Case Brief: Indian Young Lawyers Association and Others v. The State of Kerala and Others
Court: The Supreme Court of India
Citation: W.P (CIVIL) No. 373/2006
Coram – The Chief Justice Of India, Justice Ranjan Gogoi and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra
Theme- Women Entry on Sabarimala Temple
Subject: Constitutional law
BRIEF FACTS OF THE CASE/PREAMBLE
The Indian Young Lawyers Association filed a Writ Petition before the Supreme Court of India against the practice of restricting entry of women between the age group of 10 years and 50 years to the Sabrimala Temple in Kerala.
The Subject matter generated much debate and discussion across the intelligentsia and the religious institutions. The Writ Petition filed, challenged the Constitutional Validity of Section 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 which specifically restricted the entry of women between the age group of 10 years and 50 years.
The contention of the Petitioners was that they said rules framed by the Kerala Government does not meet the acid test of Articles 14, 15 and 21 of the Constitution and in particular the restrictions violates Article 15 (1) and 15 (2) (b) of the Constitution, since Sabrimala Temple is a public place of worship and is being funded by the State Government which is covered under Article 290 (A) of the Constitution. It is also urged that Article 25 of the Constitution guaranteed the fundamental right to an individual to worship or to follow any religion.
The Subject matter before the Supreme Court was a very sensitive issue which touched the religious sentiments of the followers of Lord Ayappa. It is to remember and must not be forgotten that India is a religious country even though ruled by Foreigners has one of the World’s Ancient Tradition, Custom and Civilization. Over a period of time, India has shown to the World the Unity in Diversity in all its sphere of human existence, whether it be in the field of Social, Cultural, Economic or religious ethos.
The Country in which we live is laced with the Civilization of the Times of Mohenjo-Daro and Harappa period and the people of various faiths have lived in harmony and practiced their own religion and faith. Over that period of time the people have practiced a certain custom and tradition in the field of worship of the Gods. It is very important to note that in this country a stone which has an incarnation of any lord is worshiped with traditional ethos and devotion and therefore, this country is known to respect the sentiments of religious belief of every sect and therefore, the generations have maintained and carried forward the legacy of tradition faith, practice and procedures in worshiping the Temple Gods or the Village Gods as it is refer to in the Rural Areas.
The Tradition of Worship dates back to the years immemorial and the Kings and Rulers including the foreign rulers who at one time ruled the country had allowed people of different faiths to practice and propagate their ideals and ethos and the people worshiped their own incarnation of the lord in different forms.
Hinduism is not only a religion, but is also a way of life and it is one of the only one religion in the world which emphasis several incarnation of Lord Shiva in different forms and the entire length and breadth of the country worship the Lord in different ways as per the local tradition practice which has been handed down by the ancestral and present generation is only carrying forward what was being practiced earlier without questioning the nature of worship and the restrictions in the way a particular lord is worshiped or is adored.
It is in history that various temples across the Country have their own restrictions and one of the restrictions we have seen over the years is Sabrimala Temple and also Guruvayoor Temple. It is interesting to note that at Guruvayoor Temple the Nambodari Sect are considered as the higher class of people who have a special privileged in the Temple precincts, where non-Hindus are restricted entry. The South India is considered the Temple Towns of India and in particular, Tamil Nadu has several historical temples where entry of Non-Hindus is restricted. If we go by the explanation or interpretation of Article 25 read with Article 14, 15 and 21 of the Indian Constitution, which many protagonists have been propagating that the Fundamental Rights of Indian Citizen which is guaranteed under the Constitution is not only to be protected but should be enforced, would mean that the restrictions in some of the famous Hindu Temples of South India should withdraw the restriction of the entry of Non-Hindus, since we claim that India is a Secular Republic and every person is an Indian by Nationality and therefore, there should be no restriction on the entry of every Indian in any of the Religious Centre whether it be a Hindu Temple or a Non-Hindu religious Centre.
The Petition Filed before the Supreme Court was misconceived and the Hon’ble Supreme Court should have venture to entertain the Petitioner at the first instance in view of the sensitivity of the nature of the subject and since India is culturally a very strong nature and the majority if not 95% of the womenfolk welcome and endorse the religious ethos in Hinduism and Strictly follow the rules laid down by the ancestors and follow the religious path consciously and not blindly. That is to say, though we are in the age of digital revolution, Hinduism is still valid as not only a religion but also as a way of life.
The Supreme Court while considering the various aspects of the case put forward by the rival parties, in a majority judgment of 2:1 has upheld the right of women who could enter the Sabrimala Temple irrespective of the age and thereby the Pandora Box was open wherein the Politian parties entered the scene and took mileage in claiming that they were there to protect the religious and sentimental ethos of the Hindu Community which over the years the restriction of women between the age of 10 years and 50 years was been restricted because of the fact that Lord Ayappa is considered to be a pure and celebrated celibate and because of the purity of thought and conviction, the ancestors who worship lord Ayappa regulated their own rules in the interest of maintaining the sanctity of Lord Ayappa which is Sabrimala, the abode of the Lord Ayappa and the customs is being strictly followed and because of a few activists, the case came up for hearing and after the Judgment was delivered by the Bench, no women who believed in the religious ethos and respected the sentiments of Hinduism dared to enter the sanctum sanctorum of Lord Ayappa, because of the faith and belief in the people that any act done by a person against the religious practice or ethos would invite bad omen and women in this country has a very special place in Society where it is considered that the honor of any family is bestowed by a women and the dignity of the house is bestowed by men and when both meet, a harmonious family with full of tranquility will prevail.
It is evident from the records we have examined and seen over the social media, print media and on television the uproar that was created by the Judgment delivered by the Supreme Court and there was a sever law and order problem in the State of Kerala when every Politian party was claiming credit either way and in the end it was only a few activists who attempted to enter the sanctum Santorum of Lord Ayappa with the help of a posse of Policeman in disguise and still they could not succeed, though the claims of some of the activist is in doubt. The question that arises is whether the Judgment was for the few activist who wanted popularity over the Social Media and on television screens or whether the Judgment was really revolutionary or whether the Supreme Court could have avoided a controversy which only gave publicity to a few activist and the State Government also played its card. What was surprising was that the Devasanam Board made a turn with a submission before the Supreme Court in the Review Petition that the Board has no objection for the Women of all ages to enter the Sanctum Santorum of Lord Ayappa, when at the first instance they had even threatened to close down the Sanctum Santorum and when some activist between the age of 10 years and 50 years had claimed to have enter the sanctum Santorum of Lord Ayappa, the place have to be purified through religious process and therefore, in the light of the Judgment and the aftermath, it is safe that the religious sentiments, ethos, practice should be allowed to continue without the same being interfered with.
It may be pertinent to note that with the present day political circus that we have been witnessing, religion and caste has been playing a very crucial and degrading role in swaying the electorate which elects a party for five years and thereafter we have been witnessing the irretrievable damage in the name of caste and religion and therefore, there should be an earnest approach to separate religion and politics and so longs as the courts entertain any petition on religious sentiment or practice, the Political parties will play on the sentimental of people to enrich their numbers and leave the country in Chaos.
The countries over the World have their own religious faiths and practice. The Islamic countries have their own practice of worship and there is a harmonious religious ethos which is respected by the men and women. We have observed in this country that the concept of uniform civil code is being proposed for the past several years and various Governments have been discussing about the said concepts and we are yet to see the light of the day. It is also important to record that since the past several years, the women’s reservation bill in Parliament is pending consideration and is yet to see the light of the day. The bill proposes to provide one third reservation of Parliamentary seats to Women and since our society and parliament is dominated by men, the bill is yet to be passed in Parliament. This point drives the conclusion that the practice which has been in existence for several years cannot be changed unless the change is in the people and if the people want change, then the political parties should dare to make the said issue as one of their promise in the election manifesto and find out from the voters whether they are for a change.
It is a good suggestion to consider that any sensitive issue toughing upon the personal law of any community or religion or any religious sentiments or practice being carried on by any set be put on plebiscite and obtain the opinion of the public who are eligible to vote and India being a strong democratic Country, can move forward with the change by the majority chosen, otherwise the proposal will have to be rejected. The recent plebiscite held in Great Britain with regard to the exit of Great Britain from the European Community (BREXIT), the voter voted to exit from the European Community and the majority was carried forward. That the right way would be not that a bench of the Supreme Court or the High Court decide on the religious ethos and practice, but should be left to the people at large or better still, our Courts and the Government can spend their valuable time on other burning issues pending, rather than create more controversy than solve the issue. The Judgment in Sabrimala Case has not done any good in the present scenario, which is evidence from the widespread agitation and loss of public property.
The Supreme Court Judgment though is enforceable in the eyes of law since it is a majority Judgment of 4:1, the Hon’ble Justice Indu Malhotra.J has delivered a Separate Judgment in which the Hon’ble Judge has very clearly referred to the various Judgments and has critically analysis the scope of religion as a fundamental rights to be practiced under Part III of the Constitution without reference to whether religion or religious practices are rational or not, though protected under Article 25 and 26 (B) of the Indian Constitution.
The right to gender equality urged in the Writ Petition is misplaced. It is necessary to trace the Hindu Family way of life as to how over the centuries it has evolved. In the present era, it is a few activist who have been canvassing for gender equality for political reasons and as mentioned above, we are still considering 1/3rd reservation of parliamentary seats for women.
If in reality, the concept of gender equality is to be interpreted, every parliamentary constituency in this country should be thrown open to both men and women to fight it out. However, some of the political party for political reasons have been canvassing for reservation of 1/3rd seats in parliamentary constituency for women, but are unable to carry forward their statement for obvious reasons. Today India is in turmoil in view of the political uncertainty, since the Political parties do not have a clear agenda, whether it be on religious practice, educational, industrial, political, foreign policy or any other field and one thing is certain of the uncertainty of the future of many of the younger generation, since political parties are fighting amongst themselves at the cost of the people on the basis of cast and religion which is a handy weapon to get votes. Today the Country suffers from nationalism and therefore, there is no patriotism amongst the members of the Indian Community and religion should never be allowed to be used by the Political Parties and the Hon’ble Court should desist and refrain from venturing upon to decide about the gender equality for the sake of a few activist.
We have seen that the few activists who attempted to go against the religious ethos and practice at Sabrimala were reprimanded by their elders in the family and therefore, the Judgment has not done anything worthwhile by defining what would gender equality would really mean in the place of worship. There are several temples of Lord Ayappa across India and there is no reason why the activist should consider that by seeking entry into the sanctum Santorum of Lord Ayappa at Sabrimala could be considered as a Victory and considering the larger interest of a peaceful society filled with tranquility, it is safer to allow the religious ethos and sentiments and practice to prevail rather than redefine gender equality to the disadvantage of the Society which will cause more harm than good.
PRESENT STATUS OF THE JUDGMENT
Recently, a riot took place due to the fact that the women are allowed to enter the temples after the judgment given by the Hon’ble Supreme Court of India. The people were not accepting this fact that women should be allowed and hence the female visitors were attacked. But the judgment given by the Hon’ble Court stands still and the Court has decided not to seek any petitions in regard to Sabrimala Temple.
The forgoing conclusion based on discussion would result in the fact that the Doctrine of Gender Equality guaranteed under Article 14 cannot override the fundamental rights under Article 25 of the Indian Constitutions which enshrines the rights to practice and propagate their faith in accordance with the religious ethos.
The Fundamental Rights under the Constitutions cannot be a water tight compartment which enables an individual’s to practice his own religion and including the practice of faith and belief and the restrictions which is reasonable restrictive women of the age of 10 years and 50 years from entering abode Lord Ayappa cannot be considered as illogical or irrational.
The reasonable restrictions on the entry of women as per the rules which are being followed for centuries by maintaining the purity of the sanctum Santorum of the abode of Lord Ayappa does not fall within the scope of Article 17 of Constitution and therefore, it cannot be held that the rules formed by the Kerala Government regarding the Kerala Hindu Place of Public Worship (Authorization of Entry Rules 1965 as ultra vires) since the exception provides in the place of public worship of a temple for the benefit of any religious domination or sect which can manage their affair of religion.
Therefore, it is my impression after having examined the various aspects that it is not conducive to decide on the religious sentiments and ethos of any community and the practice which has come down from centuries to be interfered with and in particular the issue of the entry of women between the age of 10 years and 50 years to the abode of Lord Ayappa at Sabrimala and I strongly stand by the fact that the Judgment requires to be reviewed in the light of the developments that have taken place and to be reconsidered so that the political parties in particular do not take any undue advantage and the religious practice should be allowed to continue because of the unity in diversity in religious practice and as it is the political parties are the main cause in the flare ups that have occurred in this country on religious issues and hence, to prevent such incident and to allow the people of different sects to continue to leave in peace and harmony, the Judgment requires a very serious review to put an end to the controversy which has erupted after the Judgment.
Contributed by: Piyush Kumar Jalan and Surabhi Rathi (Students, Amity University, Kolkata)
The views of the author are personal only. (if any)