The five- judge constitution bench headed by Chief Justice Dipak Misra, in its 4:1 verdict, said that banning the entry of women into the shrine is gender discrimination and the practice violates rights of Hindu women.
The CJI said religion is a way of life basically to link life with divinity, he said that the practice of exclusion of women between 10- 50 age group cannot be regarded as an essential religious practice and Kerala law denies rights to women only on ground of physiological reasons. While Justices R F Nariman and D Y Chandrachud concurred with the CJI and Justice A M Khanwilkar, Justice Indu Malhotra gave a dissenting verdict. Justice Malhotra, the lone woman judge in the bench, passed a dissenting judgement and said that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere in the country.
What is Sabarimala case all about?
Women aged between 10 and 50 were barred from entering Ayyappa’s hill- top shrine, but it is unclear when or why this restriction came into effect. Those who oppose the ban have argued that this is prejudiced against women and is linked to orthodox notions of menstruating women being impure. However, temple authorities contend that Ayyappa had taken a vow of celibacy and the ban was a measure to respect his mission and keep the deity away from distraction.
Supporters of the ban say this practice has been followed down the ages, because worshippers were required to fast for 41 days before undertaking the pilgrimage to Sabarimala, something that menstruating women could not undergo for physiological regions.
After changing its stance multiple times, the Kerala government in July told the court that the custom of barring entry to women was not permissible under the Constitution. It argued that the celibate status of a deity cannot be a ground for such a ban as it is a Hindu shrine and not a temple of a particular denomination.
Why this verdict favouring people irrespective of gender to enter into temple premises is erroneous in constitutional spirit?
The religious freedom of the individual person guaranteed by the Constitution of India is given in clause (1) of article 25 that reads: Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
In precise terms, the Constitution makes it clear that the rights provided in clause (1) of article 25 are subject to public order, morality and health and to the other provisions of Part III of the Constitution that lays down the fundamental rights. Clause (2) of article 25 is a saving clause for the State so that the religious rights guaranteed under clause (1) are further subject to any existing law or a law which the State deems it fit to pass that (a) regulates or lays restriction on any economic, financial, political or other secular activity which may be associated with religious practices, or, (b) provides for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
As per article 25 and 26 of the Indian constitution, What has been missed out are the rights of the deity, the rights of the temple and the rights of Hindu religious institutions to manage their affairs in an autonomous manner.
Similarly Article 26 is the main article that provides the corporate freedom of religion governing the relation between the State and Subject to public order, morality and health every religious denomination or any section thereof shall have the right, (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. Clause (b) of article 26 guarantees to every religious denomination or any section thereof the right to manage its own affairs in matters of religion and clause (d) gives them the right to administer their property (institutions) in accordance with laws passed by the State. It is obvious from the language of the clauses (b) and (d) of article 26 that there is an essential difference between the right of a denomination to manage its religious affairs and its right to manage its property.
This means that a religious denomination’s right to manage its religious affairs is a fundamental right protected by the Constitution. No legislation can violate it except for health, morality and public order. But the right to administer property associated with religion can be exercised only “in accordance with law”. In other words, the State can regulate the administration of religious property by way of validly enacted laws. Hence, in the exercise of individual and corporate freedom of religion as guaranteed in articles 25 and 26 of the Constitution of India, it is necessary to understand the judicial definition of ‘religion’ as given in article 25(1) and ‘matters of religion’ as provided in article 26(b). To define religion for judicial purposes has been an onerous job for the judiciary both in the Western countries and in India.
As per article 25 and 26 of the Indian constitution, what has been missed out are the rights of the deity, the rights of the temple and the rights of Hindu religious institutions to manage their affairs in an autonomous manner. Customs and practices of any religious institution or place worship must not be altered. No religious practice must be subjected to judicial scrutiny.
Justice Indu Malhotra in her dissenting judgement said that there are some matters of deep religious sentiments and they should not be interfered in by the court. It is up to the worshippers, not the court, to decide what is the religion’s essential practice, she said. “The Sabarimala shrine and deity is protected by Article 25 of Constitution of India,” Malhotra said. Religious practices cannot be solely tested on the basis of Article 14 of the Constitution that provides for equality, she observed. “Notions of rationality cannot be brought into matters of religion. What constitutes essential religious practice is for the religious community to decide, not for the court.” There has to be a balance between religious beliefs and principles of non-discrimination and equality laid down by the Constitution, she said. The defence has made out a strong case for Ayyappa devotees being a separate denomination, she added. “If there are clear attributes that there exists a section with identifiable characteristics, they constitute religious denomination,” she said.
The Lord Ayyappa there is in a state of “Naishtika Brahmacharya” and as per our constitution, even our diety has rights. Sabarimala is one of the few temples in India that welcomes men and women of every caste. Devotees dress uniformly in black. The colour signifies a renunciation of all worldly pleasures, but it also means that everyone is equal before Ayyappa, irrespective of caste. In fact, the hierarchy among devotees is based on how many times they have made the pilgrimage and not on caste. Pilgrims live an ascetic life for 40 days before undertaking the journey to Sabarimala. During that time , they pray in groups. A Dalit can lead the prayers and a Brahmin in the group must still touch his feet. You won’t see this anywhere else. I support the #WillingToWait movement to protect the heritage and rights of the Lord of the Sabarimala temple.
There are a lot of temples in India where dieties are worshipped and people are allowed to enter irrespective of his/ her gender! Then what is the need to violate Lord Ayyappan when the sole basis of worship rests upon the praise of the diety itself? If we respect him in toto including his celibacy state, we must let him the way he wants to!
The Supreme court must get out of the liberty- equality dichotomy and must consider social ethos and constitutional principles in total while delivering judgements on matters of faith, religious values and sentiments.