Author: Aheli Ghoshal Student, Amity University, Kolkata
“Menstrual blood is the only source of blood that is not traumatically induced. Yet in modern society, this is the most hidden blood, the one so rarely spoken of and almost never seen, except privately by women …”
– Judi Grahn
Forget the villages or the suburbs, or the traditional and orthodox areas of India, women in their menstruating times are not allowed to enter the temples or the kitchen in the so-called modernized metropolitan area as well. The Sabarimala case is a landmark case indeed, where the petitioners had indeed fought hard to prevail the fundamental rights of women.
It seems like the people of India has improved in the field of science and technology only in pen and paper. In India, menstruation is still discussed in hush hush tone. It is surprising that how people consider it hard to digest the fact that menstruation is a part of biology, and without it, the future generations cannot be created.
In Sabarimala case, women belonging to the menstruating or reproductive age, that is, from the age of 10 to the age of 50 were not allowed to entire the premises of the temple. This article discusses the Sabarimala case until its judgement which was declared in the year 2018.
It must be noted that this article only analyses the 2018 judgment and that it is not written with respect to the review petition which was filed later.
Lord Ayyappa is the Idol situated inside the Sabarimala temple. But however as per the belief of the people, he is not simply an Idol, rather “Pran Pratishtha” has been made into him- that means that the Idol has a “Pran” or a life. Now the law also states that this Idol, that is, Lord Ayyappa is a juristic person. The word juristic person means that a person is recognised by law as a person who is entitled to all the rights and duties in the same way as a natural person is recognised. Therefore, the Idol is simply not an Idol.
Now, as per the puranas or the old sentiments or the belief that goes inside the Sabarimala temple, women belonging to the menstruating or reproductive age starting from the age of 10 and ending to the age of 50, cannot make a visit or do a “darshan” inside the temple. This rule was made by the followers of Lord Ayyappa and they made this rule as an “essential religious practice”, that must be followed by all the devotees and followers of Lord Ayyappa. All the devotees and followers were made to believe that if anyone of them ignored this “essential religious practice”, then their “spiritual development “is in fact getting violated.
A case was filed against this essential religious practice by the “Indian Young Lawyers Association”, who was the petitioner. Whilst the defendant was the State of Kerala. It provided that this age long practice that was occurring in the Sabarimala temple was indeed unconstitutional.
Let us see why they were regarded as unconstitutional by the petitioner.
CONSTITUTIONAL VALIDITY OF THE ESSENTIAL RELIGIOUS PRACTISE
The above said essential practice which used to go on in the Sabarimala temple for years was indeed not constitutionally valid. It violates Article 25 which provides the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens. As per Article 25, women belonging from the age of 10 to the age of 50 indeed has the right to worship Lord Ayyappa as well.
It further violates Article 17 or the abolition of untouchability, where the feminine gender is indeed treated as the untouchable one, taking into account the fact that the menstruating women are not allowed within the premises of the temple.
It further violates Article 15, where it is clearly stated that there shall be prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
Further, the life and personal liberty of the female gender is also getting deprived through this essential religious practice. In other words, Article 21 is getting violated.
WHAT DID THE DEFENDANT SAY?
Article 26 states that there shall be freedom to manage religious affairs subject to public order, morality, and health. It further states that every religious denomination has this right. Now the defendant that is the State of Kerala claimed that the Sabarimala temple is a religious denomination.
Although the constitution does not define religious denomination, it can be explained by saying that a denomination is a group of individuals who has a distinctive name, has a same faith, and is constituted under a same organization. Thus, the defendant claimed that Sabarimala is indeed a religious denomination where they all shower their worship towards Lord Ayyappa. Moreover, in Article 26 nothing is mentioned regarding the fact that whether any religious denomination can violate somebody’s fundamental rights or not.
Therefore, the defendant said that since there is no presence of the concept of violation of fundamental rights in Article 26, therefore they cannot be held guilty in this regard. They claimed to be a religious denomination, and therefore they further claimed that they had the right to practice and manage any religious affairs.
Moreover, Article 25 (2)(b) states that- “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”. That is, Article 25 is concentrated only towards the Hindu religion and as per it, State is allowed to authorise only the Hindu religious institutions.
Therefore, the defendant claimed that as Article 25 (2)(b) is not for them, considering the fact that this Article is only concentrated upon the Hindu religion. They claimed that they are a whole different religion and so, they have complete right to perform religious affairs.
So, the defendant said that it cannot be said that they are violating Article 25, since they have a whole different identity which is not mentioned in Article 25. Rather, they claimed that as per Article 26 which speaks about religious denomination, they have complete right to stop the female gender from the age of 10 to the age of 50 to enter the premises of the temple.
So, since they are a religious denomination according to Article 26, the defendant claimed that as per their “essential religious practise”, they have complete right to restrict women from entering the temple.
Moreover, the defendants claimed that as per the rule 3(b) of the Kerala Hindu Places of Public Worship Act, it clearly States that “Women at such time (that is during their menstruating or reproductive age), are not allowed to enter a place of worship”. These rules of discrimination were developed under Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act of 1965.
SUPREME COURT’S VERDICT
A five-judge bench was created to decide the judgement.
They held that this practise of restraining women to enter the premises of the Sabarimala Temple was highly unconstitutional.
The court held that this practice violated Article 14, 15, Article 19(1) and lastly Article 25(1). Although the Supreme court did not agree to the fact that the defendants had violated Article 17.
The Supreme Court reasoned that the defendants were wrong in thinking that they are a religious denomination as per Article 26. Supreme Court stated that the devotees of Lord Ayyappa do not come under the provisions of becoming a religious denomination. Supreme Court stated that they shall also be identified as Hindu, and not as any separate religion. Therefore, they violated Article 25, and so they violated the fundamentals rights as well.
The Supreme court further stated that banning on the entry of women belonging to the reproductive age inside the premises of the temple cannot be an “essential religious practice.
The Supreme court banned the rule 3(b) of the Kerala Hindu Places of Public Worship Act and it was declared as unconstitutional.
A Review petition has been filed regarding this case in the Supreme Court. Apparently, a 7-judge bench has been constituted to hear the petition and thereby decide its judgment. The decision of the judgement is still pending. Supreme Court had decided to put forward this matter in front of a seven-judge bench which will re-examine the role of courts in religious matters. However, it must be noted that the Supreme Court did not provide a stay order in its previous judgement.
As said earlier, the decision given by the Supreme Court constituted a 5-judge bench where 4 of the judges who are all male, accepted the fact that women should be allowed to enter the premises of the Sabarimala temple. However, the 5th judge who was a woman named Indu Malhotra was against it. Apparently she said that the court should not entertain such PILs because it apparently harms the secular nature of India. She said that-
“In a pluralistic society comprising of people with diverse fades, beliefs and traditions, to entertain pills challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country “.
She further accepted the fact that the defendant had not violated the provisions mentioned in Article 25 which provides the right of every individual to freely practice their respective religion.
Moreover, she agreed to the fact that restraining the menstruating women belonging to the reproductive age from entering the temple is indeed an essential religious practice.
It is surprising that how we are living in the 21st century and still such type of belief which are quite orthodox in nature are practiced in India. India boasts that it is a secular country and that it provides equality to all genders, to all race, to all cast and creed and so on. But however, the Sabarimala case is a proof that this is actually not happening.
India still lives in the old, traditional, and discriminating era, where women are not regarded as equal to male. In this era too, the concept of menstruation is seen as a taboo and menstruating woman are not allowed in temple, in kitchens and so on,
Even if The Supreme Court provides its final verdict favouring the women and it orders that women should be allowed to enter temples while they are in their reproductive age, I wonder how much of this will actually occur. When women are not allowed to enter the praying rooms in their own houses, or they are not allowed to enter the kitchen in their homes, how come they shall be “publicly” allowed to enter the temples?
It is not only the men who do not allow do women in their reproductive age to not enter temples and other areas. Also, the women tend to believe this fact. I believe that the people of India, especially in the villages and suburbs are still not provided with proper and decent education. Only a proper education, which respects and portrays equality of all gender can solve this problem in a true sense.
“Constitutional and legal bases of Sabarimala verdict”, October 17, 2018. – https://www.financialexpress.com/india-news/the-constitutional-and-legal-bases-of-the-sabarimala-verdict-october-17-2018/1352605/
Areeba Falak, “Sabarimala Verdict:5 Key Reasons Why Justice Indu Malhotra Differed With Majority View”, September 28, 2018. – https://timesofindia.indiatimes.com/india/sabarimala-verdict-5-key-reasons-why-justice-indu-malhotra-differed-with-majority-view/Articleshow/65997997.cms