Equality), Art 15 (No Discrimination based on gender) and Art 17 (Abolition of untouchability ). Hence, the practice of restriction of menstruating women to worship in the Sabarimala temple is unconstitutional.
- Prohibiting women's entry due to their biological feature is a derogatory practice which the Fundamental Duties in Art 51A (e) seek to renounce.
- Sabarimala temple's trust is funded from the Consolidated Fund of Kerala. So, it is a public place of worship and not a fiefdom of the priests.
- The Hindu way of life can not and should not be dictated by narrow and exclusion based rituals created by priests.
- Religious traditions should not be trapped in time and must reform themselves to stay relevant.
Supreme Court Verdict
The court in 4-1 majority struck down the provisions of the Kerala Hindu Places of Public Worship Rules, 1965. It legalised the entry into the Sabarimala temple and worship of the deity by women of all age groups.
- The Travancore Devaswom Board claimed that Ayyappa devotees form a religious denomination and were permitted to make their own rules. Supreme Court outrightly rejected this claim.
- The court also held that prohibition on women entering the temple is not an essential part of Hindu religion. Hence the court can intervene to ban a discriminatory custom.
- Art 14, Art 15 and Art 17 trump over the exclusionary practices claimed under Art 26. That means individual freedom and principle of equality prevails over irrational and unreasonable customs.
- The court declared that exclusion of women on the basis of menstrual impurity is a form of untouchability.
- SC observed that stigmatization of women based on the medieval perspective of purity and pollution is unscientific and inhumane, and thus, not tenable in modern times.
Thus, the Supreme Court held that any such religious tradition which discriminates and segregates women because of their biology is Unconstitutional.
The dissenting remark came from the lone woman judge Justice Indu Malhotra. In her widely discussed dissent, she said,
- Religious matters should be left to religious communities and need not be interfered by the courts. The very fact that the issue is regarding faith and not reason, the court is bound to transgress their mandate.
- A balance needs to be created between religious beliefs and constitutional principles of equality.
- She warned of the future ramifications of the judgement and the pandora's box it will open.
Review of the judgement
However, the court in a 3-2 majority has accepted the review petition of the Sabarimala judgement. It has referred the case to a larger 7 judge bench. After its triple talaq judgement, another debate on a women's issue will reopen the larger issue of whether any religious practice can discriminate among its followers based on caste, or gender.
The larger bench will also re-examine its "essential religious practice test" doctrine.
Note: Essential Religious Practice Test:
The Doctrine of Essentiality is a contentious and much-debated doctrine expounded by the Supreme Court in the Shirur Mutt case in 1954. The court held that "religion" covers all rituals and practices, and the court took upon itself to determine the essential and non-essential practices. That is such practices which form an integral part of the religion.
In Dr M Ismail Faruqui and Others v. Union of India and Others (1994), a five-judge Constitution bench ruled that "A mosque is not an essential part of the practice of the religion of Islam". It also held that namaz (prayer) by Muslims can be offered anywhere, even in the open.
The highly subjective doctrine has been criticised by many constitutional experts since its inception. This is because the test of essentiality will simply lead the court into an area which is beyond its domain expertise and will give judges the power to interpret matters of belief. Debating on purely religious issues is beyond the competence of the courts which function on reason and proofs and not on faith.
This fear has been proven right as the court has been inconsistent on this question. As in some cases, the courts have relied on religious texts to determine the essentiality of practice while in others, they relied on the behaviour of followers. In matters such as Sabarimala, the court saw it in a purely rational and scientific manner.
Conclusion: Importance of Sabarimala Issue
The issue of exclusion of women in different aspects of life has come into the national limelight due to the Sabarimala debate. Giving a progressive judgement the court has led the way for behavioural change in the society, and reform in the religious matters. The judgement will become a landmark for future cases and will lead to a more wider interpretation of the constitution. It will raise awareness regarding people's civil rights across caste, gender and religion.
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