A Case Commentary on the
Sabarimala Judgment (Indian Young Lawyers Association v. The State of Kerala)[1]
Written By-Sanjivani Show
|
Name of the
Case |
Indian Young
Lawyers Association v. The State of Kerala |
|
Citation |
2018 SCC
OnLine SC 1690 |
|
Name of the
Court |
The Supreme
Court of India |
|
Date of
Judgment |
28 September, 2018 |
|
Appellant |
Indian Young
Lawyers Association; Dr Laxmi Shastri; Prerna Kumari; Alka Sharma; Sudha
Pal. |
|
Respondent |
The State of
Kerala; Travancore Devaswom Board; Chief Tanthri of Sabarimala Temple;
District Magistrate of Pathanamthitta; Nair Service Society; Akhil Bhartiya
Ayyappa Seva Sangham; Ayyappa Seva Samithi; Ayyappa Pooja Samithi; Dharma
Sanstha Seva Samajam; Akil Bhartiya Malayalee Sangh; sabarimala Ayyappa Seva
Samajam; Kerala Kshetra Samrakshana Samithi; Pandalam Kottaram Nirvahaka
Sangham; Sabarimala Custom Protection Forum |
|
Counsels for
the Petitioners |
R.P. Gupta;
Raja Ramachandran (Amicus Curiae); K. Ramamoorthy (Amicus Curiae). |
|
Counsels for
the Respondents |
Jaideep Gupta;
Liz Mathew; Venugopal, (Travancore Devaswom); V.Giri, (State of Kerala);
Rakesh Dwivedi; K. Radhakrishanan. |
|
Intervenors |
Nikita Azad
(Arora); D. V. Ramana Reddy; K. K. Sabu; Kantaru Rajeevaru; Rekha
Ratheethnam; Athma Divine Trust; Rahul Easwar; Chetna Conscience of Women |
|
Coram Judice |
5 judges
constitutional bench includes Chief Justice of India Dipak Misra, Justice A
M Khanwilkar, Justice R F Nariman, Justice D Y Chandrachud, and Justice Indu
Malhotra |
|
Statutes and
Constitution Involved |
Article 14,
15, 25, 26, and 51A(e) of the Indian Constitution, Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, and also the provisions
of Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 |
Abstract
The Indian perspective on equality and inclusivity on religious and
other areas, has been heavily shaped by the case of Young Indian Lawyers
Association v. The State of Kerala. This case has brought in a very wide
ranging definition of Article 21 and made appropriate legal accommodations in
this regard. This case has laid down the foundation of anti-discrimination
policies in almost all regards with a keen insight on modern liberian view
concerning issues similar in nature as has been dealt in the present case. A
modern, new, fresh, and positive outlook providing reincarnating facets of new
good law, can be used as the appropriate nomenclature for the present case,
popularly known as “The Sabarimala Judgment” in Indian legal parlance.
Introduction
This case has laid the foundation for what we know as of today as
“Gender Equality in Spirituality”. In the present case, there was a wide and
clear understanding that exclusion of women on the basis of their gender and
“notions of purity” is not in line with the spirit of the Indian Constitution.
This case dealt with Articles 14, 15, 25, 26, and 51A(e) of the Constitution of
India, Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,
1965, and the provisions of Kerala Hindu Place of Public Worship (Authorisation
of Entry) Act, 1965.[2]
Facts of the
Present Case
The Factual matrix of the present case is the following:
●
The Sabarimala Temple, considered the
abode of Lord Ayyappa, is located in the Periyar Tiger Reserve in the Western
Ghat mountain ranges of Pathanamthitta District, Kerala.
●
The temple is known for its unique
religious practices—devotees undertake a 41 day penance, renouncing worldly
pleasures, before they visit the temple. Devotees consider Lord Ayyappa to be a
celibate deity.
●
Women in their ‘menstruating years’
(between the ages of 10 to 50) were customarily prohibited from entering the
temple to protect celibacy.
●
The exclusion of women was first
challenged at the Kerala High Court. In 1991, the Kerala High Court in S.
Mahendran v The Secretary, Travancore held that the exclusion was
constitutional and justified, as it was a long-standing custom. The practice
did not violate women devotees’ Rights to Equality and Freedom of worship.
●
In 2006, Indian Young Lawyers Association
filed a public interest litigation petition before the Supreme Court
challenging the Sabarimala Temple’s prohibition of women from the temple
premises.
●
The Association argued that the custom
violates the Right to Equality under Article 14, as the practice is ‘derogatory
to the dignity of women’. Freedom of religion under Article 25 states that ‘all
persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion’.[3],[4]
The Relevant
Provisions of Law
“Equality before law.—The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India.”[5]
“Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth.—(1) The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability, restriction
or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the use
of the general public.
(3) Nothing in this article shall prevent the State from making any
special provision for women and children…”[6]
“Freedom of conscience and free profession, practice and propagation
of religion.—
(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, practice and propagate religion.
(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.”[7]
“Freedom to manage religious affairs.—Subject to public order,
morality and health, every religious denomination or any section
thereof shall
have the right—
(a) to establish and maintain
institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters
of religion;
(c) to own and acquire movable and
immovable property; and
(d) to administer such property in
accordance with law.”[8]
“to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities; to renounce practices derogatory to
the
dignity of women;”[9]
Arguments as
Advanced by Both the Sides
The following arguments had been advanced by the respective parties in
furtherance of their case to aid the Court in deciding the issues as to this
regard:
Arguments on
Behalf of the Appellants/Petitioners:
The petitioners' arguments in support of women's admittance were that
menstruation is not impure and that women should have equal rights to attend
the Sabarimala Temple. One opponent contends that we cannot consider women
dirty because of menstruation, and that this is gender prejudice. Pinarayi
Vijayan, the Chief Minister of Kerala, stated that his party (the Left
Democratic Front) has always supported gender equality and that we give
facilities and protection for women. This behavior also violates Article 14 of
the Indian Constitution (Equality before Law), as discrimination based on a
specific age group of women is not justified discrimination.[10]
This restriction violates Article 15, 25 and 26 of the Indian
Constitution:
Article 15 deals with “prohibition on the ground of religion, race,
caste, sex or place of birth”. Here, this practice involves violation of
Article 15 as discrimination to enter the temple was based on ‘sex’.
Article 25 deals with “freedom of conscience and free profession,
propagation and practices of religion”. Here, this practice involves violation
of Article 25 as it prevents women from freedom of practice of religion.[11]
Article 26 deals with “freedom to manage religious affairs”. Here,
this practice clearly violates the provision of Article 26.[12]
The provisions in Kerala Hindu Place of Public Worship Act, 1965 as
well as the 1965 Rules, framed in accordance with the aforementioned Act which
support restriction to women’s entry in the temple are unconstitutional as they
violate Article 14, 15, 25 and 26 of Indian Constitution.[13]
One of the petitioner's arguments was that the Lord Ayyappa temple was
not a separate religious denomination under Article 26 since the religious
activities done in Sabarimala Temple during 'puja' and other religious
ceremonies are not different from other Hindu Temples.[14],[15]
Arguments on
Behalf of the Respondents
Respondent's reasons against women's entry-
Such religious rituals are not so old as it is a custom to revere
God/Goddess of Temple. Men are also not permitted to enter and pray in certain
temples, such as the Brahma temple in Pushkar.
There is no infringement of Articles 15, 25, and 26 of the Indian
Constitution because the limitation applies solely to women of a certain age
bracket and not to women as a whole. If restrictions on women's admittance are
imposed as a class, only then the above-mentioned Articles of the Indian
Constitution would be violated.
This prohibition is also supported by the terms of the Kerala Hindu
Place of Public Worship Act, 1965.[16]
Issues Before The
Court
1.
Does the prohibition on menstruating
women’s entry in the Sabarimala Temple violate the Right to Equality and the
Right against discrimination and the abolition of untouchability?
2.
Are Lord Ayyappa’s devotees a separate
religious denomination, hence bearing the right to manage the administration of
their own affairs in matters of religion?
3.
Is women’s exclusion an ‘essential
religious practice’ under Article 25?
4.
Does Rule 3 of Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules permit a ‘religious denomination’
to ban the entry of women between the ages of 10 and 50 years?
5.
Do the Public Worship Rules allowing the
custom go against the parent legislation, which disallowed discriminatory
practices?
Judgment of the
Court
1.
“In view of the law laid down by this
Court in Shirur Mutt (supra) and S.P. Mittal (supra), the devotees of Lord
Ayyappa do not constitute a separate religious denomination. They do not have
common religious tenets peculiar to themselves, which they regard as conducive
to their spiritual well-being, other than those which are common to the Hindu
religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do
not constitute a separate religious denomination.
2.
Article 25(1), by employing the
expression 'all persons', demonstrates that the freedom of conscience and the
right to freely profess, practise and propagate religion is available, though
subject to the restrictions delineated in Article 25(1) itself, to every person
including women. The right guaranteed under Article 25(1) has nothing to do
with gender or, for that matter, certain physiological factors specifically
attributable to women.
3.
The exclusionary practice being followed
at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the
right of Hindu women to freely practise their religion and exhibit their
devotion towards Lord Ayyappa. This denial denudes them of their right to
worship. The right to practise religion under Article 25(1) is equally
available to both men and women of all age groups professing the same religion.
4.
The impugned Rule 3(b) of the 1965 Rules,
framed under the 1965 Act, that stipulates exclusion of entiy of women of the
age group of 10 to 50 years, is a clear violation of the right of Hindu women
to practise their religious beliefs which, in consequence, makes their
fundamental right of religion under Article 25(1) a dead letter.
5.
The term 'morality' occurring in Article
25(1) of the Constitution cannot be viewed with a narrow lens so as to confine
the sphere of definition of morality to what an individual, a section or
religious sect may perceive the term to mean. Since the Constitution has been
adopted and given by the people of this country to themselves, the term public
morality in Article 25 has to be appositely understood as being synonymous with
constitutional morality.
6.
The notions of public order, morality and
health cannot be used as colourable device to restrict the freedom to freely
practise religion and discriminate against women of the age group of 10 to 50
years by denying them their legal right to enter and offer their prayers at the
Sabarimala temple.
7.
The practice of exclusion of women of the
age group of 10 to 50 years being followed at the Sabarimala Temple cannot be
regarded as an essential part as claimed
by the respondent Board.
8.
In view of the law laid down by this
Court in the second Ananda Marga case, the exclusionary practice being followed
at the Sabarimala Temple cannot be designated as one, the non-observance of
which will change or alter the nature of Hindu religion. Besides, the
exclusionary practice has not been observed with unhindered continuity as 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 conducted poojas
in every month for five days for the first rice feeding ceremony of their
children.
9.
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.
10.
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.
11.
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 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.
12.
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.”[17]
Explanation to
the Judgment or the Rationale or the Obiter Dicta
In their opinion and in a part of the majority opinion, Chief Justice Dipak
Misra, reasoning on behalf of Justice Khanwilkar & himself mentioned the
idea “Patriarchy in religion cannot be permitted to trump over the element of
pure devotion borne out of faith and the freedom to practise and profess one‟s
religion. The subversion and repression of women under the garb of biological
or physiological factors cannot be given the seal of legitimacy. Any rule based
on discrimination or segregation of women pertaining to biological
characteristics is not only unfounded, indefensible and implausible but can
also never pass the muster of constitutionality.”
He claimed that the Sabarimala Temple's practise of prohibiting women
between the ages of 10 and 50 from worshipping violated women's freedom of
worship, as guaranteed by Article 25. (1).
Furthermore, he determined that Ayyappa's followers did not fulfil the
constitutional requirements for a distinct religious identity. He imagined
Ayyappa's adherents were Hindus. As a result, he said that the temple's
sectarian authority to control its own internal affairs was dependent on the
State's social reform order under Article 25. (2). (b). The State may pass laws
to reform Hindu sects and denominations, according to Article 25(2)(b).
Article 25(2)(b) specifically allows the State to enact any law that
establishes a public Hindu institution open to all classes and sections of
Hindus. In his mind, 'classes and divisions' included the gendered category of
women. He argued that the Sabarimala habit of excluding women from
participating in religious activities is a precondition for State-sanctioned
transformation.
He also concluded that the Sabarimala Temple administrators' refusal
to admit women aged 10 to 50 cannot be considered an important religious
practise. He decided that, given the likelihood that Ayyappa's followers are
Hindus, the practise of forbidding women could not be regarded a fundamental
religious practise.
He annulled Rule 3(b) of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules of 1965. He believes that the regulation is both
a violation of the Constitution and a violation of the parent Act. Sections 3
and 4 of the Act were written with the sole goal of modifying public Hindu
locations so that they are accessible to all Hindus. Rule 3(b) does the
opposite: it enables public Hindu places of worship to ban women based on custom.
As a result, Chief Justice Misra decided that the regulation not only violates
the Constitution, but also contradicts the objective of the parent Act.
Justice Rohinton Nariman issued an opinion that agreed with Chief
Justice Misra. He determined that Ayyappa worshippers do not form a different
religious group. He identified the group as Hindus who worship the Ayyappa
deity. Thus, he decided that the denominational independence of the Sabarimala
Temple under Article 26 is conditional on the State's social reform order under
Article 25(2). (b).
He believed that excluding women from the temple rendered their right
under Article 25 nonsensical. He stressed that Article 25(1) protects women
between the ages of 10 and 50 from entering the Sabarimala Temple and
exercising their freedom of devotion. He concluded that there was sufficient
information and evidence to indicate that the practise of excluding women from
Sabarimala violated Article 25. (1).
He concluded that the Ayyappans' custom of debarring women, belonging
to the age group of 10-50 years, from the Sabarimala Temple was
unconstitutional. He also annulled Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules of 1965 as unconstitutional.
In a separate and concurring opinion, Justice D Y Chandrachud stated
that the Sabarimala Temple's prohibition on women aged 10 to 50 years was
antithetical to constitutional morality and compromised the concepts of
autonomy, liberty, and dignity. He determined that morality as defined in
Articles 25 and 26 of the Constitution cannot be used to violate the basic
rights secured by these Articles. Justice Chandrachud agreed with CJI Dipak
Misra and Justice Nariman in ruling that the Ayyappans, or devotees of Lord
Ayyappa, did not meet the judicially enunciated requirements for being deemed a
distinct religious group. He believed that debarring was not a necessary
religious practise.
Furthermore, he emphasised physiological aspects of women, such as
menstruation, and claimed that they had no bearing on the rights given to them
under the Constitution. A woman's menstrual condition cannot be a valid
constitutional criteria for denying her dignity and respect, and the taboo and
shame associated with it have no legal standing in a constitutional system.
Notably, he expressed an opinion on the contention that the debarring
constituted a type of untouchability banned by Article 17 of the Constitution.
He commented that a reading of the Constituent Assembly Debates would reveal
that the authors of the Constitution had purposefully opted not to define the
term "untouchability."
He came to the conclusion that it was to guarantee that untouchability
was not interpreted in a restricted manner, and that it must thus be given an
expansive and inclusive definition. He went on to say that Article 17 is a
strong guarantee against exclusion and cannot be construed to prevent women
from social exclusion of the worst sort, which has been practised and
legitimised on the basis of cleanliness and contamination.
Minority:
Justice Indu Malhotra, the only woman on the court, argued that the
case should not be heard. She believed that courts should not decide which
religious rituals should be prohibited, unless in cases of social ill, such as
"Sati." Dissenting from the majority judgement to open the Sabarimala
temple to women of all ages, Justice Malhotra believes that judges should not
impose their personal beliefs, reason, or morality when it comes to the manner
of worship of a god.
The Hon'ble Judge reasoned that because the petition's primary
concerns relate with assessing the propriety of a specific religious practise,
performing an appraisal at the request of persons who do not engage in such
practise is an unsuitable course of action. According to Malhotra J., in the
current case, the petitioners do not belong to the relevant group of devotees
visiting Sabarimala, hence they have no genuine interest in the subject.
As a result, given the dominant finding and the fact that the practise
in issue is judged to have violated the rights provided by Part III of the
Constitution, claiming that a concern of greater public interest is lacking
becomes a tough argument to accept. This line of reasoning is supported by the
Hon'ble Judge's reliance on judgements in which the relevant religious group
brought an action against the State for claimed violations of its rights under
Articles 25 and 26 of the Constitution.
In dealing with the difference between "religious
denomination" and "essential practise," Justice Malhotra ruled
that Ayyappa worshippers had the status of a separate religious denomination.
She relied on the fact that the Travancore Devaswom Board (TDB) issued
notifications in 1955 and 1956 referring to devotees as Ayyappans, and thus she
opined that people attending Lord Ayyappa worship together constitute a
religious denomination, or sect thereof, as the case may be, follow a common
faith, and have common beliefs and practises.
The worshippers happened to be the followers of the Ayyappan Dharma. They have been
designated by a unique name wherein all male devotees are called Ayyappans; all
female devotees between 10 and 50 are called Malikapurams. A pilgrim on his
maiden trip is called a Kanni. The devotees are known as Ayyappa Swamis. A
devotee has to observe the “vratham” for the time duration of 41 days and
follow a code of conduct.
She stated that the technique of prevention has been in effect since
time immemorial, making it qualified to be labelled an essential activity. A
religion can have its own ethical code, as well as prescribe rites, ceremonies,
and styles of worship. In her dissent, Justice Malhotra stated that because
Article 26 is not subject to the constraints imposed by Article 25, it is
absolute and cannot be challenged. She maintained that the manifestation is a
Naishtik Brahmachari. Article 25(1) of the Constitution protects belief in a
deity and the form in which he has presented himself as a basic right.
She went on to say that imposing legal morality on religion would
limit people's right to practise their religion according to their convictions.
It would lead to the rationalisation of religion, faith, and beliefs, something
courts are unfamiliar with. A secular polity and diverse society would
guarantee the freedom of followers and believers of various sects to practise
and express their faith while adhering to the precepts of their religion. The
question of whether the conduct is reasonable is immaterial. In her decision,
Justice Malhotra ruled that courts cannot inject principles of logic at issues
of religion, rejecting the petitions challenging the centuries-old prohibition
in the temple.
Conclusion
Religious freedoms are critical to the operation of democracy in a
country like India. As we all understand, constitutional aspirations and social
realities are extremely different, but it is also vital to decrease the
discrepancies as much as possible for society to work smoothly and properly.
The Supreme Court attempted to fill the void between constitutional aspirations
and social realities in the case of 'Indian Young Lawyers Association vs. State
of Kerala & Ors.'
[1] 2018 SCC OnLine SC 1690.
[2] The Sabrimala Verdict: A Complete Analysis,
https://legalserviceindia.com/legal/article-5822-the-sabrimala-verdict-a-complete-analysis.html
(last visited Nov 24, 2022).
[3] Mariya Paliwala, Indian Young Lawyers
Association & Ors. vs. The State of Kerala & Ors. (2018), iPleaders
(2019),
https://blog.ipleaders.in/indian-young-lawyers-association-ors-vs-state-kerala-ors-2018/
(last visited Nov 24, 2022).
[4] 2018 SCC OnLine SC 1690
[5] INDIA CONST. art. 14
[6] INDIA CONST. art. 15
[7] INDIA CONST. art. 25
[8] INDIA CONST. art. 26
[9] INDIA
CONST. art. 51A(e)
[10] 2018 SCC OnLine SC 1690
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Mariya
Paliwala, Indian Young Lawyers Association & Ors. vs. The State of Kerala
& Ors. (2018), iPleaders (2019),
https://blog.ipleaders.in/indian-young-lawyers-association-ors-vs-state-kerala-ors-2018/
(last visited Nov 24, 2022).
[16] 2018 SCC OnLine SC 1690
[17] 2018
SCC OnLine SC 1690
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