28, Sep 2018 | CJP Team

In a resounding slap in the face of patriarchy and gender based discrimination, the Supreme Court has put an end to the age old practice of barring entry of women of a menstruating age into the Sabrimala temple. In a landmark judgment, the apex court ruled that women of all age-groups could enter the temple.

In what is being hailed as a hugely feminist judgment, the court observed,

Historically, women have been treated with inequality and that is why, many have fought for their rights… There is inequality on the path of approach to understand the divinity. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender.”

The court further observed,

Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.”

This stand effectively challenges the stigma associated with menstruation, a key element of gender based discrimination at places of worship. The judgment also rejects the age old belief that fertile or sexually active women were impure and likely to lead pious men astray.

Justice Chandrachud in his separate but concurring judgement held that the ban was premised on the judgement that women’s presence in the temple would disturb celibacy which, according to him, placed the burden of men’s celibacy unto women.

Rules 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of entry), 1965 was struck down by CJI holding that Ayyappa devotees will not constitute a separate religious domination. Justice Nariman in his judgement held: “Anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”

However, even this judgment was not devoid of drama. The verdict was split 4:1. While Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority that delivered a strongly worded feminist judgment, Justice Indu Malhotra dissented .

In her dissenting judgment Justice Malhotra questioned the petitioner’s right to file the petition itself saying,

To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are ‘involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights’ 17, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith… In matters of religion and religious practises, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple.”

She further observed, “Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect.” This was seen as both regressive and unnecessary given how it emphasis the need for an “aggrieved party”, especially one “belonging to the faith”. But aren’t hundreds of thousands of female devotees are already “aggrieved parties”?

But in a stranger argument, Justice Malhotra insisted, “In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country.”

The entire judgment may be read here:

Background

The entry of women in the age group of 10-50 that is traditionally seen as the age during which a woman is sexually mature and fertile, has been a long standing demand of several women’s groups. Various petitions were signed to challenge the ancient ban on entry of women into the Sabarimala Temple as it violated women’s fundamental right to freedom of religion and also furthered gender discrimination. The archaic rule was upheld by the Kerala High Court empowering the priest to decide on conduct and traditions. Feminist groups argued in court that the practice is discriminatory and stigmatised women. They also argued that this traditional rule is a violation of the fundamental rights guaranteed under Article 14 of the Constitution of India.

The verdict passed by the Supreme Court exposes and concurrently rejects the age old religious practices that are entrenched in patriarchal belief systems. The Constitutional bench, barring Malhotra, has critically engaged with institutions that subordinate women and further graded inequalities. The bench delivered the judgement keeping the rights of women at its core. Justice Chandrachud, pointed out that abstinence is a state of mind and barring women’s entry on physiological ground is deemed to be Unconstitutional.  These kind of arguments presented by the bench actually empower women to heave the historical burden placed on their bodies.

This landmark verdict has come consequent to the running down of Section 377 which criminalised homosexuality in the past. These subsequent verdicts underline the apex Court’s intention to engage with the issues of Gender with more seriousness and sensitivity.

Related:

Unholy and Unconstitutional: Banning Women at Sabrimala

5 Judges will decide whether women can enter Sabrimala