ANALYSIS ON SUPREME COURT JUDGEMEMT: INDIAN LAWYERS ASSOCIATION VS STATE OF KERALA, SC2018

Picture Courtesy: http://www.indialegallive.com/constitutional-law-news/supreme-court-news/scs-observations-in-sabarimala-case-54990

THIS ARTICLE WAS WRITTEN BY VAISHALI MALHOTRA, A STUDENT AT KURUKSHETRA UNIVERSITY.

Abstract

The present issue is dealt with Supreme Court intervention in religious matter with accordance with to the Sabrimala temple which is a religious Temple. The verdict of 28 Sept, 2018 is a conflict between the culture, tradition and the equality to be given to women who is between 10 to 50 years was restrain to enter into the temple because of her age group which is against meaning of the fundamental rights as well as human rights as in this age period she is considered to be as impure as per the cultures and the followers of Ayyappa among them as impure. But in my opinion complete need of intervention of Supreme Court the apex court of India to intervene in the religious matters.Supreme court has never interfered in internal matters of any religion.However in the case of Sabrimala Temple, it is required for the intervention of apex court  for the sake of ensuring right of equality to women which must be provided to each and every women .Therefore,No religion, customs , beliefs , opinions of sect should not discriminate on the basis of sex, caste and creed, age group that is being stated under various promulgations consisting of  Constitution of India  and with my opinion Supreme Court should interferes in the religious matters of the country .

ANALYSIS ON SUPREME COURT JUDGEMEMT: INDIAN LAWYERS ASSOCIATION VS STATE OF KERALA, SC – 2018

INTRODUCTION

The. Sabarimala temple is a temple complex located at Sabrimala inside Periyar Tiger Reserve in one of the Kerala districts india. it is the holistic place in the word where approximately 70 billion devotees visiting every year to satisfy there culture and religious belief . generally. this temple dedicated to the hindu God named Ayappan which also known dharma Sastha, which was believed to be the son of Shiva and Mohini. Recently they was a verdict by the Supreme Court has ruled out the judgment on 28 September 2018 which says that all women of each and every age group woman can enter into the Sabrimala temple which is situated in kerala without any restrained which is to be discussed in detail as below.

HISTORICAL BACKGROUND

If we talk about the origin and historical background of this temple we must relate it with the history of the South India. As we know people of South India are very concrete followers of Ayappan as well as Dhramsastra. This temple have strong pre dominance over the people of South India as a believed that prince of Pandalam dynasty was an avatar Ayappan which chanted at Sabrimala temple and become one of the most prestigious and significant people of that time which as the divine importance. Along with the Sabrimala temple there are more temple across the globe which has the significance in South India. As per the historical sources Sabrimala is one of the five Sastha temple founded by the Great load Parasrama. After the construction of the temple it was mostly unreachable for the people access for about 3000 years. In the 12 century a prince named Manikandan of Pandalam dynasty rediscovered the real path to reach Sabrimala temple Manikandan had many followers accompied with him included the descendants of the Vavar-muslim warrior. This prince is considered avtar of Ayyappa. After word the temple was then renovated. 1821,the kingdom of the pendulum was also edited to region of Travancore.

Sabrimala temple in the 21st century

After 1950 after the vandalism, the temple was rebuilt. Sabrimala temple consist of a sanctum sanctorium with gold plated roof and for golden things which was installed in the flag staff in 1969.

• WORSHIPPING METHODS AT SABRIMALA TEMPLE

The history behind the worshipping method based upon the custom in the ancient period. Basically Sabrimala temple is based on five worshipping method namely shaivites, shaktistes and Vaishnavism. These methods which were followed by the followers of vishnu as well Shiva. There is the separate which we get Sabrimala temple which is in there word know as prasadam. This prasadam generally consists of arvana, payasam and appam which are prepared by the using the combination of rice, ghee, oil, sugar, jaggery etc.

• ENVIRONMENTAL CONDITIONS

By accessing Sabrimala temple by the devoted result to the environmental exploitation. In the reason of the sabrimala temple which is accompanied by the evergreen forest. The condition of sabrimala temple in environmental aspect is very worse as it is a one of the polluted area. High Court of Kerala has directed that ‘Irumudikkettu’ should not contain plastic materials. Projects like “Punyam Poonkavanam” has been initiated under the aegis of governmental departments. Hindu organisations such as Art of Living and Mata Amritanandamayi Math has been regularly contributing to keep Sabarimala and its precincts clean.

• Some of the aspects of “Punyam Poonkavanam” project are as follows :

Not using soap and oil while bathing in the holy Pamba River. No throwing any material, including clothes in the holy river.To prepare irumudikkettu without using any plastic and using only bio-degradable material To devote at least one hour in cleanliness activities at Sabarimala Sannidhaanam, River Pamba and surroundings as part of the pilgrimage.

• ADMINISTRATION MECHANISM

Administration mechanism is managed by  Travancore Devasvom Board, an affiliate authority of Government of Kerala. Thazhamon Madom is one of the traditional priest family who has powers over all the religious matters to be decided in Sabarimala Temple. Tantri is the highest priest and is the head of the temple. It’s the duty of the family to decide on religious matters relating to Sabarimala shrine. Tantris are to be present in all ceremonial Poojas and functions to be held at temple. The installation of each and every idols of the temple was also done by Tantri of this family.

What is the Sabarimala case?

Introduction

Group of five women lawyers has challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which says and authorises restriction on women “of menstruating age”that is 10 to 50 years of age or menstruating age.They moved to the apex court that is our Supreme Court  after the Kerala HC upheld the centuries-old restriction on the entry of women of 10 to 50 years of age  and ruled that only the “tantri (priest)” was empowered to decide on traditions and other conflicts arising out of this.Senior Advocate Indira Jaising, who was  represented the petitioners, said that the restrictions went against the Articles 14, 15 and 17 of the Constitution. She argued that the custom is discriminatory in nature in its real sense and stigmatised women, and that women should be allowed to pray at the place of their choice as per fundamental rights of an individual provided by the Constitution of India.Temple board in favour of barring women from entering Sabarimala Temple as they believed that entering into the temple by the women aged 10 to 50 will  spread impurity to the temple premises according to customs and beliefs led by ancient people.Sabarimala in Kerala barred women aged between 10 and 50 from entering the temple. It is one of  the largest Hindu holistic centres visited by 50 million devotees every year. The rules which mandate the ban were mentioned in Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965.

How the Ban was Revoked

• 1990– S Mahendran files a plea in Kerala HC seeking ban on women’s entry to temple.

• Apr 5, 1991- In 1991, this ban to temple entry for women was challenged before the Kerala High Court in the case named Mahendran Vs The Secretary, Travancore. In this case, Kerala High court ruled in favor of the restriction of women entering the temple and claimed that these restrictions have existed since time uncountable and not discriminatory to the Constitution of India. This guideline of the High Court was implemented and followed for the next 15 years Kerala HC upholds an ageold restriction on women of a certain agegroup that is 10 to 50 years of age entering the temple

• 2006– A petition challenging the ban was filed in the Supreme Court by Indian Young Lawyers Association on the grounds that the rule violates the freedom to follow and religion stated in Article 25 of the Indian Constitution

• Nov 2007– LDF government files affi davit supporting PIL questioning ban on women’s entry.

• Jan 11, 2016– SC questions practice banning entry of women at the temple premises.

• Feb 6- UDF government takes U-turn, instructs that SC is obliged and is  duty bound to “protect the right to practice the religion of these devotees” which talks about the females of 10 to 50 years age group.

• Apr 21– Hind Navotthana Pratishtan and Narayanashrama Tapovanam files plea in SC entirely supporting  entry of women in Sabarimala temple

• Nov 7– SC Rejects Plea for Independent Probe into Arrests Nov 2007 LDF government and files an affidavit supporting PIL questioning ban on women’s entry .LDF government files fresh affidavit in SC stating their favourism view regarding the entry of women of all age groups.

• Nov 7, 2016– LDF government asks the apex court that it favours entry of women of all ages in spite of menstruating age.

• October 13, 2017– Case is referred to a SC .

• Oct 27- Plea filed in SC for gender equality bench to hear the same case.

• July 17, 2018– Five-judge constitution bench starts hearing the matter.

• January 2018- Temple authorities make it compulsory for female devotees to provide their age proof while visiting the temple . The decision came after when number of women of  banned age group were detained while entering Sabarimala Temple .

• July 24- SC made it clear that the ban on entry of women would be tested on “constitutional elements”.

• July 26– The Pandalam Royal family challenged the petition seeking entry of women into the temple, calling it “mischievous” on the grounds of being against practices of the Hindu mythologies. The lawyer appearing on their behalf had told the court that the temple is of Lord Ayyappa, and his beliefs . Therefore women of menstruating ages should not be allowed to enter into the premises.

• August 1, 2018– The five-judge Constitution bench reserved its judgement on the petitions challenging the ban after hearing the case for eight consecutive days.

• September 28, 2018– SC allows women of all age groups to enter temple. This decision was a contradictory decision led by the apex court which have followers as well as haters also of the decision. Rules custom of barring women is violative of Art 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worships.

MAJOR ISSUES

It’s a matter of conflict between customs and equality among each and every individual of the society irrespective of caste, color, age group, religion, etc.

In a country like India, society and religion are inseparable from each other that is they moves in a parallel direction. The Sabarimala case has brought this idea to the masses with controversy and conflict between religion Vs Fundamental Rights. The legal framework involved in the case are complex and multi-layered which creates confusion and chaos.The petitioners before the Supreme Court have argued that these reasons are discriminatory in nature that means which is  against women and go against the Constitution and the entire spirit of the Constitution of India .The defenders reverted back by  saying that the constitution grants to every religious group the right to determine its own rules and practices .The debate here lies in the fact that what it means to be a secular state is to grant autonomy and freedom to the denominations, from state interference.

Arguments in favour of SC verdict

1. Preventing women from entering into the places of worship is  against various Articles 14, 15, 19, and 25 of the Indian constitution.
2. The restricted women barred to access to the temple  violated their fundamental right under Article 25(1) to freely practice their religion as said
3. Restraining themselves also infringes the Right to manage its own religious affairs under Article 26(1) cannot “override the right to practice religion itself”, as Article 26 cannot be seen to overrule the right to practice one’s religion as guaranteed under the Constitution of India.
4. Restricting the entry of women into places of worship is one of the path for the imposition of patriarchy. Often the restrictions are based on patriarchy and not religion at all
5. Banning entry to the temple by the women is discriminatory in nature since the time it subverts the idea of everyone being equal to God.
6. From the abolition of Sati to temple entry proclamation to the abolition of untouchability.
7. In April 2016, the Shani Shingnapur temple, which had barred women from entering its area for over 400 years, allowed females to worship inside the temple with respect to courts order.

Arguments against SC verdict

1. Women are banned from entering into the temples to preserve ‘purity’. The reason cited in Sabarimala case is that women during their menstruation age are not supposed to enter places of worship.
2. Following the great Lord Ayyappa as a Naishtika Bramhachari, many point out that it is the celibate religious nature of the deity that forms the basis of the practice and not misogyny.
3. Article 15 of the Constitution of India does not apply to religious institutions whereas Article 15(2) provides citizens with the right to access to places such as hotels, shops and so on but nowhere does it mention public temples.
4. Some of those who oppose women entry claims that their actions and protests are protected by Article 25(1).
5. Article 25(2) pertains to only secular view and it is only pertaining to social issues, not gender or religious-based issues.

Some notable Supreme Court Judgements related to this

• In the Ananda Marga case (2004), the Supreme Court held that the public performance of the Tandava dance was not an essential part of the religion of the Ananda Marga sect, even though it had been specifically set down as such in their holy book.

• In Shirur Mutt case, the Supreme Court observed that a “religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential and no outside authority has any jurisdiction to interfere with their decision”. At the same time, the court also said that the state can legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”.

CONCLUSION

Supreme court has never interfered in internal matters of any religion. However, in the case of Sabrimala Temple, it is required for the intervention of apex court  for the sake of ensuring right of equality to women which must be provided to each and every women. Therefore, No religion, customs, beliefs, opinions of sect should not discriminate on the basis of sex, caste and creed, age group that is being stated under various promulgations consisting of  Constitution of India and with my opinion Supreme Court should interfere in the religious matters of the country.