Sabarimala Verdict: Fight for Women's Entry

Sabarimala Temple Verdict: Fight for Women's Entry

Sabarimala Temple located in the Periyar Tiger Reserve, Kerela amidst 18 hills is an important pilgrimage site for the Lord Ayyappa’s devotees and is considered the second largest seasonal pilgrimage in the world after Mecca in Saudi Arabia. Before entering the temple a person a required to observe a ‘Vratham’ (penance) of 41 days. In these 41 days, penance has to be observed by wearing a special chain called mala which usually consist of Tulasi or Rudraksha. In the course of 41 days of Vratham, the devote is supposed to have a lacto-vegetarian diet, abstain from marriage and sexual relations, not consume alcohol in any form, and allow the growth of hair and nails without cutting them. Devotees should serve the society and others as much as possible and realize that God is everywhere. 

Why Sabarimala temple is famous?

Before going into the controversy we should understand why this Sabarimala temple is so popular and peculiar in nature. This shrine is different from others because Lord Ayyappa here had taken a vow of Naishtika Brahmacharya: The eternal vow to celibacy. Based upon this celibacy no women between the age of 10 to 50 years is allowed in the temple as it would break the vow taken by Lord Ayyappa as said by the Thanthri of the Temple. Hence women were not allowed in the temple for centuries on this ground. This issue was first of all raised in the case of S. Mahendran v. Secretary, Devaswom Board (1991) in which a bench of judge comprising of Justice K Paripoornan and Justice K Balanarayana Marar of the Kerala High Court banned the entry of women of age group 10-50 years on the ground that not allowing this age group of women was very much prevalent in the past and that it was according to the traditional practices. Additionally, the High Court relied on the Devaprasnam conducted to take the will of Lord Ayyappa in which it came out that women of this age group should not be allowed in the Sabarimala temple. 

In 2006, PIL was filed by the Indian Young Lawyer’s Association in which they challenged the tradition to not allow women as on which the Supreme Court gave the judgment today on 28th Sept. 2018 overruling the 1991 judgment by a 4:1 ratio.

Sabarimala Verdict: Argument against the ban

The Indian Young Lawyers Association represented by Ravi Prakash Gupta contended that the bar on the entry of the women is not an essence of their religious practice and it does not amount to any ritual or a ceremony associated with Hindu religion. Also argued that devotees of Sabarimala do not constitute any religious denomination as it is managed by Travancore Devaswom Board from the funds received under Art. 290A, hence it cannot violate Art. 14 and 15 of the Constitution. He also referred to the Shiroor Mutt case to show the public nature of Sabarimala Temple. He submitted that the ban was rather practical than based on tradition as the women were reluctant to visit Sabarimala due to the physical hardship of climbing the hill and other risk factors. Further, he added that the oath of 41-day celibacy taken by Ayyappa devotees did not constitute an essential practice of Hinduism. 

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Also, Indira Jaising appearing for “Happy to Bleed” compared and equated the ban with untouchability under Art. 17 of the Constitution. She said the prohibition on entry is a form of untouchability as it discriminates women on the basis of their menstruation. Additionally, she argued that Art. 25 guaranteed the women right to enter the Sabarimala temple. As their entry is not against health, morality or public order. On the last day of arguments, she mentioned that no allowing women on the ground of celibacy are presuming/stereotyping women as seductresses and the deity cannot claim the protection of life and personal liberty under Art. 21 and freedom of conscience under Art. 25 as his right very limited. 

Sabarimala Verdict: Arguments in favour of the ban

People for Dharma and Chetana had approached the court in favour of the ban. J Sai Deepak who was also an intervener in the case represented both the bodies here. The arguments made by Sai Deepak made him famously known as “God’s own lawyer”. He argued for Lord Ayyappa’s individual rights. One argument raised by him was that Lord Ayyappa under Art. 21 has the right to observe the celibate nature and the no one can intervene that. As observed in the Privacy Judgment that the individuals have the right of sexual orientation and hence Lord Ayyappa also have that. Lord Ayyappa’s individual rights should be protected under Art. 25 of the Constitution. He argued the rule is not discriminatory for it is neither based on misogyny nor menstrual impurity, rather Ayyappa’s celibacy here is a fundamental character of the temple. He also quoted that “Every Exclusion is not discrimination.”

Also, Abhishek Manu Singhvi representing Travancore Devaswom Board continued the same arguments and deliberated upon the importance of 41-day penance. 

SUPREME COURT JUDGMENT

Today on 28th Sept, 2018 a five bench constitutional bench comprising of Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar , Justice D Y Chandrachud and Justice Indu Malhotra delivered the judgment in which four judges, Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar, and Justice D Y Chandrachud delivered the majority judgment while Justice Indu Malhotra delivered the dissenting judgment. The majority ruled against the judgment while minority judgment by Justice Indu Malhotra dissented against allowing women entry. 

Justice Dipak Misra and Justice A M Khanwilkar

CJI delivered the judgment for him and on behalf of Justice A M Khanwilkar. CJI read out a portion from his judgment,

“Women is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith Religion is basically a way of life however certain practices create incongruities”.

CJI deliberated that devotees of Sabarimala Temple do not constitute a separate religious denomination hence their practice of not allowing women is not inherent. Also Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965, which prohibited entry of women in Sabarimala, was also struck down as unconstitutional. He observed that if someone has put a restriction on basis of some rationality and sanctity then he has to justify it first not the person on whom it is imposed. On the question of Art. 17 (Untouchability) he said it will be dealt with separately as there is already a case pending on that issue. Also, he observed that right to regulate cannot be extended to such a limit as to discriminate on the grounds of biological attributes of the women belonging to any age group. 

Justice R F Nariman 

In his separate and concurring judgment Justice Nariman held:

“Anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”.

He also held that devotees of Ayyappa do not constitute a separate religious denomination. Also, he pointed out that the age gap decided does not make sense as many women have a menopause before 50 years of age. Also referring to the 1991 judgment in which it was argued that women were allowed on some occasions and also people were allowed without the condition of 41-day penance which raises a question of an inconsistency of the custom observed. And he raises the question also what happens during this period to Lord Ayyappa’s celibacy. He also pointed out the difference in the date of penance as two different dates were mentioned 41 days and 55 days. 

Justice D Y Chandrachud

Justice Chandrachud said the women from the beginning of their lives are subject to social conditioning be it religious or societal. He criticized the practice of not allowing women on the ground that it will break the vow of Lord Ayyappa, this practice treats women as stereotypical seductresses and shift the burden of men’s celibacy on the women. He clearly said that not allowing women is in contravention of touchstones of equality and liberty and hence unconstitutional. He observed that since the time Constitution came into picture any custom in contravention of the liberty and equality principle will be unconstitutional. The judge noted that the social dominance assumed by men could not justify this restriction on women so far as their communication with God by means of pilgrimage is concerned.

Justice Indu Malhotra

The only dissenting judge in this judgment. She said that the Court should not interfere with the religious practices and traditions unless and until a person from that very community is the aggrieved one. Also observed that the issue of rationality should not be observed in the religious matter and the shrine of Sabarimala is protected by Art. 25 of the Constitution.