SC does away with tradition; judicial review of religious practices wrong, dissents Justice Malhotra
Women of all ages will now be able to offer worship at the Ayyappa temple at Sabarimala in Kerala after the Supreme Court on Friday did away with the age-old tradition that barred entry of women of a “menstruating age” — defined as between the ages of 10 and 50.
A five-judge Constitution Bench headed by Chief Justice Dipak Misra in its 4:1 verdict said banning the entry of women into the shrine is gender discrimination and the practice violates rights of Hindu women.
Women activists hailed the judgment as a victory for gender equality while Union Women and Child Development Minister Maneka Gandhi said it would make Hinduism even more inclusive.
While Justices RF Nariman and DY Chandrachud concurred with the CJI and Justice AM Khanwilkar, the lone women judge on the Bench, Justice Indu Malhotra, gave a dissenting verdict.
Asserting that the issue in this case is not limited to Sabarimala only and it will have far-reaching implications for other places of worship, Justice Malhotra was of the view that it is not for courts to determine which religious practices are to be struck down, except in issues of social evil like “Sati”.
She went on to say that right to equality conflicts with right to worship of devotees of Lord Ayyappa.
The court passed four sets of separate judgments on a clutch of pleas challenging ban on the entry of women of menstrual age in the Sabarimala temple saying law and society are tasked with the task to act as levellers.
Claiming that practice of exclusion of women of 10-50 age group cannot be regarded as essential religious practice and Kerala law denies rights to women on ground of physiological reasons, the CJI said that devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to infringe on equality in devotion. He said devotees of Lord Ayyappa do not constitute a separate denomination.
Justice Nariman said the Sabarimala temple custom barring women of 10-50 age is not backed by Articles 25 and 26 of the Constitution. He said the custom of barring women is violative of Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Public Worship (authorisation of entry) Rules, 1965, is not maintainable.
On the same note, Justice Chandrachud said religion cannot be used as cover to deny rights of worship to women and it is also against human dignity. He said prohibition on women is due to non-religious reasons and it is a grim shadow of discrimination going on for centuries.
Echoing the CJI view that devotees of Lord Ayyappa do not form separate religious denominations, Justice Chandrachud added that if any custom or religious practice violates dignity of women by denying them entry due to her physiology, it is unconstitutional. He said the popular notion about morality can be offensive to dignity of others and exclusion of women because she menstruates is utterly unconstitutional.
Justice Chandrachud held that exclusion of women is violative of right to liberty, dignity and equality and said banning women of a particular age group is not essential practice of religion.
On her part, Justice Malhotra said notions of rationality cannot be brought into matters of religion and India has diverse religious practices and constitutional morality would allow anyone to profess a religion they believe. She said equality doctrine cannot override fundamental right to worship under Article 25.
Welcoming the verdict, Women and Child Development Minister Maneka Gandhi said it is a “wonderful” judgment that paves way to make Hinduism even more inclusive. “It opens up the way forward for Hinduism to become even more inclusive and not a property of one caste or one sex,” she said.
Kavita Krishnan, women rights activist and Secretary of the All India Progressive Women’s Association (AIPWA), said the decision was long overdue.
“In instant triple talaq, Haji Ali, and Sabarimala cases, courts have rightly held that women’s equality can’t be held hostage to religious practices. Just as it’s unconstitutional and discriminatory to debar entry to temples based on caste, it’s the same to debar entry based on gender. Also, we project our own values on our gods — and patriarchal values that put the burden of men’s celibacy or sexual choices.
Mariam Dhawale, general secretary of the All India Democratic Women’s Association, called it another step that would help in bringing equality. “We welcome the judgment. Women have a constitutional right to be able to visit the temple and whoever wishes so must be allowed to visit it whether it is a temple or a dargah,” she said.
