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TOPIC 1: SABRIMALA VERDICT: TRADITION AND RELIGION

VS. GENDER EQUALITY

THE CONTEXT: The Supreme Court, with a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu

Places of Public Worship (Authorisation of Entry) Rules, 1965, paving way for entry of women

between the ages 10 and 50 into the Sabarimala temple. However, the community of devotees and

the Kerala Government have been vocal against the verdict and have used physical space to stop the

women of menstruating age from entering the temple.

WHY WOMEN OF AGE 10-50 ARE NOT ALLOWED: Lord Ayyapam, the presiding deity of

Sabrimala temple was considered as celibate. This invoked the tradition that women of menstrual

age will not visit Lord Ayyapam and thus the temple so as to not impact the celibacy vows of the

Lord.

TIMELINE:

THE BACKGROUND OF THE TEMPLE

• The worship of Sastha forms part of the very ancient history of south India. At Sabarimala,

the deity is worshiped as Ayyappan and as Dharmashasta. The shrine of Sabarimala is an

ancient temple. ... In the 12th century, a prince of Pandalam Dynasty, called Manikandan,

rediscovered the original path to reach Sabarimala.

• In 1910 the idol of Lord Ayyappa temple was installed and Renovated in 1950.

• Before the Kerala High Court's 1991 verdict, women visited the temple even though in small

numbers. Women pilgrims below the age of 50 would visit the temple to conduct the first

rice-feeding ceremony of their children (Chorroonu) in the temple premises. On May 13,

1940, even the Maharani of Tranvancore had visited the temple

• In 1991, Justice K Paripoornan and Justice K Balanarayana Marar of the Kerala High Court in

their ruling against the Travancore Devaswom Board, banned entry of women between ages

above the age of 10 and below the age of 50 from offering worship at Sabarimala Shrine

during any period of the year stating that such restriction was in accordance with the usage

prevalent from time immemorial.

• Article 290A: A sum of forty-six lakh and fifty thousand should be charged on consolidated

fund of the state to be paid to the Travancore Devaswom Board, the management of the

temple.

https://en.wikipedia.org/wiki/Kerala_High_Courthttps://en.wikipedia.org/wiki/Annaprashanahttps://en.wikipedia.org/wiki/Maharanihttps://en.wikipedia.org/w/index.php?title=K_Paripoornan&action=edit&redlink=1https://en.wikipedia.org/w/index.php?title=K_Balanarayana_Marar&action=edit&redlink=1https://en.wikipedia.org/wiki/Kerala_High_Courthttps://en.wikipedia.org/wiki/Travancore_Devaswom_Boardhttps://en.wikipedia.org/wiki/Travancore_Devaswom_Board

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CONSTITUTIONAL QUESTIONS:

1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can claim in that regard under the umbrella of the right to manage its own affairs in the matter of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of

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the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

MORAL QUESTIONS:

How can menstruation be linked to purity?

SUPREME COURT VERDICT ON SABRIMALA:Putting an end to a centuries-old tradition, the Supreme Court ruled that women, irrespective of age, can enter Kerala’s Sabarimala temple. The CJI said there is no concept of “private mandirs (temples).” Once a temple is opened, everybody can go and offer prayers. Nobody can be excluded. The Chief Justice noted that the Sabarimala temple drew funds from the Consolidated Fund, had people coming from all over the world and thus, qualified to be called a “public place of worship.”

DISSENT IN THE SUPREME COURT: Justice Malhotra asserted that it is not for courts to decide what constitutes an “essential religious practice”, and that interfering with such practices, which are considered to be essential or integral to the temple, would conflict with the rights of the devotees guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘NaishtikBrahmachari’.

VIEWS OF CONSTITUENT ASSEMBLY ON RELIGION:Dr B.R Ambedkar argued for a minimalist definition of Religion that needs to be kept out of the state. Religious conceptions in India are so broad and they cover every aspect of life from birth to death. If definition of religion is not confined, it will restrict the functioning of constitution and it brings society to a standstill.

SUPREME COURT VIEWS ON RIGHT TO RELIGION AND EQUALITY:

CASE SC VERDICT

S.R. Bommai Case 1994

Secularism is basic feature of Indian Constitution.

Dara Singh vs Union of India, 2011

There is no justification for state interference in someone's religious belief by any means.

AcyaryaJagadishwaranandaAvadhuta vs. Commissioner of Police, Calcutta, 1984 case

Supreme Court evolved the basic feature doctrine and separated the essentials of religion and non-essentials. It is left to the judiciary to decide what constitutes essential and non-essential feature of religion.

CHALLENGES OF LEGAL SECULARISM:Cases like Sabrimala Temple Access for women, Appointment of priests as per Agamas, exemption to minority educational institutes under RTE, Jallikattu and Beef ban cases have brought the faultlines of law in open. The debate between

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Freedom of Religion and Freedom of Equality, Justice and liberty on the other has come out in open. They expose the problems of legal secularism in India. Three faultlines have emerged.

Whether the state is asymmetric authority over Religion and cultural communities?

This is to the question that whether state uses its authority asymmetrically on

Hindus and leave other communities free to decide. This argument is not

correct as can be seen in the Danial Latifi judgment. State institutions have been

the mechanisms through which Hindus settled their disputes over reforms. Thus

overtime Courts started enjoying a hegemonic authority on reforms in Hinduism

which was used by state both to protect Hinduism and also to interfere with it.

This question also brings to the fore that whether institutions like Parliament

and the courts can claim same representative status in relation to all

communities in India. This has led to a fear of Majoritarianism.

Contradiction between Freedom of Religion and concept of liberty, equality and justice.

1. This has been restricted by the state through the essential practices test.

However, instead of just reforming, court has ended up acting as priest by

this test. Still, what is religious and what is secular is a distinction internal

to the demands of exercise of sovereign power. The contradiction between

existing religion and justice is sharp. This is contrary to the vocabulary of

secularism; it is a conflict between competing conceptions of justice.

2. Till all communities do not accept an arc of moral and social demands

bending towards individual freedom, non-discrimination and equality,

especially on gender equality is hard to solve.

Secular Language

Due to lack of any secular language or overriding principles, debate of morality

is transformed into debate on minority versus majority. Jallikattu case shows

that even basic ideas like cruelty to animals can be displayed with different

meanings. Thus we need far reaching transformation of our practices with

questions like cruelty to animals, freedom of association, gender justice, non-

discrimination in civil society all forming the basis of a secular morality.

WHAT CONSTITUTE ESSENTIAL AND NON-ESSENTIAL PRACTICE OF RELIGION: This test was coined by the Supreme Court way back in the year 1954 in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindarThirthaSwamiyar of Shri Shirur Mutt. The Court, in this case, mentioned for the first time that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. This doctrine gives discretion to judges to decide each invocation of Article 25 on its own merits, depending on which religion the petitioner belongs to. As explained by Supreme Court, "essential practices are those that are accepted by the followers as a method of achieving their spiritual upliftment and the fact that such a practice was recently introduced cannot make it any less a matter of religion”. This vague statement has led to subjugation of religion to the judicial verdicts time and again.

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DEBATE ON GENDER EQUALITY AND RIGHT TO RELIGION

ARTICLE 25(1) SHOULD BE UPHELD OVER GENDER EQUALITY:

GENDER EQUALITY SHOULD TRIUMPH OVER RIGHT TO RELIGION:

1.Tradition: Religion emerges from traditions and in a country like India, it forms the essence of life for a large section of society. If all aspects of religion are judged on the basis of morality and the values of 21st century then most of the religions will falter and might get abolished. Thus, judging them on the basis of constitutional morality by the government will create chaos in the society.

1.History: Change is the only thing that is constant. The statement holds true for religion as well, and thus, government need to exert the required force through laws and regulations to take the religion out of its inertia and thus to reorient it in the correct direction. This has always been the case as seen in the Din-i-ilahi of Akbar or Dhamma of Ashoka.

2.Values: Democracy upholds multiple value streams and gender equality is just one of the many values. Other core values of our democracy and Indic civilisation are respect for diversity among the enormous range of communities cohabiting in India with substantial differences and commonalities in matters of faith, cultural practices, value systems, family structure, dress codes, food habits and ways of relating to the world as well as the divine. Thus, other values should not be subjugated to the one value of gender equality.

2. Gender Equality and Human Dignity : Considering a person as impure due to menstruation or profession is the basic prejudice that has divided Indian society since ages in the name of gender or caste. Thus, in a civilised society such traditions need to be stuck down by the government as their survival is a threat to the civilised society and human dignity which is enshrined in Article 21 of the Indian constitution.

3.Rules of Sites: Temples are not tourist spots and are guided by the specific traditions and beliefs. These beliefs and traditions need to be respected if one aim to visit the temples so as to uphold the sanctity of the sites. Without upholding the traditions, temples will turn into tourist spots and thus disrespect the Right to Religion of the community.

3. Privacy: The basis of stopping women on the basis of menstruation is a clear attack on their right to Privacy. Menstruating or not is a part of women’s privacy and it will be wrong to force her to declare it. This is against the verdict of Supreme Court in Puttaswamy case.

4. Feminism: Temples such as Attukal Devi temple are also largely dominated by women. Feminism means equality of genders and thus if women can have beliefs which restrict the entry of men than the opposite too need to be allowed.

4. Untouchability: Untouchability is a practice based on social humiliation, ideas of pollution and the belief that ascriptive, immutable characteristics are defiling. While Indian Constitution abolishes Untouchability by Article 17 of the Constitution. Considering women of menstruating age as defiling is upholding untouchability and thus goes against Constitutional Morality.

5. Rights of God: If God and the temples are considered as individuals capable of being sued, then it is also important to recognise the fundamental rights of God and thus the temples. If we uphold their fundamental rights than we need to uphold their right to privacy and their freedom to meet or not meet someone.

5. Right to Religion: Supreme Court recognises the right to religion of all the communities and thus never encroaches on the essential religious practices. However, non-essential religious practices need to give way to Right to Equality for upholding Constitutional Morality.

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Indian Secularism: It is a positive concept in India contrary to West where State and Religion are completely separated. In India, State will give support to all religions without being biased towards any one of them. Even Article 25 starts with the wording,“Subject to public order, morality and health and to the other provisions of this Part” and thus Right to religion is already subjected to the restriction of not being in contravention to other fundamental rights which contain right to equality under Article 14.

IS THE ISSUE JUST OF TEMPLE ENTRY OR SERVE THE GREATER ROLE OF PROTEST AGAINST GENDER DISCRIMINATION IN RELIGIONS: Sabrimala should not be seen as a stand alone protest but should be seen as part of the greater protest against gender discrimination in all religions. It is not just about women’s right to enter a temple. Muslim women are questioning discriminatory religious laws. Elsewhere, Christians are challenging the Church’s rules on abortion and contraception. There is also a petition demanding that women be allowed into the Haji Ali dargah. In many places of worship, there are areas that women cannot access for different reasons, prime among them being ‘purity’. These are age-old practices and only now are women coming together to challenge it, through on-ground activism, social media campaigns and petitions. Women entering temple or not should be decided by women alone in any rational society and not by any religious diktat or statute.

CONSTITUTIONAL MORALITY SOCIAL MORALITY

• CJI Dipak Misra: a woman is not inferior to a man and patriarchy cannot be permitted to trump over faith

• Justice Chandrachud: to treat women as children of a lesser god is to blink at the Constitution itself.

• The exclusionary practice given the backing of a legislation is not an integral part of religion.

• Morality for the purpose of 25 and 26 is ephemeral in nature. Fundamental Rights under PART III of Constitution is essential for transformation of a society. Dignity of individual is an unwavering nature of fundamental rights.

• Justice Indu Malhotra, the only woman and dissenting judge in the 4:1 verdict said that issues of deep religious sentiments should not see the Court’s interference. Notion of rationality should not be seen in matters of religion.

• It is an issue of a local temple tradition and faith to which sentiments of millions of devotees, including women, are attached. These sentiments of the devotees cannot be ignored while considering the judgment.

• What is essential and non-essential should not be determined by the law rather by the social morality.

• Constitutional morality means adherence to the core principles of the constitutional democracy. The scope of constitutional morality is not limited only to following the constitutional provisions literally but it is so broad that it includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied.

• Social morality refers to moral standards based on social beliefs, traditions and societal norms which are also essential for any society.

• But it may differ society to society and some practices may not be tuned to liberal values or law of the land and hence, there can be conflicts in society.

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WAY FORWARD:

1. Morality is a dynamic term and thus need to change with change in the value structure of the society. It is high time that society accepts the changes and move towards making religion inclusive towards the marginalised sections of the society.

2. The notion of Purity and pollution need to be discarded in today’s age and any form of untouchability need to be discouraged by the society as well as by the government.

3. Reforms need to emerge from the society and for these to emerge, it is pertinent that proper education and awareness campaigns are conducted by the government, NGOs and other stakeholders so as to eradicate the inertia plaguing Indian society.

4. Proper implementation of laws and Supreme Court verdicts need to be enforced so as to establish “rule of law” all across the territory of India. Failing this will lead to legitimacy crisis for the government.

5. Temple Boards or Waqf boards need to be consulted and any guideline need to be made in conformance with these boards but always within the aspirations of the Constitution of India. This democratic process will reduce the protests from the society.

CONCLUSION: Lord Ayappa is not a property of any organisation and It is very shameful that on the one hand, women are regarded as the symbol of goddess and on the other hand, they can not worship because of his biological identity. And Prohibition of women is a form of untouchability. The sole basic of restriction is menstruation of women. To keep away menstruation women is a form of untouchability which is a crime under the protection of Civil rights Act 1955. The age of tradition doesn’t justify its correctness as if that might be the case then Sati, Child Marriage, Widow re-marriage would all have been illegal in India. Tradition needs to change but will create disharmony in the society.

ILLEGAL