Name- Kumar Harsh Vardhan

Section- B
Roll No.- 216457
Exam Roll No.- 19310806396
Case Comment: Indian Young Lawyers Association & Ors. v State of Kerala & Ors.,
SC (2018) WRIT PETITION (CIVIL) NO. 373 OF 2006

Introduction

In this landmark judgment, a precarious decision was taken by Justice Indu Malhotra. The main
issue in the case was of the customary practice of banning the entry of women of the age group
10-50 years into the Sabrimala temple situated in Kerala. Justice Indu Malhotra is of opinion
that the court should not indulge in such religious practices.

This conservative practice was challenged by a group of 5 women lawyers. A PIL was filed in
the supreme court of India challenging rule 3(b)of the Kerala Hindu places of worship,
(Authorization of entry rules) 1965. Section 3 of the Act required that places of public worship
be open to all sections and classes of Hindus, subject to special rules for religious
denominations. Rule 3(b), however, provided for the exclusion of “women at such time during
which they are not by custom and usage allowed to enter a place of public worship.1” Which
violates the basic fundamental rights given under articles 14, 15, 17 and 21 guaranteed by the
Constitution of India.

On 28th September 2018, the five-judge constitutional bench in the Supreme Court with the
majority (4:1) judgment declared the very old practice of banning women to enter the temple
as unconstitutional. The majority judgment was highly celebrated but the dissent by Justice
Indu Malhotra is ironic as she was the only woman with the dissenting opinion.

Background

The Sabrimala temple situated in Kerala is devoted to the worship of Lord Ayyapa known to
be as a chronic bachelor or Nashtika Brahmachari (celibate for life) who is considered as the
son of Lord Shiva and the mythical enchantress Mohini, the feminine incarnation of Lord

1referred 'Indian Young Lawyers Association & Ors. vs The State of Kerala & Ors.', By Aparajita Balaji.
http://lawtimesjournal.in/indian-young-lawyers-association-ors-vs-the-state-of-kerala-ors/ on 27 november 20,
19:32 hrs

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Vishnu. The deity is celibate, to prevent deviation from celibacy, women are not allowed to
enter the shrine.

The temple is managed by Travancore Devaswon Board. Mensurating women of the age 1050
are considered impure by the priests and authorities of the temple, this is an obsolete customary
religious practice. By restricting the entry of women they believed that they are preserving the
sanctity of the temple.

Following is the chronology of events2:

The entry of women to Sabarimala was restricted because of Rule 3(b) of the Kerala Hindu
Places Of Public Worship (Authorisation Of Entry) Act, 1965.

1991- Kerala High Court had maintained the restriction of women of particular age inside the
sacred shrine of Lord Ayyapa.

2006- Petition was filed by the Indian Young Lawyers Association in the Apex court for
allowing entry of women between 10-50 years.

2008- After two years the matter was referred to a three-judge bench
January 2016- The ban was questioned by the court, stating this cannot be done under the
Constitution.
April 2016- The United Democratic Front government of Kerala informed the SC that it is
bound to protect the rights of women as everyone has an equal right to pray.

2017- The top court referred the case to the constitution bench

2018- On 28 September 2018, the apex court by a majority of 4:1, lifted the ban that prevented
women from entering the Ayyappa shrine. The court proclaimed the centuries-old Hindu
religious practice as unconstitutional.

Analysis
India is a democratic country, which is governed by the sacred book of the constitution. The
Indian constitution has provided basic fundamental rights. The case of the Sabrimala temple is
a fight between fundamental rights provided to its citizens and customs or religious practices.
The constitution is the law of the land and nothing is superior to it.

2referred https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-allows-women-
toenter-sabarimala-temple/articleshow/65989807.cms on 27 november 20, 21:00 hrs

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With all due respect, I would like to disagree with the dissenting opinion of Justice Indu
Malhotra. She believed that the court should not interfere in the issue relating to religious
sentiments. Also when we look at the stance taken by this court in the case of Shayara Bano v.
Union of India 3 this apex court declared one of the religious practices- triple talaq as
unconstitutional. From this, it is very clear that fundamental rights are of utmost importance,
they prevail over any customs or religious practices.
The sole criterion for banning women to enter the shrine was based on menstruation and Justice
Indu Malhotra in her dissent believed to save this customary practice of restricting the women.
In India, women have already been subjected to the patriarchal notions of this society since
time immemorial. Menstruation is a natural biological phenomenon, it should not be seen as a
stigma and menstruating women should not be considered as impure. The restriction of women
based on physiological factors is gender discrimination and seeing women as impure is a form
of untouchability. Hence this violates the right to equality, liberty, and freedom of religion.
We are living in the 21st century, various bold decisions have been taken by this court like the
abrogation of section 377 of IPC, 1860, the opinion of Justice Indu Malhotra seems to be
clutched by the shackles of our conservative ideologies based on customs or certain religious
practices. This prejudice towards menstruation is toxic and needs to be uprooted from society.
No one should be punished or discriminated against because of their gender. As Susan B.
Anthony4, known for her feminist activity, succinctly puts,

“Men, their rights, and nothing more; women, their rights, and nothing less.”
Conclusion
In the eye of the constitution, everyone is equal and everyone has the right to pray and this
should not be denied to anyone based on customs. These practices are atrocities that are against
basic human rights, according to the Universal Declaration of Human Rights which promotes
equality and prohibits gender discrimination. The social evils like these practices need to be
uprooted as the decision taken by the majority, in this case, to move towards a progressive
society where it is free from the patriarchy.

3 (2017) 9 SCC 1
4 Indian Young Lawyers Association & Ors. v State of Kerala & Ors., SC (2018), CJI Deepak Mishra, para 1