Patriarchy in religion cannot be allowed to trump right to pray and practice religion

Vaishnavi Annasaheb Nirmal | Manikchand Pahade Law College, Aurangabad | 6th February 2020

Young Lawyer Association v. The State of Kerala (Sabarimala) (WRIT PETITION (CIVIL) NO. 373 OF 2006)

Facts:

Sabrimala Temple is a Hindu temple dedicated to Lord Ayyappan situated at Sabarimala in Pathanamthitta District, Kerala, India. Lord Ayyappan is considered as to be a ‘brahmachari’, which means that he didn’t marry in his lifetime. Therefore, there was a practice that, woman of menstruating age (i.e. 10 to 50) were not allowed to enter the temple premises. To govern the same, the Kerala state government has enacted a special legislation named, The Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965. A board named Devaswom Board has been constituted to regulate the functions of the temple. The temple previously was under the control of Travancore and Cochin Princely State. Section 3 (b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 authorizes the prohibition of woman of menstruating age to enter in the temple.

The first instance when the matter was placed before judiciary was in the year 1991, in the Kerala High Court. A Kerala high-court judgement had legalized this interpretation, and prohibited women from entering the temple since 1991. S Mahendran started a petition, alleging that young women were visiting Sabarimala. The verdict on the petition came in 1991 where Justices K. Paripoornan and K. Balanarayana Marar of the Kerala High Court banned entry of women between ages 10 and 50 from offering worship at Sabarimala, stating that such restriction was in accordance with the usage prevalent for a long time. In addition, the High court directed the Government of Kerala to use the police force to enforce the order to ban entry of women to the temple.

Later Young Lawyers Association filed an appeal in the Supreme Court challenging the same Act passed by the state government on the grounds that it violates Art. 14 of the woman, arguing that the practice is discriminatory.

Issues Raised:

1. Does section 3 (b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 violates articles 14, 15 (3) of the Constitution of India?
2. Whether exclusion of women at public places of worship is an essential practice of religion? Does it violate articles 25 and 26?
3. Whether the exclusionary practice based on biological factor regarding menstruation of women violates articles 14, 15, 17 and 21?

Judgement:

The verdict of the Kerala High Court was reversed by the Supreme Court with 4-1 majority which held that the Section 3 (b) of the said Act and the practice of prohibition is ultra vires the Indian Constitution. The Supreme Court stated that:

We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship. 

Women can be granted entry in religious places on grounds of violation of their fundamental rights available under article 14, 15 & 25. Art. 14 speaks about equality of law and equal protection of law; Art. 15 speaks about ‘no discrimination on the ground of sex’. Whereas, Art. 25 speaks about right to religion, faith, belief and worship. But, Art. 25 is an amorphous right, and has to be read with Art 26. Art 26 gives right for the management of the religious institutions. The conflict starts here, right of women under 25 goes against right of religious institution under 26. And this has created havoc in the society at large.

Art. 25 is a peculiar right, but it is controlled by other rights under part III. This means that ‘there are many windows to this room’. So, it is not just the religion, but many other things to taken into consideration to give this right under 25.

To have a conclusion over this issue, Supreme Court can adopt two ways,

1. Harmonious Construction between Art 25 and 26.
2. Apply the Doctrine of Proportionality.

And the Court in Sabarimala judgment has applied the same.

Chief Justice of India, Dipak Mishra and Justices Khanwilkar, Nariman and Chandrachud found the practice discriminatory in nature and that it violates Hindu women’s right to pray. Justice Indu Malhotra, the only lady judge in the bench gave a dissenting opinion.