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The Sabrimala Verdict: A Complete Analysis

Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. (2018)

Brief Facts of the Case:
Sabarimala shrine, a hindu temple is in the State of Kerala dedicated to Lord Ayyappan an eternal celibate. It is a temple located at Sabarimala inside the Periyar Tiger Reserve in Pathanamthitta district of Kerala which is a reserve area. The Sabarimala temple is managed by the Travancore Devaswom Board (hereinafter referred as TBD) and TBD restricted menstruating women between the age of 10 and 50 years from entering into the temple.

The restrictions are based on the fact that the temple deity, Swami Ayyappa, is a Naishtika Brahmachari i.e. a celibate and therefore is an epitome of purity which should not violated by menstruating women. The followers of lord Ayyappan regarded it to be Essential religious practice and its violation will lead to violation of spiritual development.

Based on this, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, prohibits women from entering the Sabarimala temple premises. Kerala High Court in 1991, in its judgment restricted the entry of women above the age of 10 and below the age of 50 from offering worship at Sabarimala Shrine as they were of the menstruating age by mentioning that the restriction was in place since centuries and is not discriminatory to the constitution of India.

The High Court also held that only the chief priest and the Tantrik (Priest) were empowered to decide on traditions. In 2006, Indian Young Lawyers Association along with five others challenged and questioned the ban in Supreme Court seeking a direction to allow entry of women into the temple without age restriction.

Composition of the Bench: Supreme Court of India Constitution Bench ( 5 judge bench) - Name of Judges: CJI Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud, Justice Indu Malhotra, Justice AM Khanwilkar( represented by the CJI) - Area of Law: Constitutional Law

The Supreme Court got writ jurisdiction over the matter by the way of its original jurisdiction under Article 32 of the Constitution of India.

Question of law:
The case involves a substantive question of interpretation and declaration of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as unconstitutional as it violated the rights guaranteed under Articles 14, 15, 25 and 51A(e) of the female devotees.

Legal Issues for Determination:
  1. Whether the ban of entry of women of menstruating age between 10-50 years is violative of Article 14 and 15 of the Indian Constitution
  2. Whether prohibition on women based on biological factors can be protected by morality under Article 25 of the Constitution?
  3. Whether such practice of excluding women constitute as an essential religious practice under Article 25?
  4. Whether idea of being impure while menstruation violative of Article 17 of the Constitution?
  5. Whether State can make laws under Article 25(2)(b) in religious aspects apart from social ones?
  6. Whether Sabrimala worshippers constitute a separate religious denomination under Article 26 and can manage its own affairs in matters of religion?
  7. Rule 3(b) Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,1965 permits religious denomination to ban entry of women on biological factors and is it in contradiction to Part III of the Constitution?
  8. Whether Rule 3of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules violative of Article 14 and 15(3) of Constitution by discriminating on grounds of sex?
  9. Whether religious denominations managed by statutory board and financed under Article 290A can indulge in practices violating constitutional morality as per Article 14, 15(3), 39(a) and 51-A(e)?

The appellants emphasized on the Constitutional principles involved and how they should be seen keeping in mind liberty and equality. The submissions made in favor of women entry were that women should have equal rights to enter the temple as mere sight of them won't affect the oath of celibacy and if they are denied entry then it violates Article 14 of the Constitution and same cannot be covered in reasonable classification on the basis of age.

Furthermore, the idea of impure while menstruation leads to practice of discrimination as it is a practice based on physiological factors (exclusionary practice) which violates Article 17. The said discrimination made on the basis of sex prohibiting the entry of women also violates Article 15 and not allowing them to practice their religion violates Article 25 and the rules supporting the said restriction in Kerala Hindu Place of Public Worship Act, 1965 violates Article 14, 15, 25 and 26 of Indian Constitution.

Further contentions were raised that the temple did not constitute a separate religious denomination under Article 26 as the practices performed were not different from any other Hindu temples.

Nature of Issues:
The whole case is centered mainly around ban on entry of women in the temple which violated their Fundamental rights as mentioned above and, how the judges addressed the issues touching the cornerstones of Constitutional principles and morality where religion and devotion cannot be subjected to gender discrimination and nobody should be in a position where they have to compromise with their dignity and liberty, as the whole purpose of Constitution will be defeated.

The judges ensured that freedom to follow any religion cannot be kept as subset to religious patriarchy and mere biological reasons cannot exclude women to worship God as such differences will hamper the functioning of society. The majority judgment laid in favor of women not only linked dignity to religion but also referred to true essence of religion and how State should be subjected to make social reforms and exclude such practices which are prevailing in society.

Reasoning and decision:
Chief Justice Dipak Misra, reasoning on behalf of Justice Khanwilkar & himself remarked that religion is a way of life inherently associated to the self respect of an individual and gender biased exercises based on exclusion of one gender in favor of another could not be permitted to encroach upon the constitutional guarantee to practice and profess one's religion. He stated that the practice of disbarring of women between the age group of 10-50 years implemented by the Sabarimala Temple stripped women of their freedom of worship, ensured under Article 25(1).

In furtherance, he observed that the followers of Ayyappa did not fulfill the constitutional criteria to be deemed a separate religious identity. He believed that these followers of Ayyappa are Hindus. Therefore he said that the temple's sectarian authority to control its own internal affairs, under Article 26(b), was conditional to the State's social reform directive under Article 25(2)(b). Article 25(2)(b) says that the State can formulate laws to reform Hindu sects and denominations.

Particularly, Article 25(2)(b) permits the State to formulate any law that establishes a public Hindu institution to all classes and sections of Hindus. His perception of 'classes and sections' included the gendered category of women. He concluded that the Sabarimala custom of debarring women from religious practices is conditional to State sanctioned reform.

He also decided that the debarring of women in the age group of 10-50 by the Sabarimala Temple authorities cannot be deemed to be an essential religious practice. He held that in the probability of the followers of Ayyappa being Hindus, the practice of debarring women cannot be considered to be an essential religious practice.

He annulled Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965. He was of the opinion that the rule is both in violation of the Constitution and ultra vires of its parent Act. Sections 3 and 4 of the Act were formulated with the specific objective of reforming public Hindu places so that they become accessible to all sections of Hindus. Rule 3(b) aims to achieve the opposite -- it allows public Hindu places of worship to debar women on the basis of custom. Hence, Chief Justice Misra concluded that the rule is not only in violation of the Constitution, but also stands in contention with the intent of the parent Act.

Justice Rohinton Nariman delivered an opinion in consonance with that of Chief Justice Misra. He decided that the devotees of Ayyappa do not constitute a separate religious sect. He labeled the people as Hindus who worship the idol Ayyappa. Thus he held that the Sabarimala Temple's denominational freedom under Article 26 is conditional to the State's social reform directive under Article 25(2)(b).

He opined that the debarring of women from the temple effectively made their right under Article 25 incomprehensible. He emphasized that Article 25(1) shields the fundamental right of women in the age group of 10-50 years to enter the Sabarimala Temple and exercise their freedom of worship. He held that there was adequate material and evidence to conclude that the custom of debarring of women from Sabarimala is in violation of Article 25(1).

He concluded that the Ayyappans' custom of debarring women, belonging to the age group of 10-50 years, from the Sabarimala Temple was unconstitutional. He also annulled Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 as unconstitutional.

In a distinct and concurring opinion, Justice D Y Chandrachud held that the debarring of women belonging to the age group of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it undermined the ideals of autonomy, liberty, and dignity. He decided that the morality conceived under Articles 25 and 26 of the Constitution cannot have the effect of abrading the fundamental rights guaranteed under these Articles. Justice Chandrachud was in consonance with the opinions delivered by CJI Dipak Misra & Justice Nariman to decide that the Ayyappans, or followers of Lord Ayyappa, did not fulfill the judicially enunciated criteria to be considered a separate religious sect. He held that the debarring was not an essential religious practice.

Further he laid emphasis on physiological characteristics of women, like menstruation, and stated that they have no significance or gravity on the entitlements guaranteed to them under the Constitution. The menstrual status of a woman cannot be a valid constitutional criterion to deny her the dignity and respect, and the taboo and stigma around the same had no validity in a Constitutional order.

Significantly, he also had an opinion on the argument that the debarring was a form of untouchability prohibited under Article 17 of the Constitution. He observed that a perusal of the Constituent Assembly Debates would show that the makers of the Constitution had deliberately chosen to not give the term untouchability a specific meaning.

He concluded that it was to ensure that untouchability was not comprehended in a restrictive manner and must therefore be given an expansive and inclusive meaning. He further held that Article 17 is a powerful guarantee against exclusion and cannot be read to debar women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.

Justice Indu Malhotra, the sole woman on the bench, contended that the petition doesn't deserve to be entertained. She was of the view that courts must not determine which religious practices are to be struck down except in issues of social evil such as Sati. As per the opinion of Justice Malhotra, Judges should not impose their personal views, rationality or morality when it comes to the form of worship of a deity, dissenting with the majority verdict to open up the Sabarimala temple for women belonging to all age groups.

Malhotra J., in her dissent, she has dealt with the issue of maintainability of the concerned public interest litigation petition in two parts. Firstly, are the petitioners the competent persons to move this petition and Secondly, is the petition itself capable of being admitted by the Court on procedural counts.

The Hon'ble Judge contended that since the core questions of the petition deal with issue of determining the correctness of a specific religious practice, therefore making an evaluation at the behest of those not engaging in such practice is an inappropriate course of action. Malhotra J. has observed that in the instant matter the petitioners do not belong to the concerned group of devotees visiting Sabarimala, due to which they are devoid of any real interest in the matter.

Naturally, given the majority verdict and the fact that the practice in question is seen to have abrogated the rights guaranteed under Part III of the Constitution, to say that a question affecting larger public interest is missing, becomes a difficult argument to accept. The Hon'ble Judge finds support for this line of reasoning by relying on judgments wherein the concerned religious denomination has sought an action against the State on account of alleged violation of its rights under Articles 25 and 26 of the Constitution.

The judgment has in every view so rendered dealt comprehensively with the questions of what may make up as an essential practice and what may be known as a religious denomination or sect for the purpose of applying the autonomy established under Article 26.

Dealing with the dichotomy surrounding religious denomination and essential practice, Justice Malhotra upheld that the status of Ayyappa devotees is that of a separate religious denomination. She relied the fact the Travancore Devaswom Board (TDB) in 1955 and 1956 issued the notifications, which refer to the devotees as Ayyappans, therefore she contended The people attending worship of Lord Ayyappa together constitute a religious denomination, or sect thereof, as the case maybe, follow a common faith, and have common beliefs and practices, .

The worshippers followed the Ayyappan Dharma. They are designated by a unique name wherein all male devotees are called Ayyappans; all female devotees between 10 and 50 are called Malikapurams. A pilgrim on his maiden trip is called a Kanni. The devotees are known as as Ayyappa Swamis. A devotee has to observe the vratham for the time duration of 41 days and follow a code of conduct.

She said the prevention in fashion for time immemorial made the practice competent to be called an essential practice. A religion can have its own code of ethics, and can also prescribe rituals, ceremonies and modes of worship. Justice Malhotra has in her dissent observed that since Article 26 is not subject to restrictions placed under Article 25 therefore it is absolute and not open to challenge. She upheld that the manifestation is in the form of a Naishtik Brahmachari. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

She further observed that imposing the morality of court on a religion would create impedance in the freedom to practise one's religion according to one's faith. It would lead to rationalising religion, faith and beliefs, which is outside the acquaintance of courts. A secular polity and pluralistic society would ensure that the followers and believers of various sects have the freedom to practise and profess their faith adhering with the tenets of their religion. It is an irrelevant issue that whether the practice is rational. Justice Malhotra stated in her judgment that ideas of rationality cannot be invoked in matters of religion by courts, dismissing the appeals challenging the centuries-old ban in the temple.

New Principles/ Guidelines:
During the hearing, the bench made several observations which serve as a fillip to today's verdict. It had observed that what applies to a man applies to a woman as well and that once you open it for public, anyone can go.

The bench also said that a woman�s right to pray was not dependent on any law but it is a Constitutional right.
Your (intervener) right to pray being a woman, is equal to that of a man and it is not dependent on a law to enable you to do that, observed Justice D Y Chandrachud. Justice Nariman had observed that menstruation is not impure.

The case answered various legal issues in light of constitutional principles and one of them was article 17 where a wider interpretation was given to it stating that banning the entry of menstruating women on basis of age violates Article 17 as forms of untouchability cannot be restricted and rather extends to any sort of discrimination, prejudice and social exclusion and such exclusion of women based on menstrual process considering them impure encompasses the practice of untouchability.

Present Status of the ruling:
The judgment has proven been to be one of the historical judgments in 2018 and has set an example of progressive society keeping the spirit of Constitutional Morality and how women's right cannot be taken away undermining the basic rights of Equality. The rationale of the case focused on individual's right which was dealt in Puttaswamy v. Union of India[1] case and Navtej Singh Johar[2] case and on the other hand it focused on women right which was highlighted in Triple Talaq[3] case and striking down of Section 497 of IPC in Joseph shine[4] case, all these proved to be historical landmark judgments in 2018 concentrating on Constitutional values and morality.

The judgment of Sabarimala records for the battle between religious beliefs and practices and notions of equality for every citizen. There are different notions of morality, customs and religions but through the case, the Supreme Court highlighted the highest notion of morality that is the Constitutional Morality. Constitutional Morality means the adherence to the noble principles and philosophy of the constitution.

It basically means that it is of paramount importance that the institutions which have been guaranteed a right under the constitution abide not only its text but also its soul, and behave in an expected and reasonable manner with a sense of accountability towards the public. It demands for a principle interpretation which should be in line with the ethos of the constitution which will lead to the creation of a society based on social, political and economic justice. The ideals of Liberty, Equality, Justice and Fraternity enshrined in the preamble are the primary objectives on which rests foundation of the Indian Constitution.

The Apex court in the instant case systematically followed the previous judgements wherein it was held that the word morality used in Articles 25 and 26 refers to constitutional morality. With this view the court held that the attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender which results in indignity to women and degradation of their status.

The expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests and hence patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess ones religion.

As the society evolves with time and the constitution has to play an important role to help the society evolve with time. However the dissenting judge, Justice Indu Malhotra viewed Constitutional Morality as one where every single individual would have the right to his own faith and nobody can interfere with itwhich includes the courts.

Nevertheless as Dr. Ambedkar clarly said:
The issue is not entry, but equality by the verdict of 4:1 ratio, the Hon'ble Supreme Court has allowed the women between the age group of 10 to 50 years who were denied entry earlier, to enter the Sabarimala Temple and worship Lord Ayyappa like any other individual giving preference to right guaranteed under Article 25(1) of the female worshippers.

  1. (2017) 10 SCC 1
  2. AIR 2018 SC 4321
  3. (2017) 9 SCC 1
  4. 2018 SC 1676
Written By:
  1. Priyanka Jaiswal And
  2. Sakshi Agarwal

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