6 Oct 2018 7:52 AM GMT
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...
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 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.
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:
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:
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.’
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.
[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]