THE SABARIMALA CASE

Backdrop:
Sabarimala temple is located in the Periyar Tiger Reserve, Kerala. The temple has a unique
practice in which devotees must undertake 41 days of penance and renounce worldly
things. According to devotees, Lord Ayyappa is unmarried. Women of menstruating years
were prohibited from entering the temple to protect the purity of the deity.

This was first challenged in Kerala High Court. The court in S. Mahendran v The Secretary,
Travancore held that the exclusion was constitutional and justified.

In 2006, the Indian Young Lawyers Association filed a public interest litigation before the
Supreme Court challenging the Sabarimala Temple's prohibition of women. In their PIL they
challenged that the practice is unconstitutional as it violates Article 14 'Right to Equality and
Article 25 Freedom of Religion of women.

On August 18th 2006, the Supreme Court issued notices to the parties. On March 7th 2008,
the matter was referred to a 3-Judge Bench. The matter was next heard seven years later,
on January 11th 2016. On February 20th 2017, the Court expressed its inclination to refer
the case to a Constitution Bench. Finally on October 13th 2017, the three-Judge Bench
composed of Chief Justice Dipak Misra, Justices R. Banumathi and Ashok Bhushan ordered a
5-Judge Constitution Bench to pass Judgement on the case.

Issue Before The Court:

Whether the practice of excluding women on ground of biological factor amounts to
"discrimination" and violates Articles 14, 15 and 17?
Whether the practice of excluding such women constitutes an "essential religious practice"
under article 25?
Whether the temple has denominational character?
Whether Rule 3 of the Kerala Hindu Places of Public Worship Rules permits religious
denomination to ban entry of women and if so would it not violate Articles 14 and 15(3) of
Constitution?

Arguments By Petitioners
The Petitioners contested that Sabarimala temple is not a separate religious denomination
as religious practices performed in Sabarimala temple at the time of puja and other religious
ceremonies are similar to practices performed by any other Hindu temple.

They said that in the Hindu religion, discrimination in matters of entry to temples is not
ceremonial. Restriction on the entry of women is not the essence of Hindu religion.
The Petitioners submitted that mere sight of women cannot affect one's oath of celibacy.
The devotees do not go to the temple for taking oath but for seeking the blessings of Lord
Ayyappa.

Petitioners submitted that the expression 'at any such time' occurring in Rule 3(b) does not
lead to complete exclusion of any woman.

Petitioners contested that as per Article 14 if any law is discriminatory in nature, it has to
have a rationality and the difference must be capable of being understood (intelligible
differentia). The object, what has been claimed that is to prevent the deity from being
polluted which runs counter to the constitutional object of equality and fraternity.

The petitioners have also put forth that the practice per se violates Article 15(1) of the
Constitution which is to discriminate on the basis of sex as menstruation is exclusive to
females. It was submitted by the Petitioners that this practice violates Article 25 of the
Constitution as this is the right of Hindu women to enter temples dedicated to public.

Arguments By The Respondent

The Respondent submitted that Lord Ayyappa is a hyper-masculine god born out of the
union of two male gods Shiva and Mohini, where Mohini is Vishnu in female form. Therefore
Sabarimala Temple is supposed to depict Naishtika Brahmcharya.

The Respondent has drawn the attention of Court towards the basic tenets of the
establishment of the temple. As per Respondent, Ayyappa had explained the manner in
which the Sabarimala pilgrimage was to be undertaken emphasizing the importance of
Vrutham' which are special observances that need to be followed in order to achieve
spiritual refinement, and that as a part of the Vruthum', the person going on pilgrimage
separates himself from all family ties for 41 days and during the said period either the
woman leaves the house or the man resides elsewhere in order to separate himself from all
family ties. Thereafter, the Respondent has pointed out that the problem with women is
that they cannot complete the 41 days Vruthum as their periods would eventually fall within
the said period and it is a custom among all Hindus that women do not go to temples or
participate in religious activities during periods and the same is substantiated by the
statement of the basic Thantric text of temple worshipping in Kerala Thantra Samuchayam,
Chapter 10, Verse II.

The Respondent has laid emphasis on that the Vruthum is an age-old custom and anyone
who cannot fulfill this, cannot enter the temple and hence women who have not attained
puberty and who are in menopause alone can take the pilgrimage.
The Respondent has also submitted that this condition is not applicable to women alone,
even men who cannot observe 41 days of Vruthum due to births and deaths in the family,
which result in breaking of Vruthum, are also not allowed to take pilgrimage.

The Respondent draws the attention of the Court to the fact that religious customs as well
as the traditional science of Ayurveda consider menstrual period as an occasion for rest for
women and a period of uncleanliness of the body and during this period, women are
affected by several discomforts and, hence, observance of intense spiritual discipline for 41
days is not possible. The Respondent No. 4 has also contented that it is for the sake of
pilgrims who practice celibacy that young women are not allowed in the Sabarimala
pilgrimage.

The Respondent contested that the prohibition is not a social discrimination but is only a
part of the essential spiritual discipline related to this particular pilgrimage.

Judgement
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. Chief Justice
Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud
constituted the majority. 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.

The lone woman on the bench, Justice Indu Malhotra, dissented. She said that issues of
deep religious sentiments should not be ordinarily be interfered by the Court. The Court
should not interrupt in this matter unless if there is any resentful person from that section
or religion. The notion of rationality should not be seen in religious matters. She also held
that shrine and the deity are protected by Article 25 of the Indian Constitution.