Court: Supreme Court of India
Coram: Former Chief Justice of India Justice Dipak Mishra, Justice A.M Khanwilkar, Justice RF Naraiaman, Justice D Y Chandrachud, Justice Indu Malhotra.
Theme: Section 377 IPC is not a crime anymore
Subject: Constitutional law
The Sabarimala Temple, devoted to Lord Ayyappa is a temple of great antiquity. The temple is situated over one of the eighteen mountains spread over the Western Ghats known as Sannidhanam. Situated in the district of Pathananthitta in Kerala, the temple nestles at a height of 1260 metres (4135 feet) above sea level. The faithful believe that Lord Ayyappa’s powers derive from his ascetism, in particular from his being celibate. Celibacy is a practice adopted by pilgrims before and during the pilgrimage. Those who believe in Lord Ayyappa and offer prayer are expected to follow a strict ‘Vratham’ or vow over a period of forty-one days which lays down a set of practices. The legend of Lord Ayyappa and the birth of the Sabarimala temple have been explained in the erudite submissions in this case. Although there are numerous Ayyappa Temples in India, the Sabarimala Temple depicts Lord Ayyappa as a “Naishtika Brahmacharya”: his powers derive specifically from abstention from sexual activities. The birth of Lord Ayyappa is described as arising from the union of Lord Shiva and Lord Vishnu (the form of Mohini).
Two notifications were issued by the Travancore Devaswom Board which read as follows:
Notification dated 21 October 1955:
“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vrithams are prohibited from entering the temple by stepping the Pathinettampadi and women between the ages of ten and fifty-five are forbidden from entering the temple.”
This same notification was issued on 27 November 1956.
BACKGROUND OF THE CASE
The writ petition regarding the entry of women in the premises of Sabrimala Temple was filed in the year 2006. The issue questioned on the ambit of the fundamental rights contained in Articles 25 and 26 of the Constitution of India. According to the Respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claimed the fundamental right to manage its own affairs in matters relating to religion. The question that arose was whether the complete exclusion of women between the age group between 10 to 50 from entry, and consequently, from worshipping in this temple, which was based upon a biological factor. According to them which was exclusive to women only, and which was based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25. Consequently, whether such women are covered by Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was violative of their fundamental right under Article 25(1) and Article 15(1), and ultra vires the parent Act.
Sabrimala Temple which is in the hill-top shrine nestled in the Western Ghats in Pathanamthitta district Kerala where the deity Lord Ayyappa is in the form Nashtik Brahmacharya (perennial celibate), thus there is a restriction on the entry of women in the age group of 10-50 years. A controversy arose in 2006 when Jayamala, a Kannada actor, claimed that she had entered the sanctum sanctorum and touched the idol of the presiding deity in Sabarimala. With the incident leading to a storm, the Kerala government had then ordered a crime branch probe but the case was later dropped.
SUBMISSION ON THE BEHALF OF PETITIONERS
· The petitioners relied on these cases of the apex court where the term “religious denomination was explained and important characteristics for the denomination was laid down Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, Raja Bira Kishore Deb v. State of Orissa, Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya &anr and S.P. Mittal v. Union of India and others.In order to constitute a religious denomination the practices and administration should be distinct and separate, there should be members related to this and they should have strong bondage among them. It must have some property claiming constitutional protection. It was contented by them that Sabarimala Temple does not constitute religious denomination as the religious practices performed there are similar to any other Hindu temple and its administration is done by statutory body constituted under the Travancore – Cochin Hindu Religious Institutions Act, 1950.
· It was contented by the petitioners that it should be examined the said practice in character and nature essence of the religion and that should also be examined on touchstone of constitutional principles. In this case the practice is violative of basic principles of the constitution they are equality and liberty.
· It was contented that Hindu religion place women on higher pedestal than men. Thus, it will not discriminate against them. When one has taken oath of celibacy then mere sight of women cannot affect that oath, otherwise it does not have any meaning.
· The right under Article 26 is not absolute in nature, it has inbuilt restrictions. The petitioners relied on Sri Venkatramana Devaru v. State of Mysore & ors to submit that a religious denomination cannot completely exclude or prohibit any class or section for all times.
· The exclusionary practice is based on physiological factors exclusive to the female gender and this violates Articles 14, 15 and 21 of the Constitution. The practice of exclusion based on menstruation constitutes a form of untouchability and is prohibited by Article 17 of the Constitution;
SUBMISSION ON THE BEHALF OF RESDONDENTS
· The respondents submitted that Sabarimala is a temple of great antiquity dedicated to Lord Ayyappa a deity depicting “a hyper masculine God born out of the union of two male Gods Shiva and Mohini, where Mohini is Vishnu in a female form.” The observance of 41 days Vruthum and the fact that the Sabarimala Temple is supposed to depict “Naishtika Brahmacharya”.
· The respondents have pointed out that the problem with women is that they cannot complete the 41 days Vruthum as their periods would eventually fall within the said period and it is a custom among all Hindus that women do not go to temples or participate in religious activities during periods. This Vruthum is condition precedent.
After examining all the facts and submissions the court held that:
1) The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the Constitution;
2) A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality;
3) In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice? The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship;
4) The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order;
5) The notifications dated 21 October 1955 and 27 November 1956 issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and are even otherwise unconstitutional; and
6) Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3 of the 1965 Act. This directly offends the right of temple entry established by Section 3. Rule 3(b) is ultra vires the 1965 Act.
ANALYSIS OF THE CASE
The classic definition of culture given by Edward B. Taylor” That complex whole which includes knowledge, belief, art, morals, laws, custom and any other capabilities and habits acquired by man as a member of society.”.Thus custom being a part of culture is a vital part of society as a society is a group of interacting individuals who share a common culture. A Custom is any established mode of social behavior within the community. According to Sir John Salmond, “Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”
As it an established fact that every society in order to survive must fulfill some prerequisites and social integration is one of them. And religion is one of the methods to achieve social integration.
Radcliffe-Brown and Malinowski provided the most thorough going function interpretation of religion. Religion is regarded as the integrative and legitimizing institution which unites people in a cohesive and binding moral order.
Religion is probably the most enduring and imaginative tension management device ever created by man. Man transformed his fear of the forces of nature into a cult of the unknown and invented a system of rituals in order to propitiate the supernatural, or the deity that presided over the overpowering forces of nature.
Karl Marx believed that “Religion is the sigh of the oppressed creature, the sentiment of a heartless world…it is the opium of the people.” By this he meant religion is like a drug that lulls people into consciousness.
Fundamentalism which is one of the recent trends of religion. Fundamentalism as defined by Macionis,” A conservative religious doctrine that opposes intellectualism and worldly accommodation in favour of restoring traditional, other worldly spirituality. In other words, fundamentalism denotes the unconditional acceptance of literal truths of the faith; there is no room for debate.
Religion is that which gives identity to an individual. It was one’s search for divinity and spirituality to his existence. It has been equated with salvation and characterized as the opiate of the people.
In India religious considerations play an important role in politics social reforms and attitudes towards social economic developments. It also provides an outlook on the world and fashions a way of life.
Relationship between and an individual and one’s creator is one transgressing all the societal barriers. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotype of the gender.
The inequality which persists in the society for approach to understand the society is unjustified and unreasonable. As in our society in one hand women are prayed as goddesses for prosperity, wealth, power, knowledge and good fortunes. On the other hand, unjustified societal norms, customs and traditions are imposed on them. There are few practices which are not only detrimental to health and development of women but also, they are detrimental for the development of the society.
As said by Susane B. Anthony, “Men, their rights, and nothing; Women, their rights and nothing less”.In our society women are not only discriminated but also prejudiced. The discriminatory practices based on sex, which is not only a biological attribute of a human being but also the creation of the Almighty. By following these practices, the society is only disrespecting the creation of God.
The State would not interfere in religious affairs so long as they did not affect certain other basic rights protected by the Constitution. One of them is morality which implies constitutional morality. Any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles. This concept has been explained in Manoj Narula case:
“The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality.”
In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.
CURRENT SCENARIO OF THE CASE
The five-judge Sabrimala Review bench has referred the case to a larger bench on 14th November, 2019 comprising of the nine-judge bench including the CJI S A Bobde along with Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. The crucial ground to be in the pursuit of this case was the discovery in the Sabrimala 2018 judgement that Ayappa devotees did not form a separate religious denomination.
Henceforth, the further questions which was put forward before the Hon’ble Supreme Court was the further analysis of the scope and extent of the word ‘morality’ under Art. 25 and Art. 26 and whether it is meant to include ‘constitutional morality’. Also whether the rights of a religious denomination under Art. 26 of the constitution of India are subject to other provisions of part III of the Constitution of India, apart from public order, morality and health; Also, about the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India ; and about the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India; Not only this the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India is also on question; Further the other issue to be considered for determination would be the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India most importantly, whether a person not belonging to a particular religious’ denomination or a religious group can question a practice of that religious denomination or religious group by filing a PIL? The apex court of the land, has a power to exercise unlimited jurisdiction. And the only fact that it is reviewing Sabrimala Judgement does not preclude it from referring questions of law and other cases with similar issues to a larger bench .
 Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965
 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay  Suppl. 2 SCR 496
 Raja Bira Kishore Deb v. State of Orissa (1964) 7 SCR 32
 Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya &anr (1966) 3 SCR 242: AIR 1966 SC 1119
 S.P. Mittal v. Union of India and others (1983) 1 SCC 51
 Sri Venkatramana Devaru v. State of Mysore & ors (1958) SCR 895: 1958 AIR 55
 Theodorson and Theodorson 1969:95 in 1871
 Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997), N. M. Tripathi Pvt. Ltd., Bombay, at p 190.
 Contemporary Sociology By M. Francis Abraham,2nd Edition
 Supra note no. 3
 Supra note no. 3
 Deepak Mishra in Indian Young Lawyer’s Association V. State of Kerela and Ors. on 28th September,2018
 Manoj Narula v. Union of India, (2014) 9 SCC 1
Contributed by: Shristy Choudhary and Tanaya Das (Students, Chanakya National Law University, Patna)
The views of the author are personal only. (if any)