Sabarimala Case Analysis

INDIAN YOUNG LAWYERS’ ASSOCIATION & ORS. V/S STATE OF KERALA & ORS [WP (C) 373/2006]

Introduction

There is no straight-jacket formula to come to a conclusion for this particular case, India being a very culturally proactive country, it is never easy for the judiciary to give justice, and often it ends or starts with some degree of violence. Sabarimala temple is another religion-based case, that has made a comparison of Hindu with a Hindu.

Sabarimala Temple is a temple complex situated in Sabarimala inside the Periyar Tiger Reserve in the Perinad village. It is a pilgrimage that entertains 30-40 million people from around the world and around the year. Especially in Kerala. It is a debate between traditionalists or conformist who think; that practices involved to worship a god are divine in nature and hence must have no beginning or end. They believe God is divine and pure and any practice which changes.

The state of God is violative of their Fundamental Right, and the other class of people who think that; the ban must be struck down not only on the basis of its discriminatory nature. But because it also has lineage to patriarchal society and with time; it is important that the blindfold must be unknotted and the reality must be shown. This is the group which thinks that religion originates from popular public belief and public norms. So it must be changed according to public need and change in public behavior. Yes! This is the proclamation of how this event is of tremendous value.

Let’s go through the timeline:

1991: The Kerala High Court upheld the ban on the entry of women from 10 to 50 years ago.

2006: A petition was filled by India Young Lawyers’ Association directly in Supreme Court; seeking entry of women devotees aged between 10 and 50, in the pilgrim of Lord Ayappa at Sabarimala Temple. This matter was referred to 3 judge bench.

2016: The case came in front of 3-Judge Bench comprising of Justice Dipak Mishra, Justice Ashok Bhushan, and Justice Bhanumati; who questioned the constitutional validity of the ban. The United Democratic Front (UDF) government led by chief minister Oomen Chandy informed the apex court. That the government is bound to respect and protect the right to practice the religion of the devotees.

2017: The case was referred to a 5-judge constitutional bench.

2018: The apex court on September 28, 2018 with 4:1 majority lifted the ban on the centuries-old practice; of not letting women between the age of 10 and 50 enter the Lord Ayyapa’s shrine.

2019: The court referred the case to a 7-judge bench.

Issues

Issue 1:

Is it unconstitutional to reserve entry on the basis of gender in the light to Article 14, 15, 17, 25, and 26 of Indian Constitution?

Article 14 guarantees equality before the law and equal protection of the law ;which must be safeguarded by the State on grounds of Religion, Race, Caste, Sex, and Place of Birth.

The Article 15(2) (b) states that ‘No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public’.

Article 17 talks about the abolition of untouchability and is a punishable offense if practiced in any form.

Majority Opinion

The practice of banning women between the ages of 10 and 50 to enter the shrine and worship Lord Ayyappa is indeed discriminatory in nature as it shows the patriarchal nature of Indian society, according to article 14, 15 and 17. It is very important to keep in mind that worshippers of Lord Ayappa constitute as Hindus, the same religion that worships goddesses for various reasons and on the other hand is discriminating women, devotees, with men devotees on the basis of purity as women between that age group go through the menstrual cycle which is considered to be impure.

As per Justice DY Chandrachud the fact that women have the physiological feature of menstruating does not make them any inferior to men and does not deny them the right to worship which they are given under Article 25 of the Constitution. The exclusion is a form of “untouchability” as mentioned in Article 17, the constitutional assembly debates wrote the word untouchability, not in a narrow form and gave a wider ambit to the word. The practice thus shows the untouchability of women. The practice perpetuates the notion of women being a weaker class and belonging to a lower pedestal then men, the question of impurity is asked again and again but it is seen here that there is no question as to the pure state of men and whether they are eligible to worship or not.

Minority Opinion

The practice of banning women between the ages of 10 and 50 to enter the shrine and worship Lord Ayappa is maintained because in the Sabarimala temple Lord Ayappa has taken the form of celibate and as a celibate and one of the 8 rules of celibacy is to avoid contact with women between the age of 10 and 50 to uphold the vow of celibacy, and it must be kept in mind that there must prevail harmony between fundamental rights it is not important that to uphold one right another must be sacrificed like in this case were to uphold the non- discriminating right another person’s right to religion is suppressed as they cannot worship properly because the age-old custom is struck down and purity is to be done again and again of the god.

Under Article 26 we are given the freedom to manage religious affairs and the age-old practice under the Hindu customs clearly mentions the requirements and rules for practicing celibacy. It is also important to note that only the Sabarimala Temple which has the deity as Lord Ayappa stops the women between the prescribed age group to not enter the shrine because at this temple it is believed that Lord Ayappa is in celibate form and rose to divinity, the other Lord Ayappa temples don’t have such rules because there the god did not take the path of being a celibate.

Issue 2

Whether the Sabarimala Temple has a denominational value? If so how can a state-funded entity indulge in practices that violate Constitutional morality?

Article 26: Freedom to manage religious affairs Subject to public order, morality and health.

Every religious denomination or any section thereof shall have the right:

• to establish and maintain institutions for religious and charitable purposes;
• to manage its own affairs in matters of religion;
• to own and acquire movable and immovable property; and
• to administer such property in accordance with law.

There are 4 necessary conditions for “Religious Denomination” which are:

1. It has its own property & establishment capable of succession by its followers.
2. It has its distinct identity clearly distinguishable from any established religion.
3. It has its own set of followers who are bound by a distinct set of beliefs, practices, rituals, or beliefs.
4. It has the hierarchy of its own administration, not controlled by any outside agency.

The devotees of Lord Ayappa does not form a religious denomination as they don’t have a common faith or a different name the devotees are Hindu and are not unified under a common set of practices The temple does not fulfill the test for religious denomination and baring women between the age of 10 and 50 is not a core foundation of the religion practiced. The worshippers of the temple are common Hindu people. Many temples do have different practices but are under the same set of rules as per Hindu religion and do not change in working if the practice is struck.

Down or held to be ultra vires. The temple is also a place of public worship and administered by Travancore Devaswom Board, the board statutorily established under Travancore – Cochin Hindu Religious Institutions Act, 1950 and does not hold the right to decide who would enter the temple or not, that is decided by the public character. The board also receives funds under the Consolidated Fund of India under Article 290A and hence is duty-bound to give effect to fundamental rights and the morality under Article 25 and 26 is Constitutional Morality not individualistic morality hence must align with other fundamental rights.

Issue 3

Is the Sabarimala temple custom an essential religious practice?

Majority Opinion

The religious practice is not essential in nature as it cannot be termed as custom.

Essentials of a valid custom is:

1. Reasonableness: A custom must be in conformity to norms of public utility and justice. Custom shall not be valid if it is apparently repugnant to right and reason and it is likely to do more mischief than good if enforced. The practice followed by the Sabarimala temple is not at all reasonable as it is not in conformity with the fundamental rights.
2. Consistency: A custom to be valid, must be in conformity with statute law. The practice is not consistent with the established law and statute. It is discriminatory in nature and no proper guidelines are issued as in the 1991 case ruling.
3. Compulsory Observance: The custom must have been followed by all concerned without recourse to force and without the necessity of permission of those who are adversely affected by it. It must be regarded by those affected by it not merely as an optional rule but as an obligatory or binding rule of conduct. The practice of ban is obligatory in nature but is not followed by all concerned as the women devotees are left of the luxury of worshipping Lord Ayappa and are forced to not enter the shrine.
4. Continuity and Immemorial Antiquity: A custom in order to be legal and binding must have been used so long that the memory of man does not run to the contrary. The practice of barring women between the age of 10 and 50 years is not continuous and wrongly practiced as the women were bared only in the 3 seasons of the temple which were observed in the month of November, December and January also in 1991 though the court upheld the ban the petition came to court because granddaughter of the royal family who helped in building the temple did visit the shrine for first rice feeding ceremony and many other privileges were given to VIPs so it is clear that the rule was bent for some strata of people.
5. Certainty: In order to prove the existence of a custom since time immemorial it must be shown that it is being observed continuously an uninterruptedly with certainty. As we know that the practice is uncertain in nature as for some time it is observed and other it is not also the authorities are not hard on applying the custom.

All 5 conditions must be fulfilled to ascertain that a particular practice is an essential religious practice which must be safeguarded. The custom will also not change the nature of the Hindu religion and the administration would go on without interruption. The right to profess and practice religion of female devotees is violated here.

Minority Opinion

It was contented by Justice Indu Malhotra that the custom is to be termed as essential religious practice as it is decided by the religious group and holds some weight to the working of the temple and religious norms. The practice was not followed for a short period of time but because of the influential character of the person it was not followed, it must be termed as a mistake and must be overlooked.

Conclusion

The Supreme Court had dissenting opinion so did the whole of India, but Kerala was divided into two the traditionalists and the liberals. This case was one of those vents when two Fundamental Rights were in violation of each other and both are highly sensitive in India. Coming to this judgment was not a piece of cake for our Honorable 5-judge bench it was indeed a tedious task and yet no one is able to understand what the right decision is, because India is a diverse country and with one can find many combinations of facts on the same touchpoints. The judgment is set to be reviewed before a 7 judge bench let’s wait and find out what other reasoning the judgment will bring. Till then find a reasoning to satisfy your own curiousness in the light of Fundamental Rights and the ingrained idea of our Constitution.