This article is written by Harneet Singh, a student at Presidency University
pursuing B.A. LL.B (Hons.)
The heated debate over allowing women of all ages to join the hill shrine of Lord Ayyappa in Kerala has divided public opinion on women’s equal access to holy spaces and the perpetuation of tradition in places of worship. Protagonists of gender equality argue that the ban is an attack on women’s right to access sacred places and a breach of Article 14 (Equality before law) and Article 25(2) (Freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution, which protects the right to freedom of religion for all, thereby allowing irrationality to infiltrate the most literate community in the world. Those arguing against the admission contend that it is against centuries-old customs. According to them, the entry of women would pollute the temple, and the celibate character of Ayyappa should be preserved.
About the Judgement
The 2018 judgment proved to be a victory for women’s entry and was signed by former Chief Justice Dipak Misra, Justice AM Khanwilkar, Justice RF Nariman, Justice DY Chadrachud and Justice Indu Malhotra. The decision helped to lift the ban that prohibited women from entering the shrine of Lord Ayyappa. The five-Judges Bench held that this centuries-old Hindu religious practice was illegal and unconstitutional and ruled that Rule 3(b) of the Kerala Hindu Places of Public Worship (Entry Authorization) Rules, 1965, should allow women, regardless of age, to access the Sabarimala Temple. After the decision, there was a huge backlash from the ruling of the Apex Court, which further triggered massive protests by right-wing groups, supported by political parties, who considered this an assault on Hindu beliefs and traditions, thereby going against the law and after religious symbols of not allowing women to enter the temple.
On 6th February 2019, the Apex Court reserved its judgment on a petition demanding a summary of the decision of September 2018. The plurality judgment of the Former Chief Justice of India Ranjan Gogoi and the Justices AM Khaniwilkar and Indu Malhotra decided to keep the appeal in law in the summary decision on the issue of women’s entry into the shrine as pending and further argued that limitations in religious places have existed in several other places. Nearly 65 petitions were lodged against the 2019 judgment of the Apex Court-65 petitions for review. On 14 November, the Supreme Court assigned the appeals to a wider court of 9 judges.
The Supreme Court decided on 3rd February 2020, that it would set out the legal questions to be resolved by nine judges led by Chief Justice of India S.A. Bobde and Justices R. Banumathi, Ashok Bhushan, L. Nageshwara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Shubhash Reddy, B.R. Gavai and Surya Kant. The concerns will be based on religious discrimination against women in different places, the whole issue that emerged in the case of the Sabarimala Temple.
On 10th February 2020, the Apex passed an order framing issues for consideration in the Sabarimala case. The following issues are:
- What is the scope and ambit of right to Freedom of Religion under Article 25 of the Constitution of India?
- What is the interplay between the rights of persons under Article 25 of the Constitution of India and the rights of religious denomination under Article 26?
- Whether the rights of a religious denomination under Article 26 of the Constitution are subject to other provisions of Part III of the Constitution apart from public order, morality and health?
- What is the scope and extent of the word ‘Morality’ under Articles 25 and 26 of the Constitution and whether it is meant to include Constitutional Morality?
- What is the scope and extent of Judicial Review with regard to religious practice as referred to in Article 25 of the Constitution?
- What is the meaning of the expression “Sections of Hindus” occurring in Article25(2)(b) of the Constitution?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL.
Interpretation Made By Court
The word ‘ religion ‘ has not been defined in the Constitution and is a term that is not subject to any precise definition. Nevertheless, the Supreme Court has granted this word an expansive scope. The Supreme Court has observed “Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause.” The right under Art. 25 is subject to the exceptions mentioned, confers a Fundamental Right on every person not merely?
(i) to entertain such religious beliefs as are allowed to him by his judgment or conscience, but also
(ii) to exhibit his beliefs and ideas in such overt or outward acts and practices as are sanctioned or enjoined by his religion, and further
(iii) to propagate and disseminate his religious beliefs, ideas, and views for the benefit and edification of others.
As the Hon’ble Supreme Court observed: “Religion is the belief which binds spiritual nature of men to super-natural being. It includes worship, belief, faith, devotion, etc. and extends to rituals. The religious right is the right of a person believing in a particular faith to practice it, preach it and profess it.“
Consequently, the fundamental protection of freedom of religion set out in Art. 25(1) applies even to rituals and ceremonies associated with religion. The Supreme Court has stated in the case, Commr., HRE, Madras v. Sri Lakshimindra (AIR 1954 SC 282,290:1954 SCR 1002): “The guarantee under the Constitution of India, not only protects the freedom of religious opinion, but it protects also acts done in pursuance of religion”.
Explaining the scope of Art. 25, the Supreme Court has observed in the case, State of Rajasthan v. Sajjanlal (AIR 1975 SC 706 (1974) SC 282,290: 1954 SCR 1002): “Article 25, as its language amplifies, assures to every person subject to public order, health and morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgment and conscience but also to exhibit his belief in such outwardly act as he thinks proper and to propagate or disseminate his ideas for the edification of others.” As the Supreme Court has reported, … “The protection provided for in Articles 25 and 26 includes the assurance to rites and observances, services and modes of worship which are integral parts of religion and as to what really constitutes an essential part of a religion or religious activity, must be decided by the courts with respect to the doctrine of a particular religion or practice which is deemed to be part of religion”.
Story of Lord Ayyappa
Lord Ayyappa is considered to be a lifelong bachelor of the Temple of Sabarimala. The Temple was a temple for Lord Ayyappan, situated in the Periyar Tiger Reserve in the Western Ghat mountain range of Kerala in the Pathanamthitta district. Shree Ayyappa was born from the marriage of Lord Shiva and Lord Vishnu (mythical enchanter Mohini). The marriage between Lord Shiva and Lord Vishnu is depicted as’ Hariharaputra’ where Lord Vishnu is known as Hari and Lord Shiva is recognized as Hara. When Goddess Durga (Sister of Lord Vishnu) murdered King Mahishasur, his sister Mahishi wanted to take vengeance. She was born with Lord Brahma’s blessing, which not only made her indestructible but also based on the fact that the only child born out of the wedlock of Lord Shiva and Lord Vishnu can only kill her. For this cause, Lord Vishnu had incarnated in Mohini and had married Lady Shiva to give birth to a child and save the earth from destruction. After Lord Ayyappa had fulfilled his destiny by slaying the devil, it was discovered that a beautiful woman in her body begged him to marry her. Lord Ayyappa refuses the woman by declaring that he would marry her only when Kanni-swamis (first-time devotees) had stopped coming to the temple during the duration of Mandalam i.e. (November-January) as a celibate. To respond to swamis who visit the temple, the first-time devotees have been made to mark their arrival by prodding a stick to the Sharam Kuthi. With the promise of Lord Ayyappa, the women are now worshiped as Malikapurathamma who waits for him in the nearby sanctuary near the Temple of Sabarimala. Lord Ayyappa’s idol was sculpted and installed by Lord Parasuram on the day of Makara Sankranthi.
The reason behind the Prohibition of Women in Pilgrimage
First, Lord Ayyappa is and has always been, a celibate to date, and the main reason behind his celibacy is the promise given to Malikapurathamma, that is, until the day he learns that he Kanni-swamis cease coming to his temple to remain a celibate. In favor of this argument, the writers would like to note that this tradition has been practiced for years and that if by any chance, the Kanni-swamis had ceased to come to devasthanam during the Mandalam era, it would be believed that the ban on women entering the pilgrimage would have ended. It is assumed that Lord Ayyappa would marry Malikapurathamma after the time described above, which would be an auspicious day for all devotees. Secondly, the entry of women would have an effect on the sanctity of Brahmachariyam values. There has always been a religious practice in the Hindu faith, which is based on four Ashramas, in which each person passes through these phases during his or her lifetime. Lord Ayyappa is passing through the first step of the Ashrama, that is, Brahmacharya. The importance of being a Brahmacharya is to achieve both divine and functional perfection, in which one must strictly obey the practice of celibacy. Lord Ayyappa, who is a Naishtika Brahmachari, protects the devotees who visit the Temple and also brings about a shift in the evil thoughts of humanity. The reasoning behind the prohibition of women’s entry is that it would not only harm the sanctity of devasthanam, but would also affect the basic concept of being a Brahmachari. Finally, the reason behind the restriction on the entry of women aged between 10 and 50 was due to the menstruation cycle that every woman would undergo after reaching puberty. The importance of this restriction lies in furthering the assurance provided to Malikapurathamma by Lord Ayyappa as a condition for her marriage. It is believed that every woman under the age of 10 and above the age of 50 is allowed to enter the sannidhanam. The Travancore Devaswom Board made it mandatory for every woman to carry proof of age in order to put an end to the cases of women entering the temple by defying the ban. In fact, even restricted women who have removed their uterus are allowed to enter the temple without any limitation given that they have received the same medical certificate.
The Constitutional Bench declared rules and customs to be violative of fundamental rights and allowed women of all age groups to enter the temple. .While understanding the importance of this matter Former Chief Justice, Dipak Misra declared? ?Where a man can enter, even a woman can go. What applies to a man, applies to a woman.?
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7. Sabaramila-Decoding temple concept and mensturation issue https://www.academia.edu/38336120/Sabarimala_Decoding_temple_concept_and_menstruation_issue
8. Image Credits ? www.indiatv.com