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The Sabarimala Judgment: Reformative and Disruptive

- Elizabeth Seshadri, Advocate, Madras High Court

The Unfolding

This eloquently written article on the judgement on the much debated issue
about the entry of women into the famous Sabarimala temple in Kerala focus
or rather emphasizes upon two things, first being the rationale behind this
judgement that is how the court tried to draw that line between essential
religious practices and superstitions, second is the accompanying ways that
Supreme Court adopted in trying to bring those reformative changes
pertaining to the notions of ‘purity and pollution’ around menstruation.

The backdrop

The Sabarimala petition by Young Lawyers Association basically challenged

the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Rules, 1965 which restricts the entry of
women into the Sabarimala temple, The Travancore Devaswom Board in
1955 through a notification banned women of ages between 10 and 55 the
Kerala High Court in 1991 upheld this ban saying it is usage prevalent from
time immemorial.

The two pillars

Article 25 gives to all persons the right to freely profess, practice and
propagate religion. The freedom to manage religious affairs is provided by
Article 26. This Article gives the right to every religious denomination, or any
section thereof, to exercise the rights that it stipulates. Both these are
exercised in a manner that is in conformity with public order, morality, and
health. These two articles stand as the two pillars that validate Right to
Freedom of Religion in our country.

The test of essentiality

The test of essentiality evolved through various judgements by Indian courts
in several cases over the decades, started in Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiyar of Shirur
Mutt,and then was applied in several cases, Sri Venkataramana Devaru vs
State of Mysore, Mohd Hanif Quareshi vs State of Bihar, Durgah Committee,
Ajmer vs Syed Hussain Ali were such cases to name a few. Through these
various views, The Courts progressively elaborated the “essential elements
doctrine” to ascertain which elements are fundamental for a religious practice
and which may be purged, considered as mere superstitions. While diving
through the test of essentiality the courts looked at the texts and scriptures of
the concerned communities at times to derive at a conclusion.

Superseding constitutional legitimacy

Freedom to manifest ones religion is subject to limitation as far as

constitutional legitimacy is not shadowing it. So the ultimate test in a
democratic society like that of ours is upholding the interests of public safety,
for the protection of public order and protection of rights and freedoms of
every individual. These trends being endorsed by the courts gave
constitutional values, dignity of individuals and social equality a much higher
importance than that of religious claims and sabarimala judgement is no
exception.

The judgement

The Court delivered its verdict in Sabarimala Temple Entry. Majority held that
the temple's practice of excluding women is unconstitutional. It held that the
practice violated the fundamental rights to equality, liberty and freedom of
religion. The Sabarimala judgement is a bold and unabashed narrative. The
Supreme Court has adopted a reformist and interventionist approach by
upholding human dignity and equal entitlement to worship for all individuals.

The hegemonic patriarchy

Supreme Court condemned the prohibition as "hegemonic

patriarchy" hegemonic patriarchy means that patriarchy has become such an
over-arching idea that discrimination based on it appears to be common sense
to such an extent that not only men, even women become the supporter and
perpetrator of the very notion which discriminates them.

Pure violation

It said that exclusion on grounds of biological and physiological features like

menstruation was unconstitutional. It amounted to discrimination based on a
biological factor exclusive to gender. It was violative of the right to equality
and dignity of women.

The reformative approach

SC said that prohibition founded on the notion that menstruating women

are "polluted and impure" is a form of untouchability under article 17 and the
notions of purity and pollution stigmatized women.

The smart move

SC also held that Ayyappa devotees do not form a separate denomination just
because of their devotion to Lord Ayyappa, but it is only a part of Hindu
worship.

Constitutional legitimacy upheld once again

No customs or usages can claim supremacy over the Constitution and its
vision of ensuring the sanctity of dignity, liberty, and equality and customs
and personal law have a significant impact on the civil status of individuals.

The dissent opinion

Justice Indu Malhotra dissented from the majority opinion and held that
notions of rationality cannot be invoked in matters of religion by courts. She
held the determination of what constituted an essential practice in a religion
should not be decided by judges on the basis of their personal viewpoints.
Essentiality of a religious practice or custom had to be decided within the
religion and it is a matter of personal faith.
Justice Malhotra observed that the freedom to practice their beliefs was
enshrined in Article 25 of the Constitution.

Menstruation; Not a Taboo

In India even mere mention of the topic has been a taboo in the past and even
to this date. Further, in the Hindu faith, women are prohibited from
participating in normal life while menstruating. She is considered impure and
polluted .People’s attitude and beliefs need to be changed through education
and awareness. The judges tried to upheld these norms and tried to normalize
menstruating women.

Observations

The author beautifully tried to fit in all the relevant facts and she lauds the
majority opinion in Sabarimala case for reinstating the primacy of individual
rights vis-a-vis group rights in the Constitution and for articulating a vision of
constitutional morality rooted in dignity cutting across religious and societal
morality. But then is no mention about article 13 which says personal laws are
outside the ambit of the constitution. But then in the developments made in
time we see that the Supreme Court started taking a liberal view by striking
those parts which were against the constitution. I think this point was no
where mentioned in the article. I think the author should have given further
more weigh for the other side of the petition also which she kind of failed to
do. After all this was a case of balancing equals but the author was rather less
intervened into that zone and tried to upheld the judgement in every way
possible.