Updated: Jun 19
By: DEEPANJALI SINGH,
Sharda University, Greater Noida
INDIAN YOUNG LAWYER ASSOCIATION & ORS. ( Petitioner)
STATE OF KERALA & ORS. (Respondent)
In 1990: A petition was filed by S. Mahendra in the Kerala High Court seeking a ban on entry of women inside the Sabarimala temple.
In 1991: The Kerala High Court had continued the restriction of women of certain age entry inside the holy shrine of Lord Ayyappa.
In 2006: A petition was filed in the Supreme Court by the Indian Young Lawyers Association seeking entry of women between 10 -50 years.
In 2008: The matter was referred to a three-judge bench two years later.
January 2016: The court had questioned the ban, stating this cannot be done under the constitution.
April 2016: The United Democratic Front government of Kerala led by Chief Minister Oomen Chandy informed the SC that it is bound to protect the rights to practice the religion of Sabrimala devotees.
November 7, 2016: The Kerala Government had told the Supreme Court that it was in favor of allowing women inside the sanctum sanctorum of the temple.
2017: The Supreme Court referred the case to the constitution bench.
September 2018: A five-judge bench of Supreme court allowed the entry of women of all ages in the revered shrine. The state government sought time to implement the verdict, however even after the entry was allowed a large number of followers camped outside the shrine prevent the entry of women of all ages.
February 2019: The order was reserved by the Apex court. The order expected to be announced today is likely to uphold or set aside the 2018 order.
BRIEF FACTS OF THE CASE
Sabrimala Temple, devoted to Lord Ayyappa, is a temple of great antiquity. The temple is situated over one of the eighteen mountains spread over Western Ghats known as Sannidhanam. situated in the district of Pathanamthitta in Kerala. The faithful believe that Lord Ayyappa's powers derive from his asceticism, in particular from his being celibate. Celibacy is a practice adopted by pilgrimage before and during the pilgrimage. Those who believe in Lord Ayyappa and offer prayers are expected to follow a strict 'Vratham or a vow over a period of 41 days which lays down a set of practices. Women have not been allowed to be a part of this pilgrimage due to their physiological features, considering them weak and unfit for the arduous journey. Women are also considered to be impure while menstruating according to Hindu traditions and therefore the temple authorities have placed restrictions on the entry of women between the ages 10 and 50 to preserve the temple's sanctity.
ISSUES IN THE CASE
1. Whether the exclusionary practice based on biological factor exclusive to the female gender amounts to discrimination'? Whether this practice violates the core of Articles14,15,and 17?
2. Whether the Sabrimala Temple has a denominational character?
3. Whether Rule 3 of Kerala Hindu Place of Public Worship rules permit a 'religious denomination' to ban the entry of women between the ages of 10 and 50 years. Does this practice violate Articles 14 and 15(3) of the constitution by restricting entry on grounds of sex?
4. Whether the practice constitutes an 'essential religious practice' under article25? Whether a religious institution can assert its claim to do so under the right to manage its own affairs in the matter of religion?
As High Court has banned the entry of women aged 10-50 years in 1991'the later plea filed in 2006 heated up following arguments. It was argued in favor of women that menstruation is not impure, and women should have equal right to enter temple. We cannot consider women are impure based on menstruation and it is gender discrimination. The Chief Minister of Kerala, Pinarayi Vijayan, said that his party has always supported gender equality and we provide facilities and protection for women. This practice also violates Article 14 (Equality before Law) of the Indian Constitution as discrimination on the basis of a specific age group of women is not reasonable discrimination.
· This restriction violates Article 15, 25 and 26 of the Indian Constitution:
Article 15 deals with “prohibition on the ground of religion, race, caste, sex or place of birth”. Here, this practice involves violation of Article 15 as discrimination to enter the temple was based on ‘sex’.
· Article 25 deals with “freedom of conscience and free profession, propagation and practices of religion”. Here, this practice involves violation of Article 25 as it prevents women from freedom of practice of religion.
· Article 26 deals with “freedom to manage religious affairs”. Here, this practice clearly violates the provision of Article 26.
· 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.
In Deepak Sibal v. Punjab University  and another 12, the applicant/intervenor has submitted that the exclusionary practice per se violates the sacrosanct principle of equality of women and equality before law and the burden of proving that it does not so violate is on the respondent no. 2, the Devaswom Board, which the said respondent has not been able to discharge.
It has also been asseverated by the applicant/intervenor that the exclusionary practice is manifestly arbitrary in view of the judgment of this Court in Shayara Bano v. Union of India  and others 13 as it is solely based on physiological factors and, therefore, neither serves any valid object nor satisfies the
test of reasonable classification under Article 14 of the Constitution.
It has also been put forth by the applicant/intervenor that the exclusionary practice per se violates Article 15(1) of the Constitution which amounts to discrimination on the basis of sex as the physiological feature of menstruation is exclusive to females alone. In support of the said submission, the applicant/intervenor has placed reliance upon the judgments of this Court in Anuj Garg and others v. Hotel Association . India and others14 and Charu Khurana and others v. Union of India and others 15, to accentuate that gender bias in any form is opposed to constitutional norms.
But the Respondent manifestly argued before the court and stated that :
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.
On 28th September 2018, the Court delivered its verdict in this case by 4:1 majority which held that the restriction of women in Sabarimala Temple is unconstitutional. It held that the practice violated the fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.
In this case, the Court ruled thus:
“We have no doubt in saying that such practice infringes the right of women to enter a temple and freely practice Hindu religion”.
“Devotion can not be subjected to Gender Discrimination”.
Hon’ble Chief Justice of India stated in his Judgement that religion is a way of life linked to the dignity of an individual and patriarchal practices based on the exclusion of one gender in favor of another could not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion.
The five-judge bench of the Supreme Court who decided upon the matter and gave the verdict reasoned different things and had various opinions for the same. Justice Indu Malhotra had a dissenting opinion regarding the matter. Several arguments were brought in front of the Supreme Court from the petitioners and the respondents. The petitioners contended that this restrictive practice by the temple authorities by not allowing women to enter the temple is clearly violative of their fundamental rights given by the Constitution of India and is discriminatory to them.
The Constitution of India guarantees the right to freedom of religion for every individual and groups under Article 25 and Article 26 where every person is free to practice propagate and profess any religion of his choice. Moreover, Article 15 of the Constitution prohibits the state from discrimination against any citizen on the grounds of religion, race, caste and sex.
The five-judge bench of the Supreme Court gave their verdict on the majority of 4:1. Chief Justice Dipak Mishra and Justice Khanwilkar believed that devotion could not be subjected to gender discrimination and exclusion on the grounds of biological, physiological features like menstruation is unconstitutional and discriminatory. Both men and woman have a right to worship bestowed on them and the practice by the temple authorities was discriminatory and violative of the Indian Constitution. Justice Chandrachud opined that any religious practice or custom that violated the dignity of women by denying her the entry just because she menstruates was completely unconstitutional. The judgment contained lines as “The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place constitutional order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood.
 Deepak sibal vPunjab University 14 February 1989 AIR 903
 Shayara Bano v Union Of India 22 August 2017
 Anuj Garg and other v Hotel Association 1989 2SCC 145 .
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