Updated: May 14, 2020
It is being time immemorial that rights of women are violated which directly violates humanity. The constitution of India confers certain rights for providing equality but in actual they are not in much operation. The constitution (42nd Amendment) Act,1976 has implicitly inserted to secure all the Indian citizens “liberty of thoughts, belief, faith, worship” in the Preamble by inserting word “secular” which confers right to freedom of religion. Religion is a system of belief or a matter of personal faith and every person has right not only to entertain such religious belief but also exhibit his belief by such overt act which are sanctioned by his religion and Law plays an important role in protecting religion by providing several freedoms mentioned in Constitution .These freedoms or rights are being conferred to all irrespective of gender i.e. to both men and women but there are some areas in India which are lacking behind in providing in such equal religious rights.
The Sabarimala Temple practice such religious inequality which violated the rights of Hindu women under Article 14, 15, and 17 of the Constitution by restricting the entry of women aged between 10-50 years to the temple premises which is declared unconstitutional by the Supreme Court. Some cited this restriction as “old age tradition”.
This discrimination was as recent as December 1892 when Swami Vivekananda was shocked by inhuman caste based custom in Kerala. This was the immemorial antiquity from the low point of social and spiritual degradation to the most progressive society where women still faces discrimination. Kerala being the most literate state in India is itself lacking behind with regards to women rights.
LEGAL BACKGROUND OF SABARIMALA ISSUE
There is a long history where petitions have been filed in Supreme Court against the restriction on entry of women in Kerala, and it is since 1991 for the first time in S. Mahendran the secretary Travancore the Kerala High Court upheld the ban on entry of menstruating women in the Sabarimala, and this decision of High Court had not been challenged for 15 years.
In 2006 the Kannada actress Jayamal claimed that she had entered the temple premises in touched the idol of lord Ayyappa. Her claims lead to the arousal of anger. In 2006 only a PIL has been filed by the India Young Lawyers Association against the Kerala High Court order by saying that the restriction on women violates their constitutional right.
On 7 march 2008 a division bench of Justice S.B Sinha and V.S. Sirpurkar referred the case to the three-judge Bench. No further step had been taken for 8 years in this case and the same ritual is being carried upon in the temple. After 8 years in 2006 the bench of Justice Dipak Mishra V. Gopala Gowda and Kurian Joseph heard the petition again.
On 25th April 2016, representing the Devaswom Senior advocate K.K. Venugopal said,“there is a reasonable classification by which certain class of women are excluded”. In such reference the Supreme Court enquired whether the defence was in respect of purity of women. On 13th October 2017, the Supreme Court referred the case to the Constitutional Bench.
FREEDOM OF RELIGION GRANTED BY LAW
Freedom of religion means the right to practice one’s own religion, not to undermine fundamental right. In the present issue the practice has undermined the right of women under Art. 14, 15, 19(1), 21, 25(1). Art. 25(1) says that “subject to public order, morality and health and to the other provision of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion” the freedom of conscience is inner freedom of the citizen to mould his own relation with god in whatever manner he like and to declare freely and openly such conscience means to profess and the person has the right to practice his belief by practical expression as in such case it can be only done only when the entry of the women will be allowed by society also.
To practice religion in article 25 means to perform the prescribed religious duty, rites and rituals, and to exhibit his religious belief and to propagate such religion means to spread and publicise his religious views. The protection of Article 25 and 26 is thus not limited to matter of doctrine of belief it extend also to acts done in pursuance of ”religion” and, therefore, contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral part of religion.
What constitutes an essential part of religions or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.
CONFLICT BETWEEN LAW AND RELIGION – OVER WOMEN’S ENTRY IN SABARIMALA
When religion comes in conflict with Law society becomes complicated as ever since the supreme court ruling the entry of women of all ages into Sabarimala temple has been already delivered on 28th September 2018 but still society in not ready to accept. Such custom leads to failure of fulfilling constitutional requirements as prescribed under article 15 (1) of constitution of India to practice and profess once religion as women freedom of worship is violated. Sometime faith and religion results as a discrimination as religious practices can lead to gender inequality and violation of rights. Justice Deepak Mishra observed that devotees at Sabarimala temple had not undergone any constitutional test so as to get possession of separate religious identity. He said that, people are Hindus who are the devotees of Lord Ayyappa. He further held that Article 26(b) which talks about denominational rights to manage its own internal affairs is subject to state’s social reform mandate under Article 25(2)(b) which says that state can make their own laws to reform Hindu denomination.
As Article 25(b) by allowing the state to form any law which also includes to open a public Hindu institution to all “classes and sections” of Hindus. In this regard Justice Dipak Mishra by adopting literal interpretation of words “classes and sections” to include women also.Even the Supreme Court has directed to ensure the entry of women devotees between the age group of 10 to 50 years to the Sabarimala temple, as it cannot be the essential practice based on religion the society has denied to accept such direction on the basis of customs and usages.
The rule 3(b of the Kerala Hindu place of worship(authorization of entry rule ), 1965 clearly stated that “women at such time during which they are not by custom and usages allowed to enter a place of worship” and this rule becomes the authority of excluding the entry of women age group between 10 to 50.and this rule earlier was also upheld by Kerala high court in 1993 by the division bench and at that time the Kerala high court also said that the only chief priest was empowered to decide on traditions. But this rule was struck down in the case Young Lawyer Association & Ors. Vs The State Of Kerala & Ors. As it violates the constitutional rights and Ultra vires to Section 3 and 4 of its Parent Act. Section 3 and 4 aims at to reform public Hindu places so that they can be accessible to all sections of Hindus.
RESTICTION ON ENTRY?
In reality there was no restriction on women’s entry earlier until the Kerala High Court upheld in 1991the restriction of women aged between 10 to 50 into the temple. One point of view was that the restriction was in accordance with the usages which is “time immemorial” as its beginning cannot be easily be determined. In question of fact about the entry there was a huge controversy about the reason of restriction so in this regard the court says “the women would not be able to do penance for 41 days due to menstruation”. The ban was also on the fact that lord Ayyappa, a celibate, would not approve of young women flocking to Sabarimala. While it is true that women were abstain for entering the temple due to menstruation factor but it is also equally true that most of the male pilgrimage today are least aware about the tradition of obtaining the penance for 41 days and many hardly observe the restriction on meat, alcohol and sex.
TRADITIONAL OBSERVANCE IS BINDING ON WOMEN ALONE?
This is the issue because of which women are facing discrimination and are not treated equally to men which leads to the violation of their Constitutional right provided under article 14, 15(1).
SOCIETAL DISTURBANCE AFTER SUPREME COURT JUDGEMENT
The supreme court in its verdict on September 28,2018 has allowed to open the gate of Lord Ayyappa temple at Sabarimala for all the women of all ages. It is a long time the women are not allowed to enter the shrine of Sabarimala on the bases of biological ground of menstruation but when the entry was tried it created huge societal disturbance. When two young women entered the Sabarimala Ayyappa temple in Kerala under police cover in the early hours of Wednesday, triggering anti-government protest across the state. The women falling in 40s age i.e. Bindu from Kozhikode and Kankadurga from Malappuram has step forwarded towards the hills and reach there around at 1:30 a.m. at Pampa from where they were escorted to the temple by plain clothes policemen. After Supreme Court verdict of September 28, this was the first step taken by the women of 10-50 age group.
Protestors arroused with anger, blocked roads, threw stones and clashed with the police which leads to critical situation at many places. Due to this entry at anger of protestors the Sabarimala Karma Samithi has called for state wide dawn-to-dusk hartal.
When the Kerala Chief Minister Pinarayi Vigayan confirmed the entry of two women turned into another invasive situation as the chief priest of Sabarimla temple, Kandarar Rajeevararu, closed the sanctum sanctorum at 10:35 a.m. he did this to perform the ‘purification’ rites when he comes to know about the confirmation of entry of two young women. This purification rite continued to long hours before its reopening.
The congress-led united Democratic front and BJP has come out on the allegation on comment which has accused “masterminding” the plan. The government was alleged of hurting the religious sentiments of Ayyappa devotees and it was said that the government was behind the “violation of temple traditions”. The BJP has announced the support of dawn-to-dusk strike, on the other hand, the Kerala Pradesh Congress committee had decided to observe a ‘Black day’.
The conflict between religion and law with respect to Sabarimala temple should not disrespect the women’s dignity and this conflict raised several questions which are debatable. After a long time taken by the case in the hand of supreme court the practice declared as unconstitutional. Supreme Court says that the restriction is not an essential part of religion as there are many other gods and goddesses residing in their temple where the rule is not applicable and even there is no ban in praying them. The essential part of religion is to allow the entry of women of all ages as devotees because it does not constitute sufficient to reason as there is nothing like impurity of menstruating women. Article 51A (e) also aims at “to renounce practices derogatory to the dignity of the women”which means that the prohibition of entry of women solely on the basis of biological factors.
I'm Chitrangda Sharma student of B.A.,LL.B (IV year) from Banasthali Vidyapith, Rajasthan.