Sabarimala issue: The question of law involved

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On 20 November 2019, the Supreme Court of India ordered the Kerala government to come up with a separate law to govern and administer the Sabarimala Sree Ayyappa Swami Temple. The Kerala government is to make the law by the third week of January 2020.

The temple is presently being governed by the Travancore-Cochin Religious Institutions Act of 1950 which governs over 100 other temples. The three-judge Bench led by Justice N.V. Ramana reminded the promise which the Kerala government had made in August 2019, regarding passing separate legislation with respect to the administration of the Sabarimala Temple.

The bench further substantiated their decision by stating that a temple which receives lakhs of pilgrims annually must have separate legislation. The matter has hence been adjourned to the third week of January 2020.

Background of the issue in brief:

Although it is widely claimed that a ban on entry of women has always existed, it was not until 1972 that women were legally banned from entering the temple. Successive to this decision, the Kerala High Court in 1991 upheld the ban of women between the age of 10 and 50 after a Public Interest Litigation was put across to the High Court.

“The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial”, were the words of the High Court in the 1991 judgment.

The Indian Young Lawyers Association in 2006 filed a petition in the Supreme Court seeking the entry of women between the age of 10 and 50 to the temple. The matter was referred to a three-judge bench two years later in 2008. There was a lot of delay in this judgment and eventually in 2017, the matter was referred to a constitution bench.

After several hearings, in September 2018, the five-judge bench allowed the entry of women of all ages to the Sabarimala temple. Although this order was passed, a large number of devotees and followers camped outside the temple to prevent women of all ages from entering the temple.

In February 2019, the 2018 order was reserved and was to await the final judgment of the court. As mentioned above, on November 20, 2019, the court adjourned the matter to the third week of January 2020.

The issue: Right to equality v. Religious belief/faith

The Constitution of India guarantees the right to equality under article 14 and at the same time guarantees the right to religion which essentially means that one’s religious beliefs and faiths are protected by the constitution with reasonable restrictions.

Ever since the constituent assembly debates, there has been a conflict between these two rights; for instance, the triple Talaq judgment, which also ruled in favor of the victims of an outdated religious practice. As seen in this judgment the court has termed such a restriction “derogatory to women” and “discriminatory”.

In the present scenario, the two parties fighting the case base their arguments on these two fundamental rights respectively. Four out of the five judges ruled in favor of the right to equality, claiming that such a restriction may be equated to a form of untouchability, which was abolished in India decades ago, hence suggesting unequal treatment.

Indu Malhotra, who was the only judge who dissented to the majoritarian opinion, felt that the right to religion was being violated and that such a restriction is protected under article 25 of the constitution. She believed that it is not a matter of equality or about logic or rationale but simply a matter of liberty of faith, belief, and worship.

Arguments of both sides

Respondents:

The reasoning behind restricting women between the age of 10 and 50 is because most women between these two ages are menstruating, which according to the defendants violates the right to privacy of the idol under article 21, as the deity, Lord Ayyapan, does not wish to visit women between those two ages.

The deity apparently has chosen the life of celibacy and being worshipped by menstruating women may distract him from his path of celibacy. Arguments regarding menstruation being impure and that such a restriction would only preserve the sanctity were also made. 

It was also argued that there are temples that restrict the entry of men too like the Brahma Temple in Pushkar. Other arguments made revolved around the practice is a 500-year-old tradition and must hence be continued.

Petitioners:

The petitioners claimed that there are many other temples of this particular deity in which no woman is denied entry, which thus makes the respondent’s argument inconsistent and unusual. The argument with regards to purity is a direct violation of the right to equality and there is no valid record which proves that women of the said age are impure.

The physiological process of menstruation hence cannot be grounds for impurity thus making the argument gender discriminatory. The petitioners also made claims that there are multiple reports of women entering the temple until the 1980s in pursuance of invalidating the argument of the tradition lasting for over 5 centuries.

Public reaction:

Although most social media users around the country welcomed the Supreme Court judgment with open arms, the state of Kerala witnessed some unrest until the order was reserved in February 2019. Multiple politically fuelled hartals were conducted between October and February as a result of which a lot of arrests were made and Section 144 of the CrPC had to be imposed in several districts during the pilgrimage season of November 2018.

Protests were held and there main objective was to achieve a review petition on the September 2018 order of the Supreme Court. During one of the hartals in January 2019, there were many cases of violence and arson. Fed up of the number of hartals, many organizations in Kerala decided to observe 2019 as an anti-Hartal year and to defy all hartals called upon in the future.

As a result of the hartals and protests over a 100 buses of the Kerela Road Transport Corporation were damaged. A large portion of the politically incited public went against the government for supporting the decision and damaged offices, libraries and businesses owned by members of the ruling party.

Conclusion: Probable way forward

The Sabarimala issue has turned into a highly political conflict rather than just being a disagreement between religion and equality. Acts of violence and endangerment of women attempting to enter the temple have virtually driven the Supreme Court to reserve its order.

It has now been left in the hands of the ruling government of the state of Kerala to make a separate law to govern the Sabarimala temple. It is probably a wise decision to lay some hard and fast rules and regulation on entry into the temple and the consequences of disobedience of the new law.

–This article is brought to you in collaboration with Aditya Sekhar from Symbiosis Law School, Hyderabad.

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