by Abhiraj Das
It is an old saying that ‘sometimes we enjoy the comfort of the old shoe so much that we fail to notice the hole in it’. The Sabarimala Temple issue is no different, where menstruating women between 10 to 50 years of age are not allowed to offer prayer to Lord Aiyappa, the deity of the temple. This has been in practice for such a long period that even women themselves are not very much inclined towards entering the temple. But those women, in this age group, who want to go in there and offer prayer to the deity, are forced to keep out of the temple. Well, this certainly subjects them to discrimination and violates their fundamental rights to equality and the right to religious practices[i].
The issue was first raised before the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and others[ii], wherein it was sought by the petitioner that section 3(B) of the Kerala Hindu Places of the Public Worship (Authorisation of Entry)Rules, 1965 be declared unconstitutional for violative of fundamental rights under Articles 14, 15, 25 and of the fundamental duty under article 51(A)(e) of the Constitution, as it provided legal sanction to the “century-old” custom which prohibited the entry of such female devotees who are in the age group of 10 to 50 years in the temple. The prayer was also made to the Court to direct the admittance of those women in the Temple. However, the High Court upheld both the practice and the law as valid.
A writ petition under Article 32 was preferred before the Hon’ble Supreme Court by the India Young Lawyers Association in 2006. The three judges bench referred the matter, after framing the issues, to the five-judges constitutional bench. Supreme Court disposed of the matter in September 2018 with the ratio of 4:1[iii] and did away with the conservative, meaningless and regressive practice and allowed women of all ages to enter the Temple and offer worship to Lord Aiyappa. The majority were of the view that Sabarimala Temple’s denominational freedom under Article 26 is subject to the State’s social reform mandate under Article 25(2)(b). It was also held that physiological characteristics have no significance on the entitlements guaranteed by the Constitution. Justice Indu Malhotra dissented and held that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical.
The reason menstruating women are forced to keep out is that the people believe that the deity Lord Aiyappa in the Sabarimala Temple has the form of a Naisthik Brahmachari and that the presence of such women in the temple would lead to distraction of the deity from celibacy and austerity that he observed. The oath of celibacy of the deity is understandable, but I wonder how the presence of such women would pose the likelihood of the deity deviating from celibacy. Whether any deity can even feel such enticements? If this belief is to be accepted then what difference will remain between a human and deity?
Sometimes our blind and unquestioningly-following conduct allows disparity and vices to grow into society. Chief Justice Dipak Mishra wrote in the judgment that it is not faith and religion which allows any discrimination but dogmatic religious practices and patriarchal prejudices abrogate the very principle of non-discrimination and equality. Supreme Court has once also held that the religious practices and affairs “are not sacrosanct as there may be many ill-practices like superstitions which may, in due course of time, become mere addition to the basic precepts of that religion”.[iv]
When any individual right stands up against the religious practices and beliefs, it is always one of the arguments, inter alia, of the “religious” sides that the practice has been an essential part of the religion. However, in the instant case, Supreme Court said that the Devaswom Board themselves had taken the stand before the Kerala High Court that in earlier times such women used to visit the temple for five days every month for the first rice feeding ceremony of their children. Moreover, Justice Kurian Josef in the Triple Talaq[v] case has made it clear that just because any practice has continued for a long period does not make it valid per se.
These practices and customs need to be regulated and curbed by the legislation, as has been done in the past viz. to disallow Sati.[vi] But when the laws made are such that they instead of curtailing these ill customs, provide them with legal backing and allow these discriminatory practices to flourish, the final words of the judiciary have respected the rights of the individual as enshrined in the Constitution. Recently, in 2016, the Bombay High Court showed that judicial heroism when it declared the law preventing the entry of women in the sanctum sanctorum of Hazi Ali Dargah, Bombay as violative of women’s fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution and hence, unconstitutional.[vii] This was affirmed by the Supreme Court.[viii] This Sabarimala judgment is also one of the landmarks judgments which upheld the constitutionally guaranteed individual rights over age-old patriarchal, prejudicial and discriminatory religious beliefs.
Kerala boasts of having the highest literacy rate in the country[ix] while at the same time the people of Kerala (including women) are out on the street protesting against the Hon’ble Supreme Court’s judgment and stopping any such women from climbing the hills and entering the temple. Women who have dared to exercise their fundamental right and honor the judgment by entering the Temple and offering worship to the deity are afraid of being attacked and killed by the violent protesters.[x] After the visit of women in the temple, a purification ritual was held.[xi] This action certainly associates “impurity” with the dignity of women which is again a violation of their fundamental right against untouchability, and also is a clear contempt of the Court’s order. The Supreme Court has recently in a review petition referred this and related issues to a seven-judges bench[xii], in a minority decision authored by Justices Nariman and Chandrachud against referring the matter to a larger bench and also emphatically maintained that the ban shall remain stayed and that the state government shall follow the court’s order.
However, the women attempting to enter the temple are still being mishandled by the others. Recently, one such woman was attacked with chili powder.[xiii]
It appears that in our hyper-sensitive and stringent faith & devotion to Lords, we don’t realize that we start deviating from the laws. Supreme Court has only lifted the ban and allowed the entry of women in that age-group in the temple. The order does not compel anyone to enter or visit the temple. It just says that if any individual wants to visit the temple and offer prayer to the deity, s/he cannot be prevented from doing the same. It ought to be understood that those women who believe that the celibacy of deity would be disturbed by their presence may still choose to not enter the temple but they cannot impede others who wish to worship from entering the temple.
Constitution imposes a fundamental duty on the citizens to develop the scientific temper, humanism, and spirit of inquiry and reform. Ambedkar had once said, “we are having this constitutional liberty for reforming our social system, which is full of inequality, discrimination and other things which conflict with our Fundamental Rights”. I believe that howsoever old a practice is, if it violates the fundamental right of even one individual, it should be struck down.
[i] Constitution of India, 1950.
[ii] S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram&Ors., AIR 1993 Kerala 42.
[iii] India Young Lawyer Assn v. State of Kerala, 2018 SCC OnLine SC 1690.
[iv]Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383.
[v]ShayaraBano v. Union of India, (2017) 9 SCC 1.
[vi] The Commission of Sati (Prevention) Act, 1987, No. 3, Acts of Parliament, 1988, (India).
[vii]Dr.NoorjehanSafia Niaz &Ors. v. State of Maharashtra &Ors., 2016 SCC OnLine Bom 5394.
[viii] Haji Ali Dargah Trust v. NoorjehanSafia Niaz, (2016) 16 SCC 788.
[ix]Top 10 Highest Literate State in India, Census 2011, https://www.census2011.co.in/facts/highstateliteracy.html
[x]Women who entered Sabarimala, The Indian Express, (February 25, 2019),
[xi]2 Women quietly visit Sabarimala, ‘purification’ and protest follow,The Times of India, (Jan 3, 2019), https://timesofindia.indiatimes.com/india/2-women-quietly-visit-sabarimala-purification-protest-follow/articleshow/67356677.cms
[xii]KantaruEajeevaru v. Indian Young Lawyer Assoc., Review petition (civil) no. 3358/2018.
[xiii] Sabarimala case: Woman seeking entry attacked with chilli, pepper spray in Ernakulam”, the Economic Times, (November 26, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/sabarimala-case-woman-seeking-entry-attacked-with-chilli-pepper-spray-in-ernakulam/videoshow/72238183.cms
the author is a student of Gujarat National Law University (3rd Year)