Indian Young
Lawyers Association &Ors vs. The State of Kerala &Ors.
Citation: Writ Petition (Civil) No 373 of 2006
Court:Supreme Court
Bench:5 Judges constitutional bench-Chief Justice of
India Deepak Mishra, Justice A.N. Khanwilkar, Justice Rohintan Nariman, Justice
Indu Malhotra, Justice D.Y. Chandrachud
Facts:
·
The
Sabarimala Temple is situated in the Periyar Tiger Reserve in the western ghat
mountain ranges of Pathanamthitta District, Kerala. This is one of the
prominent temples in the state and is dedicated to Lord Ayyappa. It forbids the
entry of women in their menstruating age that are between the age of 10 to 50
years stated that it is a place of worship.
·
The case
was filed in 2006 by the Indian Young Lawyer’s Association through public interest
litigation (PIL) before the Hon’ble Supreme Court of India. The case deals with
an important question on the “Entry of Women in Sabarimala Temple” and
challenged the temples custom.
Issues:
1. Whether the exclusionary practise which is
based upon a biological factor exclusive to a female gender amounts to
discrimination and thereby violates the Fundamental Rights enshrined in Part
III of the Constitution of India
2. Whether Sabarimala Temple has a denominational
character
3. Whether Rule 3 of Kerala Hindu Places of
Public Worship(Authorization of entry)rules permits ‘religious denomination’ to
ban entry of women between ages 10-50 years.
Judgement:
The court held the case in favour of the petitioner
in a 4:1 majority.
The verdict
said that this practice of the temple violates the rights of Hindu women and
banning entry of women in the shrine is regarded as gender discrimination. The
bench said that the provision in the Kerala Hindu Places of Public Worship
(Authorization of Entry) Rules 1965, which authorized the restriction, violated
the rights of Hindu women to practice religion.
The custom violates Article
14, 15, 19(1), 21 and 25(1).They struck down Rule 3(b) of the Kerala Hindu
Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu
denominations to exclude women from public places of worship, if the exclusion
was based on custom.
The apex court has
allowed entry of women of all age groups to the Sabarimala Temple, and held
that “Devotion cannot be subjected to Gender Discrimination”.
Dissenting Opinion:
Justice Malhotra gave a dissenting
opinion saying religious practice must be in the internal part of the temple
and it’s their internal affair, no matter if their practice is rational and
illogical. She mentioned that the temple is qualified as a religious
denomination. Moreover, she said Art 14 does provide the right to equality to
women but it cannot overlap Art 25. She denies that the practice was violative
of Art 17, the discrimination was simply to maintain the purity of the temple.
The discrimination mentioned in Art 17 does not include gender-based hence it
was not violative.[1]
Critical Analysis:
Custom plays an important role in human
civilization.It fosterssocial harmonyand unity within a group. The question
that arose in the Sabarimala verdict is that should women between the age of
10-50 years be allowed to enter the temple. The case of Sabarimala is controversy
between Fundamental Rights and Religion.
The status of woman has always been lower than men
due to the patriarchal mindset of the society. Women always had to struggleto
attain equal positions men in various public platforms and one such is the
struggle of women to be able to worship in the place of their choice.
There were many issues raised in which it was argued
by petitioners that provisions related to the restriction of the women entry in
Temple are unconstitutional as it violates Article 14, Article 15, Article 17,
Article 25, Article 26 of the Indian Constitution.The four founding principles of the Constitution
namely liberty, equality, fraternity and justice are expressly stated in the
Preamble of the Constitution describing it as the basic features of the same.
The differentiation
separates women who have obtained puberty and not menopause, and those who
have not. Menstruation is an attribute found exclusively in women. In Navtej Singh Johar v UOI[2], Justice Malhotra elucidated that “Where
a legislation discriminates on the basis of an intrinsic and core trait of an
individual, it cannot form a reasonable classification based on an intelligible
differentia.”The differentia which is a basis for classification should not
amount to discrimination and the selection of this differentia should not be
unreasonable and arbitrary. But in the said regulation the selection of
differentia itself is arbitrary and hence it violates Article 14. Further, the
criteria for entry is solely based on age of the women. The physiological
characteristics of a woman have no significance to her equal entitlements under
the Constitution. All women in the age group of ten and fifty may not in any
case fall in the ‘menstrual group’ This regulation does not differentiate
the classes as it does not take into consideration that the women can attain
puberty before the age of 10 and can attain menopause after the age of 50 and
the ages of ten to fifty have also been marked out for exclusion on the ground
that women in that age group are likely to be in the menstruating age.
Discrimination in
matters of entry to temples is neither a tradition nor a practice associated
with Hindu religion as this religion does not discriminate against women but,
on the contrary, Hindu religion accords to women at an equal footing with men and
such a discrimination is against Hindu religious beliefs, and is not the
essence of Hindu religion. Thus the regulation violate Article15 of the
Constitution of India.
The
restriction on women of ages 10-50 violates article 21 of the Constitution as
it deprives the women of their personal liberty as it prevents the women from
carrying out a normal social day to rendezvous with their family. Further as
menstruation is a personal and private affair to women, by disclosing the
menstrual status of the women some of them might feel humiliated and there by
their Right to Privacy gets violated. Moreover the restriction casts a stigma about
women undergoing menstruation and devoids women of their respect and dignity
thereby violating their Right to dignity. There by it is submitted that the
regulation restricting entry of women of ages 10-50 violate Article 21 of the
Constitution.
The Constitution guarantees every person freedom of religion in India under Article 25(1).It states that every person has the freedom of conscience and right to profess and propagate religion. This right is not an absolute right and is subject to public order, morality and health.
In the present case women between 10-50
years have been barred from entering the temple’s inner quadrangle on the
grounds of menstruating age. The stigma of purity and pollution that is
associated with menstruation of women is deeply embedded in the Indian culture
and curtails women’s right to worship. It is submitted that a distinction must be made between custom and usage
that has been established as law within the meaning of Article13, and that mere custom or usage cannot be
considered as law nor can be considered an essential practice of religion. This
Article provides that all laws be void if they are inconsistent with the
provisions of Part III shall. The definition of the term "law"
includes custom or usage having the force of law in the territory of India
under Article 13(3) (a).In
the present case the regulation of prohibition of entry of a particular group
of women was framed as a result of the age old custom of restricting women from
entering the temple’s inner quadrangle. There is a difference between the
practices of a religion and those of a temple. Excluding women of ages between
10-50 from entering the inner quadrangle
of the temple is not an essential
practice in Hinduism.
The 5 judge bench of
the Supreme Court decided on the matter gave the judgement based on various
reasonings. The SC took into the consideration the Essential Practise Test
which states the exclusion of a class
of women is not an essential practice of Hinduism rather a tradition of the
temple. There is a need to distinguish between
the practices of a religion and those of a temple. The regulation of the temple
is not an essential practice as the elimination of this practice will not
effect the characteristic of hindu religion. If every practice unique to a
particular temple were granted the status of essentiality, the test of
Essential Religious Practice would be rendered meaningless.
The concept of constitutional morality is not limited to the
mere observance of the core principles of constitutionalism as the magnitude
and sweep of constitutional morality is not confined to the provisions and
literal text which a Constitution contains, rather it embraces within itself
virtues of a wide magnitude such as that of ushering a pluralistic and
inclusive society, while at the same time adhering to the other principles of
constitutionalism. It is further the result of embodying constitutional morality
that the values of constitutionalism trickle down and percolate through the
apparatus of the State for the betterment of each and every individual citizen
of the State.[3]
The practice of
excluding the entry of women into the inner quadrangle of the temple do not
withstand legal scrutiny at this point. This exclusionary practice is contrary
to constitutional morality and therefore to grant constitutional legitimacy to
practices would lower the dignity of women and their entitlement to an equal
citizen.
0 Comments