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SABARIMALA TEMPLE: AN ISSUE OF GENDER BIAS AND QUEST FOR EQUALITY

Updated: Jul 2, 2020

INTRODUCTION: SABARIMALA TEMPLE ISSUE

Sabarimala temple, a Hindu religion shrine, which is devoted to Lord Ayyappa. The location of the temple is at the Periyar Tiger Reserve in the Western Ghats mountain ranges of Pathanamthitta district in Kerala. The temple prohibits the entry of women those are between the ages of 10-50 in their ‘menstruating years’ because it is a place of worship. In the High Court of Kerala in the landmark case of S.M. v. the Secretary the court held that the exclusion or prevention of women entering the temple was constitutional & just as it was a long-standing custom and tradition prevailing since ancient time. In the year 2006, the group of Indian Young Lawyers Association challenged the Sabarimala Temple’s custom and tradition of prohibit the entrance of women and further filed a public interest litigation [PIL] petition before the Supreme Court. The main and crucial argument put up by the petitioners was stated that the custom and tradition of the sabarimala temple are violating Article 14 and 25 of the female worshippers which are expressed under Indian Constitution.



REASONS BEHIND ARISING OF SABARIMALA TEMPLE ISSUE

The basic or initiative reason behind ban on the entry of women those are in the “menstruating years” between the age of [10-50] years in the Sabarimala temple because of their ancient customs and tradition of the temple depicts that he is celibate, he should not be distracted.

Furthermore, Kerala High Court banned the entry of women between the ages of 10 to 50 from entering the shrine. The High court mentioned in its verdict that the ban on women entering the temple had existed from ancient time and in the olden days the priests had only the power to decide on matters relating to tradition. And then after the issue arises legally, the ban by the High Court of Kerala was challenged by a group of lawyers on the ground that the ban violates the principles of the right to equality, places a restriction on religious freedom and that it was discriminatory.

In 2016, the case knocked the door of Supreme Court, after filling of a Public Interest Litigation (PIL) by the Indian Young Lawyers Association. The case considered bench of five-judge which was led by the Chief Justice of India Deepak Misra. Further bench consists of R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

In 2018, the Supreme Court passed the debated judgment which uplift the ban on women entry to the Sabarimala Shrine. The court ordered that women of all ages could enter the shrine.

The judgment was passed with a majority of 4:1 and the bench ruled that the temple’s customs violates the right of Hindu Women and promotes gender discrimination.

EQUAL RIGHT TO WORSHIP: NO GENDER BIAS

Besides all these mythological activities like worships, prayers, performing customs and traditions from more than 100 years, still there exists a discrimination between man and women based on their gender. Women have always struggled and faced difficulties for equal status and representation in society. According to religious beliefs, women between the age [10-50] go through menstrual cycle, which in basic language is called “chumps” or “periods”. It comes once in a month in women body. And during that it is believed that they are not pure or holy, and for that reason they are not allowed to worship god.

Furthermore, the researcher would like to draw the attention towards some judicial pronouncement of Honorable Courts on this particular issue:

The Supreme Court quash the previous judgment of Kerala High Court in the latest case of Indian Young Lawyers Association vs. State of Kerala and Ors. the court delivered its verdict with 4:1 majority held that the tradition of excluding women is “Unconstitutional” and the practice violates the Fundamental rights of equality, liberty and freedom to religion, Articles 14, 15, 19(1), 21and 25(1). Bench struck down Rule 3(b) as unconstitutional.

(a) Women have always struggled and faced difficulties for equal status and representation in society. But now the situations are changing, and various reforms have come through the landmark judgments of the Courts in society. In the case of Dr. Noorjehan Safia Niaz vs. State of Maharashtra & Ors., the Supreme Court has terminated the ban on entry allowed entry of women inside Haji Ali Dargah.

(b) In the case of Bhimsaya and Ors. vs. Janabi (Smt) Alias Janawwa the court held that custom must be ancient, certain and reasonable and cannot be opposed to public policy, as follows: It is well established principle of law that though custom has the effect of overriding law which is purely personal, it cannot prevail against a statutory law, unless it is thereby saved expressly or by necessary implication.. A custom may not be illegal or immoral; but it may, nevertheless, be invalid on the ground of its unreasonableness.

(c) In the case of Sastri Yagnapurushadji and Ors. V. MuldasBhudardas Vaishya and Anr this was a case where the Swaminarayan Sampradaya argued that the Bombay Hindu Places of Public Worship (Entry-Authorisation) Act, 1956 that provided for entry of Harijans into “Hindu” temples was not applicable to their temple. The Swami Narayan Sampradaya has been held to be not a religion distinct and separate from the Hindu religion. A law enacted by the Bombay Legislature threw open every place of public worship which was open to all sections and classes of Hindus.

(d) In the case of Sri Venkatramana Devaru & Others V. State of Mysore, while upholding the constitutional validity of the Madras Temple Entry Authorization Act, 1947 it held that entry into temple is a matter of religion and in the following words: Art. 25 which declaring that all persons are entitled freely to profess, practice and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.

(e) In the case of Bachan Singh V. State of Punjab, Bhagwati J. has explained arbitrariness as “Rule of law which permits the entire fabric of the Indian constitution excludes arbitrariness. Further this impugned rule also violates the right of women to equal protection of law; as Sanyal women are not provided the protection against the discrimination in regard to temple entry as opposed to Sanyal men, who are protected by virtue of this article of the constitution even though this applies equally to women.

CONCLUSION

The issue of Sabarimala temple stands on an excellent opportunity for the courts in India to re-access and review the ancient traditions about discrimination to certain sections of the society. The court will have to look beyond just denial of freedom to worship for women, by considering the faith the devotees have in the deity of Sabarimala. This will further lay a foundation stone or step for the radical re-reading of the constitution. At the same time, it becomes essential and crucial for the judiciary in India to device out a methodology to deal with instances like that of Sabarimala in order to curb violence which may erupt or arose out because of such judicial decisions.

The opinion put up by Justice Nariman enters a detailed discussion on the prevention of women from entering the religious shrine solely on the notion of impurity attached to menstruation, based on this he finally arrived at the end or conclusion that the fundamental right which is claimed by the worshippers (women) based on custom and its usage under article 25(1) must necessarily yield the fundamental rights of women are equally entitled and to right to practice religion.

Hence, these two aspects were taken as a note in the Sabarimala temple case by the five-bench judge while delivering their verdict on it.


- LEGAL HUMMING

(CO-AUTHOR JAINAM SHAH)

LEGAL HUMMING

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