Religion Verses Gender Equality

We can see from history how women are treated unequally in the name of customs and tradition. In
Hindu religion a women is treated impure during her menstruation period. But in the same religion
we can also see devotees seeking blessings from Maa Kamakhya also known as bleeding goddess.
Then why people consider menstruation as “impure” and why are women of menstruating ages are
prohibited to enter temple?

The Temple of Ayyapan in the Sabarimala region located in the Pathanamthitta district of Kerala is
considered to be one of the largest pilgrimage sites in the world with an estimate of between 17
million to 50 million devotees visiting every year.

Lord Ayyapan was worshipped as a Nastikika Bramhachari for which as per the custom and tradition
women of menstruating ages are not permitted to enter the temple as that would disturb the
celibacy of the deity.

Background

The Bench was delivering the Judgment in a 2006 PIL filed by Indian Young Lawyers Association
challenging the centuries-old tradition of Sabrimala Temple banning entry of women of
menstruating age inside the temple.

The eight-day long marathon hearing was privy to a debate on the ‘essential religious practices’
doctrine and the principle of constitutional morality-  Justice D.y Chandrachud observed that
abstinence is a state of mind and to restrain women from pursuing their right to worship on
physiological grounds would be unconstitutional.

Countering the submission of historic religious beliefs and customary practices, he asserted that
after the coming into force of the Constitution, all actions have to be tested on the touchstones of
equality and liberty. The judge had regarded the ‘essentiality’ principle, originating in the 1954 five-
judge Bench decision in Shirur Mutt, as a “problem with our jurisprudence”. He had criticised it for
compelling judges to be guided by the theological aspect- whether a practice is deemed essential in
terms of the tenets of the religion- rather than whether it is conducive to the Constitution. He was of
the view that regardless of the ‘essentiality’ of a practice to the religion, discrimination cannot be
allowed in violation of the basic structure of the constitution. Concurring, Justice Rohinton Nariman
emphasised that contemporaneous morality is dynamic. He ventured that if constitutional morality
was taken recourse to, the practice would not survive. Chief Justice Dipak Misra had reflected that
one visits a temple by virtue of their belief and devotion, and that the onus to prove the rationality
and reasonableness would be on those imposing the prohibition. He commented that despite there
being innumerable Lord Jagannath temples, the one in Puri continues to attract worshippers in
hoards. Justice Nariman had weighed in that the ban on women between the ages of 10 and 50
years could not be said to be justified as in certain cases, a woman might be menopausal at an
earlier age. The judge noted that at some point, female devotees are permitted access to the
temple. He indicated the stand of the Travancore Devaswom Board before the Kerala High Court in
S. Mahendran v. Secretary, Devaswom Board- The Board had contended that the restriction of entry
is only during the Mandalam, Maharavilakku and Vishu days and that temple will be open in every
month for five days. According to the Board, persons who go to the temple during these days are not
expected to observe the penance for any particular period. For decades, Many female worshippers
of the age group of 10 to 50 used to go to the temple during these days for the first rice-feeding
ceremony of their children. “What happens to the celibate nature of Lord Ayyappa in those 5 days?
Is it that the idol vanishes on those days?”, inquired Justice Nariman rhetorically. Justice Indu
Malhotra had also wondered how in certain instances women have been allowed to enter the shrine
through its northern entrance, where the rituals of placing the irumudikkettu on the head and taking
the 18 holy steps are not observed Further, Justice Nariman pointed out the anomalies that in one of
the affidavits the duration of the customary penance is asserted to be 55 days as opposed to the
claim before the apex court of the inability of women to observe the customary 41-days ‘Vrathams’,
and that none of the affidavits imputed the ban to a belief of impurity. Accordingly, Justice
Chandrachud had remarked that the custom could not be said to satisfy the requirement of being
continuously and consistently in existence from times immemorial. The bench also wondered how a
Temple which was open to all sects of Hindus and even persons of other religions could be
denominational in character for the purpose of Article 26. When the independence of the Temple to
pursue the practice of exclusion was sought to be justified by indicating that the Sabarimala Temple
does not procure any state funding, the Chief Justice remarked that the only question was if the
Temple is a public place, in which case noone could be prohibited from offering prayers to the deity.
The hearing had witnessed positive, feminist observations from the bench, with Justice Chandrachud
lamenting how women, from birth, are subject to social conditioning in terms of what they can or
cannot do, and how the female is regarded as chattel of her male counterpart. The judge noted that
the social dominance assumed by men could not justify this restriction on women so far as their
communication with God  by means of pilgrimage is concerned. Justice Nariman agreed that the
supposed inability of women to observe the 41 day penance on account of impurity is a patriarchal
concept. When Senior Advocate Abhishek Manu Singhvi Singhvi, appearing on behalf of the Board,
had objected, saying that such patriarchy is prevalent in several faiths and social setups across the
globe, Justice Chandrachud assured that the court shall endeavour to ameliorate the situation as far
as their jurisdiction extends. Chief Justice Misra was also unimpressed by Dr. Singhvi’s submission
that women not falling in the 10-50 years age bracket were highly revered among the pilgrims, with
a special title dedicated to them. The Chief Justice asked why the same level of respect was not
accorded to the menstruating women. The discussion had even veered to whether the impugned
practice of exclusion of women amounted to ‘untouchability’ for the purpose of Article 17, as
suggested by Amicus Curiae Raju Ramachandran. Senior Counsel Indira Jaising, for the petitioners,
drew the attention of the bench to former Chief Justice B. P. Sinha’s dissenting opinion in Sardar
Sayedna Tahir Saifuddin Saheb (1962), regarding excommunication as being akin to untouchability.
The matter is pending for reconsideration before the court. The Chief Justice agreed that the
argument based on Article 17 may be kept open, asking Ms. Jaising if she was suggesting a reference
to a 7 judge bench. When she left the decision to the wisdom of the court, Chief Justice Misra stated
that the issue may be dealt with separately. Chief Justice Misra also observed that the right to
regulate religious affairs could not scale to the height of discriminating on account of the biological
attributes of women belonging to a particular age bracket, while Justice Nariman noted that such a
right would have to be conditioned on the Fundamental Rights of the public.

Major issues

The Sabarimala case brought the issue of religion verses fundamental rights in front of the society. In
a country like India, society and religion are inseparable from each other. In Indian constitution
article 14 guarantees equality before law and article 15 prohibits discrimination on the grounds of
race, caste, sex, religion and birth of place. And as we all know that Indian constitution is a written
constitution and all the people have to enact according to it, the Sabarimala case needed to be
reformed.

But do the people of India really act according to the constitution? Or they give more importance to
the norms and customs that have been followed by orthodox societies since ages!

We are still living in those days where lower community people are treated as untouchables and are
prohibited to enter holy places. As BR Ambedkar said, “the issue is not entry but equality”. During
20th century the equality issue was between the higher community and the lower community. And
in today’s date the issue is on equality on the grounds of religion, custom, tradition and gender. In
our society women are still discriminated and are not treated equally on the grounds of norm,
tradition and gender. Women are not only struggling for their gender equality, but are also fighting
for their rights to worship. They are struggling with the term “Impure” associated to them when they
are in their menstruation periods.

The Supreme Court Verdict

The Supreme Court verdict on September 28, 2018, paved the way for the entry of women
of all ages into the Ayyappan temple at Sabarimala in Kerala. The five-judge constitution
bench headed by Chief Justice Dipak Misra, in its 4:1 verdict, said banning the entry of
women into the shrine is gender discrimination and the practice violates the rights of Hindu
women. It said religion is a way of life basically to link life with divinity.

The court observed that it can’t be oblivious to the fact of the case that a class of women is
disallowed due to physiological reasons (menstruation).

The CJI said devotion cannot be subjected to discrimination and patriarchal notion cannot
be allowed to trump equality in devotion. While Justices RF Nariman and DY Chandrachud
concurred with the CJI and Justice AM Khanwilkar, Justice Indu Malhotra gave a dissenting
verdict.

Ironically, in the 4:1 verdict on Indian Young Lawyers Association & Others vs. The State of
Kerala & Others, the only dissenting vote was of the sole woman judge on the bench: Justice
Indu Malhotra.

Justice Malhotra, in her dissenting judgement, said that issues which have deep religious
connotation should not be tinkered with to maintain a secular atmosphere in the country.

However, the Supreme Court verdict – that the Sabarimala temple must be thrown open to
women of all ages – should be seen as another victory for the cause of gender equality.

Conclusion

India is a free nation, but are the people of India free to exercise their rights? India is a
secular country with diverse cultures and traditions. But there are some traditions and
beliefs which hinder the right to equality. So in true sense we can see that the people of
India are not fully independent because they are bound by their cultures and traditions. And
to attain their full independency India will have to eradicate deep rooted beliefs from the
society which are against humanity so that each citizen can enjoy full freedom without any
discrimination on the grounds on race, sex, caste, and the place of birth.

The Sabarimala case gave the opportunity to the Supreme Court to eradicate deep rooted
beliefs from the society for which now the women of all ages can enter the temple and offer
their prayers. From this verdict we can see that India is taking progressive steps to make the
country a place where everyone is treated equally. This verdict has reduced the gap
between the society and religion which is very important for a country to lead a healthy
democracy.