The Supreme Court, in a majority opinion of 4:1 on Friday, lifted the centuries-old practice of prohibiting women from the age of menarche to menopause to enter the Lord Ayyappa temple at Sabarimala in Kerala.
''Right to pray'' in the 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 freedom to practice religion, it said.
The main opinion shared by Chief Justice of India (CJI) 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''.
It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional. It amounted to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women.
Prohibition is a form of untouchability: Justice Chandrachud
In a separate, but concurring opinion, Justice D.Y. Chandrachud held that to treat women as the children of a lesser God was to blink at the Constitution,. The prohibition was a form of untouchability.
He said the logic behind the ban was that presence of women deviated men from celibacy. This was placing the burden of a men's celibacy on women thus, stigmatising women and stereotyping them. Individual dignity of women could not be at the mercy of a mob. Morality was not ephemeral. It transcended biological and physiological barriers.
Chief Justice Misra wrote that relation with the Creator was a transcending one. Physiological and biological barriers created by rigid social dogma had no place.
The CJI and Justice Khanwilkar held that the Sabarimala prohibition was a prejudice against women, which was zealously propagated and was not an essential part of religion.
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 violated 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 to Lord Ayyappa, but it was only a part of Hindu worship.
Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion. She held that the determination of what constituted 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 had to be decided within the religion. It was a matter of personal faith. India was a land of diverse faiths. Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages.
Justice Malhotra observed that the freedom to practice their beliefs was enshrined in Article 25 of the Constitution. Harmonisation of fundamental rights with religion included providing freedom for diverse sects to practise their customs and beliefs.
The Judge held that there were strong, plausible reasons to show that Ayyappa devotees had attributes of a religious denomination. They have a distinct names, properties. Besides, the Sabarimala temple was not funded out of the Consolidated Fund.
Nair Service Society: prohibition not based on misogyny but celibate nature of deity
Senior advocate K. Parasaran, for the Nair Service Society, countered the apex court’s observations about patriarchy. The prohibition was not based on misogyny but the celibate nature of the deity, he said.
Senior advocate Abhishek Manu Singhvi, for the Travancore Devaswom Board, argued that Sabarimala did not practice exclusion. People from all walks of life and from every creed, caste and religion entered and offered 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 reiterated that the restriction found its source in the celibate status of the Sabarimala deity and not in patriarchy.
However, the Kerala government reaffirmed its complete support for lifting the prohibition.
With the Friday verdict, the Supreme Court has set aside a 27-year-old Kerala High Court judgment that upheld the prohibition. The High Court had pointed out that the ‘Naisthik Brahmachari’ nature of the deity was “a vital reason for imposing this restriction on young women”.
