Sabarimala verdict: In striking down patriarchal tradition, SC paves way for positive interference in religious affairs

These were the words of Mahatma Gandhi in response to the temple entry proclamation of Maharaja Chithira Thirunal in the year 1936. This was followed by the historic temple entry at the Madurai Meenakshi temple in the year 1939. Once again from southern India, home to the proclamations 80 years ago, has come about another historic challenge and reform, this time through the Courts. The right of women of all ages to enter the Sabarimala temple was heard by a Constitutional Bench of the Supreme Court.

The background
The ban on menstruating women entering the temple was enforced under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which was framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. Ironically, the legislation aimed at increasing access to temples as a measure of social reform. The rule states that “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship". In 1991, the Kerala High Court upheld this ban and directed the Travancore Devasom Board to enforce the same. Since then, women who fall within the age group where they are biologically capable of menstruating were not permitted to enter Sabarimala.

File image of the Sabarimala shrine in Kerala. Image courtesy ayyappaseva.org

This was challenged through a public interest litigation filed before the Supreme Court in 2006 by the Indian Young Lawyers Association. While the Kerala government withdrew their opposition to the entry, the plea of the petitioners was contested by the Travancore Devasom Board.

The verdict delivered today by a majority of four judges, with one judge in dissent held that women of all ages should be allowed to enter the temple. In doing so, the court held that exclusionary patriarchal practices cannot be allowed to trump over religious faith and that the devotees of Lord Ayyappa cannot be considered a religious denomination for the purpose of Article 26 of the Constitution.

The issues before the court

The questions before the Court can be broadly classified into:
I. Whether restricting the entry of women constituted an essential practice;
II. Whether the devotees of Lord Ayyappa constitute a separate religious denomination;
III. Whether the act of restricting women of all ages into the temple, irrespective of whether it is an essential practice, is violative of the fundamental rights guaranteed under the Constitution.

Majority view

The Supreme Court has opined that the dignity of an individual is an unwavering nature of fundamental rights. Thus, as Justice DY Chandrachud said, “... to treat women as children of a lesser God is to blink at the Constitution itself." The majority has stated that the right to freedom of religion also includes freedom to practice religion without any fictitious or vague constraints, thus positively establishing a woman’s right to pray. The court has further held that the notions of public order, morality, and health cannot be used as a colourable device to discriminate against women and restrict their freedom to pray.

The majority opined that the devotees who visit Sabarimala to worship Lord Ayyappa do not constitute a separate religious denomination and that the provisions of Article 26 of the Constitution, which permits for a religious denomination to manage their own affairs in matters of religion, will not apply to the Sabarimala temple by placing reliance on a landmark 1954 Supreme Court judgement — the Shirur Mutt case. In this case, the Supreme Court had described certain attributes that define a 'religious denomination' and included elements such as a common faith and common spiritual organization.

The Court stated that devotees of the Sabarimala temple come from various religions, and their religion does not change upon visiting Sabarimala, thus the court concluded that the worship of Lord Ayyappa, while it forms a part of Hindu religious worship, does not amount to denominational worship. The court thus concluded that there is no specific religious denomination with respect to people who go to Sabarimala by opining: “there is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect. Accordingly, we hold, without any hesitation, that (the) Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult."

In the Kerala High Court judgment of 1991 that upheld the said rules to prevent the entry of women, it was one of the state's submissions that women of all age groups were allowed to enter the shrine during the monthly poojas and also to participate in their child's rice feeding ceremony (chooranam). The restriction on women in the age group of 10-50 was only during the months of Mandalam, Makaravilakku, and Vishu. Hence, it was argued in the present Supreme Court case that there was clear evidence of women being allowed into the shrine three decades ago. The judges posed the question as to what happened to the celibate status of Ayyappa during these particular days, if custom really wanted him to be a celibate deity with no interaction with women who had the potential to menstruate.

On the submission that the fundamental rights extended to the deities of temples who have been considered as juristic persons in previous judgments, the court held that merely because a deity has been granted limited rights as juristic persons under statutory law, it does not mean that the deity has constitutional rights on par with the citizens on India under the chapter that confers fundamental rights.

Justice Chandrachud further notices that Article 25(1) contains the words 'subject to public order, morality, and health and other provisions of this Part' (refers to fundamental rights), and that this restriction is not present in Article 26. However, it cannot be assumed that Article 26 has no connect with other freedoms, or that the right of religious denominations is unconcerned with the other fundamental rights.

Section 7(c) of the Civil Rights Act, 1955, criminalises the encouragement and incitement to practise untouchability in "any form whatsoever". Amicus Curiae, senior advocate Raju Ramchandran had submitted that untouchability cannot be understood in a pedantic sense, and it should be understood in the context of the Civil Rights Act, 1955, so that exclusions on the basis of purity and pollution are also included in the ambit of untouchability. The Amicus Curiae has further submitted that the exclusionary practice results in involuntary disclosure by women of both their menstrual status and age which amounts to forced disclosure that consequently violates the right to dignity and privacy embedded in Article 21 of the Constitution of India after placing reliance on the recent Supreme Court judgement of Justice KS Puttaswamy.

This argument has resonance with Justice Chandrachud who has held that the rule banning entry of women of menstruating age amounts to a form of discrimination. Women are equally entitled to religious practices and to deny them of the same is a form of untouchability. Justice Chandrachud refers to the Constitutional Assembly Debates and holds that the framers of the Constitution deliberately left the term 'untouchability' undefined and in fact added the phrase "untouchability 'in any form'" to the initial draft that explains the intention to give the term a very broad scope. He notes that Article 17 thus provides a moral framework for radical social transformation.

Minority view

In her dissent, Justice Indu Malhotra has stated that rationality has no place in matters of religious faith. Justice Malhotra has gone on to opine that the Sabarimala temple and the deity have the protection offered under Articles 25 and 26 of the Constitution. Justice Malhotra has also stated that the issues in this case will have far reaching consequences for other places of worship, and that in a secular society, the courts should not interfere in issues of deep religious sentiments.

Article 25(1) confers the right to freely profess, practice or propagate one's religion. She further states that under this article, if a person claims to have faith in a certain deity, then that faith has to be articulated in accordance with the tenets of that faith. In this case, the devotees of Ayyappa believe that he is a naishtik brahmachari (faithful celibate), and that this is an essential character of the deity.

Justice Malhotra also states that there is a difference between other Ayyappa temples across the country and the one in Sabarimala, women of all ages can visit the other Ayyappa temples, but Sabarimala is the only place where he is a naishtik brahmachari, and thus the limited restriction on entry of women who have the capacity to menstruate is justified in this case. In this vein, Justice Malhotra opines that the issue of what constitutes an essential religious practice is for the religious community to decide.

Justice Malhotra did not accept the arguments that the age bracket of 10 to 50 is arbitrary, and opined that the prescription of this age-band was the only practical way of ensuring that the limited restriction on the entry of women was adhered to.

Justice Chandrachud believes that courts should proceed as if personal practices are essential but whether they are derogatory to liberty, dignity enshrined in fundamental rights; whereas Justice Malhotra is of the opinion that judges cannot intervene and decide on whether a practice is violative of fundamental rights or not.

Going forward
One of the most striking observations in the Sabarimala case comes from Justice Chandrachud while noting that the burden of a man’s celibacy cannot be placed on the woman. This, read along with the observations in the Joseph Shine versus Union of India case — which decriminalises adultery and effectively overturned the doctrine of coverture that effectively states that a married woman's rights are subsumed by her husband — and the decision in Navtej Singh Johar versus Union of India case — which decriminalises homosexuality — points to a compelling trend where there is an explicit recognition of the fact that the patriarchy that exists in all realms of Indian society is also reflected in the law. The two cases also reveal that there's a compelling need to de-recognise such patriarchal views and recognise the sexual autonomy of every individual, man or woman.

While Justice Malhotra has stated that the court cannot strike down religious practices with the exception of social evils like sati, one wonders what the threshold of a social evil is and the exact circumstances where a religious custom can become a social evil. The morality under Article 25 and Article 26 has to be that of the Constitution, as individual dignity cannot be subordinate to the morality of the prevailing popular opinion.

It is important to remember that a social custom, or a practice that is now regarded as a social evil was at one point accepted, practiced, and in some cases even celebrated by the society. Thus, it is for the Indian Constitution, through fundamental rights, to transform society and steer it to a direction where dignity of the individual reigns supreme.

We also need to carefully watch how the present judgment translates to on-ground implementation. It has been documented in the past that while the Supreme Court has ruled on matters relating to religion, the translation of the same into laws has led to controversy since the impact of the verdict might not have immediate societal acceptance. But this ought not to deter the government from giving life to the judgement of the Supreme Court in letter and spirit and working with all stakeholders who may oppose this judgement. That will be the true test of the living constitution.

The authors are advocates at Madras High Court