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Right to equality with special emphasis on Sabarimala temple case

A constitution is the aggregate of fundamental principles or the established precedents that constitute legal basis of a polity, organisation or any other type of entity & commonly determine how that entity is to be governed. The Indian Constitution contains 6 Fundamental Rights, guaranteed by the State, & any law / custom violating these rights can be reviewed as well as struck down by the courts.

One of these rights is the right to equality, which was violated in the present case about ‘banning entry of women between the age of 10-50 years in Sabrimala Temple'.

The priests of the temple & the authorities due to their traditional & conservative mindset excluded admittance of menstruating women from the age of 10 to 50 years in the premises as it was believed that it questioned the sanctity & purity of the deity of the temple.

But the Supreme Court ruling changed this age-old custom & practice via the aforementioned judgment. In a landmark judgment on 28th September 2018, the Supreme Court granted women's entry to Kerala's Sabarimala temple, irrespective of their age.
  1. Fundamental Rights

    • The Fundamental Rights are envisaged in Part III (Articles 12 - 35) of Indian Constitution. These rights are applied without any discrimination on the basis of religion, gender, race, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain reasonable conditions.
       
    • The Fundamental Rights comes under the following six categories:
      1. Right to Equality
      2. Right to Freedom
      3. Right against Exploitation
      4. Right To Freedom of Religion
      5. Cultural & Educational Rights
      6. Right To Constitutional Remedies
         
    • The Constitution guarantees certain remedies if citizens' fundamental rights are violated in any way. The government cannot infringe upon anyone's rights. When the fundamental rights are violated, aggrieved party can directly approach high court. Citizens can also go directly to the Supreme Court who can issue writs for enforcing the fundamental rights. A writ is filed when there is a violation of any of the fundamental rights by a state or government body/authority against any citizen of India.
       
  2. Right To Equality

    • Equality is a very dynamic concept in nature & thus is interpreted in the widest form. Articles 14-18 of constitution constitute the right to equality. The right in the constitution is not merely a negative right of not to be discriminated against, but also a positive right of being treated as equal.
    • Equality means to treat everyone equally. However, it is very difficult to measure everyone with just one yardstick, so, some reasonable classifications have been allowed for the social & cultural well-being of some of the strata of the population.
    • The principle of equality prohibits the unreasonable discrimination between persons. The State is under the obligation to treat people equally as well as take positive steps so as to remove existing inequalities.
    • The principle of equality says that discrimination can't be practiced amongst those who've been placed in similar situations, because that amounts to a violation of equality before the law. However, some special status & privileges are guaranteed to a certain class of people for their upliftment is not covered under this Article & is held valid constitutionally.
       
  3. Gender Equality & Sabrimala

    Sabarimala is more an issue of gender equality than of the religious freedom. The real battle was between regressive feudal forces who stand for the Brahmin hegemony & royal power; & progressive forces of democratic equality.
     
  4. Landmark Case Of ‘Sabrimala Temple'

    Case: Indian Young Lawyers Association & Ors v. The State of Kerala & Ors. (2018) SCC OnLine SC 1690

  1. Issue Of Entry Of Women


    The temple of Sabrimala is situated in the state of Kerala & is one of most famous & well-known temples for the Hindus. This ancient temple is dedicated for worshipping Lord Ayyapan who is also known as ‘Dharmashastha', who according to some belief, is the son of Shiva & Mohini, the feminine incarnation of Vishnu. The Sabarimala temple has been managed by Travancore Devaswom Board. Due to their traditional & conservative mindset, priests of the temple & authorities excluded the admittance of menstruating women from the age of 10 - 50 years in the temple as it was believed that it questioned sanctity & purity of deity of the temple. This was the ancient & customary practice by authorities for not allowing women to enter in the temple which was continued from a very long period.[1],[2]
     
  2. Reason Behind The Restriction / Prohibition Of Entry Of Women To Sabarimala Temple

    • Lord Ayyappa was always a celibate till date, & the main reason behind his celibacy is his assurance that was given to Malikapurathamma, i.e., till the day he finds out that kanni-swamis stops coming to the temple, he would be remaining a celibate. This practice has been followed for several years & if by any chance the kanni-swamis have ceased to come to devasthanam during Mandalam period then it would be considered that prohibition of women entry to the pilgrimage would have come to an end. It has been believed that Lord Ayyappa would get married to Malikapurathamma after such aforesaid period, which would be an auspicious day for all devotees.[3]
       
    • Entry of women shall affect sanctity of principles of the Brahmachariyam. There has always been religious practice in Hindu Religion which is based on 4 Ashramas; wherein every person goes through the phases during their lifetime. Lord Ayyappa is going through first phase of Ashrama i.e., Brahmacharya. The importance of being Brahmacharya is for attaining; both practical & spiritual excellence, wherein one shall wholeheartedly follow principle of celibacy.
       
    • Lord Ayyappa, who is a Naishtika Brahmachari, is shielding devotees who visit the Temple & also brings about some change in the vicious thoughts of humanity. The logic behind such prohibition of entry of women is that it wouldn't only affect sanctity of Devasthanam, but also affect the essential principle to be a Brahmachari.
       
    • The reason behind restriction for entry of women aging between 10 - 50 was due to menstruation cycle which every woman would undergoes after attaining puberty. The significance of this restriction is in furtherance of assurance given to Malikapurathamma by Lord Ayyappa, as a condition to marry her. It is believed that every woman of age below 10 & above 50 are allowed to enter sannidhanam. The Travancore Devaswom Board has made it compulsory for every woman to carry age proof with a view to put an end to instances of women entering sabrimala temple by defying such restriction. Furthermore, even any restricted women who has removed their uterus have been allowed to enter the temple without any kind of restriction, provided that they bring the medical certificate which states the same. It is necessary to understand the relevance of this matter at this time.
       
    • Thus, according to the opposers of the judgement, prohibition of entry of women is legal, as based on the Essential Legal Practices, which have been followed from time immemorial. Intense Religious sentiments are obviously deeply rooted in this issue & any kind of indignity may lead to shutting down of entire temple itself. Such religious beliefs might not necessarily have scientific reasoning but are so entwined with unfathomable as well as irrefutable faith of millions.
       
    • Article 26 of Constitution of India gives a right to lay down practices & customs for sustainment of spiritual wellbeing to the religious denomination. Judicial Intervention with such deeply grounded right of denomination may lead to communal disharmony. The opposers asserted that restrictions imposed do not suffer from any illegality & thus are entitled to be upheld by the Honorable Supreme Court.
       
    • The classification done on basis of physiological characteristics between Women & Men is backed up by a strong reasoning & thus isn't violative of Article 14 of Constitution. It is, in turn, satisfying the conditions of Intelligible Differentia & the Rationale Nexus principle. Sabarimala Temple has a separated denomination for itself because it satisfies all such requirements, & is empowered to manage its own religious affairs. [4]
       
  3. Public Interest Litigation

    This century's age-old restrictive practice by temple authorities was challenged through a PIL by Indian Young Lawyers Association, a group of five women lawyers in the Hon'ble Supreme Court of India. It had been contended that according to the 1965 act; which states Women who aren't by custom & usage allowed to enter a place of public worship shall not be entitled to enter / offer worship in a place of public worship [5] is in violation of the basic fundamental rights given by constitution.

    The petitioners have prayed in their PIL for:
    • Issuance of an appropriate writ / direction commanding the Govt. of Kerala & the Devaswom Board of Travancore, so as to ensure entry of female devotees between age group of 10 - 50 years at the said temple at Sabarimala that has been denied to them merely on the basis of certain custom & usage; &
    • To declare the Rule 3(b) of Kerala Rules, 1965 as being unconstitutional for violating Articles 14, 15, 25 & 51A(e) of Constitution.

      The Supreme Court accepted had the petition & on 28 September 2018, it overturned the restriction on entry of women, declaring it unconstitutional as well as discriminatory. The Supreme Court in a 4:1 majority, said that such temple practice is in violation of rights of Hindu women, & that banning the entry of women to the shrine comes under the purview of gender discrimination.
       
  4. Case Background
    • This issue of restriction of women from entering temple was challenged before the Kerala High Court in 1991 in the case S. Mahendran v. The Secretary of Travancore Devaswom Board, Thiruvananthampuram & Ors. The division bench of the Kerala High Court ruled in favor of the defendants & gave a decree stating that restrictions have been existing since time immemorial & prohibition by the Travancore Board does not violate Constitution or the pertinent 1965 Kerala Law.
       
    • There have been various incidents & cases over decades where such matter came up questioning as to what actually constituted a religion & its practices & the courts have come a long way in determining such practices. There is a need to determine as to what constitutes a religion & also difference between religious practices & the superstitious beliefs & it can be ascertained only with doctrines of that religion itself. Thus, it can be primarily said that views of followers of any religion are important & crucial to determine what are the essentials of that particular religion. [6]
       
    • The case of Sabarimala is one in which Supreme Court determined & drew a parallel between Right to Religion & Right to Equality as basic fundamental rights guaranteed by the constitution & through this judgment, uplifted the ban that was imposed on women from entering the temple.[7]
       
  5. Articles In Issue:
    • Article 14
    • Article 15
    • Article 17
    • Article 25
    •  Article 51 A(e)
       
  6. Analysis Of The Sabarimala Judgment

    The verdict was passed with a 4-1 majority wherein Chief Justice Dipak Misra, & also Justices A. M. Khanwilkar, R. F. Nariman & D. Y. Chandrachud had favoured to permit women enter the temple, while Justice Indu Malhotra had dissented. Indu Malhotra said that each individual should be allowed to practice faith irrespective of whether the practice is rational or logical. The Supreme Court observed that such custom of barring the said category of women was violating the Article 25 (Clause 1) & Rule 3(b) of Kerala Hindu Places of Worship.[8]
Dissenting Opinion:
  • In five-bench judge of Supreme Court, Justice Indu Malhotra, being the only woman judge, to a much surprise gave a dissenting opinion. She based her judgment on a notion that in the issues of deep religious sentiments & morality, the courts shouldn't intervene even if it seems discriminatory. It's a matter of personal faith & as India is a land of diverse faiths. Judges cannot & should not intervene & decide on if a practice is violative of fundamental rights. A religious denomination has freedom to believe & even practice, even if their belief seems illogical or irrational. She held that fundamental right to equality has been guaranteed to women under Article 14, and can't override Article 25, which guarantees to every individual the right to profess, practice & propagate any faith of their choice.
     
  • Justice Malhotra set down a dangerous precedent by stating that courts shouldn't delve into rationality of the religious practices. No one should forget that if it wasn't for judiciary's activism, the rigid societal structures would've still clawed on to unbending orthodoxy. The judgment of Supreme Court on Sabarimala had several effects. On one hand, many people have supported the decision & on the other, many people including many women have criticized the Supreme Court for such a verdict in a belief that the court had infringed their religious beliefs & morals.

Majority opinion:
Delivered by the then Hon'ble Chief Justice of India, Dipak Misra:
Where a man may enter, even a woman can. What applies to any man, applies to any woman.
  • Several arguments were brought in front of Supreme Court from the petitioners & the respondents. The petitioners contended that this restrictive practice by temple authorities by not allowing women to enter temple is clearly violative of their fundamental rights given by Constitution & is discriminatory to them.
     
  • It was claimed that presence of women questioned purity & sanctity of the deity & also it distracts the devotees. The Court had dismissed the reason on the ground of equality & the perpetration of stereotypes in society. It was of the view that, both men & women are equal & that no one shall be discriminated or restricted in any form. The ideology of purity & pollution of this temple authorities for not letting menstruating women enter this temple was clearly a violation of Article 17 which talks about abolition of the untouchability in any form.
     
  • The Supreme Court took into consideration the Essential Practices Test which has been consistently used by courts from time to time. It empowers them to determine whether any religious practice is an ‘essential practice' or not, as per the notions & beliefs of such religious community. The test lays that what constitutes an essential part of religion shall be ascertained with reference to tenets & doctrines of such religion itself.
     
  • The Supreme Court, through its judgment cleared the tussle between the fundamental rights & traditions. Traditions have always been an important & essential part of our society & it is one of the famous things for which the country holds its identity; but traditions that hamper basic essence of constitution & rights of a particular class of people in the society due to some mere natural biological process certainly needs to be questioned. The Constitution of India guarantees certain fundamental rights to all citizens wherein Right to Equality & Right to Religion are the two of them.
     
  • The Supreme Court through its verdict of removing the ban on women from entering the Sabarimala temple again established supremacy of Constitution above all other aspects & thus ensuring that rights of women are not violated due to a certain long-prevailing customs & traditions.
     
  • This verdict has opened the floor for the Supreme Court so as to analyze whether the judiciary needs to intervene in such aspects as well & are these practices also discriminatory.

End-Notes:
  1. https://lawcirca.com/sabarimala-case-summary/
  2. https://indianexpress.com/article/what-is/what-is-the-sabarimala-case-5376596/
  3. http://www.legalserviceindia.com/legal/article-4872-brief-analysis-of-sabarimala-temple-case-indian-young-lawyers-association-v-s-kerala.html
  4. https://blog.ipleaders.in/case-comment-sabarimala-case/
  5. Rule 3 (b), Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965
  6. https://lawcirca.com/sabarimala-case-summary/#Conclusion
  7. https://blog.ipleaders.in/case-comment-sabarimala-case/
  8. https://en.wikipedia.org/wiki/Entry_of_women_to_Sabarimala

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