Sabarimala Sree Dharma Sastha Temple is one of the most famous Hindu temples in India, located in the Pathanamthitta District of Kerala. The temple is managed by the Travancore Devaswom Board. Sabarimala Temple is dedicated to Lord Ayyappa, who is regarded as the unification of Lord Shiva and Lord Vishnu. It is the most famous and prominent among all the Sastha temples in Kerala, the temple is situated on a hilltop (about 3000 feet above sea level), which is unique. The temple is open to people belonging to all religions. But as per the traditions and customs, women between 10 and 50 years of age were not allowed to enter into Sabarimala Temple.
This situation changed when the Supreme Court on September 28, 2018 ruled that restricting entry of women of menstruating age was unconstitutional. However, the Kerala state government has been facing difficulties to execute the Supreme Court’s order due to massive protests.
The Top Court is hearing a PIL filed by the non-profit body Indian Lawyers Association seeking the entry of women of all age to the temple dedicated to Lord Ayyappa.
While it first came up for hearing in August 2006, over the years it has seen a number of judges in various combinations taking up the matter. With 24 respondents in the case, the issue of allowing women entry to the temple is one of religious freedom, gender equality and female autonomy.
To decide the merits of the case, the Constitution Bench considered few questions framed by the top court. This includes whether the restrictions on women based on biological factors is discriminatory and as a result violates Article 14 (Right to equality), Article 15 (Prohibition of discrimination), Article 17 (Untouchability) and cannot be protected by “morality” based on Articles 25 (Freedom to practice and propagation of religion), 26 (Freedom to manage religious affairs).
The Supreme Court Verdict on September 28, 2018, paved the way for the entry of women of all ages into the Ayyappa temple at Sabarimala in Kerala, ending a centuries-old ban on women and girls.
The five-judge constitution bench headed by Chief Justice Dipak Misra, in its 4:1 verdict, said that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorised the restriction, violated the right of Hindu women to practice religion. It also said, banning the entry of women into the Shrine is Gender Discrimination and the practice violates the rights of Hindu Women. It said religion is a way of life basically to link life with divinity.
The court observed that it can’t be oblivious to the fact of the case that a class of women is disallowed due to physiological reasons (menstruation). The CJI said devotion cannot be subjected to discrimination and Patriarchal notion cannot be allowed to trump equality in devotion. While Justice R F Nariman, Justice D Y Chandrachud and Justice A M Khanwilkar concurred with the CJI and Justice Indu Malhotra gave a dissenting verdict.
Ironically in the 4:1 verdict on Indian Young Lawyers Association & Others vs. The State of Kerala & Others, the only dissenting vote was of the sole woman judge on the bench: Justice Indu Malhotra. Justice Malhotra, in her dissenting judgement, said that issues which have deep religious connotation should not be tinkered with to maintain a secular atmosphere in the country. She also said that, India has diverse religious practises and Constitutional morality would allow anyone to profess and practise a religion she or he believes in and it is not for the court to interfere in such religious practises, even it may appear discriminatory.
The Supreme Court on 13.11.2018 admitted all 49 review petitions and agreed to review in open court its own order ending the kerala Sabarimala temple’s ban on women of menstrual age. Refusing to keep its decision on hold, the court said it would hear 49 petitions challenging the ruling on January 22, 2019.
The Supreme Court declined an urgent hearing of Petitions seeking a review of the top court’s September 28 judgment, Chief Justice Ranjan Gogoi, said a date to hear the review petitions cannot be fixed now since Justice Indu Malhotra is on leave and the petitions rely heavily on Justice Malhotra’s contention in her judgement.
The Supreme Court commenced hearing on pleas seeking review of its verdict which had allowed women of all ages entry into the Temple. The review petitions are being heard by a Constitution bench comprising CJI Ranjan Gogoi and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. There are total 64 cases being heard in total, out of which some are review petitions and some are transfer petitions.
Sabarimala is not the only instance where women are seeking entry to religious places on par with men. Haji Ali Dargah and Shani Shingnapur have also been the focus of efforts by women to seek entry to religious places of worship. All these issues are a clear violation of Article 14, Article 15, Article 17 and cannot be protected by “morality” based on Articles 25 (Freedom to practice and propagation of religion), Article 26 (Freedom to manage religious affairs).
These recent issues of restriction on entry of women in places of worship have once again brought the focus on the debate ‘religious tradition versus gender equality’.
HAJI ALI DARGAH- On 26th August, 2016, the Bombay High Court agreed that the exclusion of women from the inner sanctum of the Haji Ali Dargah by the Dargah Trust Violated not only their fundamental right to religious freedom but also their right to equality and non-discrimination under the Indian Constitution, and in holding that women were entitled to police protection, if needed, to exercise their right to equal access, the court placed the state firmly on the spot for effectively guaranteeing and enforcing the Constitutional rights of individuals, even against their own communities.
SHANI SHINGNAPUR- According to a 400-year-old tradition, women were restricted from entering the inner sanctum of the Temple.
In a landmark Judgement on 30th March 2016, the Bombay High Court asked Maharashtra government to ensure that women are not denied entry to any temple. On 8th April 2016, the Shani Shingnapur trust finally allowed the women devotees to enter the sanctum.
Excluding women from access to the shrine is a clear violation of their fundamental rights under Articles 14, 15, and 17. The main issue is not an entry, but equality. The religious exclusion has a public character, and that it is not just an issue of a sacred tradition but one of the civil rights and material and symbolic equality.
It is unfortunate that the courts have become the arbiter of what constitutes true religion. This situation has arisen because the Indian state is the agent for the reform and management of Hinduism and its institutions.
Beliefs and customs of devotees cannot be changed through a judicial process. The reforms should come from within the society. So long as that does not happen, we are likely to see religious issues being repeatedly taken to court.
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