“The Sabarimala Temple Controversy: Unravelling Legal, Cultural, and Religious Dimensions”

“The Sabarimala Temple Controversy: Unravelling Legal, Cultural, and Religious Dimensions”

  Author: Tanishka Jain Ballb (Hons.) 6th sem from prestige Institute of Management and research, Department of Law

India is the country which have different religions, caste, customs and the people of the country are also divided on the same. The people of different religions have their own laws for the governance and customs plays very important role in that. The most important thing to be noted down here is that the society in the India is the patriarchal society and the status of the women are in dominating in nature. So some laws made in the society according to them.

The Sabarimala case is the one in which the question raised on the validity of the law which prohibited on the entry of the women in the Sabarimala temple as during the time of their mensuration and aged between 10 to 50 years. And also creates the discrimination on the basis or gender which is against the constitution.

This Article briefly explain the case of Sabarimala case, its judgement, impact on the society and its future outlook.

Important Facts of the Case

Sabarimala Temple is an ancient temple and located in the forests of the Western Ghats in Kerela’s Pathanamthitta district. The hills of this temple is dedicated to Lord Ayyappa who is also known as the Dharmashastra & Sastha and the board managed this temple is name as Travancore Devaswom Board (TDB) under the Act called Travancore-Cochin Hindu Religion Institution Act, 1950.

The temple prohibited women from entering the temple aged between 10 to 50 years. It is believed by the people that its deity, lord Ayyappa who is a “Naisthik Brahmachari” and allowing the young women in the temple would affect the idol’s celibacy and austerity.

That’s why the TDB has said that the prohibition on women of menstruating age from 10 to 50 years, entering the temple is the essential religious practice of lord Ayyappa Devotees.

From the above facts the petitioner argued that the ban enforced on menstruating women from entering the temple doesn’t constitute a core foundation of the religion. Prohibition on the entry of the women in the temple with an irrational notion of “purity” offended the right of equality which is a fundamental right of every citizen of the country given under the constitution itself.

It also takes away the right of women against the discrimination given under Art.15 (1) of the constitution under part III. Not only these rights but it also infringed the religious freedom assured under Art.25 (1).

Background of the Case

The case firstly filled before the High Court of Kerala by S Mahendran in 1990 but in 1991, Kerala High Court upheld the prohibition on young women entry in the Sabarimala Shrine. The Court had pointed out and reasoning which is given by the Court is that the “Naisthik Brahmachari” nature of the deity was “a vital reason for imposing this restriction on young women” .The Court said that the Diety in the temple are in the form of Yogi or Bramchari and further the Court compared it and gave the example of Achankovil, Aryankavu and Kulathupuzha  and said that the deities there are different from this temple and said that the God there is in the form of “Naisthik Bramchari” this is also the reason why women are not permitted to enter the temple .

Judgement given by the High Court

• The restriction is valid according to the Court as it is accordance to the usage prevailed in the temple from the time immemorial.
• Such restriction are not violated in nature to the provisions of the Indian Constitution.
• The restriction which are imposed by provision of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 are not violated in nature as there is no restriction on the basis of section and class among the Hindus in the matter related to the entry in the temple.

Later on the case was filled before the Supreme Court by Indian Lawyer Association on August 4,2006, and the petition challenge the constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation Of Entry) Rules,1965, these rules restricted the entry of the women (young)into the temple as being ultra-vires to Sec.3 of the Kerala Hindu Places of Public Worship (Authorisation Of Entry) Rules,1965 which stated the place of public worship are to be open to all the sections and classes of Hindus.

The case was filled before the Supreme Court in 2006 under Art. 32 which is the writ petition power of the SC. Later after two years in 2008 the case was referred to the three- bench judge. In Jan.2016 the SC raised the question related to the discrimination of the women for that High Court replied in April 2016. And finally in 2017 the case further referred to the constitutional bench of the SC.

Statement of issues

There are many issues arises before the court in this case. They are:

1. Whether this exclusionary practice against the women is the discrimination & violation of Art. 14, 15 and 17 and also not protected by the Art.25 and Art.26 of the Indian Constitution?
2. Whether the practice included under the definition of essential practice of the religion or not under Art. 25?
3. Whether the temple (Ayappa) is a religious Denomination or not under Art.26 or if yes then it has the power to regulate under Art.290A and allowed to indulge in the practice which violated the Art.14, 15(3), 39(a) and 51A (e) of the Indian Constitution?
4. Whether Rule 3 of the Act permit on the prohibition on the entry of the women aged between 10 to 50 years or not? If yes then is it not the violation of Art 14 and Art. 15(3) under Indian Constitution.
5. Whether Rule 3(b) of rules of 1965 is ultra vires of 1965 Act or not? & if yes then it is the violation of provision of the constitution given under par III or not?

ARGUMENTS FROM PETITIONERS

1. The Sabarimala Temple is managed by Travancore Devaswom Board (TDB) which receives public funds, so it is very much evident that it is not considered as separate religious domination. For supporting this argument, the petitioner referred the case cited by this Court “Shirur Mutt case”, in which requirement or we can say the essentials for a religious denomination are given. These are:
   1. Having its own property, distinct identity, set of followers, set of beliefs and practises and
   2. Having its own hierarchy of administration with no outside interference and control

Hence, these criteria are not fulfilled here completely, so it can’t be considered as a religious denomination.

2. Further the petitioner argued that the exclusionary practices resulted in the discrimination for the women on the entry in the temple and there is an evidence of women allowed at the Temple during the time of Travancore king, so it is not a customary practise running since time immemorial. And to support the argument, the petitioner gave the reference of the case Bennett Coleman and Co. & Ors. V. Union of India cited by this court talks about Article 15.
3. The petitioner was also contended on that the prohibition or ban was based more on the basis of certain practical physiological dimensions that the women are not able to pass a difficult path of forests and mountains over a period of 41 days arduous journey rather than the religious contention. And it is also arise the stigma that the women are polluted which is the violation of Art. 21 of the women given under the Indian Constitution.
4. It was also argued that they can’t be touched at that time as they are impure is also the discrimination on the basis of their sex and also the violation of Art. 17 which is prohibition of untouchability under our Fundamental Rights. 
5. The petitioner further argued that Article 25 gives all the people to profess any religion so women also have the freedom to practice their religion too. Restriction of women from following the religion just because of the celibate character of the lord Ayappa is not right.
6. The rule 3 made by the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules is violative of Fundamental Rights given in the constitution. And Rule 3(b) of 1965 rules says that women are not allowed to enter in the temple aged between 10 to 50 years according to the usage and the customs. So the petitioner give the argument related to this and contented that the line ‘at any time’ does not mean total or complete bar on the entry. Further the petitioner said that the motive behind the Act of 1965 is to achieve the goals given under Art 25(2)(b) but rule 3(b) of rules 1965 is ultra vires in nature & violated the Art. 25 (b) and other provisions as well.  

ARGUMENTS FROM RESPONENTS

1. The Respondent argued that the Art 25(2)(b) gives the right of religion to all the sections and caste of Hindus and the expression cannot be used that the custom is the essential part of the religion but here in this case the prohibition on the entry is for the limited time not on the permanent or complete ban so, here it has no importance.
2. Further, The Respondent argued that Lord Ayappa, the God in the temple is a celibate so has been treated as a person. And as a person, he has the Right to Privacy given Article 21of the Indian Constitution should be protected. 
3. The Respondent further argued that the Girls below the 10 years and women after the 50 years age can freely enter in the temple at any time but the entry of women of the age between 10-50 years of age is against with the celibate nature of the Lord Ayappa, the God in the Sabarimala temple and it is very much clear that the sole objective for the prohibition or restriction is to protect the identity of Lord Ayappa as “Naisthik Bramchari”.
4. The Respondent contended that this practice continuous from time immemorial and is the importance part or an essential part of this religion ,so this covers under the custom or usage of that particular temple and applicable according to under Art 13(3). 
5. Further, It was contended by the Respondent that Article 15(2) of the Indian Constitution is not applied to religious institutions. Further the respondent also contented that it is the religious denomination as the people follow the Lord Ayyapa or Ayyappa Dharma and male devotees are called Ayyappans and female devotees are called Malikapurams and Art 26 is the subject to maintain public order, morality & health also but not the other provisions and it is not the subject of Art.14 and Art. 15 and Art. 25 applied or performed only when the nature of Lord Ayyappa was preserved or protected.
6. For supporting his Argument the Respondent take the Reference of the decision of High Court in the case S. Mahendra V. The Secretary, TDB, Triuvanathpuram and Others.

Judgement Given by Supreme Court

The verdict was given by the Supreme Court on 28th September 2018 allowing the women’s entry in the temple at any age or irrespective of the sex and overruled the high court judgement. The case was dealt by the Constitutional bench so it consists 5 judges. The ratio of the judgement was made with the 4:1 majority. 

• Chief Justice Misra, justice Nariman and justice Chandrachud (concurring)
• Justice Malhotra (dissenting opinion)

Supreme court gave the Judgement in the favour of the women and upheld that the restriction on the entry of the women is unconstitutional and violation of part III of the constitution and any laws which are against the constitution and especially part III should be stuck down and the prohibition done on the basis of that it is the essential practice of the religion is immaterial and for the same court take the reference of the case cited by this court The Commissioner, Hindu Religion Endowments, Madras v. Shri Lakshmindra Thirtha, Swamiyar of Shirur Mutt and the court further focused on giving the definition and difference among the Constitutional morality , Societal morality and individual morality .

The court further said that it is not considered as the separate religious denomination as it does not fulfil the requirements for the same. For the same gave the reference of the case cited by this court Shirur Mutt (supra) and S.P. Mittal (supra).

But there are views related to this Judgement on the one hand People are satisfied with this Judgement on the other hand some criticised also as this interfere with practice of the religion of the people.

So we can say that the Judgement gave the equal status of the women in the society and also change the mind-set of the people of the society but the Judgement was heavily criticised by the people.

Conclusion

The Sabarimala Judgement put great impact in the society as it allowed the entry of the women in the temple irrespective of any time. The decision of the court was very bold and Empathetic. As in the present time mensuration of the women is considered as the physiological condition and pure in every form but in the ancient time it was considered as impure it was the taboo in the society related to this. They should not mix the devotion with such things. 

The women should have the equal status in the society. They should not discriminate on the basis of sex, religion & caste. The Supreme Court also give the difference between the traditions, customs, usages and Fundamental rights. Traditions plays very important role in the society and customs also work as the source of the law sometimes custom prevails over the law but those which are against the morals and laws are not effective in nature. The Court also Differentiate in these things in this case and also talk about the constitutional morals, societal moral and individual morals. 

The Court said that the constitutional morals have higher privilege than the societal and individual morals. But the people of the society were not satisfied with the judgement of the Supreme Court. So they filled the Petition against the 2018 judgement and question arises that the Supreme Court has the power to interpret and intervene in the matter of religion or faith or not? The review petition was hold and stayed with the order of Supreme Court given in 2018.