India being the religiously diverse society and self-proclaimed secular state,
is an ideal setting to explore the complex and often controversial intersections
between religion and law. The religious freedom clauses of the Indian
Constitution allow for the state to regulate and restrict certain activities
associated with religious practice.
By interpreting the constitutional
provisions for religious freedom, the judiciary plays an important role in
determining the extent to which the state can lawfully regulate religious
affairs. India is well known for its distinct and unique cultures and religions
that allows each individual to follow their religion or faith. Women’s Rights is
an exceptionally ethical topic that is encircled by ethical and moral concepts
and has much antiquity.
India is a diverse country, and it should be for the
religious community and the worshippers to decide the critical religious
practice, not for the court of law, it is an issue about personal faith.
Whereas, Concepts of rationality can’t be raised in issues of religion until and
unless there is any aggrieved person from that religion or Sec. Constitutional
ethics and morality in a diverse country provide freedom to practice even
This article highlights the idea of the separation between secularism regulated
by the State, and religious practices in which it must not interfere and talks
about why women devotees of menstruating age should not be allowed in the
Sabarimala temple. Concerning the Sabarimala case, allowing PILs challenging
religious practices could affect the notion of secularism of the country. Art.
25 of the Indian constitution should protect the Sabarimala shrine as it cannot
be judged solely based on Art.14 (Right to Equality) because equality exists
The article also focusses on the religious rituals and rites of
human being in Hindu law. In Hindu Law the customs are made according to its
characteristics such as antiquity, reasonableness, continuity etc, the custom or
the practice which was followed in Sabarimala was that No women of menstruating
age was allowed to temple has they believed it’s a myth to their religion which
was challenged by law.
India is an exemplary setting to explore the complex unfolding of religion and
state relationships. The nation’s unique religious, social, and political
circumstances are ideal for examining the heated negotiations surrounding
religious freedom and another highly contested term, secularism. This study will
focus on the Supreme Court of India, the site where some of the most difficult
legal issues involving religion are worked out. There are several factors that
make India an important locus for understanding these themes. First, India’s
diverse religious landscape brings the issue of plurality to the fore.
The controversy surrounding a Supreme Court decision illustrates the social and
legal magnitude of religious freedom adjudication in India. Here, we will
preview this case in order to demonstrate the profound societal ramifications of
the Supreme Court’s approach, and foreshadow the findings in the subsequent
The case popularly known as the Sabarimala case concerns a Hindu temple located
in the southern state of Kerala. Devotees making pilgrimage to Sabarimala
typically observe a forty-one day period of austerity, fasting, celibacy and
purification known as Vratham preceding their worship in the temple.
Furthermore, many pilgrims make an arduous journey on foot through remote
mountains and forests to reach the Sabarimala temple, some as long as sixty
Historically, women of menstruating age defined as between ten and
fifty years—have been prohibited from making the pilgrimage and worshipping in
the temple complex. Although some have provided reasons relating to women’s
health and safety, the primary justification for the restriction is religious.
It is believed that Lord Ayyappa, the deity associated with the temple, is a
dedicated celibate or brahmachari. The implication is that women’s presence at
the temple would offend the deity. Others point to the impurity of menstruation,
or the possibility that women would distract male devotees and interfere with
their practice of Vratham.
The Sabarimala Temple is devoted to Lord Ayyappa. According to the traditions
that are centuries old, it is the belief of the devotees of the temple that
women of the age group of 10 to 50 are not allowed to enter this Temple. They
believe that it is a crucial aspect of a ‘Naishtik Bramhachari,’ who practices
strict penance and the severest form of celibacy.
Ancient folklores of Lord Ayyappa Swami
King of Pandalam, also known as Manikandan, found Lord Ayyappa as a newborn near
the river Pampa. King fittingly built the holy temple at Sabarimala and devoted
it to God. The divinity of Lord Ayyappa in that temple was established in the
way of a Naishtik Brahmachari
, which is a perpetual celibate. It is believed
that God has explained how the pilgrimage to Sabarimala Temple is followed
through a procedure by undertaking a Forty-one-day Vratham.
He, Lord Ayyappa, commenced the Vratham
for forty-one days before he entered Sabarimala Temple
to unite with the divinity. The complete procedure of the observed by a
worshipper is to imitate the path of Lord Ayyappa. Bhuthanatha Geetha
, Reveals the way of worship at Sabarimala temple in the words of
the Lord himself. The Forty- one-day Vratham is a custom and practice observed
by the worshippers.
Forty-one days Vratham
aims to discipline and teach
self-control and train the pilgrims for the development of divine awareness
leading to self-actualization. To keep the body and mind pure, it is essential
to observe the sattvic lifestyle and brahmacharya before undertaking the
pilgrimage. It is considered as an essential requirement of the forty-one days
vratham to withdraw oneself from the avaricious world and enter into the divine
The main reason for restricting the entry of women of the age 10-50 is because
Lord Ayyappa took the pledge of a Naishtika Brahmachari
, i.e., protecting
semen from dropping to the floor or leaking down as this hampers the divine
Shri Swami Sivananda has defined the purest meaning of being a brahmacharya. In
his words, it meant actions that lead an individual to self-actualization. It
refers to the self-control an individual has on his semen. Brahmacharya is
referred to as self-restraint, predominantly restraint over the sexual parts of
the human body or freedom from lust in thought, word, and deed. Firm
self-restraint is not only from sexual intercourse but also sexual expressions
including thoughts even during the sleep, from sexual acts and all kinds of
sexual carry-out. Thus, it includes eternal nonparticipation from involvement in
stimulating thoughts and voluptuous daydreams.
Religious stance of Sabarimala Temple
Religion is a concern of belief. Religious faiths are supposed to be holy and
pure by the people who have faith. Dependence was placed on the precedent in
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar
Thirtha Swamiar of Shirur Mutt
where the definition and meaning of religion
was extracted from an American case, i.e. The term Religion refers to one’s views
of his relation to his Creator (God) and to the obligations they impose of
respect and worship for His Being and character and obedience to His Will.
When a worshipper observes the forty-one days ‘Vratham,’ the worshipper excludes
himself from the females in their home.
What is Ritual? Is it still Important?
- Abandonment of all kinds of physical and sexual relationship with the
- Abandoning all the intoxicating items including alcohol, cigarettes, food which
is tamasic and drugs;
- Existing alone and excluding oneself from the family members and staying in an
isolated room or a separate building;
- Abstaining from meeting with women in day to day basis, which also includes an
individuals’ daughter or sister or any other female family member;
- Making one’s own meal;
- Walking barefoot;
- Undertaking cleanliness, which includes taking a bath twice a day before doing
- Wearing upper garments and black-clothed mundu;
- Consuming just one meal a day.
A religious ritual is any repetitive and patterned behavior that is prescribed
by or tied to a religious institution, belief, or custom, often with the
intention of communicating with a deity or supernatural power. Religious ritual
is simply a part of daily life. On the other hand, many won’t want to be caught
performing a ritual; they feel uneasy.
An impression that rituals are entirely
redundant, optional extras at best, is a pervasive feature of modernist
consciousness that treats them as vestiges of a premodern, archaic past, to be
left behind as we become more educated and rational.
This is partly because of
the association of rituals with religion, but also because of the belief that
they can’t survive the test of reason — they are meaningless, empty of content,
needlessly repetitive and time-consuming. They sprout superstition, involve
nonsensical mumbo jumbo. Moreover, they seem to reinforce a collectivist
mentality that gives little room for individual freedom and innovation. This
critique of ritual is not without precedents. Indeed, it has a long history.
In ancient India, even dissenting Brahmins questioned rituals when they became
elaborate and expensive; the loss of simplicity and economy derailed them from
their original purpose. Later, Upanishadic thinkers indicted them for their
inanity; they were vacuous unless they related to knowledge hidden from common
sense, i.e. the deeper relationship between Brahman and Atman.
An even more
radical critique of Vedic ritual was launched by Jains and Buddhists who
questioned the materialist motivations behind them. What use are rituals
performed in order to procure this or that worldly good? Two of India’s greatest
sons – Gautam Buddha and Ashoka – shifted the moral axis away from rituals to
kindness and compassion towards all living beings. Proponents of bhakti
challenged the ethical centrality of rituals and even social reformers such as
Dayanand rejected the excessive ritualism in Hinduism.
Types of Rituals in Hindu Law
An important set of rituals in Hinduism is the 16 Samskaras (loosely translates
into "sacraments" or "rituals of preparation"). These are a set of rituals at
significant points of time in a person's life.
Religious Issues of Sabarimala Case
- Vivaha/Marriage - This is considered the most important samskara in the Hindu
tradition and is conducted in many ways, depending on the community.
- Garbhadhana/ Prayer for children - This is a prayer before conception
(typically after menstruation). The wife invites her husband to have sex with
her and give her good offspring.
- Pumsavana/Prayer for the fetus - Once the woman finds out that she is
pregnant, her husband serves her a special dish, praying for the healthy growth
of the baby.
- Simantonnayana/Baby shower - In an advanced stage of pregnancy, relatives and
friends of the expectant mother come together to bring her cheer.
- Jatakarma/Celebrating birth - Once the child is born, a ritual is performed
to welcome the child to the world. The father whispers a prayer into the ear of
the newborn, telling the child to suck the truth as if it were his mother's
- Namakarana/Giving a name - On the tenth or eleventh day after birth, the
relatives and friends come together; during this ceremony the name of the child
is formally announced.
- Nishkramana/First outing - In the third or fourth month, the child is first
taken outside the home and shown a sunrise or a sunset (or taken to a temple).
- Annaprashana/First meal - In the sixth month, once the teeth begin to
develop, the child is given solid food for the first time.
- Karnavedha/Piercing the earlobes - In the seventh month, the earlobes of the
child are pierced accompanied by prayers that ask for the child to hear bliss
through her ears.
- Chudakarana/Shaving the head - When the child is a year old, the head is
shaved and nails are cut. This rite symbolises the child's entry into personal
- Vidyarambha/Beginning of education - When the child is about five years old,
she is introduced to the letters of the alphabet. This might also include
prayers to goddess Saraswati and lord Ganesha.
- Upanayana/Entry into school - When the child was about eight, he would be
given a sacred thread to wear and taught the Gayatri Mantra. This marked his
entry into formal education.
- Vedarambha/Introduction to the vedas - For those students who were allowed
to study the vedas, this rite (typically a yajna conducted along with the guru)
marked the student's entry into Vedic knowledge.
(Note: For those who were not allowed Vedic education, there might have been
similar rites to mark the entry of the child into a school.)
- Keshanta and Ritushuddhi/Puberty rites - In the case of boys, shaving their
facial hair and in the case of girls, the celebration of menarche.
- Samavartana/Graduation - After spending about 12 years in the house of the
teacher, the student would graduate. A ritual bath marked the completion of his
- Antyeshti/Funeral rites - Upon death of the person, the dead body is
typically consigned to flames on a wooden pyre. The rituals accompanying the
death go on for thirteen days after the death.
Sabarimala well known for religious culture and it beauty, the flaw emerged in
sabarimala was not allowing womens of menstutrating age into the temple, the
custom which followed from years due to lord ayyappa was a bramhachari. There
are some religious commendments which should be followed by the devotees which
cannot be followed by women, the vratha of 42 days also should be so sinceire.
This was the main religious issue that arose law to take part in the issue.
Summary Judgement of Supreme court
28th September 2018, the Court delivered its verdict in Sabarimala Temple Entry.
A 4:1 majority held that the temple's practice of excluding women is
unconstitutional. It held that the practice violated the fundamental right
to freedom of religion - Article 25(1) - of female worshippers. It struck down
Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional.
Rule 3(b) allowed for Hindu denominations to exclude women from public places of
worship, if the exclusion was based on 'custom'. The Court delivered four
separate opinions: Chief Justice Misra, Justice Nariman, Justice Chandrachud,
Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the
opinion of Chief Justice Misra. The dissenting opinion in the case was delivered
by Justice Indu Malhotra.
Chief Justice Misra's opinion
CJI Dipak Misra, speaking on behalf of Khanwilkar J. & himself observed that
religion is a way of life intrinsically linked to the dignity of an individual
and patriarchal practices based on exclusion of one gender in favour of another
could not be allowed to infringe upon the fundamental freedom to practice and
profess one's religion. He stated that the exclusion of women between the ages
of 10-50 years practiced by the Sabarimala Temple denuded women of their freedom
of worship, guaranteed under Article 25(1).
Further, he held that the devotees of Ayyappa did not pass the constitutional
test to be declared a separate religious identity. He said that they are Hindus.
Thus he held that the temple's denominational right to manage its own internal
affairs, under Article 26(b), was subject to the State's social reform mandate
under Article 25(2)(b). Article 25(2)(b) provides that the State can make laws
to reform Hindu denominations. Specifically, Article 25(2)(b) allows the State
to make any law that opens a public Hindu institution to all 'classes and
sections' of Hindus. Justice Misra interpreted 'classes and sections' to include
the gendered category of women. He concluded that the Sabarimala custom of
excluding women is subject to State mandated reform.
He also held that the exclusion of women between ages 10-50 by the Sabarimala
Temple cannot be an essential religious practice. He held that if the Ayyappans are
Hindus, the practice of excluding women cannot be held to be an essential
He struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules of 1965. He said that is both in violations of the Constitution
and ultra vires to Sections 3 and 4 of its parent Act. Sections 3 and 4 of the
Act were written with the specific aim of reforming public Hindu places so that
they become open to all sections of Hindus. Rule 3(b) achieves the opposite --
it allows public Hindu places of worship to exclude women on the basis of
custom. Hence, CJI Misra concluded that the rule not only violates the
Constitution, but also stands in conflict with the intention of the parent Act.
Justice Nariman's opinion
Justice Rohinton Nariman delivered a concurring opinion. He held that the
worshippers of Ayyappa do not constitute a separate religious denomination. He
labeled them as Hindus who worship the idol Ayyappa. Thus he held that the
Sabarimala Temple's denominational freedom under Article 26 is subject to the
State's social reform mandate under Article 25(2)(b).
He declared that the exclusion of women from the temple effectively rendered
their right under Article 25 meaningless. He emphasised that Article 25(1)
protects the fundamental right of women between the ages of 10-50 years to enter
the Sabarimala Temple and exercise their freedom of worship. He stated that
there was sufficient material to conclude that the exclusion of women from
Sabarimala violated Article 25(1).
He concluded that the Ayyappans' custom of excluding women, between the ages of
10-50 years, from the Sabarimala Temple was unconstitutional. He also struck
down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules of 1965 as unconstitutional.
Justice Chandrachud's opinion
In a separate and concurring opinion, Justice D Y Chandrachud held that the
exclusion of women between the ages of 10-50 years by the Sabarimala Temple was
contrary to constitutional morality and that it subverted the idelas of
autonomy, liberty, and dignity. He held that the morality conceptualised under
Articles 25 and 26 of the Constitution cannot have the effect of eroding the
fundamental rights guaranteed under these Articles. Justice Chandrachud
concurred with the opinions delivered by CJI Dipak Misra & Justice Nariman to
hold that the Ayyappans, or worshippers of Lord Ayyappa, did not satisfy the
judicially enunciated requirements to be considered a separate religious
denomination. He held that the exclusion was not an essential religious
Justice Chandrachud further emphasised that physiological characteristics of
women, like menstruation, have no significance or bearing on the entitlements
guaranteed to them under the Constitution. The menstrual status of a woman
cannot be a valid constitutional basis to deny her the dignity and the stigma
around the same had no place in a Constitutional order.
Significantly, Justice Chandrachud also dealt with the argument that the exclusion was a form of
untouchability prohibited under Article 17 of the Constitution. He observed that
a perusal of the Constituent Assemble Debates would show that the makers of the
Constitution had deliberately chosen to not give the term untouchability a
specific meaning. He concluded that this was to ensure that it was not
understood in a restrictive manner and must therefore be given an expansive
meaning. He further held that Article 17 is a powerful guarantee against
exclusion and cannot be read to exclude women against whom social exclusion of
the worst kind has been practiced and legitimized on notions of purity and
Justice Malhotra's dissenting opinion
Justice Indu Malhotra delivered a dissenting opinion. She argued that
constitutional morality in a secular polity, such as India, requires a 'harmonisation'
of various competing claims to fundamental rights. She said that the Court must
respect a religious denomination's right to manage their internal affairs,
regardless of whether their practices are rational or logical.
She held that the Sabarimala Temple satisfies the requirements for being
considered a separate religious denomination. She therefore held that the
Sabarimala Temple is protected under Article 26(b) to manage its internal
affairs and is not subject to the social reform mandate under Article 25(2)(b),
which applies only to Hindu denominations.
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 understood in
the context of India being a pluralistic society. She stated that the State must
respect the freedom of various individuals and sects to practice their faith.
She held that the fundamental right to equality guaranteed to women under
Article 14 cannot override Article 25, which guarantees every individual the
right to profess, practice and propagate their faith.
She held that Rule 3(b) does not stand in conflict with its parent Act, the
Kerala Hindu Places of Public Worship Act. She emphasised that the rule 'carves
out an exception in the case of public worship'. She held that the rule was
consistent with Article 26(b) of the Constitution.
She dismissed the argument that the Sabarimala custom violates Article 17 of the
Constitution. Article 17 pertains to untouchability and prohibits discrimination
on the basis of impurity. She stated that, in the context of the Article and the
Constitution in general, untouchability refers to caste and does not extend to
discrimination on the basis of gender. Like Justice Chandrachud, she referred to
the Constiuent Assembly Debates to establish how the founder intended to use the
term untouchability. Unlike Justice Chandrachud, she concluded that
untouchability does not extend to gender.
Sabarimala is the red-hot debated topic; still after the Supreme Court’s
verdict, the matter does not seem to be find a solution. The verdict to allow
women of age 10-50 years to go inside the temple has troubled the devotees
leading to protest now-a-days but, the moment has come which requires resolving
the issue with diligence and finding a solution which is in the middle path.
Nowadays, it is the right time for everyone to let go of the narrow-minded
feelings of fundamentalism and work together. The dissenting opinion of Justice
Indu Malhotra must be respected as it is right to profess religion as it was not
the whole class of females who were discriminated against for no good reason and
were considered impure because of their biological menstrual feature.
It is greatly believed that the verdict of the Supreme Court which allowed women
to go inside Sabarimala was acceptable of the constitution and in favor for the
public at large as discrimination did not take place. The Supreme Court noticed
that disallowing women of a particular age at Sabarimala temple is based on the
patriarchal belief that the dominant status of a man in society makes him
capable of performing austerity. The Constitution Bench in this case was lef by
Chief Justice Dipak Mishra said the court could not accept a method mired in
patriarchy and fanaticism. The ban seems to have emanated from the
paternalistic notion that women cannot perform the penance of Forty one days.
Disallowing menstruating women which were considered ‘impure’ could lead to the
form of untouchability. Thus, the critical question arises whether the verdict
given by the supreme court is reformative or disruptive? By disallowing females
of a particular age visiting the temple, the society supports adamant taboos
about purity and pollution. By demolishing these types of rules, we gently strip
society of the power to announce someone ‘impure’ because of birth or
Dr B. R. Ambedkar once argued that by not allowing untouchables to enter
religious places was a powerful method of increasing the social discriminations
against them. The court should see this as an opportunity to re-examine and
reform the historical shortcomings if there are any. The court should see beyond
the essential practices doctrine and look this case which denying women not only
of their rights to freedom of religion but also of equal rights and access to
The main reason for not allowing the women of a particular group to enter into
the temple was because The idol of Lord Ayappa in Sabarimala is known to be a
symbol of Naishtika Brahmachari (celibate). Article 25 (2) which throws open
public Hindu religious institutions to all classes and sections of society can
be applied only to social reforms, and it does not apply to matters of religion
covered under Article 26 (b) of the Constitution.
Article 26 (b) provides:
the right to every religious denomination to manage its affairs in matters of
The Court in Ritu Prasad Sharma vs State of Assam
(2015), held that:
religious customs which are protected under Articles 25 and 26 are immune from
challenge under other provisions of Part III of the Constitution.
The main question that remains is that is it patriarchy or just a custom? Is
there any discrimination against women even though women above 50 years are
allowed to approach the temple? The five-judge bench gave their judgement with a
4:1 majority and yet there have not been any code of conduct set up for women to
enter the temple for their safety. Reactions to the ban lifting are not what the
citizens were expecting when they wanted to remove the restriction. Even today,
when a woman enters that temple, she does not feel safe. How is someone supposed
to worship when they are not peaceful.
Written By-Rajesh M