On 28 September 2018, a five judge Constitution Bench of the Supreme Court lifted the ban on entry of women between the age group of 10 to 50 years into the Sabarimala Temple in a 4:1 majority decision. While many have welcomed and celebrated the verdict, it has given rise to spontaneous protests across Kerala, some of which are being led by women themselves.
This judgement is very important as it will be quoted extensively in other cases that are already before the Court or in ones that would come up before the Court in future. Therefore, it is important to examine this question: Was the judgement progressive or did the judges go over-board?
The Background
The case started with a Public Interest Litigation (PIL) filed in the Supreme Court by a registered association called Indian Young Lawyers Association. In their petition they challenged the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women in the age group of 10 to 55 into the Sabarimala Temple. These Rules were framed under Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. Section 3 of the said Act reads as follows:
“Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and 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 thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:
Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in the matter of religion.”
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, formed by drawing power from the action Section, reads as follows:
“The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situated within or outside precincts thereof, or any sacred place including a hill or hillock, or a road, street or pathways which is requisite for obtaining access to the place of public worship-
(a) Persons who are not Hindus.
(b) Women at such time
during which they are not by custom and usage allowed to enter a place of
public worship.
(c) Persons under pollution
arising out of birth or death in their families.
(d) Drunken or disorderly
persons.
(e) Persons suffering from any
loathsome or contagious disease.
(f) Persons of unsound mind
except when taken for worship under proper control and with the permission of
the executive authority of the place of public worship concerned.
(g) Professional beggars when
their entry is solely for the purpose of begging.”
It is the underlined sub-rule whose Constitutional validity was challenged in the Supreme Court. The Travancore Devaswom Board issued two notifications in which reads as follows:
“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple.”
This matter was examined by the Kerala High Court in the year 1992 in the S Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram case. A division Bench of the High Court held that the notification was in line with the prevalent usage since time immemorial and therefore the ban on entry of women within the notified age was in accordance with Law.
Once the matter reached the Supreme Court, a three judge Bench, which after hearing all the parties, decided to refer the matter to a Constitution Bench. The three judge bench framed the following questions for the consideration of the Constitution Bench:
1. Whether the exclusionary practice which is
based upon a biological factor exclusive to the female gender amounts to
"discrimination" and thereby violates the very core of Articles 14,
15 and 17 and not protected by “morality‟
as used in Articles 25 and 26 of the Constitution?
2. Whether the practice of excluding such
women constitutes an "essential religious practice" under Article 25
and whether a religious institution can assert a claim in that regard under the
umbrella of right to manage its own affairs in the matters of religion?
3. Whether Ayyappa Temple has a denominational
character and, if so, is it permissible on the part of a 'religious
denomination' managed by a statutory board and financed under Article 290-A of
the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu
to indulge in such practices violating constitutional principles/ morality
embedded in Articles 14, 15(3), 39(a) and 51-A (e)?
4. Whether Rule 3 of the Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules permits 'religious
denomination' to ban entry of women between the ages of 10 to 50 years? And if
so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting
entry of women on the ground of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?
These questions form the core of the case and have lead to this judgement.
The Judgement
In simple terms, the judgement had to answer:
a) Whether
the exclusionary practice amounted to discrimination under Articles 14
(equality before the law), 15 (non-discrimination) and 17 (outlawing
untouchability)
b) Whether
this exclusion was part of an “essential religious practice” – entitled to
protection under Article 25 (freedom of conscience in religion)
c) Whether
the followers of Swami Ayyappa constituted a separate “religious denomination”
– entitled to protection under Article 26
d) Whether the rule prohibiting entry of women was unconstitutional
The majority of the judges (i.e. 4): Chief Justice Dipak Misra and Justice A M Khanwilkar (single judgement), Justice R F Nariman and Justice D Y Chandrachud (separate Judgements) answered ‘Yes’ to the first question and ‘No’ to the next two and thereby held Rule 3(b) of The Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 as unconstitutional. Justice Indu Malhotra dissented with the majority view and upheld the said Rule.
Conclusion
This 4:1 judgement has been debated intensely: it has been hailed as progressive on the one hand and has attracted spontaneous public outrage on the other. Let us explore these four questions and a few other aspects of the judgement in the next part.
*Emphasis is mine
Sources:
1.
Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act, 1965
2.
Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965
3.
Supreme
Court Judgement (available on the SC website)
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