Friday, September 28, 2018

Supreme Court Opens Doors of Sabarimala Temple to Women

Supreme Court Opens Doors of Sabarimala Temple to Women

New Delhi: Pushing yet another social reforms agenda, the Supreme Court on Friday, 28th September 2018 opened the doors of Kerala's Sabarimala temple to women of all age groups.

A Constitution bench led by Chief Justice of India Deepak Mishra, unshackled the age-old chain that stopped women between the age of 10 and 50 years from entering the temple.

The court called the practice as a form of discrimination, smacking of gender bias and prejudice against a natural biological process that every woman has to go through.
Justice Nariman said that mob morality cannot impair constitutional rights of women.
The bench also emphasised that it is the constitutional morality that should guide the courts in deciding the validity of a practice.
"Courts must not grant legitimacy to religious practices which derogate women," said Justice Chandrachud.

Upholding the equal right to pray for women, the court said that the practice was in breach of their fundamental rights under Article 14, 15 and 21 of the Constitution.

A bunch of petitions had challenged the practice as being unconstitutional, excluding women solely on the ground of their biological process.

The temple management board has defended the practice, as calling it an essential religious practice of their religious denomination.

“Religion can’t become a cover to exclude and deny basic right to worship... nor can physiology be a reason,” the top court’s five judge bench said in a 4:1 majority verdict.

Women of reproductive age were restricted from entering the over 800-year-old shrine in south Kerala’s Pathanamthitta district as its presiding deity, Lord Ayyappa, is considered to be a celibate.

The Supreme Court, which tested this traditional ban against the constitutional right to equality before law, had asked the temple board to establish that the restriction was an “essential and integral” part of religious faith.

The court wasn’t convinced with its arguments.

“Exclusionary practise given support by a subordinate legislation is neither essential nor integral part of religion. We hold rule... is ultra vires,”Chief Justice of India Dipak Misra who headed a five-judge constitution bench , said. The bench also comprises justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

But after hearing the board and other parties, the bench indicated that the practice appeared to be based on the “patriarchal” belief that a man’s dominant status in the society makes him capable of austerity.

Acknowledging the presiding deity has rights including the right to privacy with regard to certain rites observed at the shrine, CJI Misra had said, “But whether the right of privacy is the same as reflected in the judgment that recognizes privacy as a fundamental right will have to be examined.”

Lawyer Indira Jaising, who appeared for the petitioners, the Indian Young Lawyers Association, argued the temple rules on entry of women were discriminatory as they were based on sex alone. Citing the Constitution, she contended that any custom or practice which violates its Articles 14 and 15 pertaining to equality should be struck down.

The restriction on women was first challenged in Kerala High Court that decided in 1991 that it was part of an age-old tradition and not discriminatory.

Nearly 15 years later, the Indian Young Lawyers Association challenged the practice in the Supreme Court, saying it was discriminatory in nature and against gender justice.

A pilgrimage to Sabarimala situated in Western Ghats mountain ranges is unique in many ways. A devotee has to observe 41 days’ fast abstaining from all worldly pleasures followed by a rigorous trek through forests. Lord Ayyappa’s favourite disciple is a Muslim saint ‘Vavar Swami’ and devotees will have to worship first at his mosque before proceeding to the hilltop.

Women aged between 10 and 50 are allowed only till Pamba, the base camp before a 5-km arduous trek to the hill shrine begins. Women cops are employed in Pambha in large numbers to screen devotees. If police become suspicious, women devotees will have to furnish proof to verify their age.

The temple management had earlier told the apex court that the ban on entry of women of the particular age was because they cannot maintain “purity” on account of menstruation.

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