AUTHOR- Sankalp Khurana, Guru Nanak Dev University, Amritsar.
On 13 January 2020 a nine judge constitutional bench of the Supreme Court of India issued a notice for the deliberation of the issues that they are going to confer to in the upcoming hearings of the review petition against the 2018 decision of the court which lifted the ban on the entry of women between ages from 10 to 50 in the Sabrimala Temple in Kerala.[i] [ii] The nine judge bench will not only decide the issue of Sabrimala temple but also deliberate on various other instances of unequal treatment women in the name of religious customs such as prohibition of entry of women in the inner sanctum of Muslim tombs or ‘Dargah’, female genital mutilation in the Dawoodi Bohra Muslim community and barring of Parsi women, married to non-Parsi men, from the holy fireplace at Agiary. But in order to comprehend the actual situation we shall go through the journey of Sabrimala case.
From time immemorial various faiths of people in India have subjected women to unequal treatment in the society. Although Hindu scriptures place women on a higher pedestal than men, the customs speak a different language. The practices prohibiting women into the kitchens, temples etc. during their menstrual periods as they are considered impure during said period are still prevalent in the society. One of such practices is the ban of entry of women of age 10 to 50 (i.e. the whole phase that they can menstruate) into the Sabrimala temple in Kerala. The reason depicted for this practice is that the Sabrimala temple is a pilgrimage devoted to the Hindu god Ayyapan who is considered to be a celibate. The devotees that want to visit the temple have to undergo a 41 day period of celibacy during which they have to stay away from marital relationships but as in the case of women their menstruating period would naturally occur during this period, they cannot observe this period of celibacy and thus are prohibited to enter the temple.
This practice was sanctioned under rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry Act), 1965.[iii] In 1990, when a petition was filed in the Kerala High Court seeking a ban on entry of women in the temple as some young girls had been allowed to enter recently, the SC upheld this provision and directed the state to use the police force to enforce the ban of entry of women from age 10 to 50 into the temple. The court said the provision was not in violation of Articles 14, 15, 25 and 26 of the constitution as it was a prevalent custom and only restricted entry of women of a certain age and did not discriminate with women as a class.
In 2006, the Indian Young Lawyers Association filed a writ petition in the Supreme Court of India seeking a lift of the ban of entry of women in the temple contending that the said provision was in violation of Article 14, 15, 25 and 26 of the Indian Constitution as it subjected women to unequal treatment and also curtailed their individual religious independence.[iv] It was contended that this practice was not an essential religious practice and thus courts could intervene if it was against the fundamental principles of constitution of India. It was also contended that there being no restriction on entry of women in thousands of other temples of Lord Ayyapan depicted that it was not a prevalent custom.
The 2018 Verdict
In September 2018, a five judge constitutional bench of the Supreme Court of India with a majority of 4-1 declared that the ban on the entry of women of age 10 to 50 into the Sabrimala Temple was unconstitutional and thus lifted it. The court held that the respondents had failed to prove that the followers of Lord Ayyapan form a separate religious domination and thus this practice could not be an essential practice in the Hindu religion. Also the argument of this practice being a prevalent custom was refuted as there was no proof of its existence before the 1950s. The argument that menstruating women could pollute the sanctity of the temple was scientifically inapt. Interestingly, the one opinion against the petition came from the only women judge on the bench who was of the opinion that it should be for the communities to decide themselves what was an essential religious practice and courts should have very limited interference with customs.
This decision of the Supreme Court had some drastic after effects. Many women attempted to enter the temple after the ban was lifted but enormous crowds of violent protestors on the streets of Kerala restrained them from doing so. The state government made it compulsory to provide police protection to any women who wanted to enter the premises. When 2 women who started their hike during midnight along with police protection in civil dresses were finally able to enter the temple, violent protests broke out resulting in many deaths, injuries and people being jailed. In spite of these protests, various women followed and the temple was shut numerous times for purification process.[v] Many of the protestors were also women who said they believed in the practice and were happy to worship at home. They said that their faiths were being tainted by the interference of outsiders as the women who wanted to enter the temple were not the followers of Lord Ayyapan.[vi]
In February 2019, the apex court reserved its decision as a result of various review petitions filed against the said decision of September 2018. A five judge bench in November 2019 referred the matter to a larger bench stating that various other petitions that were based on the same issues to be discussed in the Sabarimala case were to be clubbed with this petition and framed 7 issues relating to inter connection of Articles 25 and 26 and also with other fundamental rights such as right to equality. In January 2020 the 9 judge constitutional bench urged 4 senior advocates on both sided to meet and deliberate the issues for further hearings. The issues such as the prohibition of entry of women in the inner sanctum of Mosques, female genital mutilation in the Dawoodi Bohra Muslim community and barring of Parsi women, married to non-Parsi men, from various religious places will be further decided by the bench.(supra)
The patriarchal society in India has led to a lot of subjugation of women but with the evolution of modern society women have gained a pedestal equal to men in almost all segments of the society. The customs which fail to affirm to the fundamentals of the modern society should be abolished or slightly changed for the smooth functioning of the society. But as the faiths of people play a very important part in the secularism and diversity of India, the courts should have to have least interference with religious customs and practices but also protect the basic principles of the constitution of India.
[i] Akriti Anand, Sabrimala Case, (Feb 3, 2020 13:40 IST), https://www.indiatoday.in/india/story/sabarimala-case-will-frame-issues-related-discrimination-against-women-religious-places-says-sc-1642820-2020-02-03 [ii] Express Web Desk, SC to hea from Jan 13 Sabrimala review plea, (January 6, 2020 8:38:32), https://indianexpress.com/article/india/sabarimala-verdict-review-nine-judge-sc-bench-to-hear-matter-from-january-13-6203094/ [iii] Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 http://www.bareactslive.com/KER/ker080.htm#:~:text=An%20act%20to%20make%20better,into%20places%20of%20public%20worship.&text=1.&text=%2D%20(1)%20This%20Act%20may,of%20the%20State%20of%20Kerala. [iv] ANI, Sabrimala Verdict, (Nov 14, 2019) 9:06 AM, https://economictimes.indiatimes.com/news/politics-and-nation/sabarimala-verdict-a-timeline-of-temple-entry-issue-ahead-of-sc-verdict-today/articleshow/72049026.cms Thiruvananthapuram, New Year, New beginning: 2 women finally pray at Sabrimala, https://www.indiatoday.in/india/story/two-women-sabarimala-temple-protests-kerala-1421978-2019-01-02#:~:text=Two%20women%20devotees%2C%20below%20the,after%203.45%20am%20on%20Wednesday. [vi] Gopa Nayak, Sabrimala: A place for devotees, (October 8, 2018 11:19 PM), https://timesofindia.indiatimes.com/blogs/therightlens/sabarimala-a-place-for-devotees-not-tourists/