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A Case Commentary on Sabarimala Judgment by Harsh Mishra

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A Case Commentary on Sabarimala Judgment by Harsh Mishra

Petitioner(s)- Indian Young Lawyers Association & Ors.

Respondent(s)- The State of Kerala & Ors.

WRIT PETITION (CIVIL) NO. 373 OF 2006

Bench (Assenting)- Dipak Mishra, CJI, A.M. Khanwilkar, J, R.F. Nariman, J, D.Y. Chandrachud

(Dissenting)- Indu Malhotra, J.

On October 24th a famous journalist Kavitha Jakall, alongwith police marched towards the foot of Sabarimala Temple. On seeing a woman entering the temple the people started revolting and the police had to back off. The next day the journalist was accompanied by 300 police. However, 100 of devotees and priest stood in her way debarring her from entering. Despite the Supreme Court order, Kavitha could not enter the temple.

Sabarimala temple is located in Pathanamthitta district, Kerala. It has a deity of  Ayyapa that is ‘naishtika brahmachari’ (eternal celibate). Therefore, the people have to perform 41 days of purity before going there. During these 41 days, a person has to eat vegetarian diet, no alcohol and no sex. Since, a woman has a period atleast once in 41 days, thus they are not allowed to enter temple. Menstruating women are seen as a sign of impurity. The ban was first challenged in 1991 and the Kerala High Court upheld the ban. In 2006 six lawyers filed a petition on the upliftment of ban. In 2018 the Court allowed the woman to entry into the temple.

The following judges gave their judgment as:

  • CJI Dipak Misra and Justice Khanwilkar– Devotion cannot be subjected to gender discrimination. Furthermore, devotees of Ayyapa do not constitute a separate denomination. Article 25(2) empowers the state to make laws to reform Hindu denomination. Thus, the court was righteous in its judgment to make reform. We see a woman as a goddess in our country. 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. Therefore, the ban is nothing more than religious patriarchy. The exclusion of the woman on the basis of their biological factor infringed Article 25(1).
  • Justice R Nariman- Ayyappa devotees do not form a denomination, but they are only a part of Hindu worship. The constitution doesn’t prohibit the entry of a woman on the basis of her gender. He stated that there was sufficient material to conclude that the exclusion of women from Sabarimala violated Article 25(1).
  • Justice D Y Chandrachud– To treat women as the children of a lesser God is to blink at the Constitution. Popular notions about morality can be offensive to the dignity of others. Any custom or religious practice if it violates the dignity of women by denying them entry because of her physiology is unconstitutional. To treat women as children of a lesser God is unconstitutional. Exclusion of a woman because she menstruates is utterly unconstitutional. The court must not grant legitimacy to religious practices which derogate women.
  • Justice Indu Malhotra (Dissenting)- India has diverse religious practices and constitutional morality would allow anyone to profess and practise a religion she or he believes in and it is not for the court to interfere in such religious practices, even it may appear discriminatory.  Issues of deep religious sentiments should not interfere into. What is essential practice in religion is for the religion to decide. It is a matter of personal faith and India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational customs. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. Personal views of judges do not matter. A religious denomination has freedom to believe and even practice even if their beliefs are illogical or irrational. She held that the fundamental right to equality guaranteed to women under Article 14 cannot override Article 25, which guarantees every individual the right to profess, practice and propagate their faith.

The Courts are on a reforming spree since 2016. They pronounced various judgments such as Triple Talaq, Article 377 etc. Therefore, the judgment of Sabarimala had various repercussions. First and foremost, it is apparent that lifting the ban ensures the fundamental rights to women. This includes right to equality, right to worship. However, there are certain other impacts which came with the judgment.

The verdict of the Sabarimala has dual facets. On one hand the women are happy that they are allowed entry in the temple. While, on the other hand the women of that religion refuse to accept the order of the Supreme Court. According to them, this order will detoriate their religion and custom. Moreover, the women of Kerala have started #ReadytoWait campaign. This means that they will not enter the temple an will wait until Supreme Court review its decision. The judgments however disappoints the Brahmin and the Priests. They contended that this verdict is an infringement of their right to religious freedom

This decision also has a political impact. With general election approaching, political parties tried their best to gain vote bank. Here are some reactions from eminent person and parties:

  • Shashi Tharoor  welcomed the ruling, saying court has reiterated the case of equal justice.
  • Congress Party has called it as a progressive order.
  • VHP (Vishwa Hindu Parishad) of Kerala has termed the ruling unfortunate one.
  • Jaimala (Karnataka Women and Child Development Minister) termed the verdict historic.
  • Kerala BJP Leader said that he respects the judgment

The Sabarimala judgment is a tussle between Fundamental Right and Tradition. The verdicts gives an equal right to women. But, we should also consider the dissenting opinion of Justice Indu Malhotra. Ironically, being a woman she gave a judgment against the women. “Judicial review of religious practices…. would negate the freedom to practice one’s religion according to one’s faith and beliefs”. The Court however, has ignored the faith of the people.

The area of religion is indeed a sensitive area. Over a period of time court have abstained from interfering it.However, if the court interferes it then every practice can be questioned by the non believers. Is the court ready for this avalanche?

Tradition and Culture makes India a rich nation, but these elements need to be balanced with the changing world. If the court have given their verdict, they must enforce it strictly or revisit it. Or else, it will erode the authority of the judiciary.

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