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Case Comment on Indian Young Lawyers Association & Others v. State of Kerala & Others

Author- Nishtha Kheria, Amity University, Noida.

1. ABSTRACT

Sabarimala Sree Dharmasastha Temple is a temple association settled at Sabarimala inside Periyar Tiger Reserve in Pathanamthitta District, Kerala, India. It is the most extensive annual pilgrimage in the globe with an estimation of within 17 million and 50 million believers attending every year. The temple is devoted to the Hindu unmarried god Ayyappan also known as Dharma Sastha, who according to faith is the son of Shiva and female manifestation of Vishnu. (Balaji).[1]

The God in Sabarimala is in the arrangement of a Naisthik Bramchari, and this is the cause why youthful women are not allowed to give prayers in the temple. Since the god is in the style of a Naisthik Brahmachari, it is hence assumed that youthful women should not extend worship in the temple so that even the smallest difference from abstinence and severity perceived by the deity is not caused by the attendance of such women.

The temple is accessible for contribution only while the days of Mandalapooja (nearly about 15 November to 26 December), Makara Sankranti” (14 January), and Maha Vishuva Sankranti(14 April), and the starting five days of every Malayalam month. The pilgrims have to witness celibacy for 41 days before proceeding to Sabarimala. They are also expected to rigorously follow a Lacto-vegetarian diet, abstain from alcohol, not use any abuse, and allow the hair and nails to grow without trimming. They are required to bath twice in a day and visit the town temples frequently. They dress black or blue clothes, do not barber until the conclusion of the pilgrimage, and apply vibhuti or sandal paste on their forehead.

The elimination of (a class of) women from the Sabarimala Temple was supported based on old-fashioned method, which was authorized by Rule 3(b), written by the Government under the influence of the 1965 Kerala Hindu Places of Worship.

Section 3 of the Act expected that areas of public prayer be open to all sectors and classes of Hindus, subjected to special laws for religious groups. Rule 3(b), however, rendered for the elimination of “women at such period through which they are not by tradition and method permitted to access a place of public worship.” These bits of law, in turn, were compared against constitutional stipulations such as Article 25(1)[2] (freedom of worship), Article 26 (freedom of religious denominations to regulate their practices), and Articles 14 and 15(1) (equality and non-discrimination)[3].

In reply to a PIL filed in 1991, the Kerala High Court had concluded that the limitation of entry of women ages 10-50 to the temple was by the usage prevailing from time traditional, and it addressed the Devaswom Board to support the customary rituals of the temple.

However, on 28 September 2018, the Supreme Court of India reversed the constraint on the admission of women, claiming it unconstitutional and biased. The Supreme Court had decreed that women, of all age groups, can access Sabarimala temple within Kerala. The apex court in a 4:1 majority said that the temple tradition infringes the virtues of Hindu women and that preventing entry of women to the altar is gender prejudice[4]. On 2 January 2019, two women below the age of 50 finally entered the altar for the first time since the Supreme Court judgment, after efforts by many others failed due to remonstrances by devotees.

2. FACTS

The Sabarimala temple is one of Kerala’s most popular temples and it is devoted to the prayer of Lord Ayyappa, who is also related to as ‘Dharmashastha’ or Lord of Dharma and is venerated as a ‘Naishtika Bramhachari’ or a celibate for living. Therefore, as per an announcement by the Devaswom Board that operates the temple, women pertaining to the menstruating age are not allowed to enter the temple. The Sabarimala temple is administered by the Travancore Devaswom Board. The centuries-old constraint that limits women of menstruating age from temple entrance had been disputed now and then.

1991: Kerala High Court nurtured an age-old prohibition on ladies of an appropriate age-group entering Sabarimala temple. A two-judge bench declared (on April 5) that the repudiation by the Travancore Devaswom Board that manages the hill shrine does not infringe either the Constitution or a relevant 1965 Kerala law.

2006: A famed horoscopes administered a temple-centric task called ‘Devaprasnam’, and announced having noticed signs of a woman’s admission into the temple some time ago. Soon, a sound known Kannada actress-politician Jayamala alleged openly that she had accessed the areas of Sabarimala in 1987 as a 28-year-old. Even she alleged to have arrogantly touched the idol inside the sanctum sanctorum as portion of a film shoot, combining doing connivance with the priest.

2006: The accusation led the Kerala government to examine the matter through its crime office, but the case was later dismissed.

2008: Kerala’s LDF administration filed an affirmation approving a PIL filed by women lawyers challenging the ban on the admission of women in Sabarimala

2016: The India Young Lawyers Association filed a PIL with the Supreme Court, quarreling that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 that states [5]

Women who are not by custom and command allowed to access a site of public to enter a place of public worship” infringes constitutional guarantees of fairness, non-discrimination and religious liberty.

November 2016: Kerala’s Left Front government supported the admission of women of all age groups registering an affirmation to the result.

28 September, 2018: The Hon'ble Supreme Court of India, by a 4:1 judgment, awarded women, of all age groups, admission into Kerala’s Sabarimala temple, destroying the temple’s age-old ritual of curbing menstruating women from accessing its assumptions.

The five-judge bench, directed by then CJI Dipak Misra with Justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra declared the decision, with Malhotra dissenting.

3. ISSUES RAISED

i) The rule that forbids women from accessing temples for the purpose of culture was questioned to confirm that it infringes Articles 14 and 15(3) of the Constitution on the terrains of sex.

ii) Whether the custom compounds an ‘essential spiritual practice’ under Article 25?

iii) Whether a spiritual institution could cite its interest to do so under the right to conduct its matters in the topics of religion?

iv) Whether the exclusionary manner based on a biological part restricted to the female gender amounts to ‘discrimination’?

v) Whether Sabarimala temple had a denominational aspect?


4. RULES

Obstructing admission of women from 10 to 50 results to untouchability:

Senior adviser Indira Jaisingh asserted that the ban of women entry is a kind of untouchability. “The sole reason of constraint is menstruation of women. To abide away menstruating women is a form of untouchability. Menstruating women are regarded as contaminated.”

Constraint to entry not correlated to religious practice:

The applicants disputed that constraint on the entry of women in the Sabarimala temple is nowhere related with the religious exercises conducted there. The issue of it being the basis of the said religious sect does not occur at all.

a) Sabarimala Temple, not a separate spiritual persuasion:

It was disputed that the Lord Ayyappa[6] temple was not a separate religious classification for Article 26 because the religious exercises conducted in Sabarimala Temple at the period of ‘Puja and other religious celebrations are not discrete and are similar to any other practice presented in any Hindu Temple.

b) Article 25(2) (b) was not an insignificant enabling provision:

Senior Advocate Raju Ramachandran who was elected as amicus curiae in the subject declared that the right of women to infiltrate the temple and suggestion worship passed from Article 25(2) (b) as it was not an insignificant enabling prerequisite[7] which authorized enactment of law to make Hindu temples available to all factions and classes, but awarded a substantive right[8].

c) Justice Indu Malhotra quoted the example of a temple which prevent entry of men:

Justice Malhotra had quoted the example of Attukal Bhagavathy Temple in Kerala, which is particularly for women followers, and asked whether the elimination of men was prejudiced. Replying in affirmative, Surendranath suggested that it was equally prejudiced.

d) How did the Travancore Devaswom Board support the prohibition?

Lord Ayyappa was a celibate for living, a ‘Naishtika Brahmacharya’: Senior Advocate Abhishek Manu Singhvi, who disputed for the Devaswom Board, defended the challenged tradition as being a bonafide one, one arising from the persona of the idol at the Sabarimala Temple. Lord Ayyappa was a celibate for life, a ‘Naishtika Brahmacharya’, and the method was firmly rooted on this idea of crowds of believers.

e) Woman cannot achieve 41 days of penances:

Observation of 41 days of repentance was necessary for beginning a journey to Sabarimala. It was a necessary religious practice. It was not physiologically possible for women to achieve the 41 days of repentance.

5. CRITICAL ANALYSIS OF THE JUDGEMENT

Religion has morphed into different arrangements in contemporary organizations and hence we need more holistic methods to understand its complexities.

The rationality of any religion or a precise custom is mostly defined and disseminated by the male leaders and divisions in the group. In order to continue their domination, they manage to devise methods, often by the careless understanding of traditional texts, which consequently appears in the submission of women.

Justice Malhotra sets a risky example by declaring that courts should not probe into the rationality of religious exercises. One should not overlook that if it were not for the judiciary’s activism, the firm societal constructions would have still scratched on to the inflexible belief. A requirement of this judgment, however, would have been to find ways to sensitize the society and garner backing from men and women evenly.

6. CONCLUSION

The social rejection of women from accessing the Sabarimala shrine is violative of various dimensions. This infringes gender equality and segregates often on the basis of sex. Just by asserting that Lord Ayyappa referred to Brahamcharya religion does not imply that this will hinder the rights of women. There are thousands of Ayyapan temples where ladies are not rejected entry, then why in this temple only? Another discussion to this subject is the presence of other bramacharya deities and their temples all over India.

For example- Lord Hanuman was also a Brahamchari but admission is not refused to women in the temples of Hanuman. Liberty in topics of trust, belief and worship, must provide a sympathetic and excitable and friendly society characterized by the equality of status among all its residents.

The freedom to believe, to be a person of trust to be a human being in prayer has to be accomplished in the circumstances of a society which does not distinguish among its citizens. Connected together, individual liberty, equity and brotherhood among citizens is essential to a social and political order in which the character of the person is recognized. Mankind since the time traditional, has been exploring for the argument for a point of opinion that hurts humankind.

Basically, the technical human values always persist on paper and from the time traditional the state of women is the same as earlier and treated with bias and other bigoted notions of biological and physiological circumstances affecting their lives negatively. It is always seen that women are escorted unequal on the pathway of access to understand the deity.

“In the field of life, it seems, man has put the signature and there is no place for women to even put her stamp”


REFERENCES- [1] Lord Ayyappa, The Pandya dynasty, info available at; https://timesofindia.indiatimes.com/s, last seen on 29/09/2019 [2] Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion; Article 25(1) [3] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them; Article 15(1) [4] Ratio of the case, available at; https://www.scconline.com/ [5]Available at :https://www.indiacode.nic.in/handle/123456789/12386?view_type=browse&sam_handle=123456789/2516 [6] Facts of the case, available at; https://sci.gov.in/supremecourt/f [7] Provisions of Indian Constitution, available at; https://www.india.gov.in/f, [8] The Act is available at; https://indiacode.nic.in/handle/6, last seen on 3/10/2019



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