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Gender Jurisprudence : A critical analysis of the Sabarimala verdict

Jan. 14, 2022   •   Suryasikha Ray

Profile of the Author: Bharti Gupta, the author is a third-year student in ICFAI Law School, The ICFAI University Dehradun and has a keen interest in Criminal law, Labour law and Intellectual Property Rights.

INTRODUCTION

This article mainly discusses modern-day women rights and the way in which they are interpreted and tackled by courts. It contains arguments from both the sides and my opinions on them. It contains a gist and the history of the Sabarimala Shrine, about Ayyappa Deity of Sabarimala, his roopam in Sabarimala. The way in which human rights, especially women rights are affected in the society these days. The application of Articles 14, 15, 25(1), 25(2) (b) of the Constitution of India specifically in this case is also thrown a key light on. It discusses India as a signatory to CEDAW (Convention for Elimination of all Forms of Discrimination against Women) and its implications. It also sheds light on opinions of Justice Indu Malhotra, who is only woman in the Constructional bench, led by former CJI Deepak Mishra who is the only dissenting Judge in the bench and my conclusion on the prevalence of the verdict.

Supreme Court verdict on Sabarimala: All men and women have equal right to worship.

Gender Jurisprudence could bring the biggest reform in society today these days. Traditions and customs in which the women and held back in the society are being promoted and readjusted by Law. The new theories related to gender equality attempt to bring women at par with men in social, political, economic and cultural life. This interpretation is followed by the supreme court of India in recent judgment. Recently The Supreme Court of India pronounced a judgment relating to the Entry of women into the holy shrine of Sabarimala. The apex court ruled (4-1) that women of any age group can enter the temple (1). This was a controversial issue among one group of the people where the women who were from 10-50 years of age group were not allowed into the holy shrine of Sabarimala according to the rules of the temple.

Few women were dissatisfied with this ruling and challenged this in the court of law. This made the supreme court to intervene among people who are opposing the rules followed by the temple administration and the administration itself and finally pronounced a verdict which are contrary to the rules of the temple. Even after the verdict the issue is still persistent in the society as the other group of people who were against the verdict started protesting against it. The chief priest of the shrine could not abide by the verdict of the Honourable Supreme Court. According, to the rules of this Hindu Temple the women between the age group of 10-50 years were considered impure and were not allowed into the temple.

The history of the temple goes back to the twelfth century. It is built on a hilltop amidst eighteen hills at an altitude of around four hundred and eighty meters and is surrounded by mountains and dense forests At Sabarimala, the deity is worshiped as Ayyappan and as Dharmashastra. There five temples of Lord Ayyappa (2) in Kerala itself where he will be worshipped in five different forms in five different temples (3). In this temple of Sabarimala Lord Ayyappa is worshipped in the form of Naishtika Brahmachari. There are many other rules which a Naishtika Brahmachari has to follow. Manusmriti says that a Naishtika Brahmachar has a long list of physical and mental requirements one of which is the extreme sense control where he should keep his sensory organs such as eyes, ears, mouth, nose, skin, hands legs, excretory organs and Reproductory organs in his control including his mind (4).

These grandhas form the base of the rules which are implemented by the temple administration till recently in this particular shrine of Lord Ayyappa in Sabarimala. In India, the Constitution and the various Legislative measures assure women’s rights. It is the Judiciary which interpreted them and provided them the justice. There are continuous protests by the people of religion other than Hinduism too. Thus, they approached the court where the justice got delivered and restriction of the entry was to be removed by the temple authorities legally.

This again was not acceptable by the other group of people who wanted to abide by the rules of the temple administration which resulted in a chaos outside the temple when it was opened occasionally. This is a major issue in society after the judgment is delivered. The three-Judge Bench in Indian Young Lawyers Association and others v. the State of Kerala (5) and others upheld the practice of banning entry of women belonging to the age group of 10 to 50 years in the Sabarimala temple during any time of the year. This verdict bought a relief for the people who were supporting the ban (6).

The reason which was mentioned in the verdict was the form of the Deity in Sabarimala specifically, who is a Yogi or a Naishtika Brahmachari. The court also ruled that the restriction imposed by the Board is not violative of Articles 15, 25 and 26 of the Constitution of India. Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class & quota.

Thus, the Kerala high court ruled that the rules of the Temple board would be prevailed and the Head priest was empowered to decide on traditions. The petitioners i.e. Indian Young Lawyers Association and others have pressed into service the decisions of this Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (7), Raja Bira Kishore Deb v. State of Orissa 8 , Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya (9) and another and S.P. Mittal v. Union of India and others 10 wherein the concept of religious denomination was discussed by this Court. It is the stand of the petitioners that some mere difference in practices carried out at Hindu Temples cannot accord to them the status of separate religious denominations.

The Supreme Court said that deity of Kerala & Sabarimala temple, Lord Ayyappa, is a perpetual minor and has rights including the right to privacy with regard to certain rites observed at the Shrine (11). The court also says that the right of privacy is the same as reflected in the judgment that recognizes privacy as a fundamental right will have to be examined.

This is said by former Chief Justice of India Deepak Mishra while hearing the petition filed by lawyer Jaydeep Gupta. In Abdul Qayum And Ors v. Emperor (12) the Allahabad High court ruled that a Deity is a juristic person and he can hold the property just as other juristic people. It is generally the idol representing the Deity that is installed in a temple or at a suitable place of worship. The court also ruled that the person who is in charge of the idol could be competent to take all steps in a court of law in the interest of the Juristic Person.

A leading Supreme Court Advocate K.Parasaran argues in support of ban on women entry. His opinion was that the court cannot reform a religious belief (13). He said that the superiority of women in Vedas and Manu are projected in such a way that they are as superior or equally superior to men. The status of the women could be easily by the image in which Parvati Devi is projected in the Vedas. The image by which Goddess Durga is projected could also determine how mighty, strong and powerful women were shown in Vedic texts. It can also be inferred that the ban on women entry was misogynistic according to the Vedic Scripts. The practice could not be due to hatred towards women in fact the difference could be in a positive sense also as the deity has his own character.

In some cases, these Vedic scripts could be more superior to the modem day science So, these texts cannot be neglected totally. The whole scenario could be seen in two distance ways and could be judged in two extreme ways. The opinion of people was that if the judgement would not restrict or allow women into the Temple it could be misogynistic also.

Few families in Kerala followed matrilineal practices where female would head the family and the whole line would be of female gender. So, in their belief, there is no suppression of women’s rights related to the temple. The Constitutional Perspective in this scenario the Article 15 of the Indian Constitution might not get attracted as the article only talks about public places which don’t include the shrine. This article discusses the prohibition of discrimination on grounds of religion, race, caste, sex, place of birth; but not a place of worship Another aspect could be the morality and faith of the people could get affected as some people might not consider the entry of women morally right and this could affect their right to practice and propagate religion according to Article 25(1) of The Indian Constitution.

Article 25 Of The Indian Constitution gives the right to profess, propagate and practise religion This provision could be a hurdle to the Kerala government’s verdict when the Supreme court takes the case.

Article 25(2)(b) specifically talk about bringing the reforms in the society for providing social welfare and throwing open of Hindu religious institutions of a public character to all classes and sections of society. Nothing in this article shall affect the operation of any existing law or prevent the state from making any law. This provision clearly allows to bring reform and nothing shall obstruct this law to get enforced. In this case giving rights for women would be a major social reform in the society at large.

Even if we assume that Sabarimala is a religious denomination, the exclusion of women is not an essential practice as it does not satisfy the test of essential practice as has been laid down by this Court in Commissioner of Police and others v Acharya Jagadishwarananda Avadhuta and others.

India is a party to the CEDAW which is the Convention on Elimination of all Forms of Discrimination against Women. As India is a party to this International Convention, it is the obligation of the state to implement it and enforce the same.

The judgment of this Court in Vishaka and others v. State of Rajasthan and others has been cited to submit that international conventions must be followed when there is a void in the domestic law or when there is any inconsistency in the norms for construing the domestic law. So, according to this Convention women should be allowed into the temple as India is its signatory to CEDAW Convention. The CEDAW Convention comes under the United Nations Entity for Gender Equality and the Empowerment of Women.

In Hinduism even if women are superior to men according to Vedas, Upanishads and Smritis, today the constitution would prevail as it is superior among all. Surprisingly, Justice Indu Malhotra, is the only women judge in the Five-Judge Constitutional bench of Supreme Court led by Chief Justice of India Deepak Mishra who did not stand against the restricted entry of women i.e. she gave a dissenting judgment. The practice of age restriction on women entry to Sabrimala temple can’t be treated as an essential religious practice, said the court in a majority four-one judgment, ending a ban on the entry of women between 10 and 50 years. Justice Indu Malhotra, however, said that issues that have deep religious connotations should not be tinkered with to maintain a secular atmosphere in the country & quota. It is not for the court to interfere in religious practices even if it appears discriminatory. Notions of rationality cannot be brought into matters of religion & quota she said. She was of the view that it is not for courts to determine which religious practices are to be struck down except in issues of social evil like ‘Sati’. Justice Indu Malhotra, however, said that issues that have deep religious connotations should not be tinkered with to maintain a secular atmosphere in the country & quota.

It is not for court to interfere in religious practices even if it appears discriminatory. Notions of rationality cannot be brought into matters of religion," she said. She was of the view that it is not for courts to determine which religious practices are to be struck down except in issues of social evil like ‘Sati’.

CONCLUSION

For ages, i.e. Even before the Supreme Court verdict few women were restricted from entering the temple as its presiding deity, Lord Ayyappa, is considered to be a celibate. A number of petitions had challenged the restrictions on the entry of women which finally succeeded. The head priest of Sabarimala, Kandaru Rajeevaru, said: “We are disappointed but accept the Supreme Court verdict on women entry.” There will never be generation of great men until there is generation of Free Women. Whatever the verdict maybe, even if not satisfied or disapprove each and every citizen of the country should abide by it, follow the ruling of the Apex Court, should respect Constitution of India which is supreme of all and the Judiciary.

References

(1)https://www.supremecourtofindia.nic.in/supremecoat/2006/18956/18956 _2006_Judgement_ 28-Sep 2018.pdf

(2) https://en.wikipedia.org/wiki/Sabarimala.

(3) Ibid.

(4) https://medium.com/@pranasutra/haishtika-brahmachari-and-the-need-for extreme-sense-cantral-dd234f44f1f6.

(5) https://www.supremecourtofindia.nic.in/supremecoat/2006/18956/18956 _2006_Judgement_ 28-Sep 2018.pdf

(6) https://www.hindustantimes.com/india-news/sc-reserves-verdict-on-pleas-against-ban-on-entry-of-women-at-

sabarimala/story-e8pbiW3dijyMgLDuhb23K7H.html.

(7) (1962) Suppl. 2 SCR 496.

(8) (1964) 7 SCR 32.

(9) (1966) 3 SCR 242:AIR 1966 SC 1119.

(10) (1983) 1 SCC 51.

(11) https://www.livelaw.in/sabarimala-day-5-court-cannot-reform-a-religious-belief-out-of-its-identity-k-parasaran-argues-in-support-of-ban-of-women-entry.

(12) https://www.casemine.com/judgement/in/56b492a2607dba3480019aa (Abcul Qavum And Ors vs Emperor on 12 June, 1945)

(13) http://www.livelaw.in/tag/sabarimala/page/2.

(FAQ)

  1. Who filed the case in Supreme Court against Sabarimala Temple norms?

Answer: A group of five women lawyers - Bhakti Pasrija, Prerna Kumari, Laxmi Shastri,

Sudha Pal and Alka Sharm -- filed the petition demanding women of all age groups should be allowed to enter the Sabarimala temple in 2006.

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