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loyallogic · 5 years

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Conflict between Constitutional Law and Customs: Indian Young Lawyers Association vs. State of kerala

This article is written by Pratiksha Sengar.

Introduction

In India women can be anything they wish. They can be fighter-pilots, commanders, paratroopers athletes and also Prime Minister. But they cannot enter the shrine because they will defile it. India has been a place of contradictory beliefs when it comes to religious practices. On the one hand women are worshipped and on the other hand they are considered as impure during menstruation period. India, the largest democracy in the world has not given equal status to its half of the population. Earlier during Vedic period women were given equal status as men but then women status started declining. In the Vedic period women were given equal status as men. Gradually women condition in the society got worsened. Women became subordinate to men and they were not allowed to work and get education. After the Independence there were several measures taken up by the social activist and the state to uplift the status of women in the society but the battle has not won yet. Women have been discriminated in the name of customary practices. Religion has become the tool to justify the discrimination with the women. Several ill religious practices are prevalent today that are violating their fundamental rights of women.

One such case of discrimination that came before Supreme Court was Sabarimala issue in which women of age group of 10 to 50 were denied entry into temple. The Supreme Court struck down the rules which banned the entry of women in the Sabrimala Temple. The five judges’ bench decided the case with 4:1 majority. The dissenting opinion came from the Justice Indu Malhotra on the bench. The majority was of the opinion that banning women of 10 to 50 years of age is a violation of their fundamental right to equality and right of freedom of religion. The court was of the opinion that it cannot give constitutional legitimacy to any practice that is in violation of constitution. Defining religion has always been a herculean task for the judiciary. There are many practices in the various religions that are in contradiction with the constitution. The question arises whether these customary practices should be held superior to constitution. The religion has been patriarchal in many ways. Many practices of the religion put man at an upper pedestal than women. The court also held that banning entry of women into the temple is also violation of right to freedom of religion; they have the right to practice religion of their own choice.

History and Background

Sabrimala is a Holy Hindu shrine of Lord Ayyappa situated in the state of Kerala. Ayyappa is believed to be the son of two other male deities, Shiva and Vishnu, and this communion was made when Vishnu took female form. Ayyappa is therefore also called Hariharaputra, “the son of Vishnu [Hari] and Shiva [Hara] to defeat the female demon. The Kerala Hindu places of public worship act (Authorization of entry rules), 1965 regulate all the temples of Kerala. In Sabrimala ban on entry of women aged between 10 to 50 years was a customary practice.

In the year 1990, a petition was filed by S Mahendran that women climbing the Sabrimala Shrine and offering prayers is against the customs and usages of religion. The Kerala High Court gave the judgment in the year 1991 banning the entry of women in the Sabrimala shrine. The court mentioned that it is custom since time immemorial and it is enforceable under Section 3 (b) of Kerala Hindu places of worship act (Authorization of Entry Rules), 1965 which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship’’.

The court stated that it is not violative of Article 15, 25 and 26 of the constitution. The Indian young Lawyers Association challenged the rule 3 (b) of Kerala Hindu places of public worship act (Authorization of Entry Rules), 1965 in the Supreme Court on the grounds that it violates fundamental rights of women. Finally in the year 2016 the case of Indian Young Lawyers Association v. State of Kerala was heard by three judge bench which referred the case to the constitutional bench. The five judge bench comprising of Dipak Mishra, A. M. Khanwilkar, R. F. Nariman, D.Y. Chandrachud and Indu Malhotra commenced hearings of this case in July 2018.

Dissenting opinion and essential religious practice test

Justice Indu Malhotra, the only woman on the bench gave the dissenting opinion. She was of the view that this petition should not be entertained as it was not the court’s job to determine the practices of the religion except in cases of social evils like ‘Sati’. She held that banning entry of women in the Shrine cannot be compared to the evil practice of sati. The court determination of practices of religion would curb the freedom of religion and to practice religion according to their beliefs and faiths. It is the prerogative of religious community and not the courts to decide the essential practices of religion. She was of the view that court cannot impose its rationality or morality in the form of worship of a deity. There has always been conflict between court’s interpretation of religion and religious community interpretation of religion. This gives birth to the concept of essential religious practice test.

In the case of Durgah committee Ajmer v. Syyed Hussain Ali and Ors. it was held that “there are some practices that are considered as an integral part of religion, that might actually be superstitions and not an essential part of religion and therefore it will not be given protection of the constitution”.

In the case of Indian Young Lawyers Association v. State of Kerala the cause of dispute was whether constitutional morality can be compromised under the veil of religion. Women has been segregated and discriminated on the basis of physiological and biological factors. The petitioners contended that Sabrimala temple’s practice of banning women of menstruating age from entering the temple was in violation of right to equality and was discriminatory in nature. It was also a violation of the right to freedom of religion. On the other hand it was contended by the Respondents that the custom forms the essential practice of religion and it is protected under Article 25 (1) which states that “every citizen has the right to freely profess, practice and propagate its own religion.’’ Also it is separate religious denomination under Article 26 of the constitution and under Article 26(b) “it has right to manage its own affairs in matters of religion.’’ It was also submitted on behalf of respondent that Lord Ayyappa is “Naisthik Brahmachari’’ and allowing the women would affect the celibacy and austerity of the idol. The ban on entry of women was an old custom practiced in the Sabrimala temple and the court interference would led to intrusion into the personal laws of people. The court has to decide the essential practices of the religion. There was outrage in the public regarding the judgment because it was against their religion practices.

At play, the case was of conflicting claims between the temple authorities’ right to decide for itself and the religious community who believes that it is an old practice of their religion and on the other hand women who believe that their fundamental rights which are inscribed in the Indian constitution had been violated.

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Women’s right of equality and freedom of religion

The Supreme Court in the case of Indian Young lawyers Association v. Union of India consisting of the five judge bench of A.M. Khanwilkar, Chief Justice Dipak Mishra, R.F. Nariman, and D.Y. Chandrachud held that denying entry to women in the Sabrimala temple is violation of their right to equality and right to freedom of religion. Women have equal right to pray as man. Article 14 of the constitution held that “the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.’’ In the case of Indira Sawhney v. Union of India it was held that the right to equality is one of the basic features of the constitution. Restriction on the entry of women is the denial of the right to equality as women were discriminated on the basis of their biological factor. Article 14 prohibits discrimination and discriminatory state laws.

Article 14 is a bulwark against state any discriminatory or arbitrary actions. In the case of Dr. Noorjehan Safia Niaz and Anr v. State Of Maharashtra And Ors. The Bombay High Court held that the exclusion of women from the inner sanctum of Haji Ali Durgah is not only violation of their fundamental right of religion but it also against right of equality and non-discrimination. The main opinion in the case of Sabrimala shared by Chief justice Dipak Mishra and Justice A.M. Khanwilkar was “one side we pray to goddesses, on the other hand women of a certain age are considered as impure. This dualistic approach only depicts the patriarchy prevalent in the religion. The ban exacts more purity from woman than man”.

Article 25 of the constitution states that “all persons all equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” Justice DY Chandrachud held that logic behind banning of women was that it will disturb the celibacy of the lord Ayyappa. In this way the burden is put on the woman and it is stigmatizing women and stereotyping them. The judges were of the opinion that segregating women on the basis of biological factor is discriminatory and are in contradiction of the fundamental right Article 15 (1). The chief justice also opines that every woman has the right to worship at the place of her own choice and men and women have the equal right to worship. The judgment also ruled that Article 25 is also given protection under Article 25 (2) (b) which states that “the state can make laws for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.’’

Justice R.F. Nariman was of the opinion that fundamental rights claimed by the worshippers should be consonance of the fundamental rights given in the constitution. In the case of Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. The Supreme Court struck down the discriminatory customary practice of Muslim religion in which women were not entitled to maintenance. In the Sabrimala case Devaswom board defend the ban on the basis that it is not for promoting misogyny but it is because of the celibate nature of the god. The women due to menstruation cycle cannot practice the penance of 40 days that is why their entry is banned into the temple. There were also contentions regarding the essential practice of religion. The court held that the practice of banning women does not come under the essential practice of Hindu religion and therefore worshipper’s right to practice religion is not violated. Justice Indu Malhotra was of the opinion that essentiality of a religion has to be decided within the religion. It can’t be up to the interpretation of the judges.

India is a diverse country and in a pluralistic society constitutional morality gave freedom to practice even irrational or illogical custom or usages. In the case of Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and Anr. Vs. the Commissioner, Hindu Religious Endowments, Madras and Ors. The Madras High Court held that regardless of the essentiality of the religion discrimination cannot be allowed in violation of the basic structure of the constitution Women were discriminated on the basis of their biological factors and they were segregated on the basis of their womanhood.

Interpretation of religious denomination

The respondents argued in this case that they are religious denomination and they have the right to manage their religious matters. Article 26(b) of the constitution states that every religious denomination or any section shall have the right to manage its own affairs in matters of religion. The board argued that Sabrimala temple is separate religious denomination as it is functioned under the Devaswom board and they are not funded by any government organization and they have different practices as compared to other Lord Ayyappa temples and the temple does not come under Hindu religion. The court held that Sabrimala temple does not qualify to be religious denomination under Article 26. The CJI Dipak Mishra held that Sabrimala cannot be held as separate religious denomination as it is a public place and there is no concept of private Mandirs as such.

Once a temple is opened it is a public place and everyone can go to the temple. He also opined that Sabrimala temple has visitors from people of different religions and it drew funds from the consolidated fund of India, hence it is a public place and does not qualify to be a religious denomination. The court held that Sabrimala temple cannot given the status of religious denomination as three things were necessary for qualifying as a religious denomination as held in the case of S.P. Mittal v. Union of India and Ors. To qualify as religious denomination the persons practicing the religion should have common faith, common organization and they should be designated by a distinct name.

It was not proven by the respondents that Tanthris and worshippers of Sabrimala are designated by a distinct name. The court also referred to the case of Durgah Committee, Ajmer v. Syed Hussain Ali in which it was held that persons of all religions visit Ali Dargah so it cannot be given the title of religious denomination. The clauses (c) and (d) in the Article 26 is not in favor of religious denomination but to protect the rights. Also there are so many ill practices into the religion that became the essential practice of the religion, so freedom of religion is also not sacrosanct, restrictions can be imposed. B.R. Ambedkar once said that public places like temples, public roads are meant for public access and the question of entry is the question of equality. The right to manage the religious affairs cannot override the women’s right of freedom of equality and freedom of religion. In the case of S.R. Bommai v. Union of India it was held that “secularism’’ acts as a bridge between for the country to move from tradition to modernity.

The judgment also noted that Section 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 declared that every place of public worship of Hindus is open to all sections and classes of Hindus. The Section 3 of the Kerala Act is also protected under Article 25 (2) (b) of the constitution of India. The court also examined the validity of the Section 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965. The ban on the entry of women of a particular age on the basis of custom and usage is in contradiction with Section 3 of the parent act and it is also in violation of Article 25(1) and Article 15 (1) of The Constitution.

Conclusion

B.R. Ambedkar was once asked why he is so much interested in public access for the deprived section of the society, he said that it is not just a mere question of public access it is a question of equality. When women are not allowed entry into the temple because of their biological factor it is assertion of the society status quo that they are not equal to men. Women rights are always sacrificed in the name of religion. The question arises whether constitutional morality can be compromised for public morality. Women have faced the brunt of discriminatory practices of patriarchal society. When Justice Malhotra argued that courts should not delve into the rationality of religious practices it has be understood that the rationality of any religion or a particular custom is mostly determined and propagated by the male leaders in the group. In order to perpetuate their domination and to retain power they tend to devise customs, often by the irresponsible interpretation of traditional texts, which results in the subordination of women. When the Tirumala Tirupati Devasthanam board decided to employ women barbers, there was strong opposition by the people. It was contended that women are impure during menstruation and devotees will be defiled by them. It was not possible to determine the menstrual cycle so the women were debarred from being employed as barbers.

The Sabrimala temple also banned the entry of women of menstruating age into the temple on the same grounds. These were just the few incidents where women were discriminated on the basis of biological factor violating their fundamental rights. To introduce the concept of purity and impurity while deciding rights of women is against the constitutional right of untouchability i.e. Article 17. Women are discriminated not only on the basis of biological factor but it is because of orthodox ill practices of the Hindu religion in which women impure the upper class environment during menstrual cycle and after child birth.

The constitution of India is based on the principle of non-discrimination. Judicial activism played an important role in protecting the rights of weaker sections of the society. The reforms that have been introduced into the religious matters are always burdened on the judiciary. The legislative need to make sure that religious practices that are in contradiction of the fundamental rights should be abrogated and religious reforms should be taken up by the legislature.

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loyallogic · 5 years

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Case Comment on Sabarimala Case

This article is written by Akshat Agrawal, student of School of Law, Christ University, Bangalore. The author, in this article, has critically analysed the judgment of Indian Young Lawyers Association & Ors v. The State of Kerala & Ors.

Introduction

The debate on the issue of Sabarimala has been a burning topic in recent times and the temple has been in news due to its age-old customary practice. The temple of Sabrimala is situated in Kerala and is one of the most famous and well-known temples for the Hindus. The ancient temple is dedicated for the worship of Lord Ayyapan who is also referred to as ‘Dharmashastha’ who according to a belief is the son of Shiva and Mohini, the feminine incarnation of Vishnu. The Sabarimala temple is managed by the Travancore Devaswom Board. The priests of the temple and the authorities due to their traditional and conservative mindset excluded the admittance of menstruating women from the age of 10 to 50 years in the temple premises as it was believed that it questioned the sanctity and purity of the deity of the temple. This was an ancient and customary practice by the authorities for not allowing the women to enter into the temple which was continued from a long period.

This century’s age-old restrictive practice by the temple authorities was challenged through a Public Interest Litigation (PIL) by Indian Young Lawyers Association, a group of five women lawyers in the Hon’ble Supreme Court of India. It was contended that Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 that states “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship” is in violation of basic fundamental rights given by the Constitution of India.

The petitioners have prayed in the PIL for issue of appropriate writ or direction commanding the Government of Kerala and Devaswom Board of Travancore, to ensure entry of female devotees between the age group of 10 to 50 at the temple at Sabarimala which has been denied to them on the basis of certain custom and usage and to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution. The Supreme Court accepted the petition and on 28 September 2018, overturned the restriction on the entry of women, declaring it unconstitutional and discriminatory. The Supreme Court in a 4:1 majority said that the temple practise violates the rights of Hindu women and that banning entry of women to shrine is gender discrimination.

Background

Customs and Traditions have always been an essential and integral part of every religious and cultural sect in the Indian context. Different customary practices in various religions have existed in India for a long time. Some of these practices are considered and given that level of importance that people even agree to sacrifice their lives. The practice of not permitting and allowing entry to the women in the Sabrimala temple is another example of such customary practices that have been prevailing for a long time.

This issue of restriction of women from entering the temple was challenged before the Kerala High Court in 1991 in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Tiruvanathpuram and others. The division bench of the Kerala High Court ruled in favour of the defendants and gave a decree stating that the restrictions have been existing since time immemorial and the prohibition by the Travancore Board does not violate the Constitution of India or the pertinent 1965 Kerala Law.

There have been several incidents and cases over the decades where the matter came up questioning as to what constituted a religion and its practices and the courts have come a long way in determining these practices. There is a need to determine what constitutes a religion and also the difference between religious practices and superstitious beliefs and it can be ascertained only with the doctrines of that religion itself. Thus, it can be primarily said that the views of followers of the religion are important and crucial to determine what the essentials of that particular religion are.

There have been several cases in the past that led to the establishment of doctrines that would determine the essentials of religions. In the case of Sri Venkataramana Devaru v. State of Mysore the trustees of the temple of Sri Venkataramana of Moolky, challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the doors of the temple to the Harijans. The petitioners claimed the right to exclude other communities from entering their temple as a matter of religion. The Court recognised that the exclusion was under the ceremonial law of the Hindus and was, therefore, an essential practice.

In another case of Mohd Hanif Quareshi v. State of Bihar, the Qureshi Muslims of Bihar petitioned to the Supreme Court challenging the ban on cow slaughter on the ground that it infringed on their fundamental right to religion as they were compelled by their religion to sacrifice cows on Bakrid. The Court, looking into the Islamic religious texts, found that there was no evidence to show that sacrifice of cows on Bakrid was essential practice for the Qureshi Muslims.

Thus there have been several instances where the court had to distinguish between the practices of religion and mere adornments to it. The courts through its decisions could be seen distinguishing between religious practices and superstitious beliefs. The case of Sabarimala is one such example where the Supreme Court determined and drew a parallel between Right to Religion and Right to Equality as the basic fundamental rights given by the Constitution of India and through its judgment uplifted the ban which was imposed on women from entering the temple.

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Analysis of the Sabarimala Judgment

India, being a country of diverse culture and people, society and religion are an inseparable part. The case of Sabarimala is a controversy between Fundamental Rights and Religion. The status of women in Indian society has always been less than that of men due to the domination of patriarchal philosophy and mindset of people. Women had to fight and struggle to attain their position equally as men at various public platforms. The case of Sabarimala is also an example of women fighting against the patriarchal philosophy of religious order which prohibits their entry to the temple.

The five-judge bench of the Supreme Court who decided upon the matter and gave the verdict reasoned different things and had various opinions for the same. Justice Indu Malhotra had a dissenting opinion regarding the matter. Several arguments were brought in front of the Supreme Court from the petitioners and the respondents. The petitioners contended that this restrictive practice by the temple authorities by not allowing women to enter the temple is clearly violative of their fundamental rights given by the Constitution of India and is discriminatory to them.

The Constitution of India guarantees the right to freedom of religion for every individual and groups under Article 25 and Article 26 where every person is free to practice propagate and profess any religion of his choice. Moreover, Article 15 of the Constitution prohibits the state from discrimination against any citizen on the grounds of religion, race, caste and sex.

The respondents, on the other hand, defended that the constitution also grants to every religious denomination the right to determine its own rules and stated the primary reason for not allowing the entry of women to the temple as the naisthika brahmacharya nature of the deity Lord Ayyapan. It was claimed that the presence of women questioned the purity and sanctity of the deity and also it distracts the devotees. The Court dismissed the reason on the ground of equality and perpetration of stereotypes in the society. It was of the view that both men and women are equal and no one should be discriminated or restricted in any form. The ideology of purity and pollution of the temple authorities for not letting the menstruating women enter the temple was clearly in violation of Article 17 which talks about abolition of untouchability in any form.

The Supreme Court took into consideration the Essential Practices Test which has been consistently used by the courts from time to time. It empowers the court to determine whether a religious practice is an ‘essential practice’ or not as per the notions and beliefs of that religious community. This test was coined by the Supreme Court in 1954 in the case of The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindra Thirtha, Swamiyar of Shri Shirur Mutt. The test lays down that what constitutes an essential part of religion will be ascertained with reference to the tenets and doctrines of that religion itself.

The five-judge bench of the Supreme Court gave their verdict on the majority of 4:1. Chief Justice Dipak Mishra and Justice Khanwilkar believed that devotion could not be subjected to gender discrimination and exclusion on the grounds of biological, physiological features like menstruation is unconstitutional and discriminatory. Both men and woman have a right to worship bestowed on them and the practice by the temple authorities was discriminatory and violative of the Indian Constitution. Justice Chandrachud opined that any religious practice or custom that violated the dignity of women by denying her the entry just because she menstruates was completely unconstitutional. The judgment contained lines as “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood (Para 5).”

In the five bench judge of the Supreme Court, Justice Indu Malhotra, being the only woman judge, to a much surprise gave a dissenting opinion. She based her judgment on the notion that issues of deep religious sentiments and morality, the courts should not intervene even if it seems discriminatory. It is a matter of personal faith and India is a land of diverse faiths. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. A religious denomination has freedom to believe and even practice even if their beliefs are illogical or irrational. She held that the fundamental right to equality guaranteed to women under Article 14 cannot override Article 25, which guarantees every individual the right to profess, practice and propagate their faith.

Justice Malhotra sets a dangerous precedent by stating that courts should not delve into the rationality of religious practices. One should not forget that if it were not for the judiciary’s activism, the rigid societal structures would have still clawed on to the unbending orthodoxy. The judgment of the Supreme Court on Sabarimala had multiple effects. On one hand, many people have supported the decision and on the other, many people including many women have criticized the Supreme Court for such a verdict in a belief that the court had infringed their religious beliefs and morals.

The implications of this judgment by the Supreme Court are far fledged. After the verdict, many changes mainly gender-specific would be seen in the infrastructure of temple premises. Moreover only be pronouncing the verdict would not ensure its applicability at the ground level. The court needs to make sure about the happenings at ground level and needs to ensure that the women are not denied entry. Sabarimala is not the only temple where discrimination exists on the ground of religious beliefs, but there are many other temples in the country where men are not allowed. This verdict has opened the floor for the Supreme Court as to analyze whether the judiciary needs to intervene in these aspects as well and are these practices also discriminatory.

Conclusion

The judgment of Sabarimala records for the battle between religious beliefs and practices and notions of equality for every citizen. The Sabarimala decision is bold and empathetic in its kind. There are different notions of morality, customs and religions but through the case, the Supreme Court highlighted the highest notion of morality that is the Constitutional Morality. In this era of 21st Century where on one hand we talk about development, growth, prosperity, global leader and world power, on the other hand, we are still tied with the chains of our deep-rooted conservative ideologies of certain customs and beliefs and hence fail as a society and as a nation.

The women in the society are discriminated on grounds of gender and sex and they are still considered submissive to men due to the patriarchal mindset of the people at large. The movements of feminism have come a long way in ensuring and giving rights to the women but we still have a long way to go. India being a country of diverse people and culture, the area of religion is a sensitive topic to touch upon. The Supreme Court through its judgment cleared the tussle between fundamental rights and traditions. Traditions have always been an important and essential part of our society and it is one of the famous things for which the country holds its identity. But traditions which hamper the basic essence of the constitution and rights of a particular class of people in the society due to mere natural biological process certainly needs to be questioned. The Constitution of India guarantees certain fundamental rights to all the citizens wherein Right to Equality and Right to Religion are two of them. The Supreme Court through its verdict of removing the ban on women from entering the Sabarimala temple again established the supremacy of Constitution above all other aspects and ensuring that the rights of women are not violated due to certain long-prevailing customs and traditions.

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