By Ms. Madhumitha. N
The Sabarimala Temple, considered the abode of Lord Ayyappa, is located in Kerala. It is one of the largest annual pilgrimage sites in the world which is visited by over 40 to 50 million devotees every year. The Sabarimala Temple follows a religious practice which prohibited women during their menstrual phase (between 10 to 50).
A Public Interest Litigation (PIL) was filed in the year 1991 before the Kerala High Court challenging this religious practice since it affects the Right to Equality under Article 14 of the Constitution of India. However, the Kerala High Court held that the restriction of entry of women aged between 10 to 50 to temple was in accordance with the usage prevalent from time immemorial and it directed the Devaswom Board to uphold the sacred traditions of the temple.
Further, the Kerala High Court opined the sacred tradition does not violate Article 14 stating the reason that “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.[i]
2.What is Essential Religious Practice?
Article 25 and 26 of the Indian Constitution grants the Freedom to practice any religion and the Right to maintain the affairs of the religion. Article 25 entitles all person to freedom of conscience and the right to freely practice, profess and propagate their religion. It protects the practices that are religious and are clearly distinguished from secular practices associated with the religion.
Article 26 on the other hand, provides the right of religious denominations to establish and maintain religious institutions. It states that the religious denominations can manage its own affairs as far as it is concerned with the religion. The Supreme Court in the case of Ram Prasad Seth v. State of U.P.[ii] incorporated the essential religious practices test to determine whether the alleged practice was an important part of the religion and integral to it.
Hon’ble Justice Gajendragadkar in the case of Durgah Committee v. Syed Hussain Ali[iii]opined that, “in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part”. In simple terms, a said practice can be called as an essential religious practice if it is practiced from time immemorial and forms the essential and integral part of the religion.
Thus, these two Articles confer that a person has the freedom to worship his God and his religious practice and practice profess and follow the same. Any customary practice followed to worship a particular God or in a religion from time immemorial is considered to be an essential religious practice of the said religion.
3.SC verdict of the Sabarimala Issue:
The Indian Young Lawyers Association filed a PIL before the Supreme Court challenging the customary practice of the Sabarimala Temple arguing that the said practice violated the rights to equality and freedom of religion of female worshippers under Article 14 and 25 respectively.
The State of Kerala stated that the Travancore Devaswom Board which is the legal authority managing the temple’s administration had the right and authority in the present issue. The Devaswom Board had the constitutional Fundamental Right to manage the affairs of the temple and therefore, the Court cannot interfere into the same. Further, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 protected the customary practice followed in the Sabarimala temple.
However, the Bench comprising of Hon’ble CJI Dipak Misra, Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra by a 4:1 majority struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which protected the sacred religious practice of the Sabarimala Temple. The majority held that barring the entry of women of a particular age group violates their right under Article 25(1) of the Constitution and opined that a religion cannot be a cover to deny women right to worship.
The dissenting judge Indu Malhotra J. opined that ‘what constitutes an essential religious practice is for the religious community to decide and it was not a matter that should be decided by the Courts”. Following this 4:1 majority judgment, several review petitions were filed before the Hon’ble Supreme Court challenging this verdict which allowed women of all age groups to enter the Sabarimala Temple. The matter was referred to a larger bench comprising of 7 judges to re-consider the decision on 28 September 2018.
The Sabarimala Temple is a sacred religious institution which under Article 26 has the right to manage its own affairs. The bar on the entry of women of a particular age group was followed from time immemorial and not some decades back. This was considered to be a customary practice and tradition of the Sabarimala Temple. This practice bars women only during their menstrual period i.e., between 10 to 50 based on religious custom and beliefs.
Every person has the right to practice, profess and propagate his own religion and the right to worship his/her God. Allowing women of all age group to enter the temple will interfere the right of the religious denomination to manage its own affairs. Therefore, the matter up for review comprises a conflict between the right of women to worship and the right of the religious denomination to manage its own affairs. The Constitution bench has to consider all the facts and circumstances to determine whether barring women of particular age group constitutes an essential religious practice.
[i]S. Mahendran v. The Secretary, Travancore, A.I.R. 1993 Ker 42 (India). [ii]Ram Prasad Seth v. State of U.P. 1957 S.C.C. Online All 61 (India). [iii]Durgah Committee v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402 (India).