Posted on: May 6, 2021 Posted by: admin Comments: 0

Author: Rishu Kumari*, Student at Chanderprabhu Jain College of Higher Studies And School of Law.

ABSTRACT

A sleeper wrongdoing that put a prohibition on the entry of women between 10-50 years of age, who wish to enter Sabarimala temple. Within Kerala, there was very few disagreements but others were really attracted towards the issue over the decades. Debate over the nature and constitutionally towards prohibition remained muted under S. Mahendran vs. Secretary of Travancore[1], in the High court. Sabarimala was under attention  at the state and national level from last few years. There were implications and arguments arose in decision of Indian Young Lawyer Association v. State of Kerala[2]. While decision of court was justiciable under constitutional principles, and given decision that they even stand with no ban. There are a series of examples where women’s are allowed to enter into the temple after the court gave their judgment. It is discriminatory to restrict the entry of women on the basis of their biological feature. Thus, purpose of Article 14, Article 15, Article 17, and Article25 must be protected.

Keywords: Sabarimala, women, biological feature, discrimination, Article14, Article15, Article17, Article 25, prohibition.

INTRODUCTION

In our society we talk about women equality and we consider women as ‘Devi’ but in real sense such word does not prevail for the women in our society as we can see in the case of Indian Young Lawyer Association &ors. V. State of Kerala[3], in which the entry of  women of age group of 10 – 50 years were not allowed to enter into the temple because these women are considered to be impure, as they are the women of menstruating age.

We are living in 21st century but the thoughts and belief of the people are still the same with respect to women. Women who wish to work for the well being and nurturing of society continue to face mediocre thinking of society.

This discrimination is not valid because our constitution also guaranteed 6 fundamental rights. In Article 14 rights to equality is given but now and then this right is being violated. It is a critical issue and demand strict action.

The discrimination with women from barring them to enter temple holds no water as there exists fundamental right to protect their interest, faith and belief. But in the case of sabarimala temple women’s were not allowed on the basis of biological and physiological fact, but this action does not frame any gender equality as I have mentioned above.

Sabarimala, a temple situated 3000ft. above the sea level in Pathanamthitta district of Kerala devoted to lord Ayappa Swami[4]. Sabarimala case is 25 years old case. This temple is in dispute because the women of age group of 10-50 years were not allowed to enter into the temple because the women between this age group are considered to be impure because of their menstruating age. In the judgement of Indian Young Lawyer Association &Ors vs. State of Kerala[5], the constitutional bench allowed the entry of women of this age group.

HISTORICAL BACKGROUND OF THE SABARIMALA TEMPLE

Sabarimala Temple is located at Sabarimala inside the Periyar Tiger Reserve in the perinad village, Pathanamthitta, district, Kerala, India. In this temple the entry of women of age group of 10-50 years were not allowed because the women between this age group are considered to be impure because of their menstruating age. There is a long controversy with respect to this temple, as they banned the entry of women because of their biological feature.

Sabarimala temple worships Lord Ayyappa who is considered as the god of celibate nature. And in ancient times, females were considered as the sign of eroticism and sexual thoughts therefore women’s were not allowed to enter into the temple as it may lead to break the celibacy of Lord Ayyappa. This was based on the notion that women of menstruating age are impure.

In this temple people from all over the world come to visit the temple were Lord Ayyappa is worshipped, who took birth from lord Shiva and Mohiniavtar of Vishnu[6]. Staying in the darkness of Makarsankranti near this temple, a light is seen here. It is the believed notion among the devotees of Lord Ayyappa that a light is seen and some kind of noise is heard, which is believed that this light is Lord Ayyappa and he burns it.

It is believed that this god is a light and god burns it. According to the priest of the temple, Makarjyoti is a special star seen in the sky on the first day of Makara month. It is said that Ayyappa established unity between Shiva and Vaishnavas.

This temple is situated in the middle of Sahyadri, a series of hills in the western valley. Those who come here for the purpose of pilgrimage; they have to follow the tough process of forty one days.

PURANIC LEGEND OF AYYAPPA SWAMY[7]

Lord Ayyappa is mainly worshipped in South India. He is considered as the god of celibate nature. Lord Ayyappa’s father is Shiv and mother Mohini. Lord Ayyappa is considered as “Hariharputra” as it is believed fact that he originates from Shiva and Vishnu. According to religious legend, during the churning of the ocean, Bholenath was fascinated by the saintly form of Lord Vishnu and due to this effect a child was born which he left on the banks of the Pampa River. During this time Raja Rajasekhara raised him for 12 years. Rajasekhara, the king of pandalam, brought up Ayyappa as a son. But Lord Ayyappa did not like all this and when he got disinterest, he left the palace. In some puranas, Ayyappaswamy is considered as incarnation of Shasta.

INTERPRETATION OF TERM ‘NAISHTIKA BRAHMACHARYA’

‘NaishtikaBrahmacharya[8]’ means to maintenance and attainment of eternal celibacy in which one have to keep a safe distance.

Lord Ayyappa has taken the same view of being such above mentioned. Brahmacharya as  this is the reason put forward by the sabarimala temple authorities for not allowing women inside the temple.

A real Brahmacharya is one who avoids any manifestation from homosexual acts, and from all sexual practice. In other way, vow of celibacy will not be broken from watching a women, happening of such act does not hold any value.

According to author, by reading above lines that ‘NaishtikaBrahmacharya’ is all about being away from sexual gestures and thoughts, not merely, male or female.

THE TRADITION OF DEVAPRASHNA[9]

To get the divine opinion of the deity this practice is very much practiced in the temples of Kerala and also same practice is being practiced in Ayyappa temple. This custom is performed in the presence of thantri and chief and other astrologers. One of the most famous Narrations of this ritual is AshtamangalyaDevaprashna.

HISTORICAL BACKGROUND OF SABARIMALA CASE

The issue of Sabarimala is around 25 year’s old case since 1990.

-In 1990 a PIL was filled by S. Mahendran, seeking a bar on womens entry inside the sabarimala temple, which is devoted to Lord Ayyappa.

-In 1991 the division bench of Kerala High court upholds the age restriction of women between age group of 10-50 years which was fixed by states intervention S. Mahendran V. The Secretary, Travancore.[10]

According to Justice K. Paripoornan and K. BalanarayanaMarar of the Kerala High court, such restriction was in accordance with the usage prevalent for a long time.

That it was found by the court of law, the restrictions made by the Devaswom Board that is  the bar on the entry of women in temple is not violative of Article 15, Article 25, and Article 26 of Indian Constitution and as well not violative of Hindu place of public worship Act, 1965.

-After this decision the issue was untouched and the tradition/custom was continued till 2006.

-In 2006, a petition was filed by the Indian Young Lawyer Association in the Supreme Court for allowing the entry of women of age group of 10-50 years.

-In 2008, the matter was referred to a three judge bench.

-In 2016, the court had questioned the ban, saying this cannot be done under the constitution.

-In 2018, a new plea was filled by the Indian Young Lawyers Association before Supreme Court for allowing the entry of women in temples.

-By 4:1 majority verdict, the Supreme Court had lifted the ban that prevented women of age group of 10-50 years from entering the Sabarimala temple.

-In September 2018, around 60 review petition were filed in the Supreme court challenging the judgement which was heard by the constitutional bench. Supreme Court constituted a nine-judge bench and framed 7 questions issue rather than listening the same facts again the issue in the case of Kantarurajeevaru V. Indian Young Lawyer Association[11].

 The 7 legal issues-

  1. Regarding the interplay between the freedom of religion under Articles 25 and Article 26 of the Constitution of India and other provisions in Part III, particularly Article 14.
  2. What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution of India.
  3. The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith?
  4. The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of that particular section.
  5. What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution of India.
  6. Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26 of the Constitution of India.
  7. What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

“Happy to Bleed”[12]

The dismay against the SC verdict was not lined only to the dissenting judgment of justice Indira arising but it went further towards politics and common people who had a keen faith in lord Ayyappa and his NaishtikaBrahmacharya.

After the Travancore Devaswom Board President, PrayarGopalaKrishnan had said that women can only enter the Sabarimala temple after passing through a machine that would scan for whether or not a woman is menstruating, to judge how pure they are. The campaign, ‘Happy to Bleed’, was launched to fight menstrual taboos and sexism against women and also to acknowledge and accept menstruation as a natural activity. “We are #happytobleed each month and if we didn’t, you wouldn’t exist!” said one sign.

The campaign plea said, “One of the primary objectives of our campaign is fighting against menstrual discriminatory practices, specifically the practice of Sabarimala temple of denying entry to women and girls between 10-50 years which leads to stigma and shame based on gender and violation of women’s rights,”

ISSUE:
  1. Restriction of women of age group of 10-50 years from entering into the Sabarimala temple because the women between this age group are considered to be impure, as they are the women of menstruating age. Is this discrimination valid against women?
  2. Does this practice violate Article 14(right to equality), Article 17(abolition of untouchability), and Article 15(prohibits discrimination on basis of sex )of the constitution ?
LEGAL IMPLICATION OF SABARIMALA TEMPLE

Our constitution guaranteed us 6 fundamental rights but in the case of Sabarimala these rights were taken away. As we know that in India every citizen has the right to equality which is given under Article 14 of the Indian constitution but this right is being denied to women in Sabarimala temple.

Since 25 years women’s of age group of 10-50 years were not allowed to enter into the sabarimala temple because of their biological feature. It is discriminatory to restrict the entry of women on the basis of their biological feature. Article 15 of the Indian constitution prohibits discrimination on the basis of sex and this right would seem to violate in the case of Sabarimala.

It is a belief that the menstruating women are impure but we have to change our thought and understand that it is only a biological feature and on the basis of this fact we can’t restrict the entry of women.

-Abolition of untouchability is given under Article 17 of the Indian constitution and as we  can see that this right would seem to violate in this case. Justice D Y Chandrachud said that “the menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity and the stigma around the same had no place in a Constitutional order. Significantly, Justice Chandrachud also dealt with the argument that the exclusion was a form of untouchability prohibited under Article 17 of the Constitution.”[13]

In a separate and concurring opinion, Justice D Y Chandrachud held that the exclusion of women between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the ideals of autonomy, liberty, and dignity. He held that the morality conceptualised under Articles 25 and Article 26 of the Constitution of India cannot have the effect of eroding the fundamental rights guaranteed under these Articles. Justice Chandrachud concurred with the opinions delivered by CJI Dipak Misra& Justice Nariman  to hold that the Ayyappa’s, or worshippers of Lord Ayyappa, did not satisfy the judicially enunciated requirements to be considered a separate religious denomination. It was held that the exclusion was not an essential religious practice.

-Justice Nariman’s emphasised that Article 25(1) protects the fundamental right of women between the ages of 10-50 years to enter the Sabarimala Temple and exercise their freedom  of worship. There was sufficient material to conclude that the exclusion of women from Sabarimala Temple is violative of Article 25(1).

He concluded that the Ayyappans’ custom of excluding women, between the ages of 10-50 years, from the Sabarimala Temple was unconstitutional. He also struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 as unconstitutional[14].

RIGHT TO RELIGION CAN OVERPOWER EQUALITY?

Secularism is the basic feature of the constitution. The state treats equally all religions and religious denominations. Secular activities can be regulated by the state by enacting a law.[15]

Secularism represents faith born out of rational faculties and it enables to see the imperative requirements for human progress in all aspect.[16]

Issues of profound deep religious ought not to be customarily be meddled by the court. The Sabarimala shrine and the divinity is secured by Article 25 of the Constitution of India and the strict practices can’t be exclusively tried based on Article 14. Strict practices can’t exclusively be tried based on the privilege to fairness. It’s up to the admirers, not the court to choose what religion’s basic practice is

Indian Young Lawyers Association &Ors.v State of Kerala &Ors., SC (2018). This was said by Justice Indu Malhotra while dissenting with the majority opinion that right to religion cannot overpower right to equality extending further she said Notions of rationality cannot be invoked in matters of religion, and again if we look into the core of Indian constitution religion is defined as the collection of individuals classed together under the same name or a religious sect or body having a common faith and organization and designated by a distinctive name[17].

And here the followers of Ayyappa sect doesn’t form a religion as Ayyappa are part of Hinduism and Ayyappa is part of Hindu god.

SABARIMALA: A PUBLIC PLACE

Temple is here considered as public place as Public Place is defined as the place where every person has the right to access and, Sabarimala being managed by Travancore DevaswomBoard, it is an autonomous body formed as per the Travancore Cochin Hindu Religious Institutions Act of 1950.

An annual payment released by Government to certain Devaswom Funds, forty six lakhs and fifty thousand rupees and subsquently charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of the Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund which is established for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956 , from the State of Travancore Cochin.

LEGAL PRECEDENT, DEVELOPMENT IN SOCIO-RELIGIOUS CAUSE

These are the finest landmark judgement in which the apex court has come up with the finest judgement eradicating all the social and religious barricades of the women.

  1. Gram PanchayatShaniShingnapur vs The State Of Maharashtra[18]

In this case the division bench of Chief Justice D H Waghela and Justice M S Sonak of Maharashtra high court was hearing a PIL challenging the prohibition on women’s entry to the shrine area of ShaniShingnapur temple in Ahmednagar district,

As per a 400-year-old tradition, women were not allowed to enter the Shani temple. After mass awareness campaigns, their entry was allowed in 2011, but they were prohibited from climbing the shrine platform. But one women tried to enter and entered was detained by village people but later on released Women are not allowed to climb the platform of ShaniShingnapur temple on which the rock idol of Shani is installed. Senior advocate NeelimaVartak and activist VidyaBal have filed a PIL in the high court, arguing that such prohibition is arbitrary, illegal and in violation of fundamental rights of citizens. They have sought implementation of the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956. The Act says, “no Hindu of whatsoever section or class shall in any manner be prevented, obstructed or discouraged from entering such place of public worship  or from worshipping or offering prayers, or performing a religious service…”. As per the Act, prohibiting any person from entering a temple would attract six months in jail.

Significantly, After a lot of protest and taking help of law and court the court of lifted of all gender barriers for access to the core area came on the auspicious occasion of “GudiPadwa”, marking New Year by people across Maharashtra.

  1. NoorjehanSafiaNiaz And 1 Anr vs State Of Maharashtra And Ors[19]

The Bharatiya Muslim MahilaAndolan, the women’s organisation initiated the public interest litigation against the Dargah Trust, invoked the protection of Articles 14 and Aticle 15 (rights to equality and non-discrimination), and Article 25(1) (right to religious freedom) of the Constitution of India. The trust responded by invoking Article 25(1) itself, arguing that Islam mandated the exclusion of women from the inner sanctum. It also (though faintly) invoked Article 26(b), that granted religious denominations the right to manage their own affairs in matters of religion.

Faced with more than five decades of consistent Supreme Court jurisprudence, the Bombay High Court had no feasible choice other than deploying the (unsatisfactory) essential religious practices test to determine the validity of the Dargah Trust’s arguments. The manner in which it did so, however, was careful and circumspect. The court refrained from making grand, rhetorical claims about Islam and gender equality (even though it was invited to do so) and, instead, limited itself to considering the material placed before it by the Dargah Trust.

Verdict: More than 80 years later, August 26, 2016, Bombay High Court agreed with Ambedkar when it held that the exclusion of women from the inner sanctum of the Haji Ali Dargah by the Dargah Trust violated not only their fundamental right to religious freedom but also their right to equality and non-discrimination under the Indian Constitution. And in holding that women were entitled to police protection, if needed, to exercise the right to equal access, the court on current effectively guaranteeing and enforcement of the constitutional rights of individuals, even against their own communities.

CONCLUSION

Sabarimala is as of now the most fervently discussed point, significantly after the Supreme Court’s decision the issue doesn’t is by all accounts settled. The choice of permitting women to enter the temple has disturbed the devotees prompting fight these days at the same time, the opportunity has arrived to unravel the issue with ingenuity and think of an answer which is in the center way. Presently, it is the ideal opportunity for the individuals to transcend the unimportant sentiment of fundamentalism and work together. Creators are not in consonance with the contradicting assessment of Justice Indu Malhotra. We regard the difference of her yet in the current instance of Sabarimala it isn’t just about option to pronounce religion it is about the women who were separated with no sensible reason and were viewed as unclean because of their organic discharging highlight.

Author unequivocally accepts that the choice of Supreme Court to permit women to enter Sabarimala was supportive of constitution and gainful for open on the loose. In any case, one significant issue which despite everything stays unsolved is that SC in spite of the fact that permitted the ladies yet there is no rules or decides to guarantee that they can enter the sanctum premise securely. Women entrance in Sabarimala still remains dream for them, till now they have been permitted to enter the sanctuary on a paper just which invalidates the very point of the decision.

As per author it is the issue wherein exacting government mediation and we denounce politicalizing of this issue in any sense. It is the set up actuality that official need to actualize the decision of the Supreme Court and henceforth we neglect to see how this case is a special case in light of the fact that here the police and organization has totally vacillated in giving access to the sanctum sanctorum of the sanctuary for women on the loose. Women ought not be looked as substandard piece of the general public.

Presently, India is caught in the multitude of man centric society which ought to be annulled. Creators are not in the kindness of female strength additionally, rather we need a general public where exists a harmony between both the sexual orientation and this parity must be made by changing the unfair attitude of individuals in our general public

REFERENCES

[1]*B.A.LLB(H) , Chanderprabhu Jain College of Higher Studies And School of Law, can be Reached at [email protected]

[2] AIR 1993 Ker 42(CIVIL) NO. 373 OF 2006

[3] Ibid,2

[4] https://www.indiatoday.in/india/kerala/story/kerala-welcomes-supreme-court-verdict-allowing-women-into-sabarimala-temple-1351734-2018-09-28

[5] Ibid,2

[6] https://sabarimala.kerala.gov.in/about-lordayyappa

[7] https://www.speakingtree.in/allslides/do-you-know-the-story-of-ayyappa/272115

[8] https://medium.com/@pranasutra/naishtika-brahmachari-and-the-need-for-extreme-sense-control- dd234f44f1f6

[9] https://www.newindianexpress.com/states/kerala/2018/may/08/devaprasnam-at-sabarimala-temple-in- kerala-to-start-from-may-17-1811633.html

[10] AIR 1993 KER42

[11](CIVIL) NO. 3358/2018

[12] https://www.theweek.in/webworld/features/society/women-launch-happy-to-bleed-campaign.html

[13] https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment- ee5ae148-9597-479f-84d7-35d398ed5e68

[14] https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment- ee5ae148-9597-479f-84d7-35d398ed5e68

[15] SANTOSHKUMAR VS SECT.MINISTRY OF HUMAN RESOURCE DEVELOPMENT (AIR1995 SC 293)

[16] DR JN PANDEY , CONSTITUTIONAL LAW OF INDIA .371(54TH EDITTION 2017)

[17] SP MITTAL ETC. VS UNION OF INDIA AND OTHR (1983 SCR(1) 729)

[18] https://indiankanoon.org/doc/109415786/

[19]  https://indiankanoon.org/doc/139113138/

 

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