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Breaking: Devotion Cannot Be Subjected To Gender Discrimination, SC Allows Women Entry In Sabarimala By 4:1 Majority; Lone Woman In The Bench Dissents [Read Judgment]

The Supreme Court has delivered one of the most keenly awaited judgment in Sabarimala case. by a 4:1 majority, the Court has permitted entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’.

The lone woman in the bench, Justice Indu Malhotra, dissented.

Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority.

“Women is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith.Biological or physiological reasons cannot be accepted in freedom for faith Religion is basically way of life however certain practices create incongruities“, the Chief Justice read out portions of the judgment written for himself and Justice A M Khanwilkar.

The judgment of the CJI also held that Ayyappa devotees will not constitute a separate religious denomination. Rule 3(b) of the Kerala Hindu Places of Public Worship(Authorization of Entry) Rules 1965, which prohibited entry of women in Sabarimala, was also struck down as unconstitutional.

The separate but concurring opinion of Justice Nariman held : “Anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”. It was held that Ayyappas do not constitute a separate religious denomination.

Justice Chandrachud in his separate but concurring opinion held that the idea behind the ban was that presence of women will disturb celibacy, and that was placing burden of men’s celibacy on women. This stigmatises and stereotypes women, he observed.

Justice Indu Malhotra, in her lone dissent, held that issues of deep religious sentiments should not be ordinarily be interfered by the Court.Court should not interfere unless if there is any aggrieved person from that section or religion.Notion of rationality should not be seen in matters of religion. She also held that shrine and the deity is protected by Article 25 of Constitution of India.

(Story to be updated)

Background

The Bench was delivering the Judgment in a 2006 PIL  filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of women of menstruating age inside the temple.

The eight-day long marathon hearing was privy to a debate on the ‘essential religious practices’ doctrine and the principle of constitutional morality-  Justice D. Y. Chandrachud observed that abstinence is a state of mind and to restrain women from pursuing their right to worship on physiological grounds would be unconstitutional. Countering The submission of historic religious beliefs and customary practices, he asserted that after the coming into force of the Constitution, all actions have to be tested on the touchstones of equality and liberty.

The judge had regarded the ‘essentiality’ principle, originating in the 1954 five-judge Bench decision in Shirur Mutt, as a “problem with our jurisprudence”. He had criticised it for compelling judges to be guided by the theological aspect- whether a practice is deemed essential in terms of the tenets of the religion- rather than whether it is conducive to the Constitution. He was of the view that regardless of the ‘essentiality’ of a practice to the religion, discrimination cannot be allowed in violation of the basic structure of the constitution.

Concurring, Justice Rohinton Nariman emphasised that contemporaneous morality is dynamic. He ventured that if constitutional morality was taken recourse to, the practice would not survive.

Chief Justice Dipak Misra had reflected that one visits a temple by virtue of their belief and devotion, and that the onus to prove the rationality and reasonableness would be on those imposing the prohibition. He commented that despite there being innumerable Lord Jagannath temples, the one in Puri continues to attract worshippers in hoards.

Justice Nariman had weighed in that the ban on women between the ages of 10 and 50 years could not be said to be justified as in certain cases, a woman might be menopausal at an earlier age.

The judge noted that at some point, female devotees are permitted access to the temple. He indicated the stand of the Travancore Devaswom Board before the Kerala High Court in S. Mahendran v. Secretary, Devaswom Board- The Board had contended that the restriction of entry is only during the Mandalam, Maharavilakku and Vishu days and that temple will be open in every month for five days. According to the Board, persons who go to the temple during these days are not expected to observe the penance for any particular period. For decades, Many female worshippers of the age group of 10 to 50 used to go to the temple during these days for the first rice-feeding ceremony of their children.

“What happens to the celibate nature of Lord Ayyappa in those 5 days? Is it that the idol vanishes on those days?”, inquired Justice Nariman rhetorically.

Justice Indu Malhotra had also wondered how in certain instances women have been allowed to enter the shrine through its northern entrance, where the rituals of placing the irumudikkettu on the head and taking the 18 holy steps are not observed

Further, Justice Nariman pointed out the anomalies that in one of the affidavits the duration of the customary penance is asserted to be 55 days as opposed to the claim before the apex court of the inability of women to observe the customary 41-days ‘Vrathams’, and that none of the affidavits imputed the ban to a belief of impurity. Accordingly, Justice Chandrachud had remarked that the custom could not be said to satisfy the requirement of being continuously and consistently in existence from times immemorial.

The bench also wondered how a Temple which was open to all sects of Hindus and even persons of other religions could be denominational in character for the purpose of Article 26.

When the independence of the Temple to pursue the practice of exclusion was sought to be justified by indicating that the Sabarimala Temple does not procure any state funding, the Chief Justice remarked that the only question was if the Temple is a public place, in which case noone could be prohibited from offering prayers to the deity.

The hearing had witnessed positive, feminist observations from the bench, with Justice Chandrachud lamenting how women, from birth, are subject to social conditioning in terms of what they can or cannot do, and how the female is regarded as chattel of her male counterpart.
The judge noted that the social dominance assumed by men could not justify this restriction on women so far as their communication with God  by means of pilgrimage is concerned.

Justice Nariman agreed that the supposed inability of women to observe the 41 day penance on account of impurity is a patriarchal concept.

When Senior Advocate Abhishek Manu Singhvi Singhvi, appearing on behalf of the Board, had objected, saying that such patriarchy is prevalent in several faiths and social setups across the globe, Justice Chandrachud assured that the court shall endeavour to ameliorate the situation as far as their jurisdiction extends.

Chief Justice Misra was also unimpressed by Dr. Singhvi’s submission that women not falling in the 10-50 years age bracket were highly revered among the pilgrims, with a special title dedicated to them. The Chief Justice asked why the same level of respect was not accorded to the menstruating women.

The discussion had even veered to whether the impugned practice of exclusion of women amounted to ‘untouchability’ for the purpose of Article 17, as suggested by Amicus Curiae Raju Ramachandran.

Senior Counsel Indira Jaising, for the petitioners, drew the attention of the bench to former Chief Justice B. P. Sinha’s dissenting opinion in Sardar Sayedna Tahir Saifuddin Saheb (1962), regarding excommunication as being akin to untouchability.
The matter is pending for reconsideration before the court.

The Chief Justice agreed that the argument based on Article 17 may be kept open, asking Ms. Jaising if she was suggesting a reference to a 7 judge bench. When she left the decision to the wisdom of the court, Chief Justice Misra stated that the issue may be dealt with separately.

Chief Justice Misra also observed that the right to regulate religious affairs could not scale to the height of discriminating on account of the biological attributes of women belonging to a particular age bracket, while Justice Nariman noted that such a right would have to be conditioned on the Fundamental Rights of the public.

While Senior Counsel Indira Jaising, Jaideep Gupta (for the state of Kerala), P. V. Surendranath, Raju Ramachandran (Amicus Curiae) and Advocate R. K. Gupta advanced arguments in opposition of the practice, Senior Advocates Abhishek Manu Singhvi, K. Parasaran, K. Radhakrishnan (for the Pandalam Royal Family), V. Giri (for the ‘Thanthri’ of the Temple), Kailashnath Pillai, K. Ramamoorthy (Amicus Curiae) and Counsel Sai Deepak (for the intervenor ‘People for Dharma’), V. K. Biju and Gopal Sankaranarayanan backed it.

Read the Judgment Here

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  • […] the honorable Supreme court’s verdict on Sabarimala came, which stated that, “Woman is not lesser or inferior to man. Patriarchy of religion cannot be permitted to […]

  • Cyril Daniel says:

    Its a great step towards the human civilization.no one shall be rstricted on the basis of gender before any religion.prayering and participating in religion is also an fundamental rights of man..
    Sati was also an rites and rituals among the hinduism..but when time changed ,the mind of the people also changed and realised what a barbarious rite was that .thus it came to end. GOD MADE US AND MAN MADE US DIFFERENT.

  • […] Barely twelve years ago. Or, depending on how you look at it, twelve long years ago. What has changed? The simple but brutal answer is in the latest SC judgement: […]

  • […] Sabarimala, now trudge up those 18 steps, see the light of the Makara Villak if they wish. Or to quote the verdict this morning, that “devotion cannot be subject to gender […]

  • SB says:

    Is it applicable for other religions to

  • rajesh says:

    Justice Malhotra is the true heroine in the Sabarimala miscarriage of justice.

    The court is too drunk with its own sense of fighting for equality and justice to understand that differentiated practice is not always discrimination.

    The irony in the 4:1 Supreme Court decision that forces the Ayyappa temple at Sabarimala to open its doors to women in the 10-50 age group is this: the four male judges who wrote the majority judgment claimed to be fighting for gender equality, while the lone woman judge, Indu Malhotra, dissented and batted for religious freedom as promised under article 25 of the Constitution.

    What the majority verdict specifically struck down was Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which was the basis on which women in the menstruating age were barred from the temple since the presiding deity was celibate.

    While the four male judges, Chief Justice of India Dipak Misra, and justices A M Khanwilkar, D Y Chandrachud, and R Nariman, pontificated about equality under the law, Justice Indu Malhotra underlined a simple truth: that looking for matters of rationality in matters of religion is futile.

    She noted that deep religious sentiment should not be interfered with by courts, unless there is truly an aggrieved party bringing attention to the same. She also emphasised that the deity, the celibate Swami Ayyappa, and the practices around him, were protected under article 25 of the Constitution.

    Article 25 deals with “Freedom of conscience and free profession, practice and propagation of religion”, and says in sub-clause (1): “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, practise and propagate religion.”

    The moot point is whether the practices at Sabarimala fall within this definition of freedom of conscience or not. The majority decreed they did not; only Justice Malhotra said they did.

    The same article 25 also adds the following caveats:

    (2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

    An honest reading of Section 25, and how it has been interpreted in this case and many others, shows that the promise of freedom of conscience applies to all religions other than Hinduism. Explanation 1, for example, specifically says that “The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.”

    If the Constitution has to treat all as equal, why not allow all to carry weapons like Sikhs?

    So, exclusions from constitutional provisions are possible only if you are not a Hindu. Articles 25-30, which protect the autonomy of minority religious, clearly form an institutionalised system of discriminating against Hindu religious practices.

    Consider the kind of pontification the Supreme Court justices indulged in while delivering the majority Sabarimala judgement.

    CJI Misra said that “Devotees of Ayyappa do not constitute a separate religious denomination”, which set the stage for treating Sabarimala on a par with other temples. A Bar and Bench report said that Justice Nariman concurred with Misra, holding that the custom of barring the entry of (menstruating) women from Sabarimala Temple is violative of Article 25(1) of the Constitution of India.

    Justice Chandrachud, who seems to have taken on himself the job of righting all wrongs in society, had this to say: “Religion cannot be cover to deny women the right to worship. To treat women as children of a lesser God is to blink at Constitutional morality.”

    Nobody told him that one exceptional temple with its own norms on barring women of a certain age from entry does not represent the whole of Hindu temple practices.

    Nobody also seems to have enlightened him about the emphatic claims of all Abrahamic religions, that those who do not believe in Christ or Allah or Yahweh are essentially children of a lesser god. So, should these beliefs be outlawed too under the constitution?

    Even earlier, during the hearings stage, Justice Chandrachud was clear on which way he would decide. Among other things, he had observed that the “essentiality principle”, enunciated in a 1950s five-judge bench decision involving Shirur Mutt, was a “problem with our jurisprudence.” He disagreed with the essentiality principle, since it compelled judges to be guided by a theological interpretation rather than the basic non-discriminatory nature of our Constitution.

    It was left to Justice Malhotra to bring some sanity to this pontification. “What constitutes essential religious practice is for the religious community to decide, not for the court”. She also dissented with the majority opinion and held that Ayyappa devotees do form a separate denomination covered under article 25 (1).

    Justice Malhotra is the true heroine in the Sabarimala miscarriage of justice. The court is too drunk with its own sense of fighting for equality and justice to understand that differentiated practice is not always discrimination. An insightful article from swarajyamag about Judges trying to over do in the name of trying to change the socity

  • Kishan Lal Rohilla says:

    judgement the judgement is based on the logic in a scientific way but as it is a religious matter it should be left to the women inserting is brackets on their desertions as woman has to practice across the nation for their religious beliefs and devotions but law must prevail and it is the duty of the government of state and the Government of India to and force the rightful law in the rightful manners.

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