Critical Review on Sabarimala Judgment



 Introduction

Notwithstanding the so-called equality and liberty, the prejudice of male domination is continued to exist in our society. It is important to note that from the very beginning of our community, male domination can be noticed. However, with the emergence of the feminism and the notion of rationality in recent decades, it is ubiquitous to have several incidences of contention between these emerging notions and the well-established patriarchy in our society. Sabarimala judgment is one of the best illustrations of such contention. This judgment came up in 2019 which had quashed the centuries-old practice of non-entry of women in the Ayyapa temple of Kerala. This judgment has seemed like a challenge to the male-dominated notions and thus raised many questions to concern. By taking into account such things, this paper deals with all the aspect of the Sabarimala issue and, also, the position of women in our society in the upcoming future.


 The Background Behind The Dispute

Sabarimala is one of the prominent ancient Hindu temples which is located in Kerala. This temple is devoted to the Lord Ayyappa, who according to the mythology, is a celibate. So, in order to exhibit respect towards the celibate nature of the Lord Ayyappa, there are several practices laid down and on of such critical practice is to cease the women from the entry who are in menstruating age. Moreover, in 1991 the High Court of Kerala has legalised the restriction of women into the temple. [1]

However, later on, September 2018, the Supreme Court of India rule down such restriction based on the argument that the restriction of entry due to the biological differences are against the Art. 14 and Art. 25 of the constitution, i.e. the right to equality and right of religion, respectively. Following this judgement, there are several protests appeared from various parts of the country, and regardless of such decisions,[2] the women who are trying to enter into the temple have to face the acts of violence.[3] Even in 2019, when finally two women are able to reach the temple with heavy protection, the temple was purified later on. So, it is evident that the judgment is not sufficient to change the perception of the whole community. Also, it appears that there is a requirement for further analysis of the current position of women in our community based on this judgment.


 Research Questions

The objective behind the forthcoming discussion is to find the reason behind the existence of such prima facie discriminatory practice and more notably the reasons behind opposing this judgment which is favoring women against a long-established notion, so in these contexts, the following questions raised, which are as follow:

A.    What are the reasons which led to challenging a well-established old practice in Sabarimala temple?

B.     How the dissenting judgement justified their argument to continue the patriarchal practice regardless of the existence of rights of equality, religion, movement which are protected by the Indian constitution?

C.     What are the impacts of this judgment on the future of our legal system?


  Analysis and Discussion

Before looking at the different expression laid down by the different position in the judgment, it is significant to revisit the foundational ideologies which are the foundation for the cultural values which existed in our society and the hold male-dominated prejudices in our society. In Indian culture, religion possesses a vital role in the lives of ordinary people. However, it is unfortunate for our community that there are many notions which existed in our society in the name of religious and cultural faiths, which have become a tool of oppression for the women. Sabarimala issue is one of such example, where the established beliefs say that the deity of that temple would be bewildered by the presence of the women who are in the age of menstruation and also due to menstruation women, are impure.[4] Following are some analysis of the research questions which are mentioned above:


 A.    What are the reasons which led to challenging a well-established old practice in Sabarimala temple?

Prior to the judgment, the most of the people are excepting that the judgment will come in favour of the followers of Sabarimala; however, the judgment has astonished everyone, and the majority of the bench have seemed to incline towards the idea of equality and freedom for all. The majority are in favour of the eradication of the ancient practice of the non-entry of the women in the temple, and they declined to legalize the practice which is against the self-esteem of women and work as a sign of exclusion. The court argued that such denial led to the infringement of their rights of religion, which is protected under the constitution of India and applied to everyone irrespective of their gender, caste class et al.[5] Nonetheless, the group who are in against of this judgment, claimed that it was a legitimate practice as it came under the essential restriction which must be satisfied in order to respect the faith of other groups of persons. However, the court found a flaw in this argument as the exception of reasonableness comes into play only in the cases where the practice is an inevitable part of the religion. Moreover, it also prima facie violates Art. 14 (i.e. the Right to Equality) of the Indian constitution and the Right to privacy, under Art. 21(i.e. the Right to life) of the Constitution of India as the women are forced to reveal their masturbation status publicly.[6] There is no doubt that the inclusion of such right under the scope of Art. 21 is valid as the court has already held in the earlier judgments that the right to live is not only restricted to just living, but it also encompassed the right to live with dignity.[7]

Apart from these anathemas of the dignity of the constitutional, the court took this incident to the next level and declared the non-entry of women as a type of “untouchability” which in itself prohibited, and by this way, the court has extended the scope of Art. 17 to include the exclusion, systematic humiliation and subjugation which was earlier limited to the caste issue.[8] By such inclusion, the court appeared to bring the attention to the blight of the caste system, and it is also mentioned that the purpose of this article is “to exclude the untouchability in all types of forms whether it is present within a community or between various communities.[9]

It is important to note that the objective behind the Art. 17 of the constitution, which has already discussed earlier, is to abolish any kind of discrimination on the basis of “pollution and purity”. Furthermore, the present prejudice in Sabarimala is mainly based on the notion of the “pollution and impurity” which is attached to the menstruation and works to denounce individuals.[10] The restriction in Sabarimala is solely based upon the biological and physiological features, which ended up becoming a classification on the basis of sex without any intelligible differentia.[11]

The court has also pointed out that the women entry in the temples is an essential element of the Hindu religion, and indeed there are no such restrictions in the other temples of Ayyapa in different parts of India.[12]

Also, the court has very impressively gone under the root of the belief and found that historically, this restriction had been made for the benefit of the women as prior to the twentieth century the proper sanitation system and hygiene facilities are not available during that time.[13] So, the women were advised to avoid the arduous nature of the journey, which was required to visit the temple of Sabarimala. Later on, this thing modified as per the notions of the patriarchal society, which was actually prevailing at that time. Thus, by taking into account these facts, the court argued that everyone is free to have their choice and even the very foundation of this belief I problematic. So, the court cannot promote such stereotype and must incline toward maintaining equality.

 

 B.     How the dissenting judgement justified their argument to continue the patriarchal practice regardless of the existence of rights of equality, religion, movement which are protected by the Indian constitution?

B.     Regardless of such provided great explanation in favour of the entry of the women in Sabarimala. It is quite astonishing that the dissent came from the only women on the bench. The main argument put forward by her was that due to the secular nature of the country, the courts should not interfere in the cases related to the deep religious sentiments and values. She also added that the idea of rationality should not be indulged in the area of spiritual practices. Moreover, in order to justify her argument, she differentiated between the pernicious practices ( e.g. Sati) and the non-entry of women on the religious grounds, which in itself seemed sarcastic; and she also seems to oversimplify the issue of non-entry of women. It should also be noted that one should treat all type of oppression in a similar way, irrespective of their the level of harshness.[14]

The contention also comes from various parts of the community. The several royal families of that areas are also come up against of the judgement and termed the entry as the mischievous in nature and, further justified the non-entries on the ground of the celibacy nature of the deity Ayyappa. It seems that still a great proportion of our society still doubt on the competency of the women and they are not in favour of providing women with equal stand as that of the men in society.

Following this judgment, there are several protests and the cases of violence coming up,[15] which clearly shows the difficulty of making the actual implication of the judgment. Nonetheless, if we look on the past we will find that such hue and cry is not new; indeed such reaction is common in the cases where the court tries to quash any long-established prejudice, for example in 1856 the decision of legalisation of the widow remarriage by Britishers led to the first war of independence in 1857.[16] People are still trying to prohibit the women entry in the temple by claiming that it is a harm to the sentiments of the devotees of the temple, who are the guards to protect the celibacy of the deity.[17]

 

 C.     What are the impacts of this judgment on the future of our legal system?

The Sabarimala issue seem to be more gender-based issue rather than the religion-based issue. In the recent years, the cases like Sabarimala, GowdaSwamy, et al. are coming up where some long-established practices are challenged, and the majority is more or less seem to have a similar opinion, i.e. distinguish between the religious practices and the superstitious beliefs. They are trying to overpower the constitutional legitimacy over religious values.[18] The courts have started to look at the various religious practices with an anti-discrimination and pro-perform perspective.[19] Even in the cases where the practices are essential court is now trying to distinguish between the core practices of the religion and embellishments.[20] Furthermore, the Justice Chandrachd articulate that the rigs of the groups should be in accordance with the fundamental rights, which are assured by the constitution, and the primary purpose behind such articulation is to fulfil the rights of the individuals and the self-determination in the group. In other words, the rights of the group must be in subject to the rights of the individuals in that group. In addition to this, it is also held that even if the practice is essential for religion, it can not violate the rights and freedom of any individual. However, this principle is left open for future cases and to be discussed later.

If we look at the broader perspective of this judgment, we will find that these results are attributable to evolution which took place in our society because of the continuous interaction of our community with the other communities where the women are put at the equal footing of men.  Also, it is the need of the time that the women should be treated equally because currently, the communities have started to focusing more and more on achieving the developmental goals which required the more active participants in the economic processes. In this type of environment, it has become quite remarkable that the community should include women as active member for enriching the economy.[21] Thus, it can be argued that in the past few judgments, the courts are more inclined toward the rights of the minor groups, which are earlier seem to be a victim of the oppression of the ruling groups (especially the women). From the very beginning of the 19th century, the deviations have started to come into scene concerning the rights of the women. After the independence, these deviations have got more potency; for example, India has chosen to become one of the few rare countries at that time which had provided the equal voting rights to the women indeed from the first election itself. Now, in the present case, the court has shown no hesitation to claim that the so old long practice is discriminatory in nature.[22] Also, in recent cases like that of Navtej Singh Johar & Ors. v. Union of India,[23] Shayara Bano v. Union of India,[24] Joseph Shine v. Union of India,[25] et al. where the court has given its judgment by going against the taboos which were established by the society. Moreover, these changes appear as a forthcoming gradual change in the perception of the society regarding the position of not only the women but also the other oppressive class.



Conclusion

Even after so many protests and resistance, it is not wrong to say that Sabarimala shows the changing nature of our society, which is initially patriarchal nature. This incidence further awakened people to discuss matters like mensuration, which was earlier seems like a secret taboo in Indian society. However, the women are still considered to be a weaker section and subordinate group in the society; and they are also seemed to be dependent on the male or in other words they require the assistance of the patriarchal power to exist in their society.  So, it is important to bring a further change in the society and scrapped the patriarchal prejudices which still exist in our society. In the current world of modernity, where everyone is focusing on the rationality and scientific theories, the patriarchal beliefs come up as a hurdle in the way of achieving development. Thus, it is required to put a bar against these long-established notions which are embedded in our society so that it cannot pass on to our upcoming generation and this will lead to the creation of a society free from any type of discrimination and both males and females become an equal contributor to the development of the country.

 


[1]S. Mahendran v. The Secretary, Travancore, AIR 1993 Ker 42.

[2] Uttara Jhaveri & Priyal Dhandhukia, Religion And Law:The Sabarimala DebateNujs Legal Aid Society 3(2019).

[3] Silvia Tieri & Emma J. Flatt, Sabarimala: Controversy over Women’s Access to the Temple, 554  National University of Singapore 1, 2 (Mar. 2, 2019).

[4] K.R. Vaidyaannthan Pilgrimage to Sabarimala 121 (1st ed., 2016).

[5] TNLP, Sabarimala Judgement: Another case of Judicial Over-reach?, available at https://www.google.com/search?q=sabarimala+pdf&oq=sabarimala+pdf&aqs=chrome..69i57l2j69i59j69i60.5485j0j7&sourceid=chrome&ie=UTF-8 (Last visited on 9th Mar. 2020).

[6] The Indian Constitution, art. 14, 21.

[7] Maneka Gandhi v. Union of India, 1978 AIR 597.

[8]Indian Young Lawyers Association v. State of Kerala (2018) SCC OnLine Ker 5802¶ 13 (per D. Y. Chandrachud J.).

[9]Ashok Jha, Exclusion of women from Sabarimala amounts to untouchability: Justice Chandrachud, Oct. 15, 2018, available at https://www.forwardpress.in/2018/10/exclusion-of-women-from-sabarimala-amounts-to-untouchability-justice-chandrachud/(Last visited on 8th, Mar. 2020).

[10] The News Minute, Menstruation is not dirty, women are not impure: Campaign to counter myths in Kerala,

available at https://www.thenewsminute.com/article/menstruation-not-dirty-women-are-not-impure-campaign-

counter-myths-kerala-89647(Last visited on 8th, Mar. 2020).

[11]AnushaMaurya&Astha Bhatt, Critical Analysis Of Dissenting Opinion In Sabarimala Temple Case: Was The Dissenting Opinion Of Justice Malhotra In Consonance With The Constitution?, 5(1) International Journal Of Legal Developments And Allied Issues 51, 58 (2019).

[12] The News Minute, Menstruation is not dirty, women are not impure: Campaign to counter myths in Kerala,

available at https://www.thenewsminute.com/article/menstruation-not-dirty-women-are-not-impure-campaign-

counter-myths-kerala-89647 /(Last visited on 8th, Mar. 2020).

[13] Akritityagi, Sabarimala - Prejudices, Misconceptions and Ignorance, available at http://www.legalserviceindia.com/legal/all_aricles-1098-akritityagi30.html, (Last visited on 8th, Mar. 2020).

[14]AnkiteshOjha, Sabarimala dissent from the dissent of Justice InduMalhotra: New Boundaries for Article 14?, Oct.22, 2018, available at https://theleaflet.in/sabarimala-dissent-from-the-dissent-of-justice-indu-malhotranew-boundaries-for-article-14/(Last visited on7th March, 2020).

[15] Priti Salian, Women visited this sacred temple. Then violent protests broke out. Why?, Jan. 8, 2019, available at https://www.nationalgeographic.com/culture/2019/01/sabarimala-temple-india-kerala-protests/ (Last visited on7th March, 2020).

[16]Shakeel Anwar, The Revolt of 1857: Causes, Nature, Importance and Outcomes, Feb. 1, 2018, available at

https://www.jagranjosh.com/general-knowledge/the-revolt-of-1857-causes-nature-importance-and-outcomes-

1444211359-1/ (Last visitedon7th March, 2020).

[17]FirstPost, Here’s why women are barred from Sabarimala; It is not because they are ‘unclean’, available at https://www.firstpost.com/india/why-women-are-barred-from-sabarimala-its-not-because-they-are-unclean-2583694.html /(Last visited on7th March, 2020).

[18]  Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2 SCC 725

[19] Elizabeth Seshadri, Sabarimala Judgment: Reformative and Disruptive, Oct. 5, 2018, available at https://www.thehinducentre.com/the-arena/current-issues/article25120778.ece/ (Last visited on 9th March, 2020).

[20]  Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770.

[21] K. RavindranSabarimala : All You Wanted to Know : The Legend and The Pilgrimage (1st ed., 2019).

[22] The Hindu, Sabarimala controversy: women lawyers move Supreme Court, October 29, 2018, available at

https://www.thehindu.com/todays-paper/tp-national/tp-kerala/sabarimala-controversy-women-lawyers-move-

supreme-court/article18470164.ece/ (Last visited on March 9, 2020).

[23].(2019) SCC Online SC 722.

[24] (2017) 9 SCC 1.

[25] (2018) SCC Online SC 1676.

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