“Religion cannot be a cover to deny women the right to worship...To treat women as children of a lesser God is to blink at constitutional morality.”-
Justice DY Chandrachud.
The religious terminology:
The Sabarimala temple
is considered to be an abode of Lord Ayyappa, located in the Periyar Tiger Reserve in Pathanamthitta district of Kerala. The place is a heritage site dedicated to one of the largest annual pilgrimages in the world as every year, millions of people wait for hours to climb the 18 gold-plated steps leading to the shrine. Although the historical record suggests that women had sporadically visited the temple for years, Kerala’s High Court made the tradition a law in 1991, that the women between the age of 10-50 years will not be allowed to enter the shrine and this was codified by the Travancore Devaswam Board in 1991.
The legal battle:
The Five Issues Addressed By The Bench (2018 Verdict)
- The legal battle that has it's ties etched in religious inklings begun on April 5th 1991 when a devotee accused the Sabrimala temple board for violating rules for allowing "Very Very Important Person" women into the holy place. The Kerala High court then ruled that women between 10-50 years will not be allowed anymore to enter the shrine.
- This ruling was challenged in 2006. The Indian Young Lawyer's Association brought the issue directly before the Supreme court. It challenged Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965. Further said that all Hindus have the right to enter the temple and denying them that right would be a violation of Article 17 of the Constitution of India, 1949 which talks about the abolition of untouchability. The 2006 Writ Petition also made a general prayer asking for gender equality in all places of worship. This was eventually interpreted to pertain to only Hindu temples.
- In November 2007 the Left Democratic Front Government filed an affidavit supporting the PIL and further questioning the ban on women's entry.
- The matter got referred to a three judges' bench in 2008 and later came to hearing on January 11th, 2016, where the practice of the ban was questioned.
- On 6th Feb, 2016, the Union Democratic Front put forth the contention in front of the Apex Court that it is duty bound to “protect the right to practice the religion of these devotees."
- On October 13th, 2017- the case was referred to a Supreme Court's Constitution bench. The former Chief Justice Dipak Misra, Justices R Banumathi and Ashok Bhushan ordered a Constitution bench to pass a judgment in the case.
- On October 27th, 2017, a plea was filed in the Supreme Court for a gender equal bench to hear the case.
- On July 17th, 2018, the five judge bench heard the matter.
- On August 1st, 2018, the bench reserved the judgment on the petitions challenging the ban for eight days.
- On September 28th, 2018 the five judges' bench ruled that women of all age groups were allowed to enter the temple. The Apex Court said that the custom of barring women is in violation of Article 25 (Clause 1)and Rule 3 (b) of Kerala Hindu Places of Worship.
- The 2018 judgment hence proved to be an entry for women and was passed by the former Chief Justice Dipak Misra, Justice AM Khanwilkar, Justice RF Nariman, Justice DY Chadrachud and Justice Indu Malhotra. The verdict helped lift the ban that prevented women from entering the shrine of Lord Ayyappa. The five judge bench held that this age old Hindu religious practice was illegal & unconstitutional and struck down Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, to allow entry of women, irrespective of their age, into the Sabarimala Temple.
- Is it not unconstitutional to reserve entry on the basis of gender? (Violation of Articles 14, 15, 17, 25, 26)
- How do you strike a balance between the rights of menstruating women to enter the temple and the rights of the temple to reserve entry? (Violation of Article 25)
- Is the Ayyappa temple a separate religious denomination? If so, how can a State-funded entity indulge in practices that violate constitutional morality? (Violation of Articles 290A, 14, 15(3), 51-A(e) )
- Does Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rule permit the ban of some women? (Violation of Articles 14, 15(3) )
- Is the rule itself in violation of the act, which allows the entry of all Hindus into the temple? (Does Rule 3 (b) violate provisions of Part III of the Constitution?)
Following the verdict, there was a massive fallout from the Apex Court's ruling which further initiated massive protests by the right wing groups aided by political parties who called this an attack on Hindu faith & customs thereby going against the law and following the religious manifestations of not allowing women to enter the shrine. The protests further intensified when two women, Bindu Ammini, a lecturer at Kerala’s Kannur University, and Kanakadurga, a civil servant – managed to enter the temple on January 2nd, 2019. On February 6th, 2019, the Apex Court reserved it's judgement on a plea seeking the review of the September 2018 verdict. The majority verdict by the Former Chief Justice of India Ranjan Gogoi
and Justices AM Khaniwilkar
and Indu Malhotra
decided to keep the plea in a review decision regarding the issue of entry of women into the shrine as pending and further opined that restrictions in religious places prevailed in several other places as well. Almost 65 petitions were filed against the Apex Court's 2019 judgment - 65 review petitions, four writ petitions and five transfer pleas that were filed after the protests in Kerala. On November 14, the Supreme Court referred pleas to a larger 9-judge bench. The battle has always raged on between the devotees of Lord Ayyappa, the right leaning organisations, the current government and the women rights activists, lawyers and left leaning parties. The Supreme Court’s 9-judge bench had decided to begin the Sabarimala Verdict hearing on January 12, 2020. The bench agreed to rule on constitutional questions. On January 28, 2020
, the Chief Justice contended that the matter would not be heard for more than 10 days. The Supreme Court said on the 3rd of February, 2020
that it will frame legal questions to be adjudicated by the nine judge bench headed by the Chief Justice of India S.A.Bode and Justices R. Banumathi, Ashok Bhushan, L. Nageshwara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Shubhash Reddy, B.R. Gavai and Surya Kant.
The questions will be based on the religious discrimination against women at various places, the whole question that arose during the Sabarimala temple case. On the 10th of February, 2020
, the Apex passed an order framing issues for consideration in the Sabarimala case. The following issues were framed for consideration by the Supreme Court:
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26?
- Whether the rights of a religious denomination under Article 26 of the Constitution are subject to other provisions of Part III of the Constitution apart from public order, morality and health?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution and whether it is meant to include Constitutional morality?
- What is the scope and extent of judicial review with regard to religious practice as referred to in Article 25 of the Constitution?
- What is the meaning of the expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL.
Author - Dyuti Pandya