The Sabarimala conflict: Custom vs Constitution

THE SABARIMALA CONFLICT: 

THE PREVAILING CUSTOM VS THE CONSTITUTION

Author: Mr. Aditya Aryan from ICFAI Law School, Dehradun.

The Sabarimala issue has now been a long-debated issue. The Ayyappa Temple at the Sabarimala region is one of the most famous pilgrimage sites for Hindus in India. Every year’s lakhs and lakhs of devotees visit the famous temple. The restrictions which draw the attention are that the temple does not open its door for women of menstruating age. Due to this restriction, there arises a conflict between the fundamental rights given under the Apex Law of the country i.e The Constitution Of India and the custom which has been prevailing since ages.

Kerela’s famous Sabarimala temple conflict is all about the issue between women’s rights and tradition. According to the prevailed customs and tradition, women between 10 to 50 years of age were thought to be impure and were not permitted to enter into the temple. Although, the situation changed when the bench of The Supreme Court, declared that restricting the entry of women of menstruating age was unconstitutional on 28^th September 2018.

The Supreme Court has allowed women of every age to enter the famous Hindu pilgrimage but the state and local governments have failed to enforce the order because of the high protest on such entry.

The entry in this temple was restricted by the Kerela Hindu Places of public worship (authorization of entry) rules, 1965, which prohibits women from entering the temple, also the Kerala high court in the year 1991 gave an order in the favour of the restriction stating that the restriction was there throughout history and is not discriminatory to the Apex Law.

The main conflict arose when in 2006, The Young Lawyers Association challenged the ban in the Supreme Court. The Kerela Government appealed to the supreme court that it has now a long believed and practiced the custom of the devotees and cannot be changed by the judicial proceedings and the priest’s opinion is the final one in this matter. Hence, the Supreme Court referred the issue to a larger constitutional bench.

The Arguments Against The Entry Of The Women:

• To allow women of menstruating age would affect the deity’s celibacy and the simplicity as it is the unique nature of the swami Ayyapa.
• Temples, which are managed by the trust are public places. The Sabarimala representatives claim that it has been managing its own tradition and custom that have to be respected similar to the places who have their other rules.
• The  Article 25(2) of the Constitution of India provide access to public Hindu religious places for all the classes and sections of the society but it can only be applied to the societal reforms and not under religious matters which are covered under the Article 26(b) of the constitution
• Article 25(b) provides the rights to religious groups to manage their religious affairs.
• In the case of Ritu prasad Sharma vs state of Assam (2015), ruled that religious custom which is protected under articles 25 and 26 are immune from being challenged under the other provisions of Part III Of the Constitution.

The Arguments In Favour Of The Entry:

• All the people are equal in the eyes of God as well as the constitution, therefore there is no reason that why shall women should only be barred from entering such places.
• The Indian Constitution under Article 25 provides that an individual has the freedom to choose his/her religion. Therefore praying in any of the religious institutions whether it is a temple or a mosque remains an individual choice.
• Under article 21 of the constitution guarantees the right to liberty and religious freedom to the individual.
• In India, there are countless Ayyappa temples where this rule does not apply and there are absolutely no restrictions in praying. The goddess is also worshipped by women of that age in their houses. Then what is the issue in Sabarimala temple only?
• The argument framed that the entry of women between menstruating age would pollute the temple as they are impure is totally unacceptable as there is nothing impure or unclean about those women.
• Such discrimination on the basis of the biological factors affecting women gender is totally unconstitutional as it violates the fundamental rights given under Article 14 (equality), Article 15 (discrimination abolition), Article 17 (untouchability abolition).
• Barring women from entering the temple only because of their womanhood and the biological features is unfavorable to women which the directive principle of state policy under Article 51A(e) seeks to renounce.
• The temple gets funding from the consolidated funds because it is a public place of worshipping and not a private one.
• Hinduism is meant to be a way of living life and not a religion. Therefore, it’s practice cannot be dominated by pundits and priests.
• The religious traditions must remain applicable to changing the social structure and their relationship. It constantly needs reforms from within.

The Verdict Of The Courts:

• The Kerela High Court, in the year 1991 gave an order in the favor of the restriction by stating that the restriction was there in its place throughout the past history and it is not discriminatory to the constitution.
• Again, The Kerela High Court appealed it’s decision to The Supreme Court that the beliefs and the prevailed custom by the devotees cannot be reorganized by judicial process and the priest’s opinion is final in this case.

The matter was then referred to the larger constitutional bench compromising of 5 judges including the CJI. The 5 judges bench gave the verdict in 4:1 majority in which they struck down the provisions of The Kerela Hindu places of public worship (Authorisation of entry) rules, 1965 and allowed all the women irrespective of their age to enter the temple and worship the goddess.

The reasoning behind the verdict:

• The constitution of India protects religious freedom in two ways – 

1. Article 25- protects an individual right to profess, practice and propagate religion.
2. Article 26- ensures protection to every religious denomination to manage its own affairs.

• The case represented a conflict among the individual right of women in the menstruating age group to worship and the rights of the temple authorities at enforcing the presiding goddess strict celibate status.
• Travancore Devaswom Board (TDB) claimed that they form a community and should be permitted to make their own rules. Although, the Supreme Court held that Ayyappa devotees do not constitute any separate community.
• The court also ruled that the prohibition on women is not an essential part of the Hindu religion and the courts can intervene on such matters.
• The given verdict by the Supreme Court established the principle that individual freedom will prevail over professed group rights, even in religious matters.

 The Opinion Of The Disagreed Judge:

The differed remark was given by the lone woman judge, Justice Malhotra. She stated that religious matters should be taken up with religious denominations rather than the court and the balance needs to be struck down between religious beliefs and the constitutional principles of equality and non-discrimination. She also warned that the verdict would not restrict to Sabarimala but will have very wide outcomes. Therefore, the issues of deep religious sentiments should not be ordinarily referred by the court.

What Should Be The Way Ahead:

The Sabarimala issue is a very excellent opportunity for the courts to relook and reform the age-old traditions and beliefs in our country which discriminates against various sections of the society. The courts should look beyond the denial of freedom of religion to women but also to equal access to public space. These steps would put the foundation stone for the revolutionary re-looking of the constitution and it can help the court to make a meaningful difference to people’s civil rights across different caste, class, gender, and religions.