Constitution,  Religion,  SC Judgement

The Sabarimala Controversy

While the Constitution of India was being framed, many of the eminent members of the institution did point out that many of the fundamental rights they are inculcating in the Constitution are overlapping and may cause various issues in guaranteeing the same. One of the many such issues is the currently on going Sabrimala Temple Issue.  Currently the issue is wedged between Article 14 and 15 – Right to Equality and Article 25 and 26 – Freedom of Religion. 

Under the popular Hindu belief, Lord Ayyappa, the chief deity of the Sabarimala temple, was incarnated in the form of Manikandan. Manikandan, in the 12th century, rediscovered the temple, when he was sent to the forest to prove himself worthy of the throne of the Pandalam dynasty. The temple is also connected to Lord Rama. The legend goes that the name Sabarimala has been derived from Shabri who was a devout tribal devotee of Lord Rama as mentioned in the Ramayana; Sabrimala literally means the Hills of Shabri. Many scholars also connect the temple with Buddhism, as many contend that the temple was a Buddhist temple initially or a heterogeneous belief temple and the process of Hinduisation of the temple started in the post-independence era, 1950 to be particular after the Sabarimala Arson Case, where a fire broke out and majority of the temple was burnt and it was portrayed as a deliberate attempt to ravage the temple rather than being an accident. 

What is the Sabrimala Issue?

Without going into the Supreme Court verdict and the consequences thereof, we must first learn what led to the filing of the case in the Kerala High Court and in the Supreme Court subsequently. 

The Hindu belief is that Lord Ayyappa took the vow of celibacy forever, and therefore the women who are menstruating in general and the women of the age between 10 – 50 yearsSabarimala are not allowed to the enter the temple or even are not allowed to take the pilgrim up the hill. Ironically, women of all ages are allowed in every other Lord Ayyappa Temple, but not in the Sabarimala Temple.

Many scholars and activists have contended and even some have given some historical literary pieces of evidence that the entry of the menstruating women was not banned in the historical times and this evil practice has started just a few decades ago, contrary to the post-independence of the temple priests who say that such a practice has been going on since about 1500 years ago.

Many of the people supporting the ban also contend that the menstruating women are also not allowed because before taking the pilgrimage of the Sabarimala, the pilgrims have to observe severe austerities for 41 days which the women cannot observe, and thus cannot visit the temple. 
It is also important to mention that Sabarimala is the only temple in SabarimalaIndia, and probably the world where women of the age between 10 and 50 cannot visit the temple.

The Legal History

This practice of ban has been a bone of contention for quite a while. In 1991, the Kerala High Court’s Division Bench gave a judgement upholding the practice of banning the women of a certain age. The High Court held that the prohibition imposed by the Travancore Devaswom Board was not violative of Articles 15, 25, and 26 of the Constitution. Neither was it violative of the provisions of the Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as the prohibition was only in respect of the women of a particular age group and not women as a class.
However, believing the verdict given by the High Court not to be completely correct, the Indian Young Lawyers Association and 3 women lawyers filed a case in the Supreme Court to reverse the High Court Buddhist of 1991. Thus after more heterogeneous a quarter of a century, the Supreme Court in the case of Indian Young Lawyers Association v. The State of Kerala reversed the Sabarimala of the High Court.

The Constitution Bench headed by the former Chief Justice of India, Dipak Misra, gave a 4:1 judgement striking down the rule that disallowed girls and women in the age group of 10 to 50 years from entering the Sabarimala Temple, saying that the temple rule violated their right to equality and right to worship. 

“The denial of this right to women significantly denudes them of their right to worship,” said the former CJI and Justice A M Khanwilkar and Justice R F Nariman concurred with him. Justice D Y Chandrachud though gave his verdict on the lines of the majority judgement only but also put across a different opinion. He said, ”Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion, and subjugation faced by the women. . . . . . Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women based on menstrual status is a form of untouchability which is an anathema to constitutional values.” He also said on the lines that the court must decline to grant any legitimacy to practices which derogate from the dignity of the women and to their entitlement to an equal citizenship.

The only dissenting opinion was given by Justice Indu Malhotra,’ Notions of ‘purity and pollution’, which stigmatize individuals, have no place in a constitutional order.” However, she also said that “In a secular polity, issues which are matters of deep religious faith and sentiment must not ordinarily be interfered with by the courts.” The bench said that it is an essential part of the Hindu religion to allow Hindu women to enter a temple as devotees.

Current Situation

The current situation is very horrific. Even after the SC verdict the devotees of the Temple and the priest of the temple have condemned the verdict and have not let any woman enter the temple premises or even have allowed coming near the temple premises. The Government and the ruling party CPI(M), have made itself clear that they will have to enforce the verdict and will not apply for a review petition as demanded by the devotees, the priest and the TDB. TDB has even said that the women who are the true devotees of the temple will not be wanting to enter the premises, but only a few female activists will try to just to prove the point. The board itself has asked for a review petition. The situation has become terrible to such an extent that, the police officials have even said to the activists not to climb up the hill of Sabarimala as they cannot guarantee their safety.
The Supreme Court looking in the troubled situation has accepted the review petition. Now we have to see, whether the laws laid down by humans in the Constitution will hold true or the popular practice of the temple allegedly because of the vow of celibacy of Lord Ayyappa, which subordinates the women, will be held Sabarimala.

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