This is an exhaustive and comprehensive research paper on the topic ‘Sabarimala Temple Verdict: Customs or Law? Authored by Anushka Ashok Mhatre, 2nd year BBA LL. B student at the University of Mumbai Law Academy.
Dr. B. R. Ambedkar rightly said, “The issue is not entry, but equality”. The Sabarimala Temple issue is regarding the conflict between women’s rights and customs. The situation revolves around the age-old customs and traditions and the Supreme Court’s verdict which gave supremacy to constitutional morality over these customs. On 28th September 2018, a five-judge bench of the Supreme Court in a 4:1 majority removed the ban and thus allowed women of all ages to enter the temple.This paper discusses the Sabarimala verdict and the arguments put forth by both parties to the case. The verdict declared the ban on entry of women into the temple as discriminatory in nature and violative of Hindu women’s right to pray and practice religion. The paper further examines whether this verdict stands in conflict with the customs which are practiced since time immemorial and throws a light on the need to declare certain practices as unconstitutional which are violative of the fundamental rights of the citizens.
Keywords: discrimination, Sabarimala temple, ban, entry, violation, women, fundamental rights.
Customs and traditions have always been a part and parcel of every religious and cultural sector in India. These customs have existed in society since time immemorial. The ban on entry of women in the Sabarimala temple is another example of such customary practices that have been prevailing for a long time. The debate on the Sabarimala temple issue is a burning topic in recent times. It’s a tussle between constitutional morality and age-old customs. The most famous Sabarimala temple is situated in Kerala and is dedicated to the worship of Lord Ayyappa. The temple restricted menstruating women between the age of 10 and 50 years from entering the temple. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, prohibits women from entering the Sabarimala temple premises. This issue of restriction of women from entering the temple was challenged before the Kerala High Court in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram, and Ors. In 1991. The division bench held that the restrictions have been existing since time immemorial and the prohibition by the Travancore Board does not violate the provisions of the Constitution of India. The Kerala High Court also held that the power to decide on the traditions is only limited for the Chief Priest. The Indian Young Lawyers Association challenged and questioned the ban in the Supreme Court through a PIL. The Supreme Court in the case of Indian Young Lawyers Association v. State of Keralaon 28 September 2018, overturned the restriction on the entry of women and declared it as unconstitutional and discriminatory in a 4:1 majority. It held that women of all age groups are allowed to enter the shrine.
ARGUMENTS AGAINST ENTRY OF WOMEN
The respondents argued that the entry of menstruating women would affect the deity’s celibacy and austerity which is the unique nature of Lord Ayyappa. Article 25(2) of the Constitution confers the right to access public Hindu religious institutions to all classes and sections of the society. This is applicable to only societal reforms and not religious reforms. Citing Article 26(b), the respondents argued that every religious group has the right to manage their own religious affairs. Further, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 restricts women by prohibiting them from entering the Sabarimala temple premises.
ARGUMENTS FAVOURING WOMEN’S ENTRY
The Petitioners argued that the restriction on entry of women into the Sabarimala Temple violates the fundamental rights guaranteed under Articles 14, 15 19, and 25 of the Indian Constitution. The ban on the entry of women is a clear example of gender discrimination. The Petitioners contended that menstruation is not impure, and discrimination based on biological factors violates the right to equality under Article 14 and Article 15 as it discriminates on the basis of ‘sex’. The practice violates Article 25 as it restricts women of their freedom to practice religion. One of the arguments put forth by the petitioners was that the Lord Ayyappa temple was not a separate religious denomination for Article 26 as the religious practices performed in Sabarimala Temple at the time of ‘puja’ are not different from other religious practices performed in other Hindu Temples. They further argued that restrictions on the entry were based on patriarchy and not on religious grounds. The restrictions were imposed on women between the ages of ten and fifty due the ‘impurity’ associated with menstruation. These notions about menstruation impurity are due to traditional beliefs which have been used to ill-treat women, deny their equal rights and subject them to the dictates of a patriarchal order. Everyone is equal in the eyes of God and this practice is against the basic ideology of God. It was further contended that the temple comes within the purview of “other authorities” under Article 12 as it receives annual payment from the Consolidated Fund of India under Article 290A. Due to this, the temple is duty bound to respect the fundamental rights of the citizens. The Temple is a public place and the ban on the entry of menstruating women is thus violative of Article 15(b) (2). It was also argued that exclusion of menstruating women is similar to the exclusion of oppressed classes which stands in violation to Article 17 of the Constitution which abolished the practice untouchability “in any form”. Hinduism is a way of life and its practice cannot be governed only and narrowly by religious priests.
A five-judge Constitutional bench of the Supreme Court constituting of Justice DY Chandrachud, Justice Nariman, Justice Khanwilkar, Justice Mishra, Justice Indu Malhotra, in the majority of 4:1, delivered the judgment allowing women of all ages to enter into the temple. It found the ban as violative of women’s right to practice religion. It also held that the exclusion of women from religious worship, even if it’s found in religious texts, such exclusionary practices are contrary to constitutional morality. The verdict struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Rules 1965 and declared the ban as ultra vires of both Section 3 and Section 4 of the 1965 Act. Section 3 is a non-obstante provision that explicitly lays down that all places of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or tradition to the contrary. Justice Misra, Justice Nariman, and Justice Chandrachud held that women between the ages 10 and 50 did form a “class” of Hindus and the exclusionary practice amounts to ‘discrimination’ on the ground of sex which violates Article 15 of the Constitution. Equality in all matters, including religious matters and right to worship and opportunity, gives true meaning to the liberty of belief, faith, and worship were ascertained by this landmark verdict, Justice Chandrachud held that the respondents failed to establish that exclusion of women from Sabarimala is either an obligatory part of the religion or has been consistently practiced for years. Justice Misra and Justice Khanwilkar stated that the fundamental rights chapter applies to the Temple, as it is governed by a statutory as it gets state funding under Article 290-A of the Constitution. Devotees of Lord Ayyappa do not form separate religious denominations as the ceremonies performed at the temple are not distinct from any other Hindu Temple and any custom or religious practice that violates the dignity of women by imposing a ban on their entry due to biological factors is unconstitutional, said Justice Chandrachud. It was also highlighted in the verdict that the exclusion of women based on menstrual status is a form of untouchability which is prohibited under Article 17 of the Constitution. It is an anathema to constitutional values. Notions of ‘purity and pollution’ which stigmatize individuals have no place in a constitutional order.
Justice Indu Malhotra was the only judge who gave a dissenting opinion on this issue. She opined that Article 25 guarantees to every individual the right to freely profess, practice, and propagate their faith, in accordance with the beliefs of their religion and the exclusionary practice was in accordance with the beliefs of the ‘Ayappan’ community, therefore the ban on the entry of women into the temple is not violative of Article 25. The Ayappan community is a separate religious denomination and is protected under Article 26 to manage its own religious affairs. She was also of the opinion that courts do not have the power to intervene in religious personal matters. She ruled that Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act but just an exception for the benefit of the religious denomination.
The bench holding the majority opinion considered the exclusion of women into the Sabarimala Temple as discriminatory under Article 25 which equally grants all the people irrespective of their sex, the right to freely practice religion. It held that the restrictions on women are not an essential part of the Hindu religion and therefore, the courts can intervene in such a matter. The verdict establishes the principle that individual freedom prevails over customs and traditions, even in religious matters.
CUSTOM OR LAW?
The Sabarimala temple is devoted to the worship of Lord Ayyappa, the God of growth. It is believed that the temple deity, Lord Ayyappa is a Naisthik Brahmachari, i.e. a celibate and thus is an epitome of purity. The ban was imposed on the entry of menstruating women into the temple believing that the entry of such women would deviate the celibacy and austerity observed by the deity. Based on these beliefs, Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 was formed which prohibits women from entering into the Sabarimala Temple. This rule was struck down and declared unconstitutional by the Sabarimala verdict. Change is the rule of nature. With time, a change in the social order is necessary. Sometimes blind faith and unquestioned following of certain customs encourage vices to grow into society. Justice Dipak Mishra held that it is not faith and religion which allows any discrimination, but religious practices and patriarchal prejudices repudiate the very principle of non-discrimination and equality. It was also held in the case of Durgah Committee, Ajmer v. Syed Hussain Ali that “religious practices and affairs are not sacrosanct as there may be many ill-practices like superstitions which may, in due course of time, become mere addition to the basic precepts of that religion”. The Constitution confers a fundamental duty upon every citizen to imbibe the scientific temper, humanism, and spirit of inquiry and reform. Sometimes, following a few old customs people tend to ignore the flaws in those customs. The Sabarimala Temple case is one such, where menstruating women between 10 to 50 years of age are not allowed to offer prayer to Lord Ayyappa, the deity of the temple. Biological factors can never be a reasonable ground for disallowing women from entering into the shrine. Justice Chandrachud held in this verdict that “The test instead of considering whether the practice is essential or not, it should consider whether the practice is constitutional or not”. He further says that, “The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender. The dualism that exists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion needs to be abandoned.”
Dr. Ambedkar once said, “We are having this constitutional liberty for reforming our social system, which is full of inequality, discrimination, and other things which conflict with our fundamental rights”. This ban was certainly violating the fundamental rights of women by disallowing women of a particular age group from entering into the temple without any reasonable ground. This is not the only issue of customs conflicting with rights. Time and again, the Indian Judiciary has played a significant role distinguishing between what is or is not essential to religion; and what practices are mere myths and beliefs formulated in a religious shade. In the case of Mohd Hanif Quareshi v. State of Bihar, the Supreme Court held that there was no evidence to show that sacrifice of cows on Bakrid was essential practice for the Qureshi Muslims. In Shayara Bano v. Union of India, the Court declared the practice of triple talaq as illegal paved a way for gender equality and strengthened the fundamental and democratic rights of Muslim Women. Thus, it can be rightly concluded that the judiciary has given precedence to laws and not customs that are unjust and discriminating for society today. Customs which are in accordance with law are always protected under the judiciary. The Supreme Court has not adopted an extreme approach by imposing a ban on the entire practice but has adopted a careful approach to take down only that part of the custom which acted as a hindrance in delivering justice. Everyone has the right to worship God and practice religion. The Judiciary has indeed thrown an example that certain customs should be eliminated that encourage gender discrimination. The Supreme Court has thus proved that the basic right of equality and morality is above any other principle and will be upheld always and forever above all.
The most awaited judgment opened the door of the Sabarimala temple to everyone. This judgment stands as a perfect example of equality. In this era of the 21st century where women are no less than men, Indian society is somewhere still tied to conservative ideas that are discriminatory against women. India is known for its rich heritage, diversity, and traditions. But certain customs hamper the basic rights of citizens. The Constitution guarantees the right to equality and religion to every citizen. When the Constitution guarantees equal rights to everyone, then such a ban on entry to a holy place stands in violation of the fundamental rights. The Supreme Court through its landmark verdict has upheld the rights of women and ensured that they do not get hampered due to age-old customs. The judgment not only permits entry of women into the temple but also paves a way to remove the menstruation taboos. This judgment overrides the discriminatory religious customs and once again proves the supremacy of the Constitution. Change in age-old customs comes with many challenges. The positive impact this verdict will be realized and credited will take time. There’s still a long way ahead for upholding the dignity of women. It’s high time to evolve a judicial policy to do substantial and complete justice. The Indian Judiciary should review and reconsider certain practices prevalent in the society which violate the basic rights of the citizens and subject them to discrimination. This verdict will certainly prove as an inspiration in the near future.
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 (2019) 11 SCC 1, 2018 (8) SCJ 609.
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 (2017) 9 SCC 1.