Saji Koduvath, Advocate.

Sabarimala Disputes

The time immemorial custom prevailing at Sabarimala Temple prohibits women, between the age group of 10 to 50 years, to enter this temple. The Kerala High Court, in 1991, upholding the prevailing custom, ruled in S. Mahendran Vs. The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42) that the exclusion of women in their ‘menstruating years’, from Sabarimala Temple, was not violative of Art. 15, 25 and 26 of the Constitution of India.

Sabarimala Case & Constitutional Morality

On September 28, 2018, the Constitution Bench, headed by the Chief Justice allowed, in 4:1 majority (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1), the petition filed under Article 32 of the Constitution, holding that the exclusion of women from Sabarimala Temple violated the fundamental rights and that the custom of exclusion of women was unconstitutional. The Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 [framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965].

Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years. It was argued that this provision would play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex.

The Supreme Court held that the devotees of Lord Ayyappa do not constitute a separate religious denomination; and therefore they cannot claim the benefit of Article 26 of the Constitution of India.

The CJI, speaking also on behalf of Khanwilkar, J., allowed the Writ Petition and observed, inter alia,  as under:

• (i) Devotees, not constitute ‘denomination’. In view of the law laid down by the Supreme Court, in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005: AIR 1954 SC 282] and SP Mittal Vs. Union of India [AIR 1983 SC 1] the devotees of Lord Ayyappa do not constitute a separate religious denomination and, therefore, they cannot claim the benefits of Article 26 of the Constitution of India.;
• (ii) Physiological factors of women cannot be raised. The right guaranteed under Article 25(1) of the Constitution has nothing to do with gender. For that matter, physiological factors specifically attributable to women cannot be raised;
• (iii) Violation of fundamental rights. Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, was 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;
• (iv) Morality in Art. 25(1) is Constitutional Morality. the term ‘morality’ occurring in Article 25(1) of the Constitution has to be understood as being synonymous with constitutional morality; and
• (v) Not be an essential religious practice. The exclusion of women between ages 10-50 by the Sabarimala Temple could not be an essential religious practice.

Justice Rohinton Nariman concurred the views of CJI, in his separate judgment. He further observed that the exclusion of women from the temple would render their rights under Article 25 meaningless. He stated that there was no deficiency of evidence to conclude that the exclusion of women from Sabarimala violated Article 25(1) of the Constitution.

Justice DY Chandrachud also concurred the views of CJI. He also pointed out that the exclusionary practices of women between age of 10-50 years from the Sabarimala Temple were contrary to constitutional morality.  Even if a claim for the exclusion of women from religious worship could be founded in religious texts, it would be subordinate to the constitutional values of liberty, dignity and equality. In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship.  The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

Justice Indu Malhotra handed down a dissenting Judgment holding, inter alia, the following:

• (i) Article 14 would not override Article 25.The equality doctrine enshrined under Article 14 would not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
• (ii) The Constitutional Morality implies harmonisation. The Constitutional Morality in a secular polity in a pluralistic society would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
• (iii) The Ayyappans constitute a religious denomination. The Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26 by which it can manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. The court must respect such rights.
• (iv) A working formula to be adopted to decide religious denomination. In the matters as to religious denomination there is no straight jacket formula; but a working formula to be adopted to decide if it is a religious denomination.
• (v) Notions of Court should not be the criterion. It is not for the court to see if such are rational or irrational.
• (vi) Supreme Court must be a balancing wheel. Supreme Court is not just a guardian of fundamental rights but also a balancing wheel between rights and social control.
• (vii) Article 25(2)(b) contemplates a State made law. What is permitted by Article 25(2)(b) is a State made law and not judicial Intervention.
• (viii) The proper forum is civil court. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. The proper forum to ascertain whether a sect constitutes a religious denomination or not would be more appropriately be decided by a civil court through leading evidences.
• (ix) Rules are not ultra vires of its parent Act. Rule 3(b) of the 1965 Rules would not be ultra vires Section 3 of its parent Act, the Kerala Hindu Places of Public Worship Act, 1965, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.
• (x) Not fall within the purview of Article 17. The limited restriction on the entry of women during the notified age group would not fall within the purview of Article 17 of the Constitution. It was pointed out that Article 17 pertains to untouchability, refers to caste; and it does not extend to discrimination on the basis of gender.

Justice Indu Malhotra, in light of the discussions and analysis in her judgment, directed that the Writ Petition could not be entertained.

SABARIMALA REVIEW

More than 50 review petitions were filed challenging the ‘Sbarimala verdict’. On November 13, 2018, the Constitution Bench headed by Chief Justice began hearing the review petitions (Kantaru Rajeevaru v. Indian Young Lawyers’ Association) in open court. It was argued that several questions including the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution were yet to be resolved by a larger bench of not less than seven Judges.  According to them, the determination of the questions of law referred to a larger bench would have a bearing on the pending writ petitions relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.