ABSTRACT
The application of rationality in the 21st century has become one of the key elements while imparting justice to the aggrieved party or community. With changing times it has become important to break the shackles of irrational practices that society has been following for ages. The current paper discusses one of such landmark steps that the Indian judiciary had taken to strengthen the pillars of wisdom in India. The irrational practices are essentially related to the religious aspect of the society and the case of Sabarimala Temple is no different. Ban of entry of a particular gender to maintain the sanctity of the temple is a pessimistic cult. The same has been fearlessly opposed by the people. The researcher after discussing the case law brings light upon the historical background of the anti-social practice. She further proceeds with the legal aspects, its violation, and conclusion coupled with capable suggestions. The suggestions have been put forward after referring to the international statutes.
INTRODUCTION
The world is the union of nations and every nation has a unique code of conduct for its citizens to follow. The more improved version of this code of conduct is the judicial or legal system of any nation. The respective judicial system takes care of all the legal aspects of these nations to prevent conflict among social groups. The Indian legal system is a new subject that helps its disciple to better know the provisions of the legal system followed in India. This subject covers all the cases that are dealt with in any court of India. The current research topic is related to one such case of India that has a huge impact on society. This paper deals with the rational character of the Indian judiciary. Also, it aims to better understand the provisions of law that upload the right to equality and restrains discrimination of individuals based on any social, physical, and biological factor.
In India, the judiciary is one of the pillars of the government. The judicial system in India is designed in such a manner that it is efficient enough to balance both the religious sentiment of the people as well as their rights. On one hand, there are provisions that law cannot interfere in the religious aspect of any community but on the other hand, when a religious practice denies the right of any individual, the judiciary acts rationally.
One of such instances is evident in the case of “Indian Young Lawyers Association v. the State of Kerala". This case is primarily based upon the issue of gender-based biases on the entry of women and girls belonging to certain age groups into the Sabarimala temple of Kerala. This case is one of the landmark cases of the year 2018 where the final verdict was delivered in Supreme Court by the bench of five judges by the principle of per majority1.
Although this landmark case deals with the religious elements the sense of rationality was preferred to instill the rights of those who were barred from entering the temple. This was an attempt for reducing the gender gap and the prevalence of masculinity due to mere biological factors of a woman.
BACKGROUND OF THE ISSUE
The temple at Sabarimala is dedicated to Lord Ayyappa who was believed to be 'Naishitka Brahmachari'. Hence the managing board of the temple barred the females between the age group of 10 to 50 years from entering the holy shrine2. This age group covers the females of menstruating age who were kept away from the temple to maintain the pure character of Lord Ayyappa. Lord Ayyappa was given birth by the union of Lord Shiva and Lord Vishnu and Malikapurathamma was the woman who was cursed into the form of a demon and would only become free when she will be defeated in a battle by the son of Lord Shiva and Lord Vishnu. After Malikapurathamma was set free from the boon she desired to marry Ayyappa. Even after several refusals of Ayyappa that he is supposed to remain a celibate when Malikapurathamma did not agree. Then this deity promised to marry her the day when the fertile female devotees stop offering him prayers at Sabarimala. So, as to pay respect to Malikapurathamma’s love and sacrifice women were restricted from entering the temple at Sabarimala3.
LITERATURE REVIEW
The researcher to proceed with the current research topics has studied other literary works such as Journal articles, Editorials, Research articles, and website pages. A case named Gram Panchayat Shani Shingnapur v. The State of Maharashtra with similar facts has been looked into. Earlier in the Shani Shingnapur temple also, the women were not allowed to enter the inner sanctum of the temple. This case has been used to compare with the judgments of the Sabarimala temple issue. In both cases, it is observed that the petitioners are women. This indicates that women are now coming forward to bring up the matter related to their rights in front of the court and they have even imparted justice rationally.
A few Journal articles such as 'Ayyappan Saranam: Masculinity and the Sabarimala Pilgrimage in Kerala’, ‘The Women's Wall in Kerala, India, and Brahmanical Patriarchy’ and other articles by different Indian news media were also referred to.
RESEARCH METHODOLOGY
The researcher in her current research paper adopts the doctorial research methodology. The researcher refers to different journals, articles, research papers, case laws, legislature, and statutes to produce a quality research paper with some new perspectives in them. It is completely library-based research where no practical data is collected and only pre-existing literature is referred to. Also, the researcher exclusively refers to the Indian case laws and Indian legal concepts. Hence doctorial research methodology best suits the researcher for proceeding in the research paper.
RESEARCH QUESTIONS
1. If a woman in India is not allowed to enter any religious place, then which provisions of the Indian Constitution are violated?
2. How rational is it to deny a particular gender to enter any religious institution just because of their biological factors?
3. Is it a particular religion that prevents entry of women into religious places or other religions that have the same belief?
4. Were early attempts made to lift the ban on entry of women into the Sabarimala temple?
5. Why is it that only women are not allowed to enter the places of worship either completely or occasionally?
CHAPTER 1: BRIEF OVERVIEW OF THE CASE
Facts of the case in brief
Sabarimala temple is a pilgrimage site for Hindus where Lord Ayyappa is worshipped. He is known to be celibate and to give respect to his celibacy the women belonging to the age of 10 to 50 years were denied entry into the temple. This was an age-old practice that was informally followed for a long time but was legally validated in 1991 by the Kerala High court following the public interest litigation filed there.4 The officials gave rise to unrest among the females and in 2006; the Indian Young Lawyers’ Association took a bold step by filing a petition against the practice of restricting women into the Sabarimala temple.5 · Method of filling the case and course of action during the whole trial
In 2006, the first petition was filed where the practice of restricting the entry of women belonging to a certain age group was challenged to be a discriminatory act leading to gender biases. The petition was then dismissed.
In November 2007, the Government of Left Democratic Front of Kerala filed an affidavit to support the Public Interest Litigation filed in 2006.
After almost nine years, on January 11, 2016, two judges bench of the Supreme Court questioned the practice of banning the entry of women into the Sabarimala temple.
On February 6, 2016, the United Democratic Front of Kerala Government makes a statement for the Supreme Court stating that it is duty-bound to "protect the right to practice the religion of the devotees".
Following which on Apr 21, 2016, Hind Navotthana Pratishtan and Narayanashrama Tapovanam filed a plea in SC supporting the entry of women into the temple, and on November 7, 2016, the Left Democratic Front of Kerala filed a fresh affidavit in SC saying it favored the entry of women of all age groups.
On October 13, 2017, a case was referred to the Supreme Court constitution bench. On October 27, 2017, a petition was filed in the Supreme Court demanding the general equal bench to hear the case.
On July 17 2018 of five judges, the constitutional bench started hearing the matter over the Sabarimala temple issue. The five-judge bench is headed by Chief Justice of India Ranjan Gogoi. The other members on this Bench are R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.6
“In January 2018 due to the delay in the proceedings, there were attempts of women entering the temple of barred age group. Resulting, the temple authorities made it mandatory to carry age proof for the female devotees while visiting the temple. By July 24, Supreme Court made it clear that the ban on entry of women would be tested on “constitutional ethos”.
On July 26, The Royal family of Pandalam challenged the petition of seeking entry of the women into the temple, termed it “mischievous” on grounds that these are practices against the Hindu faith. The lawyer that appeared on behalf of them had told the court that the deity in the temple, Lord Ayyappa, is an eternal celibate and therefore women of menstruating ages should not be allowed in the premises.
On August 1, 2018, a Constitutional bench of five judges reserved its judgment on the petitions challenging the ban after hearing the case for eight days.
Finally, on September 28, 2018, the Supreme Court allowed women of all age groups to enter the premises of the temple. Rules and custom of barring women are violative of Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worship.”7
The verdict
The verdict turned out to be in the favor of the women and the age-old practice was finally eradicated. The verdict was in the form of 4:1 where the male judges were in the favour of allowing the women of all ages to enter the temple but the lone female judge was against the move stating that “every individual should be allowed to practice their faith irrespective of whether the practice is rational or logical”. Keeping in mind the majority of the ban on entry of females was lifted making it one of the landmark judgments delivered in 2018. CHAPTER 2: REASON FOR NOT ALLOWING WOMEN TO ENTER THE TEMPLES The Sabarimala temple is a holy shrine of Lord Ayappa who is known to be a pure celibate; hence women of fertile or menstruating age were not allowed to enter the temple. But there are believes that women are on their periods or are menstruating, they are considered to be impure and unclean. There are several believes still followed where a girl on her period is not allowed to touch the God, enter the room in which the god is placed, enter the kitchen space, touch pickles, water the plants, and also dine with the other family members.
According to the text of Bhagwada Purana in Hindu mythology, it is believed that once when Lord Indra sinned and to relieve him from the sin he selected the four most pious creatures to divide his sin in quarters. One of those pious creatures was a woman who received menstrual blood as the curse in place of Lord Indra who killed a Brahmin. The blood represents murder and hence on the days of menstruation, the husband of the woman was not allowed to stay with her and also look at her as she was considered impure. 8
Menstruation in women is a universal process where this biological factor is present in all females. The question arises that if it is according to Hindu mythology then why other females belonging to a religion other than Hinduism undergo the process of menstruation. Even the religion of Islam puts forward certain restrictions on menstruating women even though there are no direct references for the same from Allah in Quran. According to the customs menstruating women are not allowed to enter the Mosque or Dargah. The traditional belief of the impure state of females is only superstitious practices backed with no rationality in them.
CHAPTER 3: PROVISIONS OF THE LAW AND ARTICLES OF THE INDIAN CONSTITUTION THAT WERE VIOLATED.
There are certain provisions of law and articles of the Indian constitution that were violated during the Sabarimala temple issue. Some of these were used by the parties to present arguments for the litigation and some against the litigation.
Article 15: This deals with the prohibition of discrimination on the ground of religion, race, caste, sex, or place of birth. It was put forth by the petitioner’s side that not allowing women into the temple leads to discrimination based on the sex of a person (gender biases).
Article 17 deals with the abolition of untouchability and terming menstruating women as impure and unclean gives rise to the instinct of untouchability similarly to the way the Dalits and lower castes were treated as untouchables.
Article 14 of the Indian constitution states that citizens should have equality before the law. It was argued by the petitioner’s side that if the bans on the entry of women are allowed and no actions are taken based on Article 15 and 17, then it will lead to the violation of Article 14 as the law did not treat all the gender equality.
Article 25 deals with “freedom of conscience and free profession, propagation and practices of religion” and Article 26 deals with the “freedom to manage religious affairs” under the right to the freedom of religion. The right to the freedom of religion of women was violated.
The petitioner’s side also demanded that the provisions in the Kerala Hindu Place of Public Worship Act, 1965 which supported the restriction of women’s entry into the temple as unconstitutional as it violates Article 14, Article 15, Article 25, and Article 26 of Indian Constitution.
But if Article 15 of the Indian constitution is carefully studied, sub-clauses of clause (2) under Article 15 nowhere mention access to a religious institution and holy shrines. Hence, this provided the respondents with the chance to present their arguments based on this loophole. Also, they were protected by the provisions in Kerala Hindu Place of rule 3(b) of Public Worship Act, 1965 which supported the restriction of women for entry into the temple is unconstitutional.
CHAPTER 4: PREVIOUS CASES WHERE THE INDIAN LEGAL SYSTEM USED ITS RATIONALITY TO DELIVER JUSTICE
There was one such case named “Shayara Bano v. The Union of India9” where the Supreme Court of India had a dilemma between religion and rationality it preferred to choose “The Doctrine of Rationality”. The main motive of the petition filed was to abolish the age-old practice of Triple Talaq as per the Islamic laws. The petitioner was a 35 years old lady, married to her husband for 15 years after which she was instantly given Triple Talaq (Talaq e Bidder) in 2016. According to Islamic laws, marriage is a contract, but it was held by the Supreme Court that instant triple Talaq cannot be a way to end this contact and it declared the practice as “unessential religious practice”. Here, the decision was taken rationally thinking about the mental and economical condition of the instantly divorced wives. Also, the decision of making the pronouncement of instant Triple Talaq illegal paved was for suppressing patriarchal custom in the current society. Though its judgment might hurt the sentiments of the orthodox Islamic follower it was a rational step by the Judicial authorities.
Another judgment by the Supreme Court, in 2018 held that Section 377 of the Indian Penal Code (IPC) would be declared unconstitutional hence decriminalizing homosexuality. Homosexuality is a biological instinct present in selective individuals and they cannot be judged on that as per Article 15 of the Indian Constitution which “prohibits discrimination on grounds of sex”. This condition is not voluntarily chosen and hence cannot be governed by laws similarly in the way menstruation is a biological process in women and cannot be the basis of discriminating them as impure. Hence, decriminalizing homosexuality was a rational step by the Indian legal system.
CONCLUSION AND SUGGESTIONS
In recent times there are quite several judgments where the apex court has given importance to “The Doctrine of Rationality” over the traditional practices and religion. Rationality is the act of deciding with logic and reason. The Indian legal system has started adopting the application of rationality to impart justice to the aggrieved party rather than deciding to not simply interfere in the religious affairs of any sect under Article 25 of the Indian Constitution which gives the citizens the right to the Freedom of conscience and free profession, practice, and propagation of religion. Before criminalizing or decriminalizing any act or declaring any statutes as unconstitutional, the bench of judges takes into consideration the pros and cons of any decision. There is no point in continuing practices that are irrational and impractical in nature. Kerala is considered one of the Indian states with the highest literacy rate and the potential to progress but still, it was found they discriminate against women on the basis of sex for entering into the temple. It was not that, there is no evidence of any woman who has not entered the temple. There are instances where mothers have performed the rice feeding ceremony of their son on the premises of the temple. So it is irrational by suddenly not letting females enter the temple on the basis that Lord Ayappa is a pure celibate.
In U.S. constitution law, there is a concept of “rational basis review”. This concept determines and tests whether the government's actions are "rationally related" to a "legitimate" government interest or not. In a similar way, there shall be a body in the Indian legal system that can determine the rationality of laws governed in India by reviewing them. This will help the authority to understand that whether the citizens of the state are benefitted from the law in a proper way or not. For example, under Article 15, there is no mention of access to religious places from which it can be implied that discrimination can be done when the question arises of visiting any holy shrine. Also, there are many laws that need to be reviewed and then amended or upgraded in accordance with the necessity of society and rationality as a reasonable man would perceive things to be.
OTHER REFERENCES
AUTHOR DETAILS:
NAME- SNEHA P MANDAL
COURSE- B.A-L.L.B
YEAR- 1st
COLLEGE- SYMBIOSIS LAW SCHOOL, HYDERABAD
Well explained and nicely written paper.