The Sabarimala case will serve as a precedent for cases dealing with the interface between religion and law. Although, the majority judgement delivered is being hailed as progressive for women’s rights, it has faced immense heat and criticism on many fronts. To term the tradition of the temple which was being followed since ancient times as misogyny is not a sound argument. Justice Malhotra rightly said, “Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.”
Sabarimala Temple is located on Sabarimala hilltop in Pathanamthitta district
in Kerala. The temple is dedicated to Lord Ayyappa, a hindu celibate deity. It
is one of the largest annual pilgrimage. The temple is administered by the
Travancore Devaswom Board and is open for worship to people of all religions.
Legends associated with the deity restrict the entry of and worship by women devotees of reproductive age in the temple. According to the prevailing custom, devotees have to practice a 41 day vratham or wow of abstinence from alcohol, sex, non-vegetarian food and address each other as swami. The Supreme Court in its judgement stated that this condition is impossible to perform and is put so that women cannot go inside the temple.
In the case of S. Mahendran v. The Secretary, Travancore (1991) the Kerala High Court upheld the prohibition imposed on the entry of women by the Travancore Devaswom Board. The ban was not considered violative of articles 15, 25 and 26 of the constitution of India. Articles 25 to 28 deal with Right to Freedom of Religion, a fundamental right. The prohibition was not considered violative of the provisions of the Kerala Hindu places of Worship Act,1965 as it was only in respect of women of a particular age group and not women as a class. The verdict relied on the belief that the deity was a ‘Naisthik Brahamachari’. Temples, other than Sabarimala which prohibit entry of women include the Lord Kartikeya Temple, Pushkar and the Patbausi Satra, Assam.
The public interest litigation filed in the Supreme Court by the Indian Young Lawyers Association against the Kerala government resulted in the lift of ban on the entry of women of the age group 10 to 50 years. The bench struck down this practice with a majority of 4:1, the dissenting opinion being of Justice Indu Malhotra. Article 25 (1) equally entitles all persons the right to profess, practice and propagate religion. Justice Malhotra recognised this right but, according to her, “Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself.”
According to the majority in the present case, the devotees are not a religious denomination and hence cannot claim rights under article 26. Article 25 (2) sub clause (b) which provides for “social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus” is applicable here. However, it is voiced in the dissenting opinion that the devotees constitute a religious denomination.
It was also held that the exclusion of women does not constitute an essential religious practice. Justice Mishra observed that since the devotees of Sabarimala are not a religious denomination, the essentiality of this practice has to be judged on the basis of the principles of hinduism. He further concluded that there is no evidence to prove that it is an essential practice of hinduism. However, Justice Malhotra relied on the finding of the Kerala High Court decision and concluded that it is an essential religious practice, the deity being a celibate.
Justice Chandrachud declared the ban on the entry of women violative of articles 14, 15 and 21. Article 14 guarantees equality before law; article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth and article 21 provides right to life and personal liberty. On the other hand, Justice Malhotra observed that a religious practice cannot be struck down only because of its conflict with article 14, unless it is a social evil. Social evils like sati pratha deserve intervention, however, the current issue does not deserve intervention by the court.
It is ironical that many women devotees of lord Ayyappa are opposing the judgement as they view it as an unnecessary interference into their religious affairs. As Justice Malhotra pointed out, rationality cannot be invoked in matters of non-pernicious religious customs prevailing. Several review petitions were filed by individuals and groups opposing the verdict. The final outcome has not yet been decided.
The Sabarimala case
will serve as a precedent for cases dealing with the interface between religion
and law. Although, the majority judgement delivered is being hailed as progressive for women’s rights, it has faced immense heat and criticism on many fronts. To
term the tradition of the temple which was being followed since ancient times
as misogyny is not a sound argument. Justice Malhotra rightly said, “Permitting PILs in religious matters would
open the floodgates to interlopers to question religious beliefs and practises,
even if the petitioner is not a believer of a particular religion, or a
worshipper of a particular shrine. The perils are even graver for religious
minorities if such petitions are entertained.” Even if progressive reforms
are to be encouraged in matters of faith, they have to come from within the
religion itself and not through external force.