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Sabarimala Temple Case: Justice Indu Malhotra's Dissenting Opinion

The Sabarimala Temple case in Kerala is about the contention between women's rights and custom. The situation is connected with the deep-rooted traditions and the SC's decision that supremacy to constitutional morality over these traditions. The Sabarimala temple restricted the entry of menstruating women between the ages of 10 and 50. A five-judge Constitutional bench of the Hon'ble SC ruled 4:1 in favour, allowing women to enter the temple.

It was found that the practice was discriminatory in nature and that it violated the rights of Hindu women to pray and practice religion. It was also decided that devotees of Lord Ayyappa do not comprise a separate religious denomination as they do not have common religious tenets peculiar to themselves other than those that are common to the Hindu religion.

Kerala's Sabarimala Temple case is about the contention between women's rights and custom. The issue has been a burning topic for many years. The temple is in Kerala and is one of the most known. One of its traditions is not permitting women of age between 10 and 50 to enter the temple. This custom has been opposed numerous times and is considered gender discrimination, but it is also regarded as an issue of conviction for the devotees.

The restrictions and their source depend on the way that the temple divinity, Swami Ayyappa, is a 'NaishtikaBrahmachari' (celibate) and consequently, an encapsulation of purity that should not be disregarded or violated by menstruating women. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, prohibits women by prohibiting them from entering the Sabarimala temple premises.

The prohibition of women was first challenged at the Kerala High Court. In 1991, the Kerala High Court, in S. Mahendran v. The Secretary, Travancore, held that the exclusion was constitutional and legitimized, as it was a well-established custom. The division bench of the Kerala High Court favored with the plaintiffs, certifying that the limitations had existed since time immemorial and that the Travancore Board's prohibition did not repudiate the Indian Constitution or the pertinent Law of Kerala 1965. The practice did not violate or disregard women devotees' rights to equality and freedom of worship.

The case was filed by the Indian Young Lawyer's Association in 2006 before the Hon'ble Supreme Court of India through public interest litigation (PIL). It deals with the aspect, i.e., "Entry of Women in Sabarimala Temple". There were many issues raised in which it was argued by petitioners that provisions related to the restriction of women's entry into temples are unconstitutional as they violate Articles 14, 15, 17, 25, and 26 of the Indian Constitution.

Following extensive debates and deliberations, the Supreme Court, with a majority decision, considered the restriction stopping women from entering the temple as unconstitutional.

History Of The Temple
The Sabarimala Temple, considered the abode of Lord Ayyappa, is situated in the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta District, Kerala. Sabarimala is a place of worship for exceptional artefacts devoted to Lord Ayyappa, a divinity depicting a higher masculine god resulting from the relationship of two male divine beings, Shiva and Mohini, where Mohini is Vishnu in female structure.

This temple is organized on a ridge at a height of 1260 meters above mean ocean level and is encompassed by mountains all around. The god is revered as Ayyapan and as Dharma Sastra. The temple is known for its religious practices´┐Żdevotees embrace a 41-day repentance, repudiating common pleasures, before they visit. Millions embrace this pilgrimage every year, transcending caste and creed to catch a glimpse of Lord Ayyappa, the Dharmasastha. Devotees consider Lord Ayyappa to be a chaste divinity. Women in their menstruating years were generally stopped from entering the temple to protect abstinence.

Facts & Issues Raised
The Indian Young Lawyers Association filed a public interest litigation in 2006 before the Supreme Court challenging the Sabarimala Temple's restriction on the entry of women between the ages 10 and 50 during their menstruating period. They challenged and argued that the custom is unconstitutional as it violates Article 14 'Right to Equality and Article 25 Freedom of Religion of women. Here are the issues raised in this case.
  1. Does the restriction on menstruating women's entry in the Sabarimala Temple contravene the Right to Equality and the Right against discrimination and the abolition of untouchability?
  2. Are Lord Ayyappa's devotees considered as a separate religious denomination, possessing the right to manage the administration of their own affairs in matters of religion?
  3. Is women's exclusion an 'essential religious practice' under Article 25?
Does Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permit a ' religious denomination' to ban the entry of women between the ages of 10 and 50 years? v/s Do the Public Worship Rules permit such custom go against the overarching legislation, which prohibits discriminatory practices?

Judgement Of The Case
A Supreme Court 5-judge Bench gave its verdict on September 28, 2018 on the issue of Sabarimala Temple case. In a 4:1 decision the majority declared the temple's practice of prohibiting women as unconstitutional stating that it encroached upon the fundamental right to freedom of religion under Article 25(1).

The Court presented four judgements of Chief Justice Misra, Justice Nariman, Justice Chandrachud, and Justice Malhotra. Justices Nariman and Chandrachud aligned with Chief Justice Misra's perspective. Justice Indu Malhotra, dissented from the majority opinion.

Justice Indu Malhotra's Dissenting Opinion

Justice Indu Malhotra delivered a dissenting opinion. She held that the Sabarimala Temple fulfils the necessities for being considered a separate religious denomination. She contended that constitutional morality in a secular polity like India requires a 'harmonisation' of numerous contending claims to fundamental rights.

She held that the Sabarimala Temple is safeguarded under Article 26(b) to deal with its internal affairs and is not dependent upon the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations, and said that the Court must regard a religious denomination's right to deal with their internal affairs, whether or not their practices are rational or sensible.

Note that Article 26, denominational freedom of religion, is subject to 'public order, morality, and health'. Justice Malhotra held that 'morality' (constitutional morality) must be perceived with regards to India being a pluralistic society. She stated that the state must respect the freedom of individuals and orders to practice their faith.

Justice Indu Malhotra said the right to equality clashed with the right to worship of devotees of Lord Ayyappa and the god of the Sabarimala temple; furthermore, the doctrine of equality cannot abrogate the fundamental right to worship under Article 25 of the Constitution. The issues brought up in this case have serious and unprecedented ramifications for different religions professed throughout the country. which has ended up being valid as the nine-judge bench constituted will also hear the issues of religious practices in association with women belonging to Islamic and Zoroastrian religions.

She held that Rule 3(b) does not remain in conflict with its parent Act, the Kerala Hindu Places of Public Worship Act. She stressed that the standard 'carves out an exception in the case of public worship'. She held that the rule was predictable under Article 26(b) of the Constitution.

Maintainability of Writ Petition

Article 32 of the Indian Constitution gives the right to move the Supreme Court for the infringement of fundamental rights. Therefore, the petition filed by the petitioners of the Sabarimala Temple must have their rights violated. However, the petitioners don't guarantee that their rights have been violated or disregarded. She also added that allowing religious PILs will lead to overburden amongst courts and infringing religious traditions or practices in question.

Concerning the legitimate prerequisite of having locus standi, it became important to characterise who ought to be considered a worshipper; that is, the admirers need to have an individual interest in a given conflict to be permitted. The petitioner must have an interest in the petitioned case, or else the appeal will be dismissed.

In Chockalingam v. Nambi Pandiyan, it was held that the issue of any temple can be taken to the court by worshippers' unconventional to the temple only. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, under provision (15)(b) of Section 6, characterised the expression 'person having interest' as one who regularly visits the temple or performs worship or is entitled to any advantage.

For instance, Lord Brahma's temple at Pushkar in Rajasthan, dating all the way back to the 14th century, is one of the most significant temples for the worship of Lord Brahma. The wedded men are forbidden from entering the temple. Kartik Poornima, a Kartik religious festival, is held annually in Brahma's reverence.

It is believed that Maa Parvati went to a secluded site amidst an ocean for 'Tapasya' or meditation. This 'Tapasya' was to get Lord Shiva as her husband. Therefore, only women are allowed in the famous temple of Kanya Kumari of Goddess Bhagavati Maa, and men are strictly prohibited there. In this temple, Kanya Maa Bhagwati Durga is worshipped by women only.

During the special period, at the Mata temple at Muzaffarpur in Bihar, only women devotees are allowed to enter the temple; not even the pujari of the temple is allowed to enter the premises.

Applicability of Article 14 of the Indian Constitution

Indu Malhotra J. further pointed out that Article 14 comes into force when situations are similarly placed, i.e., by persons either belonging to the same religion, sect, or faith. The petitioners are not devotees of Lord Ayyappa and are not aggrieved by the said custom. The right of an individual to worship is protected under Article 25(1) of the Constitution.

A restriction imposed by reason of a statute must be upheld in the event it is found that the person to whom the same applies forms a separate and distinct class and that such classification is a reasonable one based on intelligible differentia having sufficient nexus with the object to be achieved.

Keeping this in mind, it is safe to say that the Kerala Hindu Places of Worship Act is valid, and owing to the long usage of custom, the restriction imposed on women is also valid. If a special law can be passed for Shri Jagannath Temple for holding a unique position among the Hindu temples, it becomes important to recognise the uniqueness of Sabarimala Temple and respect the deity's celibacy.

Article 14 cannot be the sole touchstone to test religious customs and practices, and Article 24 gives people the right to profess and propagate their religion. Equality in matters of religion must be perceived in the milieu of worshippers of the same faith.

Article 17: Applicable or not?

The petitioners contended that the said custom is a form of 'Untouchability' under Article 17 of the Constitution and is in this way a culpable offence. Be that as it may, all types of prohibition are not under untouchability. Article 17 specifically relates to class based ostracization. The impugned custom is predicated upon the verifiable root and the convictions and practices of the Sabarimala Temple.

In the current case, women of the any age group are allowed entry into every other temple of Lord Ayyappa where he has not shown Himself as an abstinent or a celibate. The limitation on the passage of women in this Temple is because of the novel character of the God and not founded on any social avoidance. The comparison between the Dalits and women of impermissible age limit is misjudged and impractical.

During the constitutional debates, Mr V.I. Muniswamy Pillai had stated that under caste distinction they suffer tyrannically at the hands of so-called higher caste Hindus. All those people who were not of higher class like that of landlords were barely treated as human beings. He believed that by the adoption of the untouchability clause, many a Hindu who is a Harijan will have a place in society.

Dr Mono Mohan Das while accepting the meaning of untouchability under our Constitution or the then Draft Constitution quoted Gandhi. Gandhiji said that he did not want to be reborn but if he would be born again then he preferred to be born as a Harijan or an untouchable so that he can lead a life of constant battle against persecution and insults that have been loaded upon these classes of individuals since as long as memory serves.

In Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., the Supreme Court observed that one of the biggest problems faced by the people trying to eliminate religious evils is superstition and lack of acceptance living amongst all other communities. Therefore, the social reformers attempted to eliminate this social evil which impelled the enactment of Article 17, which abolished untouchability and forbade its practice in any form and also made it a punishable offence. Furthermore, not a single precedent exists in a manner brought forth by the petitioners. It is of significance to mention that this submission was rejected by the Counsel of the State of Kerala.

In a country like India where religion plays a crucial role in society as well as impacts every individual, the verdict in the Sabarimala case represents a turning point for all. The case decision is prominent for being bold. Every once in a while comes along a judgement that gives an extensive push to the slowly and steadily moving forward legislation and court orders that uplift the status of women in our society.

The judgement was delivered in September 2018, which allowed the entry of women of all ages into the Sabarimala temple, marking a noteworthy crossroads in India's legal history. The apex court emphasized that religious practices ought not be a safeguard to legitimize discrimination and that the principles of equality and non-discrimination should prevail. One of the arguments in favour of the judgement is the acknowledgement of women's rights. The judgement insisted that worship is not exclusive to any specific gender and that religious practices ought to develop and evolve with cultural changes to oblige a more comprehensive and egalitarian ethos.

But in my view, India and its people are more engaged in the rituals and customs that they have been following for centuries. The restriction held on women is one deep-rooted custom in the celibacy vow of the divinity Lord Ayyappa, and it does not encroach upon anyone's right to equality or freedom of worship. The intervention by the court in religious matters is an infringement on the autonomy of the religious institution and their entitlement to deal with their own affairs. The court should regard the unique traditions and customs related to each religious community.

Sabarimala Temple holds profound religious significance for devotees who follow age-old traditions and rituals. While upholding gender equality, the court's decision ignored the sentiments and opinions of the religious community. Every old ritual and custom holds significance, forming our legacy. Be that as it may, it is essential to carefully approach these issues, challenging such traditions and the actual way of our lives.

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