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A Constitutional Analysis Of The Denial Of Women In Religious Shrines: The Sabarimala Judgment Analysis

What if a criminal is allowed to enter a shrine, but a woman who is bleeding is not? There had been cases that discussed several controversial issues on religious affairs. The Sabarimala case[1], is one such controversial issue associated with the growth of progressive feminist jurisprudence. The Supreme Court has referred the Sabarimala ruling, which was handed down four years ago, to a seven-judge Constitution Bench after a recent decision in Kantaru Rajeevaru vs. Indian Young Lawyers Association & Ors.[2]

It was the Sabarimala Judgment that infused feminist jurisprudence with new vigour and lubricated the wheels of social integration. Denying women access to places of worship purely because of their physiological State is against the Indian Constitution's mandate and goes against the spirit of the right to equality guaranteed under Article 14.[3]

According to the claim of the petitioner, a regressive reading of the Scripture could not be used as a ground for discriminatory acts based on a person's physiological status. The Supreme Court's landmark decision in the Indian Young Lawyers Association v The State of Kerala[4] the case is widely appreciated across India for allowing women between the ages of 10 and 50 to visit the Sabrimala Temple and overturning the rule that banned them from doing so.

Sabarimala, on the other hand, is not a one-off case in which the Supreme Court defended women's rights. In the Shani Shignapur Temple[5] issue and the Haji Ali Dargah[6] Case a few years ago, the Bombay High Court ruled that denying women access to places of worship violates our Constitution's equality values. Before reaching this result, all of these decisions presented diverse legal justifications.

In a culture as deeply rooted in religious views as India, the fact that judges of constitutional courts decide on questions of faith has always been a source of conflict. Such legal difficulties in India include a complicated interaction between Articles 14, 25, and 26 of the Constitution.[7] When these Articles are contrasted, we are overwhelmed by the lengthy argument that arises as we consider the fundamentals of constitutional integrity.

This paper attempts to analyze the judgement from the constitutional aspect. It delves further into the facts of the Sabarimala temple issue and the High Court judgement in order to provide more information. The reason behind the verdict of the majority of judges and the lone dissent by Justice Indu Malhotra is also discussed in the paper.

It moves further into the shortcomings of the concept of the Essential Religious Practice Doctrine. The study also focuses on the premise that combining the anti-exclusion principle with the deferential method will raise women's rights and defend their integrity. Finally, the paper ended with a conclusion that urges us to bring about a societal transformation by eradicating harmful behaviors and rituals from our faith in order to achieve equality in our society and to wage a battle against historical patriarchal conventions.

Background of the Sabarimala Case

The holy Sabarimala Temple is devoted to Lord Ayyappa, which is situated in the district of Pathanamthitta in Kerala.[8] Lord's followers believe that asceticism, namely celibacy, is the source of his abilities. Lord's devotees were required to maintain a stringent Vratham, or vow, for a period of forty-one days in ancient times.[9] The Temple has followed the Naishtika Brahmacharya form set by Lord Ayyappa in excluding women from entering and participating in the Vratham since time immemorial.

According to Section 3 of the Act of Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry Act)[10], 1965 authorised this old ritual (from now on, the Act) venues of public worship shall be available to all classes and sections of Hindus, according to religious denominations' rights. However, Rule 3(b) made an exemption for women who are not allowed to visit a place of public worship according to tradition and use.

Women above the age of ten and under the age of fifty were not permitted to access the shrine under this exemption with a long-standing custom prevailing since time immemorial by way of its order in S. Mahendran vs. The Secretary, Travancore (1993)[11]. In 2006, a public interest petition was filed challenging the constitutional legality of Kerala Hindu Places of Public Worship Rules, 1965, Rule 3(b) (that restrict the entry of women into the Temple).[12]

The Kerala High Court, seeking that women be denied entry to the Sabarimala shrine, upheld the ban on women of particular ages entering the hallowed shrine in a decision handed down on August 5, 1991. In 2006, the Indian Young Lawyers Association filed a petition with the Supreme Court, requesting that women aged 10 to 50 be allowed to attend the historic shrine.[13] In 2007, Chief Minister v/s Achuthanandan's LDF (Left Democratic Front) administration filed an affidavit in Court in favour of a Public Interest Litigation. On January, a supreme court division bench of two judges addressed the issue of female devotees being barred from entering the historic Temple.

The Supreme Court was notified on April 11, 2016, that the then-UDF (United Democratic Front) administration, led by Chief Minister Oomen Chandy, was obligated to protect these devotees' ability to exercise their faith. In its response, the Court stated that excluding female pilgrims jeopardizes gender justice.[14] On April 21, the Hind Navotthana Pratishtan and Narayanashrama Tapovanam organizations presented a petition in favour of women's entry into the Temple. The LDF administration, led by Chief Minister Pinarayi Vijayan, was formed when the state assembly was formed.

In a recent document, the administration said that it favours the admission of women of all ages. The case was sent to the Constitution bench in 2017. The case was first heard in 2018 in front of a five-judge Constitution bench led by then-CJI Dipak Misra. The petition demanded that the prohibition (restricting women's admission) be lifted since it was unconstitutional. The Supreme Court in its historical judgement on September 28, 2018 ruled in favour of allowing women to enter the Temple by a 4-1 decision.[15]

In the aftermath of the decision, there were multiple reports of clashes between demonstrators and police. Nonetheless, following the Supreme Court's decision, a large number of supporters demanded that women aged 10 to 50 be barred from entering. The state government passed this law to restrict the admittance of various groups of Hindus into places of worship.

The Majority of Judges' Point of View

The Supreme Court overturned a generations-old custom that prohibited women from entering the Sabarimala shrine in a majority decision. The Court, on September 28, 2018, overturned the prohibition on women between the ages of 10 and 50 from entering the shrine. According to Chief Justice Dipak Mishra and Justice Khanwilkar, gender discrimination cannot be applied to devotion.[16]

Excluding women of particular age from the Temple is not a religious requirement. It was further upheld by the court that it is not essential. 3(b) of the Kerala Temple Entry Act, that prohibits women between the ages of 10 and 50 from entering the Temple, is a violation of the Hindu religion's freedom of worship.[17] If a physiological or biological element fails to satisfy the credibility test, it cannot be accorded legitimacy. Exclusion based on biological or physiological characteristics such as menstruation is both unlawful and discriminatory.

Men and women have the right to worship equally. The term ban refers to religious patriarchy. Justice Nariman said that Females of all ages adore Lord Ayyappa equally, and hence gender cannot be used as a reason to restrict certain women from entering the Temple because they were of menstruation age. He also said that women is equally entitled to worship. Justice DY Chandrachud further added that any religious practise if it violates the dignity of women by denying them entry because of her physiology is certainly unconstitutional.

Hence all women must be allowed to enter because the Court cannot hold legitimate to such religious practices which derogate women. The condition of the vertical connection between the State and its subjects has been evaluated by the judicial attitude expressed in this judgement The Sabarimala decision advances the social inclusion concept by delving deeply into the meaning of 'life and liberty under Article 21.[18]

The Court declared in this decision that it is the custodian of constitutional conscience and that it would not be herded by popular morality or contextual compulsion.
  1. Violation of Article 17 of the Indian Constitution

    It is to be taken into account that the framers of the Indian Constitution added Article 17 to Article 14 and 15 to outlaw discriminatory and inhumane behaviours.[19] It mainly deals with the removal of untouchability. Untouchability is a sign of the caste system, which is a hierarchical order of cleanliness and contamination imposed on people by social obligation. In judicial rulings, the emphasis that the Article's subject matter is not limited to the literal or linguistic sense, but rather the practise as it has evolved in history.

    It was during the hearings the amicus curiae argued that women's exclusion based on customs is a manifestation of untouchability, and hence is a prominent violation of Article 17 of the Constitution. Article 17 is limited to caste-based untouchability, according to the counter-argument, and cannot be broadened to include social/gender-based untouchability.

    Justice Misra and J. Nariman did not address the infringement of Article 17 when writing their judgments; J. Chandrachud deemed the issue to be of fundamental societal importance and examined it thoroughly.[20] He followed the genesis of Article 17 via constitutional debates and rulings, concluding that women's exclusion violated the provision. Furthermore, because untouchability is not defined elsewhere, J. Chandrachud interprets it in the context of the Civil Rights Act to encompass exclusions based on pollution and purity concerns.

    The taboo on women visiting the Sabarimala temple, he believes, is based on ideals of cleanliness and defilement, as menstruating women are considered unclean. As a result, the behaviour in question is in violation of Indian Constitutional Article 17.
     
  2. Violation of Article 14 & Article 15 of the Constitution of India

    The State is prohibited from denying anybody equality before the law or equal protection of the laws under Article 14 of the Constitution.[21] Furthermore, discrimination based on gender is expressly prohibited under Article 15. The majority decision found that women's exclusion violated Articles 14 and 15 of the Constitution and that the rights provided under Articles 25 and 26 were subject to other basic rights specified in the Constitution's text.[22] According to the majority, religious freedom does not take precedence over other essential rights such as liberty and equality.

The reason behind Justice Malhotra's Lone Dissent

Justice Indu Malhotra's lone dissent in the Sabarimala Case wreaked havoc on many communities of worshippers, devotees, free thinkers, and philosophers. A constitutionality test of the statute under Article 14 and 15 should not be conducted, according to Justice Malhotra. According to her, the constitutional guarantee to freedom of religion protects religious groups' views and practises from the constitutional examination. In a secular polity, constitutional morality would imply the harmonization of Fundamental Rights, which include the right of every individual, religious denomination, or sect to practise their faith and belief in accordance with their religion's tenets, regardless of whether the practise is rational or logical.[23]

In her opinion, the Court failed to recognize the reality of the deity's isolation from fertile women as a prominent component of the tradition and was observed consistently and constantly by the devotees, including womenfolk in its desire to establish religious liberties law. In such inquiries, the rationality or irrationality of a religious practise takes a back seat, as Justice Indu Malhotra rightly pointed out.

Furthermore, Justice Malhotra said strongly that Constitutional Morality in a diverse society and secular polity would reflect that adherents of other sects have the right to practise their faith in line with their religion's teachings. It makes no difference whether the practise is logical or reasonable. In cases of religion, judges cannot utilize notions of reason. It was urged that the Supreme Court's inappropriate interference in this situation, in its enthusiasm for social development and change, has proven to be counter-productive.

The Court must comprehend and keep a safe distance from people's religious beliefs and faith, rather than attempting to find reason and ethics in all customs and rites, which are plentiful in Hinduism, a widely practised religion.[24]

How Essential Is the Religious Practise Doctrine?

ERP has been a major line of reasoning in issues regarding gender equality, religion, and fundamental rights. A careful reading of Articles 25 and 26 of the Constitution reveals that neither Article 26 nor any tradition that discriminates against women allows the State to pass legislation prohibiting any woman from worshipping in any public temple, and thus such exclusion violates Article 25's safeguard women's religious freedom.[25]

They are bringing attention to the Convention on the elimination of all forms of discrimination against women, as well as the fact that India is a signatory to the Convention, in order to emphasize that the State must eliminate menstrual taboos based on norms or practises, and that the State should not use custom or practise to avoid their responsibilities. Ambedkar's goal in adopting the word essential religion was to distinguish secular from religious activities, and this notion is reflected in Article 25, where one's right to religious freedom is subject to morality, public order, and health.[26]

ERP contradicts the fundamental tenets of Indian secularism and pluralism. To demonstrate its commitment to Indian plurality, the Constitution grants religious groups autonomy. The judiciary's overuse of ERP has obliterated independent religious groups' ability to self-regulate and self-identify.

When the judiciary employs ERP to assess religious concepts in order to determine their essentiality, it fails to acknowledge the diversity of minority religious traditions within religion and allows for the formation of a monolithic belief system.[27] Indian secularism guarantees religious equality while also allowing the government to intervene in social changes that jeopardize people's civil freedoms.

It does not, however, allow the courts to define what constitutes religious activity. Instead of serving as a moral arbiter to define the bounds of religion, the judiciary's job as a Secular Court is to interpret laws and decide disputes between the State and individuals or religious denominations regarding religious freedom clauses. As a result, the Court takes a paternalistic approach to religion, which goes against the liberal democratic norm.[28]

Conclusion
Many horrific acts have become permissible under the pretence of religious autonomy because religion plays such a large part in our everyday life. Women's rights activists, on the other hand, have recently brought similar claims to Court. Even if the two cases involving the denial of women's entry into religious shrines resulted in favourable outcomes for women after using ERP, it is not a complete proof process because courts assume the role of moral arbiter and interfere with religious organizations' authority without justification.

Due to the lack of a disciplined methodology, this theory allows judges to interfere with religious dogma, resulting in inconsistent outcomes that are frequently tainted by personal bias.[29] The Sabarimala case is now considered one of the most significant legal judgments in history. It has filled the void created by gender inequality and prejudice.

Despite the fact that individuals are submitting review petitions and many are opposed to the Supreme Court's rational decision, the Court has set an example of how it values justice and equality. By boosting women's status, the case had a huge impact.

The Indian Constitution governs us, the citizens of India. In a secular culture like ours, ideas like purity and waste that demean humans have no place. Menstruation is thought to be disgusting or unclean, and enforcing exclusionary dysfunctions based on menstruation status goes against the Constitution's promise of women's honour. Women have the civil right to be free of social and religious traditions that perpetuate apartheid and sexism in their biological processes.[30] The Supreme Court's procedural morality was put to the test during the Sabarimala trial.

As a result, a social plan was developed based on the notion that religion and tradition will submit to the dictates of modernity. It has compelled enormous changes in a Hindu culture that is both timeless and adaptable. Inadvertently, the Supreme Court may have set the ground for hardening of views in favour of the supremacy of the Constitution. This well-known ruling supersedes all other national laws, as well as any traditional; religious practises, beliefs, and rituals that are in conflict with it. On the one hand, it demonstrates the triumph of women's rights over customary laws, conventions, and practises, while on the other, it maintains the supremacy of constitutional morality over customary laws, traditions, and practises.

The far-reaching social and political repercussions of this historic decision will become clear as time passes. It is critical that the courts maintain the ERP in the past and use a combination of the anti-exclusion principle and a deferential approach that examines the practise through the prism of Part III regulations rather than ruling on its necessity. By eliminating all other heinous practises, women's dignity and liberty will be preserved. Furthermore, because judges would be constrained by the Constitution, this method would guarantee women's rights to equal participation in religious communities.

Bibliography
Cases:
  1. Kantaru Rajeevaru vs. Indian Young Lawyers Association & Ors., 2019 SSC OnlineSC 1461.
  2. S. Mahendran vs. The Secretary, Travancore, AIR 1993 Ker 42.
  3. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690, J. Chandrachud, �324.
  4. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690, J. Indu Malhotra (Dissenting) �453.
Online resources:
  1. Aishwarya Kumar, 'Were Women Allowed in Sabarimala? 25-Year-Old Affidavit by Travancore Devaswom Board Says Yes'. https://www.news18.com/news/india/were-women-ever-allowed-in-sabarimala-debate-rages-on-amid-protests-by-true-believers-1907159.html.
  2. Gautam Bhatia, "Essential Religious Practices" and the Rajasthan High Court's Santhara Judgement: Tracking the History of a Phrase, Indian Constitutional Law And Philosophy, available at https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-and-the-rajasthan-high-courts-santhara-judgment-tracking-the-history-of-a-phrase/.
  3. http://www.hajialidargah.in/hajiali_about15.html.
  4. Sabarimala Verdict: A Watershed Moment in the History of Affirmative Action, October 30, 2020, available at https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/.
  5. Shani Shingnapur temple lifts ban on women's entry September 8, 2016, available at https://www.thehindu.com/news/national/other-states/shani-shingnapur-temple-lifts-ban-on-womens-entry/article8451406.ece.
  6. Steven J Heyman, 'Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause' 2021.
End-Notes:
  1. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690.
  2. Kantaru Rajeevaru vs. Indian Young Lawyers Association & Ors., 2019 SSC OnlineSC 1461.
  3. Aishwarya Kumar, 'Were Women Allowed in Sabarimala? 25-Year-Old Affidavit by Travancore Devaswom Board Says Yes'. https://www.news18.com/news/india/were-women-ever-allowed-in-sabarimala-debate-rages-on-amid-protests-by-true-believers-1907159.html.
  4. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690.
  5. Shani Shingnapur temple lifts ban on women's entry September 8, 2016, available at. https://www.thehindu.com/news/national/other-states/shani-shingnapur-temple-lifts-ban-on-womens-entry/article8451406.ece.
  6. http://www.hajialidargah.in/hajiali_about15.html
  7. The Wire Staff, 'Sabarimala Verdict: A Timeline of Temple Entry Issue' (The Wire, 14 Novemer 2019)
  8. Sabarimala Verdict: A Watershed Moment in the History of Affirmative Action, October 30, 2020, available at https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/.
  9. Id
  10. The Kerala Hindu Places of Worship (Authorisation of Entry Act), 1965, Rule 3(b).
  11. S. Mahendran vs. The Secretary, Travancore, AIR 1993 Ker 42.
  12. Id.
  13. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690.
  14. Sabarimala Verdict: A Watershed Moment in the History of Affirmative Action, October 30, 2020, available at https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/.
  15. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690.
  16. Id.
  17. The Kerala Hindu Places of Worship (Authorisation of Entry Act), 1965, Rule 3(b).
  18. Sabarimala Verdict: A Watershed Moment in the History of Affirmative Action, October 30, 2020, available at https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/.
  19. The Constitution of India, 1950, Art. 17.
  20. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690, J. Chandrachud, 324.
  21. The Constitution of India, 1950, Art. 14.
  22. The Constitution of India, 1950, Art. 25; The Constitution of India, 1950, Art. 26.
  23. Young India Lawyers v. State of Kerala, 2018 SCC OnLine SC 1690, J. Indu Malhotra (Dissenting) �453.
  24. Id.
  25. Gautam Bhatia, "Essential Religious Practices" and the Rajasthan High Court's Santhara Judgement: Tracking the History of a Phrase, Indian Constitutional Law And Philosophy, available at https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-and-the-rajasthan-high-courts-santhara-judgment-tracking-the-history-of-a-phrase/.
  26. The Constitution of India, 1950, Art. 25.
  27. Id.
  28. UN General Assembly,'Convention on the Elimination of All Forms of Discrimination Against Women (United Nations, December 18, 1979) UNTS vol. 1249, p. 13 https://www.refworld.org/docid/3ae6b3970.html.
  29. Id.
  30. Steven J Heyman, 'Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause' 2021.

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