The Supreme Court on Friday allowed the entry of women between the ages of 10 and 50 into the Sabarimala temple in Kerala.
The judgement was 4:1, with Justice Indu Malhotra dissenting. Chief Justice Dipak Misra said in his judgement, on behalf of himself and Justice AM Khanwilkar, said that devotees of Ayyappa do not constitute a separate religious tradition. Justices DY Chandrachud and Rohinton Nariman concurred with Misra.
Misra said the dualistic approach against women degrades the status of women. Patriarchy of religion cannot be permitted to trump over faith, he said. Excluding menstruating women is not an essential part of religion, the chief justice said.
“The law and society are tasked with the task to act as levellers,” Misra said. “The country has not accepted women as partners in seeking divinity. Subversion of women on biological factors cannot be given legitimacy. Certain dogmas have resulted in incongruity between doctrine and practice.”
The chief justice said the exclusionary practices violate the right of Hindu women to worship. Such a restriction is a clear violation of Article 25(1), that is the right to religion, he added.
Nariman struck down rule 3 (b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which bars women’s entry to the temple. The clause stated that “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship”.
“Morality for the purpose of 25 and 26 is ephemeral in nature,” Nariman said. “Dignity of individual is an unwavering nature of fundamental rights. Any relationship with the creator is a transcendental one, cannot be circumscribed by biological factors.”
Chandrachud said physiological features cannot be a ground for denial of a right. Religion cannot be a cover to deny women right to worship, he added. “To treat women as children of a lesser god is to blink at the constitution itself,” the judge said, adding that Article 25 protects every individual of the society.
‘For religious community to decide, not court’
In her dissenting judgement, Indu Malhotra said matters of deep religious sentiments should not be interfered in by the court. It is up to the worshippers, not the court, to decide what is the religion’s essential practice, she said. “The Sabarimala shrine and deity is protected by Article 25 of Constitution of India,” Malhotra said. Religious practices cannot be solely tested on the basis of Article 14 of the Constitution that provides for equality, she observed.
“Notions of rationality cannot be brought into matters of religion,” Malhotra said, according to Bar and Bench. “What constitutes essential religious practice is for the religious community to decide, not for the court.”
There has to be a balance between religious beliefs and principles of non-discrimination and equality laid down by the Constitution, she said. The defence has made out a strong case for Ayyappa devotees being a separate denomination, she added.
“If there are clear attributes that there exists a section with identifiable characteristics, they constitute religious denomination,” she said.
The court had set up the Constitution bench in October 2017 to consider whether the practice is discriminatory and hence in violation of fundamental rights, or if it qualifies as an “essential religious practice” under Article 25 of the Constitution, which allows the freedom to follow religion in a manner one chooses.
The Indian Young Lawyers Association, among the petitioners challenging the ban, had filed its plea in the top court in 2006, but the case lay in cold storage till it was finally taken up for hearing in January 2016.
Notions of impurity
Women aged between 10 and 50 were barred from entering Ayyappa’s hill-top shrine, but it is unclear when or why this restriction came into effect. Those who oppose the ban have argued that this is prejudiced against women and is linked to orthodox notions of menstruating women being impure. However, temple authorities contend that Ayyappa had taken a vow of celibacy and the ban was a measure to respect his mission and keep the deity away from distraction.
Supporters of the ban say this practice has been followed down the ages, because worshippers were required to fast for 41 days before undertaking the pilgrimage to Sabarimala, something that menstruating women could not undergo for physiological regions.
After changing its stance multiple times, the Kerala government in July told the court that the custom of barring entry to women was not permissible under the Constitution. It argued that the celibate status of a deity cannot be a ground for such a ban as it is a Hindu shrine and not a temple of a particular denomination.