Author: Bhumika Gurjar, Department of Law, Prestige Institute of Management and Research
INTRODUCTION:
Any distinction, exclusion, or restriction based on sex and gender that has the effec
t or purpose of impeding or nullifying women’s recognition, enjoyment, or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field, regardless of their marital status, and on the basis of equality between men and women.
Discrimination against women and girls is pervasive, systemic, and deeply embedded in communities. Scepticism about international rules governing women’s human rights, gender equality, and gender-based violence has resurfaced in recent years. However, women and girls are increasingly raising their voices to demand equality, especially the feminist movement.
India has a low literacy rate when compared to other countries. According to the 2001 census, the overall literacy rate is 64.8%, the male literacy rate is 75.3%, and the female literacy rate is 53.7%i, with the situation significantly worse in rural areas.
Various unknown customs exist throughout India, particularly in rural areas, and talking about or simply discussing menstruation is considered a sin. In this essay, we will largely explore the Sabarimala temple issue, which has been practiced for a long time, and women were denied of their rights. We will analyse it and also look at such concerns in other topics, is it the problem of the Sabarimala?
THE SABARIMALA CASE:
The controversy surrounding Sabarimala has heated up recently, and the temple has made headlines because of its long-standing custom. Located in Kerala, the temple dedicated to Sabrimala is among the most renowned and well-known among Hindus. The revered deity of the old temple is Lord Ayyapan, also known as “Dharmashastha,” who is thought to be the son of Shiva and Mohini, the feminine form of Vishnu. The Travancore Devaswom Board is in charge of overseeing the Sabarimala temple. Due to their traditional and conservative thinking, the temple’s priests and authorities forbade menstruation women between the ages of 10 and 50 from entering the premises of the temple, believing that doing so would compromise the holiness and purity of the temple’s god. For a very long time, the authorities had been following an old and customary practice that prohibited women from entering the temple.
In 2006, a petition regarding women’s admission to Sabarimala Temple was filed in response to the question of women’s rights. The Indian Young Lawyers registered association filed it in accordance with Article 32 of the Indian Constitution. The petition argued that the restriction on women entering the country between the ages of 10 and 50 ought to be ruled unlawful. After the petition was reviewed by the Supreme Court of India, a three-judge bench was eventually formed in 2008 to hear arguments on the case. The Indian Supreme Court further argued in 2016: Are these limitations reasonable?
BACKGROUND:
Several occurrences and cases have arisen throughout the decades, raising questions about what constitutes a religion and its practices, and the courts have come a long way in deciding these activities. There is a need to define what makes a religion, as well as the distinction between religious practices and superstitious beliefs, which can only be determined by the principles of that religion. Thus, it may be argued that the ideas of adherents of a religion are fundamental and critical in determining what the essentials of that religion are.
Another example of long-standing customary customs is the habit of not permitting and allowing women to enter the Sabrimala temple.
In 1991, the Kerala High Court heard the matter of S. Mahendran v. The Secretary, Travancore Devaswom Board, Tiruvanathpuram and others, which challenged the limitation on women accessing the temple. The division bench of the Kerala High Court found in favour of the defendants and issued a ruling declaring that the limits have existed since time immemorial and that the Travancore Board’s prohibition does not violate the Indian Constitution or the relevant 1965 Kerala Law.
ISSUE OF THE CASE:
1. Whether the practice of excluding females is discriminatory and violates Articles 14, 15, and 17. Furthermore, the religious practice violates Articles 25 and 26 of the Indian Constitution.
2. Does this religious practice fall within the scope of Article 25 of the Indian Constitution?
3. Does the Ayappa Temple fall under the purview of religious denominations under Article 26 of the Indian constitution?
COMMENTS:
The petitioners claimed that prohibiting women from entering the Sabarimala Temple is “discrimination” based on gender. The petitioners further stated that menstruation is a natural biological aspect of women and cannot be used to discriminate against them.
The respondents maintained that just prohibiting women between the ages of 10 and 50 does not constitute discrimination. It has been part of Indian customs and usages since time immemorial.
JUGEMENTS:
The Supreme Court’s five-judge panel rendered its decision on a majority vote of 4:1. Chief Justice Dipak Mishra and Justice Khanwilkar held that fidelity couldn’t be subordinated to gender demarcation and that it’s unlawful and unjust to count someone grounded only on their natural characteristics, similar as their menstrual cycle. The Indian Constitution is violated by the tabernacle authorities’ discriminative practices, which deny women and men the freedom to worship as granted to them. According to Justice Chandrachud, it’s entirely unlawful for any religious practice or custom to dehumanize women by refusing them access just because they’re menstruating. To numerous’s astonishment, Justice Indu Malhotra — the lone womanish member of the Supreme Court’s five-judge panel — transferred a differing opinion. She grounded her decision on the idea that, indeed in cases where it appears discriminative, courts should not get involved in matters involving morality and deeply held religious beliefs. It’s an issue of particular faith, and there are numerous different kinds of faiths in India. Judges aren’t allowed to step by and determine whether or not a practice violates abecedarian rights.
Indeed if a religious denotation holds unreasonable or crazy doctrines, they’re nonetheless allowed to hold similar beliefs and to exercise. The Constitution of India guarantees the right to freedom of religion for every existent and group under Article 25 and Article 26 where every person is free to exercise propagate and profess any religion of his choice. also, article 15 of the Constitution prohibits the state from demarcation against any citizen on the grounds of religion, race, estate and cast.
OTHER CASES:
Several incidents and cases over the decades have raised questions about what constitutes a religion and its practices, and the courts have come a long way in determining these practices. Several cases in the history have led to the establishment of doctrines that determine the rudiments of persuasions. Some are as follows
S. Mahendran v. The Secretary, Travancore Devaswom Board, Tiruvanathpuram and others.
Sri Venkataramana Devaru v. State of Mysore
Noorjehan Safia Niaz and Anr. v. State of Maharashtra and Ors.
CONCLUSION:
India, being a country of different culture and people, society and religion are an thick part. The case of Sabarimala is a contestation between Fundamental Rights and Religion. The status of women in Indian society has always been lower than that of men due to the domination of patriarchal gospel and mindset of people. Women had to fight and struggle to attain their position inversely as men at colorful public platforms. The case of Sabarimala is also an illustration of women fighting against the patriarchal gospel of religious order which prohibits their entry to the tabernacle. The women in the society are discerned on grounds of gender and cast and they’re still considered amenable to men due to the patriarchal mindset of the people at large. The movements of feminism have come a long way in icing and giving rights to women but we still have a long way to go.
India is a country of different people and cultures, the area of religion is a sensitive content to touch upon. The Supreme Court through its judgment cleared the hassle between abecedarian rights and traditions. Traditions have always been an important and essential part of our society and it’s one of the notorious effects for which the country holds its identity. still, traditions that undermine the abecedarian substance of the constitution and the rights of a specific class of people in society as a result of natural processes must be challenged. The Indian Constitution guarantees certain abecedarian rights to all citizens, two of which are the right to equivalency and the right to religion.
The Supreme Court through its verdict of removing the ban on women from entering the Sabarimala tabernacle again established the supremacy of the Constitution over all other aspects that the rights of women aren’t violated due to certain long-prevailing customs and traditions. There’s a need for further substantial laws that will punctuate similar taboos and a need for further juggernauts that help academy girls and also they know their rights and factual verity anyhow of religion and culture which is spare which constitution itself not guarantee. according to me similar conservative thinking of following similar taboos is only because of not furnishing proper education which not only affects themselves but also transfers this to the youngish generation. confining women to enter a religious place also harness existent’s rights to live their lives with equality. A woman menstruates for about 7 times in their whole life and to deny them the right to particular hygiene seems like a crime that goes unpunished on a diurnal.
FAQS:
Question No.1: Exclusionary Practice & Discrimination
The basis upon which women between the age of 10 and 50 are denied entry into Sabarimala is upon a archaic and regressive conception that menstruating women are impure and that the presence of women could result in deviation from celibacy. The women in this method are essentially prevented merely because of their sex and physiological reason. In particular this practice prevents the menstruating women from entering the precincts (which presumably is the intention behind the expression ‘at any stage of time’ occurring in Rule 3(b)). Of the entire hindu population only menstruating women are prohibited here. Though it can be argued that women who are below the age of 10 and above the age of 50 are permitted it cannot be termed as a discrimination which is based only upon sex, as it does not discriminate all women. This cannot find any support within the discriminatory laws jurisprudence since only women can menstruate and therefore it is a discrimination which is based only on sex.
Question No.2: Essential Practices Test
This a highly controversial test developed by the Supreme Court to define the contours of protection offered for religious rights offered under the Constitution. First developed by the court in the Religious Endowments Case (AIR 1954 SC 282) this is a highly intrusive test which distinguishes those practices which form the ‘essential’ part of the religion and those that are extraneous to it. The distinction is to confer the constitutional privileges only to those practices which are found essential. As one would expect, the decision of what constitutes those ‘essential practices’ is decided by the court. This interventionist approach gets into the picture an externally dictated definition of what constitutes the religion rather than the how the follower of a particular religion views it to be.
