Indian Young Lawyers Association &Ors vs. The State of Kerala &Ors.

 


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.

 

 

 



[1]https://lawlex.org/case-summary/case-summary-indian-young-lawyers-association-ors-vs-the-state-of-kerala-ors/26497/amp

[2](2018) 10 SCALE 386

[3]Navtej Singh Johar and Ors. v. Union of India and Ors (2018) 10 SCALE 386

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