Analytical Study Of Sabrimala And Other Similar Cases

1. INTRODUCTION

On September 28th, 2018, a five-judge constitutional bench with a 4:1 majority ruled that the prohibition on women entering the Sabarimala Temple is unconstitutional.

The Sabarimala temple in Kerala, India, has been at the center of a legal and social debate over womens access to the temple. The main controversy surrounding the shrine is the entry of women of menstruating age because Lord Ayappa, the temples deity, is believed to be celibate, and the restriction aims to maintain his Brahmacharya, or celibacy.

On September 28, 2018, the Supreme Court of India issued a landmark decision allowing women to enter the Sabarimala Temple. This was evident in the case of Indian Young Lawyers Association vs. State Of Kerala ((2019) 11 SCC 1; 2018 (8) SCJ 609), presided over by CJI Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud, Justice Indu Malhotra, and Justice A M Khanwilkar.

Sabarimala shrine is a Hindu temple dedicated to Ayyappan in Kerala. Sabarimala is located in the Periyar Tiger Reserve in Keralas Pathanamthitta district. The temple is one of Keralas most well-known. Women of menstruating age, on the other hand, were barred from entering the Sabarimala shrine. Bindu and Kanaka Durga, both in their early 40s, attempted to visit the hilltop shrine at 3:45 a.m. but were unable to do so due to threats of physical harm.

2. FACTS

The Sabarimala Temple, considered Lord Ayyappas residence, is located in the Periyar Tiger Reserve of Keralas Western Ghat mountain ranges in the Pathanamthitta District. The temple is well-known for its unusual religious practicesdevotees perform a 41-day penance before visiting the shrine, foregoing worldly pleasures. Lord Ayyappa is regarded as a celibate divinity by devotees. Women in their menstruating years (between the ages of 10 and 50) were traditionally barred from attending the temple to protect chastity.

According to Article 25, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and promote religion. [1].The exclusion of female worshippers is a violation of such rights.

The exclusion of women was first challenged in the Kerala High Court. The Kerala High Court ruled in 1991 in S. Mahendran v The Secretary[2] Travancore that the exclusion was constitutional and reasonable because it was a long-standing practice. The practice did not violate female devotees rights to equality or religious freedom.

In 2006, the Indian Young Lawyers Association filed a petition with the Supreme Court challenging the Sabarimala Temples prohibition on women entering the temple grounds. The custom, according to the Association, violates the Right to Equality under Article 14 because it is derogatory to the dignity of women.

3. ARGUMENTS OF PETITIONERS

It was argued that the exclusionary or customary practice codified in Rule 3(b) of the Rules of 1965, as well as the notification issued by the statutory body, do not meet the requirements of Articles 14,15, and 21. Because the classification lacks a constitutional object, this customary practice violates article 14

It was also argued that such customary practice violates an individuals right to worship or practice any religion. Petitioner contended that the Act of 1965 was passed to achieve the goals enshrined in Art 25(2)(b) as a measure of social reform, and that the Act of 1965 contains no such provision prohibiting a woman of a certain age from entering a public temple. However, rule 3(b) of the 1965 Rules is in violation of the 1965 Act in that it prohibits entry into the public temple based on gender.

The petitioner contended that exclusionary practice results in discrimination against women as a class, because women between the ages of 10 and 50 are barred from entering. Petitioner also relied on the impact test outlined in Bennett Coleman and Co. v. Union of India Ors.And stated that this discrimination is solely based on sex because the biological feature of menstruation is derived from the characteristics of a specific sex.

It was also argued that such sex-based practice violates Art 15(1) and, because the Sabarimala temple is a public place, it also violates Art 15(2)(b)

The petitioner contended that because there is no common faith or distinct name among followers of Lord Ayyappa, they do not constitute a religious denomination under Article 26 of the Indian Constitution. A minor difference in rituals and ceremonies does not constitute a distinct religious denomination.

Petitioner also claimed that such practice violates Article 21 of the Constitution because it stigmatizes women by polluting them.

The petitioner contended that because the right to worship and religion is guaranteed to both men and women equally under the constitution,the right of women to enter temples as devotees for worship is protected as a fundamental right. Under Art 25(2)(b), the state could not abridge this right in order to provide social reform or welfare.

4. ARGUMENTS OF RESPONDENT

Respondent contended that the phrase open to all classes and sections of Hindus in article 25(2)(b) [3].indicates that there should be no caste discrimination. That expression cannot be interpreted in such a way as to ignore the custom that is an essential part of religion. Also, article 25(2)(b) has no bearing here because there is no total prohibition, only a time limit based on custom, faith, and belief that has been observed since time immemorial.

Respondent also argued that because girls under the age of ten and women over the age of fifty can freely enter temples and exercise their right to worship, the partial restriction does not constitute social discrimination. Furthermore, there are no restrictions on women entering other temples of Lord Ayyappa, so classification has a reasonable nexus with the goal of preserving the identity and manifestation of Lord Ayyappa as a Naishtik Brahmachari.

It was also contended by the respondent that restriction on the entry of women is a part of the essential practise of this temple. It is restricted with the intention to keep away pilgrims from any distraction related to sex.

It was also noted that Lord Ayyappa devotees are a religious denomination, as previously held by the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board Ors.After hearing both documentary and oral evidence, the High Court rendered its decision. This judgment, which determines the temples status as a religious denomination, is in rem, and no party has challenged it. As a result, it is binding on all parties, including the petitioner.

According to the respondent, the main goal of Art 17 is to prohibit caste-based untouchability in Hindu religion. At the temple, there is no such thing as caste or religion-based untouchability.

5. JUDGEMENT

The court ruled by a 4:1 majority that the practice infringed the fundamental rights to equality, liberty, and religious freedom, as well as Articles 14, 15, 19(1), 21, and 25. (1). Rule 3(b) of the Kerala Hindu Places of Public Worship Act was declared invalid. Rule 3(b) permitted Hindu denominations to bar women from public places of worship provided the ban was based on custom. The Supreme Court has permitted women of all ages to enter the Sabarimala Temple, ruling that devotion cannot be subjected to gender discrimination.

In her dissent, Justice Indu Malhotra stated, It is not for the courts to determine which of these religious practices are to be set down, unless if they are harmful, repressive, or a social ill, like Sati.

The majority concluded that prohibiting women from entering Sabarimala violated the fundamental rights of women aged 10 to 50. They also claimed that Lord Ayyappa devotees did not form a new religious denomination. According to Justices Misra, Khanwilkar, and Chandrachud, the custom was not a necessary religious practice. While the majority of the judges did not expressly state whether the tradition violated Article 14s right to equality, they did state that it was discriminatory under Article 15. According to Justice Chandrachud, the prohibition on untouchability is broad and includes any type of social exclusion based on ideals of purity. In addition, Rule 3(b) of the Public Worship Rules declared the practice of prohibiting women as unconstitutional.

6. CONCLUSION

The majority concluded that prohibiting women from entering Sabarimala violated the fundamental rights of women aged 10 to 50. They also claimed that Lord Ayyappa devotees did not form a new religious denomination. According to Justices Misra, Khanwilkar, and Chandrachud, the custom was not a necessary religious practice. While the majority of the judges did not expressly state whether the tradition violated Article 14s right to equality, they did state that it was discriminatory under Article 15. According to Justice Chandrachud, the prohibition on untouchability is broad and includes any type of social exclusion based on ideals of purity. In addition, Rule 3(b) of the Public Worship Rules declared the practice of prohibiting women as unconstitutional.

7. OTHER SIMILAR CASES

Haji Ali Dargah,located in Mumbai, Maharashtra, is one of the most important Mosques where the remains of a Sufi Saint from the 15th century, Pir Haji Ali Shah Bukhari, are paid respect. It is a floating dargah that is visited daily by over 50,000 people of various religious beliefs. The dargah is built in the style of Mughal architects. However, just a few years ago, the trust of Haji Ali Dargah imposed an immediate ban on womens entry, stating that Sharia Law considers it a sin for women to enter a males Muslim saint. This, however, was not acceptable to the women who had visited the Dargah since its inception.

Reasons for not giving entry to women:-

The Haji Ali Dargah trust imposed a ban on womens entry in 2012 under a pretext of Shariat Law, and the reason for their immediate action was as follows:

Because of their blouse, when they bow down to pay respect in the Mazaar, their body parts are revealed.

Womens entry was prohibited for safety and security reasons.

The trust was unaware of Sharia Law and had previously misinterpreted it, so they restricted womens movement in the Dargah.

In the case of Dr Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra [4] the petitioner claimed in their court appeal that they had visited the shrine since they were children, but when they went to the Haji Ali dargah, there was a barricade installed before the entrance to the sanctum. They also wrote a letter to the Trusts Solicitor explaining their position in the matter, but when the response from the Minorities Development Department stated that the Dargah is open to all despite any discriminatory factory, they were disappointed

However, the petitioner also stated that the Dargah trust was formed under the courts scheme, and that the trust had no power to impose a ban on womens movement under the scheme. It also breaches female devotees constitutional rights under Articles 14 and 15 of the Indian constitution. Furthermore, under Article 26, the Trust is only entrusted with managing and maintaining the affairs of the dargah; it has no authority to impose any kind of limitations. The petitioner added that the land of the Haji Ali Dargah is a government property on lease, and thus they can only act according with the terms of the lease.

The reasoning for imposing a ban on womens entry is illogical, and it violates their fundamental rights under Articles 14 and 15, so it is critical to invoke the doctrine of harmonious constructions.

The Haji Ali Dargah has not imposed any restrictions on women paying for respect in the Dargah since its establishment, but the trust, which is not authorized to impose such restrictions on women under their lease deed and the Scheme, has imposed a ban on womens movement in the Dargah. The state government leased the land on which the dargah is built, which qualifies the dargah for public use. The ban violated womens fundamental rights under Articles 14, 15, and 25, and the state is responsible for ensuring that no ones rights are violated as a result of any act or provision. After observing the ban on womens entry, the court ruled in favor of the petitioners because they failed to justify the ban as an essential part of Islams fundamental principles

The High Court ruled that the trust could not justify the ban by citing the need to protect women from eve tease and limit womens access. However, the Haji Ali Dargah Trust has the authority to take effective measures for womens safety, but it does not have the authority to prohibit women from entering the Dargah because it is a public space, and the State must also ensure womens safety at the holy site. As a result, the High Court granted the womens petition and ruled that the ban on womens movement in the Dargah violates their fundamental rights under articles 14, 15, and 25.

The trust, however, was dissatisfied with the decision of the High Court of Bombay and filed an appeal in the Supreme Court, but the appeal was denied and the trust was ordered to make proper arrangements for womens entry into the Dargah within four months.

2. A year after Maharashtra women activists successfully campaigned to enter the sanctum sanctorum of the Shani Shingnapur idol, local women are reverting to the traditional practice of avoiding the idol.Trupti Desai led women activists from Maharashtra to make history by breaking a six-decade-old tradition and entering the sanctum of the Shani Shingnapur temple exactly a year ago.The incident was a watershed moment in Indias womens emancipation movement, sparking similar campaigns at other famous shrines in the country where women were previously barred from entering the sanctum sanctorum.

The campaign brought Shani Shingnapur to national attention and nearly doubled the number of devotees who visited it.

None of the districts residents have climbed the platform and touched the deity. We dont object to any woman entering the inner sanctum from the outside, but why should we be forced to break tradition? Anita Shete, head of the Shani Temple Trust, asked.

Women, according to the locals, do not offer worship at the sanctum sanctorum due to a fear of harmful vibrations emanating from Lord Shani.

Shete, on the other hand, has backed down slightly, as when she was elected head of the trust last year, she stated unequivocally that she would uphold the tradition. As head of the temple trust, I will fight till my last breath to defend the centuries-old tradition, she said at the time.

Unhappy about local women reluctant to enter the inner sanctum, activists say these women are under pressure from the local men who never wanted the tradition to be broken.

Local women are not permitted to enter the inner sanctum or approach the deity. However, these women are under pressure from men who want to keep the regressive practice going, Trupti Desai told Hindustan Times. Desai stated that she received calls from local women who claimed that members of their family were preventing them from breaking the tradition.

Desais charge of pressuring the women was refuted by the local men. The women of the entire district do not want to jeopardize the sacredness of the place. While no one has been asked to go or not go, local women prefer not to climb the platform, according to temple trustee GK Darandale.

Women have traditionally been forbidden from climbing the platform where the idol is installed at the Shani Shingnapur temple for many years. Trupti Desai, founder of the Bhumata Brigade, led a campaign against the issue, prompting the temple trust to allow women into the inner sanctum. Desai spearheaded a similar movement at Trimbakeshwar temple in Nashik and Kolhapurs Mahalaxmi temple, where the trust authorities were eventually forced to allow women to enter the sanctum sanctorum.[5]

Citation

I. The constitution of India,art.25.

II. AIR 1993 Ker 42

III. The constitution of India, art 25 (2) (b)

IV. AIR 2016 SCC ONLINE BOM 5394

V. Writ petition No. 8593 of 2016