• Rajasthan

    Cong 99
    BJP 73
    RLM 3
    OTH 24
  • Madhya Pradesh

    Cong 115
    BJP 108
    BSP 2
    OTH 5
  • Chhattisgarh

    Cong 68
    BJP 15
    JCC 7
    OTH 0
  • Telangana

    TRS-AIMIM 95
    TDP-Cong 21
    BJP 1
    OTH 2
  • Mizoram

    MNF 26
    Cong 5
    BJP 1
    OTH 8

* Total Tally Reflects Leads + Wins

Constitutional and legal bases of Sabarimala verdict

Updated: October 17, 2018 6:24 PM

The Lord Ayyappa Temple at Sabarimala in Kerala has opened its gates to women of all ages following a Supreme Court verdict on September 28, 2018.

Sabarimala verdict, Lord Ayyappa Temple, Sabarimala in Kerala, Supreme Court verdict, entry of women in sabarimala templeThe images of ordinary women pilgrims trudge up the hill amid protests will be etched in public memory forever.

Krishna Sarma

The Lord Ayyappa Temple at Sabarimala in Kerala has opened its gates to women of all ages following a Supreme Court verdict on September 28, 2018. The images of ordinary women pilgrims trudge up the hill amid protests will be etched in public memory forever. However, such is the power of entrenched patriarchy that women are being intimidated on their way to the shrine.

For centuries, women were not allowed to enter the Sabarimala shrine based on the biological ground of menstruation. The Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry Rules, 1965 (Rules 1965) which states that “Women at such time during which they are not by custom and usage allowed to enter a place of worship” was the basis of the practice of excluding women of the age group of 10 through to 50 years to enter the temple. These Rules were framed under Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act,1965 (1965 Act). In 1993, a division Bench of the Kerala High Court (KHC) had upheld the entry ban saying it is usage prevalent from time immemorial. The KHC had further held that only the chief priest was empowered to decide on traditions.

A five-judge Constitutional bench (Hon’ble SC) ruled 4:1 in favour of allowing women of all ages to enter the temple. It found the practice discriminatory in nature and that it violates Hindu women’s right to pray and practice religion. It also ruled that devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have common religious tenets peculiar to themselves other than those which are common to the Hindu religion.

The Hon’ble SC struck down Rule 3(b) of the Rules 1965, which authorized the restriction as ultra vires of both Section 3 and Section 4 of the 1965 Act. Section 3 is a non-obstante provision which clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. Further, Proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. The Hon’ble SC held that the language of both these provisions 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. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and the fundamental right of such women as they are entitled to practice religion under Section 25(1) of the Constitution of India.

The SC (Chadrachud J) further held that ‘a claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality.’

It is a surprise that the only woman in the Constitution Bench, Justice Indu Malhotra, wrote a dissenting judgment. She said the notions of rationality cannot be brought into matters of religion. She added that the shrine and deity are protected under Article 25 of the Constitution and that it was not up to the court to decide which religious practices should be struck down, except in issues of social evil like Sati. She also held that devotees of Lord Ayyappa do not constitute a separate religious denomination.

There is a practice of exclusion of menstruating women from social and religious functions. At times, it takes the egregious form of untouchability. In rural Nepal, religious Hindus believe that menstruating women are unclean and should be banished from the family home – many women have died. This is despite the Nepalese government passing a law and making it illegal. Such notions of purity and pollution, which stigmatise women in what is essentially a biological process, are anathema to human rights.

Such a practice has certainly no place in our constitutional order. When we, the people of India, gave ourselves the Constitution of India, we sought to break the onerous shackles of inequities, injustice, and social hierarchies and entrenched structures that perpetuate discrimination and prejudice. It is indeed shocking that we had to wait 70 years after independence to provide equity to half the population of the country. It is indeed shocking that the state was caught unprepared in upholding the rule of the law and in bringing to book violators of the law.

The Author is Managing Partner of Corporate Law Group. The views are personal.

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