“SABARIMALA CASE”

(Young Lawyer Assn. v. State Of Kerala)

Submitted By-

Mohammad Kasim

LL.M (previous)

INTRODUCTION

The year 2018 will be remembered as golden year in the legal history of India because this year the Supreme court has passed many landmark judgements like Josheph Sinhe, Navtej Singh, Triple Talaq and Sabarimala judgement which is our prime concern to be dealt with here. In all these cases the Court has assured the gender equality and overridden various unreasonable and stereotype customary practices like ban on the entry of women into the Temple and Dargah etc. In one line about the Sabarimala case- equality prevailed over religion and custom. Because in the Indian legal history whenever the Court confronted with in choosing between personal law, custom and equality the Courts have preferred personal laws and custom over equality but this time Equality has triumphed over Religion and custom.

BRIEF FACTS OF THE CASE

(SABRIMALA)

In this case, named as Indian Young Lawyers Association v. State of Kerala, popularly known as Sabarimala case, the Indian Young Lawyer Association , a group of gender rights activists filed a petition under Art  32 of the Constitution of India challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry ) Rules 1965.This Rule recognized a customary practice which prohibited the entry into the Sabrimala temple, of women belonging to the age group of 10 to 50 years during their menstrual courses. The Sabarimala Temple is a shrine of Lord Ayappa who is believed to be Nashtik Brahamchari (celibate). Lord Ayappa practiced strict penance and severest form of celibacy and refrained from every kind of relationship from women throughout his entire life. The Rule 3(b) banned the entry of women in order to protect the celibate character of the deity. The petitioner contended that this Rule is violative of various fundamental rights guaranteed under Art 14,15,17, 21, and 25 of the constitution of India

        The PIL was filed before the three Judges bench of the Supreme Court but after recording the submission of the learned counsels the matter was referred to the five Judges bench. After a long legal battle in the Hon’ble Court on 28th Sep 2018 by 4:1 majority held Rule 3(b) as ultra vires to the Indian constitution. The court allowed the entry of the women of all age into the sanctum sanctorum of the Sabarimala shrine.

Issue

The exclusionary practice based upon biological factors exclusive to the women amount discrimination and violative of Art 14, 15,17, and not protected by morality used in Art 25 and 26 of the constitution of India

The exclusionary practice preventing the entry of women of age group of 10 to 50 years in Sabarimala Temple is prima facie contrary to or per se violative of Art 14, 15,17, 21 and 25 of the constitution of India, a basic document which guarantees all citizen various fundamental right including right of religion irrespective of gender. Art 14 which is key stone of right to equality provides that no one shall be denied equality before the law and the equal protection of the law. Though the expression “Equal protection of the law” permits the classification but at the same time it must be reasonable and be based upon the intelligible differentia and the same must have nexus with the object sought to be achieved. But in the instant case the classification is unreasonable [1]. This classification has been made to protect the celibate character of the deity Lord Ayappa. The classification cannot sustain a long because it fails to pass the test of Art 14 as the gender has nothing to do with the religion.

The ban on the entry of women of particular age group directly encroach upon the fundamental right awarded under Art 15 of the constitution. This Art prohibits any discrimination based on the sex. Since the physiological feature of menstruation is exclusive to the women only therefore ban on the entry of the women in the Temple dedicated to the public amount to discrimination on the basis of sex.

In Anuj Garg &others vs Indian Hotels Association[2], Charu Khurana vs union of India[3], The Supreme Court ruled that any practice, rules and regulation discriminating on the basis of the sex shall be unconstitutional. In Anuj Garg case the prohibition of women employment in hotels and bars violates gender equality, the court said.

 The exclusionary practice violates Art 17 which prohibits any form of untouchability. The ban on the entry of the menstruating women and treating them as impure amount to untouchable practice hence an offence under the protection of Civil Right Act 1955.[4]  Treating menstruating women as impure and untouchable is to stigmatize them. And the practice therefore derogatory to the women. Art 51A(e) provides the it is the duty of the citizen to renounce any practice derogatory to the women. It violates Art 21 too because right to life under this Art does not mean a mere animal existence but also include a dignified life as has been held by the Supreme court in Gian Kaur vs State of Punjab[5]

  Art 25 of the constitution provides that subject to public order, morality and health all person equally have fundamental right to freely profess, practice and propagate any religion. If we see the plain reading of Art 25 every one has right to profess the religion without any restriction. Thus, the ban on the entry of women will make their fundamental right of religion protected under this Art a dead letter said chief justice Mishra in his judgement. He further added that right under Art 25 has nothing to do with the gender. “Under the guise of religious practice women cannot be treated as the children of lesser God. Such practice is a blink on the constitution”[6] No doubt the religion is indispensable aspect of human life and its existence but at the same time no one can dispute the fact that, to some extent, all faiths are regressive and discriminatory in the present context. since their origin back to the pre modern time therefore many religious practices have been continuously followed under the blind devotion. Take the example of sati which at one time Was considered as a religious practice.[7] Similarly the practice of Triple Talaq has been claimed before the Supreme Court as an essential practice of Islam. I personally feel that it can never be so because the Prophet Mohammad (PBUH) was reported to have said that “Talaq is the most detestable thing among all permissible thin before Allah” Triple talaq was recognized during the Caliphate period of Hazrat Umar Bin Khattab. Its recognition was the need of the hour but the blind devotion to it in the present scenario will ensue pernicious consequences. Keeping this view in mind the Supreme Court very has declared this practice un- Islamic and void.[8]

 Our Constitution gives us the right to have a certain amount of irrationality and blind belief under freedom of religion under (Art 25-28). Sabarimala judgement has curtailed such blind belief. The judgement ensued wide range protest. Such protest generally happened in the past whenever the courts have preferred equality and constitutional morality over the old age customs practiced under religious patronage[9]. We have experienced it in shah Bano case[10], Jallikattu case etc.[11]

Religious Morality vs Constitutional Morality

Very recently since the Indian Supreme court has delivered various progressive judgements, there has been a hue and cry among jurists or legal intellectual in respect of the interpretation of the term “Constitutional morality”. Mr. KK Venugopal, Attorney General of India remarked the term as dangerous. He articulated that “if the   court persists with it, Pandit Nehru belief that it would result in the Supreme court of India becoming a third chamber of parliament will come true”

The expression constitutional morality has not been defined by the constitution. But it may mean adherence to the fundamental provisions of the constitution meant for the protection of various rights such as equality, liberty etc. so far as the religious morality is concerned it is not synonymous to the constitutional morality. Both the term cannot go hand in hand because ae we have earlier stated that all faiths have some regressive and discriminatory notions. They are considered devotional too by the followers. On the other hand the constitutional morality acts against arbitrariness or any discriminatory practice be it patronized by the religion or otherwise. In the Islamic jurisprudence entry of the women into dargah is believed to be against the religious morality but such practice cannot have legal protection in a modern constitutional era where equal rights are being given to all irrespective of gender.[12]

And same be the case of Sabarimala temple. Supreme court in haji Ali dargah[13] case, Homosexuality case[14],

Josheph Sinhe v. Union of India, Jalllikattu case[15] etc. has preferred constitutional morality over religious morality and has assured us that we are living in a Democracy and Rule of Law not in theocracy

 Now every customary practice to be valid or to have constitutional protection must pass the test of constitutional morality. In the instant case the exclusionary practice fails to pass this test. No doubt an age- old practice may not be expected to be in consonance with the modern constitution.  In collector of Madurai vs Muttu Ramalingam the privy Council ruled that some time custom may overrule the written text of law[16] but it must be in conformity with its stipulation. The Kerala government move to turn the Sabarimala custom into a statutory rule[17] was a thoughtless action that left no choice to judge it on the touchstone of the constitution[18]

Majority Judgement

On 28th Sep of 2018 the five Judges bench of the Supreme court consisting of CJI Deepak Mishra (as he then was), JJ.AM Khanwilkar, RF Nariman, DY Chandrachud, and Mrs. Indu Malhotra by 4:1 majority. Justice Indu Malhotra dissending.The court declared Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965[19] as unconstitutional being violative of Art 14, 15, 17 , and 21 of the constitution of India. The Rule contravene sec 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. This sec allow entry of the women into the temple even if such entry is contrary to any law, custom or order of the court etc which does not allow such entry of the women into any temple .The  court further pointed out that the devotees of Lord Ayappa  do not constitute a separate religious denomination therefore no right under Art 26[20] can be claimed.

Minority Judgement                            

Justice Indu Malhotra, the only judge giving dissending opinion in this case held that Rule (3b) of 1965 Rules is not unconstitutional because it is in accordance with the proviso attached to Sec. 3 of Kerala Act 1965[21] . “To mean right under Art 25 and 26, the celibate character of the Lord Ayappa has to be preserved. The devotees of Lord Ayappa constitute a separate religious denomination under Art 26 of the constitution of India”, Justice Malhotra added.  

Analysis of Judgement

This is very landmark judgement given by the Supreme Court. It has removed all the gender barrier against women by declaring Rule 3(b) of Kerala Rules of 1965. The move taken by the Court will bring a new dawn for women empowerment and will change the patriarchal attitude of the people among other religion than Hinduism. The two important pleas taken in this case, first, that exclusionary practice is very old and is in prevalence since the time immemorial. Second the practice is essential for right to religion of the follower of Lord Ayappa. By the plain reading of the judgment given by the Kerala High Court in S.Mahendran vs The secretary, Devaswon Board Thruvananthpuran[22], both these pleas cannot sustain. Firstly, because the court ruled that there was no such prohibition against the entry of women into the Sabarimala temple.  Further no evidence was adduced showing the prohibition as any essential or binding practice for religion[23]. The evidence produced before the court proved that women were permitted to enter the temple for the first rice feeding ceremony of their children.

On the wide grounds, object which was enshrined in the preamble of the UDHR (Universal Declaration of Human Right) explicitly talks about the advent of a world in which human beings shall enjoy freedom of speech and belief. It also states that freedom from fear and want is the highest aspiration of common people. Also, Article 7 of the UDHR and Article 26 of ICCPR must not be forgotten when talking about equality and equal protection of law. These two articles have a clear resemblance to articles 14 and 15 of the Indian constitution. In the light of Article 7 of the UDHR and Article 26 of ICCPR International Convention for Civil and Political Right) which speaks of equality and equal protection against discrimination which is in resemblance to the Article 14 and Article 15 of the Indian Constitution.

Further Art. 18 (3) of ICCPR provides that “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”.

Likewise, in the Article 8 of the UN Charter provides “The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.” 

Thus, it is very well understandable now that one’s right to religion is not his absolute right and it also comes with certain limits which are mentioned in the above article. No one can be discriminate on the line of gender is among the objects which was enlighten in the UN Charter, in last the SABARIMALA judgment is the breakthrough of the outskirts which was built by the Supreme court in order to preserved the customary law.

Conclusion

In a country like India where ideals of liberty and freedom are essential for the functioning of a healthy democracy, both individual and group rights need to be considered and the State must bridge this gap. The Sabarimala case provides the Supreme Court with an opportunity to bridge the gap between constitutional ideals and social reality. It also requires the State to

revamp the constitution and look closely at the Articles mentioned above when it comes to protecting the rights of the individuals. We live in a country that calls itself independent; we aspire for increasing the GDP. However, where we still fail as a society, as a nation, is in eradicating the deep-rooted patriarchy in the minds of its citizens. The result of such an ideology continues to exist in all spheres of our life affecting women specifically. Even today women are discriminated on grounds of gender, sex and in the recent case they have been discriminated on grounds of purity and pollution. The feminist movement and other

schools of thought that support human rights have come a long way in achieving representation of women across public spaces. However, the psychological and patriarchal mindset continues to rule the majority of the population and it will take continuous reforms and development to achieve a just and equitable society. When we talk of reforms, law is the ultimate authority which derives its validity from the constitution of India; hence, constitutional reforms are essential in societal reforms. In this context, the judgment is radical in its approach to rationalize religious practices prevailing in Indian society. It also ensures individual liberty and protects women’s rights in public places.


[1]  A group of women falling under the age group of 10 to 50 years has been classified a separate class based on physiological factors exclusive to the women only

[2]  AIR 2008 3(SCC) 465

[3] AIR 2015 (1SCC) 192

[4] See sec 7 of the 1955 Act

[5] AIR 1996 SC 648

[6] Paragraph 2-4 page no 04 of judgement of DY. Chandrachud

[7] Bengal Regulation 1829 has abolished sati.

   See. Commission of Sati (prevention) Act 1987

[8] Shayra Bano vs Union of India .30th March 2017

See. Shamim Aara vs State of Uttar Pradesh. 1st oct 2002

[9] Article by prof Faizaan Mustafa “Faith and gender justice “

See. https://Indianexpres.com/article /opinion/ Faith and gender justice

[10] AIR 1985 SC  945

[11] Animal Welfare Board of India &others vs A. Nagraj &others. 2 Feb 2017

[12] Dr Noor Jahaan Safia Naaz vs State of Maharashtra. Sc .26 Aug 2016

[13] Supra 12

[14] Navtej singh Johar vs Union of India. 6th sep 2108

[15] Supra 11

[16] (1868) 12 MIA327

[17] Rule 3(b) of Kerala Rules 1965 “Women at such time during which they are not by custom and usage allowed to enter a place of worship cannot enter the Sabarimala temple”

[18]  See sec 3(a) of Hindu Marriage Act 1956

[19] Supra17

[20] “Subject to public order, morality and health every religious denomination shall have right to manage its own affairs in matters of religion and to establish and maintain institutions for religious and charitable purpose”

[21] Provisio.  “The right of women to enter any temple given under sec 4 of 1965 Act may be restricted if such temple or place of public worship is founded for the benefit of any religious denomination”

[22] AIR 1993 Kerala 42

[23] See Mohammad Haneef Qureshi vs State of Bihar (1959) SCR 629 and Ismail Farooqi vs Union of India (1994) 6 SCC 360

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