Women Entry In Sabarimala: Past, Present And Future

Ashok Kini
6 Oct 2018 7:52 AM GMT
Women Entry In Sabarimala: Past, Present And Future
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The Past

1955-56: TDB Notifications

Two notifications, similarly-worded, one dated 21 October 1955 and the other dated 27 November 1956, were issued by the Travancore Devaswom Board (TDB).

 “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 Vrithams 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.”

1965: Kerala State Made Rules

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 read: The classes of persons mentioned hereunder 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 watercourse appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship- (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship.

1991: High Court Judgment

The Kerala High Court bench comprising Justice K Paripoornan and Justice KB Marar in S. Mahendran vs. The Secretary, TDB, allowed a Letter turned PIL and made the following observations:

  • The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

  • Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

  • Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.

The high court did not stop at this. It went on to direct the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. It further directed the Government of Kerala to render all necessary assistance inclusive of police and to see that the direction (not to permit 10-50 aged women) is implemented and complied with.

The Present

2018: The Supreme Court Judgment

The majority judgment which allowed the PIL filed by Indian Young Lawyers Association did the following to the above-mentioned notifications, state-made rules and the high court judgment:

  • Notifications issued by TDB is held unconstitutional (Justice DY Chandrachud specifically holds so)

  • State-made rule prohibiting women (Majority judgment holds so)

  • Kerala High Court judgment practically stands overruled/set aside, though none of the judgments specifically say so (because it was not impugned).

Notifications Unconstitutional

 Only Justice Chandrachud’s judgment seriously discusses the notification.

He said: They prevent any woman between the age of ten and fifty from entering the Sabarimala temple and from offering prayers. Such a restriction would infringe the rights of all Hindu women which are recognized by Section 3. The notifications issued by the Board prohibiting the entry of women between age ten and fifty-five, are ultra vires Section 3. ((Page 123 of Justice Chandrachud’s judgment)

State-made Rules Illegal

 CJI Misra and Justice Chandrachud held the Rules unconstitutional. Following are some observations:

  • Rule 3(b) gives precedence to customs and usages which allow the exclusion of women “at such time during which they are not… allowed to enter a place of public worship”. In laying down such a prescription, Rule 3(b) directly offends the right of temple entry established by Section 3. Section 3 overrides any custom or usage to the contrary. But Rule 3 acknowledges, recognises and enforces a custom or usage to exclude women. This is plainly ultra vires. (Page 126 of Justice Chandrachud’s judgment)

  • The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion. (x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, for the simon pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. (xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that 95 the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. (xii) The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. (CJI Misra’s judgment, page 94-95)

 Observations and Submissions made in Kerala HC Judgment Taken Note of

The majority of judgments have extensively referred to the Kerala High court judgment and have made the following observations to hold that the custom does not pass the test of ‘religious essentiality.’

  • The Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conduced poojas in every month for five days for the first rice feeding ceremony of their children. The Devaswom Board also took a stand before the High Court that restriction of entry for women was only during Mandalam, Makaravilakku and Vishu days. (page 79 of CJI Misra judgment)

  • High Court noted that even when old customs prevailed, women were allowed to visit the Temple. It noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen the presence of women worshippers between the ages of ten and fifty for the first rice-feeding ceremony of their children.  The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years. A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala Temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas, but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons. (Pages 71-72 of Justice Chandrachud judgment)

The Future

What has the Supreme Court done in the Sabarimala verdict? It quashed the notifications and rules made by the state and held that women cannot be stopped from entering the shrine of Ayyappa. Can state again make such rules by way of ordinance or legislation? Simple answer is no. If made, it will be again struck down, like it was done recently to an ordinance brought in by the Kerala Government.

What are the chances of a review petition? Most review petitions are dismissed in limine. Even those considered in open court are not totally reversed unless a glaring error is found out. No new materials or arguments can be brought during review hearing. In a judgment like this, review chances are close to zero percent. Can a larger bench overrule this judgment? Of course, but there is very little chance that such a larger bench will be ever formed. In short, this judgment is here to stay.

To conclude:

  • The Supreme Court has held that women cannot be barred from entering the temple by bringing in notifications/rules etc, but it has not exhorted any women to go to the temple. So the argument that the court is interfering in customs is misplaced because the Supreme Court has only held that there cannot be any statutory provisions which violate fundamental rights.

  • By quashing the Rule/Notification, the statutory protection to an exclusionary custom is taken away by the court. Now we are in the pre-1955 stage when there was no statutory bar of women entry. That means if the argument is that women used to voluntarily abstain themselves from entering the temple, the same may be continued even after this judgment. But the only difference is no one can stop a woman from entering the temple and the state force cannot be used to stop such an entry.

Ashok Kini is an Assistant Editor at LiveLaw.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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