The Supreme Court, in a majority opinion of 4:1 on Friday, lifted the centuries’ old prohibition on women from the age of menarche to enter the famed Sabarimala temple in Kerala.
Right to pray in Sabarimala temple for women between 10 and 50 years of age won over the 'right to wait' campaign as the Supreme Court condemned the prohibition as "hegemonic patriarchy". Patriarchy cannot trump over freedom to practice religion.
The main opinion shared by Chief Justice Dipak Misra and Justice A.M. Khanwilkar said one side we pray to goddesses, on the other women of a certain age are considered 'impure'. This dualistic approach is nothing but patriarchy practised in religion. The ban "exacts" more purity from women than men.
Exclusion on grounds of biological, physiological features like menstruation is unconstitutional. It amounts to discrimination based on a biological factor exclusive to gender. It is violative of the right to equality and dignity of women.
To treat women as the children of a lesser God is to blink at the Constitution, Justice D.Y. Chandrachud held in a separate but concurring opinion. The prohibition is a form of untouchability, Justice Chandrachud held.
The logic behind the ban is that presence of women deviates men from celibacy. This is placing the burden of a men's celibacy on women thus, stigmatising women, stereotyping them, Justice Chandrachud observed. Individual dignity of women cannot be at the mercy of a mob. Morality is not ephemeral. It transcends biological and physiological barriers, Justice D.Y. Chandrachud said.
Relation with the Creator is a transcending one. Physiological and biological barriers created by rigid social dogma has no place, Chief Justice Misra wrote.
The Sabarimala prohibition is a prejudice against women which was zealously propagated and is not an essential part of religion, the Chief Justice and Justice Khanwilkar held.
The majority view declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which mandates the prohibition in Sabarimala temple, as ultra vires the Constitution. The CJI and Justice Khanwilkar held that the Rule violates the fundamental right of a Hindu woman to offer worship at a place of her choice. Right to worship is equally available to men and women
The majority on the Bench agreed that Ayyappa devotees do not form a separate religious denomination. Justice Rohinton Nariman held that Ayyappa devotees do not form a separate denomination just because of their devotion for Lord Ayyappa, but it is only a part of Hindu worship.
Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented with the majority opinion. Justice Malhotra held that the determination of what constitutes an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints. She held that essentiality of a religious practice or custom has to be decided within the religion. It is a matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational or illogical customs and usages, Justice Malhotra held.
The freedom to practice their beliefs is enshrined in Article 25 of the Constitution. Harmonisation of fundamental rights with religion includes providing freedom for diverse sects to practice their customs and beliefs, Justice Malhotra observed. Justice Malhotra held that there were strong, plausible reasons to show that Ayyappa devotees have attributes of a religious denomination. They have a distinct names, properties. Besides, the Sabarimala temple is not funded out of the Consolidated Fund.
With this, the Supreme Court has set aside a 27-year-old Kerala High Court judgment that had upheld the prohibition. The High Court had pointed out that the ‘Naisthik Brahmachari’ nature of the deity in Sabarimala is “a vital reason for imposing this restriction on young women”.
Senior advocate K. Parasaran, for the Nair Service Society, had countered the apex court’s observations about patriarchy. Mr. Parasaran had said the prohibition was not based on misogyny but the celibate nature of the deity.
Senior advocate Abhishek Manu Singhvi, for the Travancore Devaswom Board, had argued that Sabarimala does not practice exclusion. People from all walks of life and from every creed, caste and religion enter and offer their prayers in the temple. He submitted that it was also physiologically impossible for women to observe the 41-day penance before the pilgrimage. He had also reiterated that the restriction finds its source in the celibate status of the Sabarimala deity and not in patriarchy.
However, the Kerala government had re-affirmed its complete support for lifting the prohibition.