Gender Equality vs. Religious Rights in Reference To Sabarimala Case

GENDER EQUALITY VS.
RELIGIOUS RIGHTS IN
REFERENCE TO SABARIMALA
CASE
BY- PRINSU SEN
RIGHT TO EQUALITY, RELIGION
AND CUSTOM
 there are number of places of worship in India, where either the entry of women is
completely banned or they are not allowed to enter the sanctum sanctorum of the religious
place.
 Too many PIL were filed by the woman activists and got the right to entry in Shani
singanapur temple, haji ali dargaah and others also.
 The great question is that, whether these women will be restricted on the bases of the
custom even they have right to equality and right to religion.
 The same situation has arised in the sabarimala case where the judgement of 5 judges
bench has done and appeal is before 9 judges bench.
MENSTRUATION: MYTH VS FACT
 It has been said that menstrual blood is impure and one must get rid of it as
it is believed to be a carrier of bad omen .
 Miscoceptons like these add to myths and taboos regarding the prayer.
 We can say that the our constitution is living constitution and as given in
the case of Naz foundation, morality must be seperated from constitutional
morality.
Indian Young Lawyers Association vs. Stat
e of Kerala and Ors
. is a Hindu Temple dedicated to Ayyappan named Sabarimala shrine in the State of
 There
Kerala. It is a temple located at Sabarimala inside the Periyar Tiger Reserve in
‘Pathanamthitta’ district of Kerala.
 The Sabarimala shrine, which is one of the most famous temples in Kerala, had restricted
women (of menstruating age) from entry.
 Several women tried to enter the Temple but could not because of threats of physical
assault against them.
 A group of five women lawyers had moved the Apex Court challenging the decision of the
Kerala High Court which upheld the centuries-old restriction, and ruled that only the
“Tantrik (Priest)” was empowered to decide on traditions.
Issues before the Court
 There were mainly three issues raised in this case:
 Whether this restriction imposed by the temple authorities violates Articles 15, 25 and 26 of the Indian
Constitution?
 Whether this restriction violates the provisions of Kerala Hindu Place of Public Worship Act, 1965?
 Whether the Sabarimala Temple has a denominational character?

Arguments in favour of women entry
 This restriction violates Article 15, 25 and 26 of the Indian Constitution:

 The provisions in Kerala Hindu Place of Public Worship Act, 1965 which support
restriction to women’s entry in the temple is unconstitutional as it violates Article 14, 15,
25 and 26 of Indian Constitution.
 One of the arguments from the side of the petitioner that the Lord Ayyappa temple was not
a separate religious denomination for Article 26 because the religious practices performed
in Sabarimala Temple at the time of ‘puja’ and other religious ceremonies are not different
from other religious practices performed in other Hindu Temples.
Arguments against women entry
 The arguments given against women entry by Respondent- Such religious practices are
not so old as it is a tradition to respect God/Goddess of Temple. Men are also restricted
to enter and worship in several temples, for example, Bramha temple, Pushkar.
 There is no violation of Article 15, 25 and 26 of the Indian Constitution as the
restriction is only in respect of women of a particular age group and not women as a
class. If the practice of restriction to the entry of women is made for women as a class,
then only it will violate the above-mentioned Articles of the Indian Constitution.
 The provisions in Kerala Hindu Place of Public Worship Act, 1965 also support this
restriction.
Ratio decidendi
 CJI Dipak Misra, speaking on behalf of Khanwilkar J. & himself observed that religion is a way of life
intrinsically linked to the dignity of an individual and patriarchal practices based on exclusion of one gender
in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess
one's religion. He stated that the exclusion of women between the ages of 10-50 years practiced by the
Sabarimala Temple denuded women of their freedom of worship, guaranteed under Article 25(1).

 Further, he held that the devotees of Ayyappa did not pass the constitutional test to be declared a separate
religious identity. He said that they are Hindus. Thus he held that the temple's denominational right to
manage its own internal affairs, under Article 26(b), was subject to the State's social reform mandate under
Article 25(2)(b). Article 25(2)(b) provides that the State can make laws to reform Hindu denominations.
Specifically, Article 25(2)(b) allows the State to make any law that opens a public Hindu institution to all
'classes and sections' of Hindus.
Obiter dictum
 Justice Indu Malhotra delivered a dissenting opinion. She argued that constitutional morality in a
secular polity, such as India, requires a 'harmonisation' of various competing claims to
fundamental rights. She said that the Court must respect a religious denomination's right to
manage their internal affairs, regardless of whether their practices are rational or logical.

 She held that the Sabarimala Temple satisfies the requirements for being considered a separate
religious denomination. She therefore held that the Sabarimala Temple is protected under Article
26(b) to manage its internal affairs and is not subject to the social reform mandate under Article
25(2)(b), which applies only to Hindu denominations. Note that Article 26, denominational
freedom of religion, is subject to 'public order, morality and health'. Justice Malhotra held that
'morality' (constitutional morality) must be understood in the context of India being a pluralistic
society. She stated that the State must respect the freedom of various individuals and sects to
practice their faith.
Cont…
 She held that the fundamental right to equality guaranteed to women under Article 14 cannot override
Article 25, which guarantees every individual the right to profess, practice and propagate their faith.

 She held that Rule 3(b) does not stand in conflict with its parent Act, the Kerala Hindu Places of
Public Worship Act. She emphasised that the rule 'carves out an exception in the case of public
worship'. She held that the rule was consistent with Article 26(b) of the Constitution.

She dismissed the argument that the Sabarimala custom violates Article 17 of the Constitution.
Article 17 pertains to untouchability and prohibits discrimination on the basis of impurity. She stated
that, in the context of the Article and the Constitution in general, untouchability refers to caste and
does not extend to discrimination on the basis of gender. Like Justice Chandrachud, she referred to
the Constiuent Assembly Debates to establish how the founder intended to use the
term untouchability. Unlike Justice Chandrachud, she concluded that untouchability does not extend
to gender.
CONCLUSION
 Freedoms related to religion are essential elements for the

functioning of democracy in a country like India. As we know,
Constitutional ideals and Social reality are very different from
each other but it is also necessary to reduce the differences as
much as possible for the smooth and proper functioning of
society. In the case of ‘Indian Young Lawyers Association vs.
State of Kerala & Ors’, Apex Court has tried to bridge the gap
between constitutional ideals and social reality.

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GENDER EQUALITY VS.

 Whether the Sabarimala Temple has a denominational character?

 This restriction violates Article 15, 25 and 26 of the Indian Constitution:

 Freedoms related to religion are essential elements for the

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