The Supreme Court (SC) in a majority opinion of 4:1 opened the gates of Sabarimala temple for women of all age groups. A five-judge constitution bench rejected the vehement submissions of the Travancore Devaswom Board, which runs the temple, and ruled that the devotees of Lord Ayyappa are “exclusively Hindus” and do not constitute a “separate religious denomination”.
The 4-1 verdict held that the existing ban is gender discrimination and the practice violates rights of Hindu women. ”Right to pray” in the temple for women between 10 and 50 years of age won over the ‘right to wait’ campaign as the Supreme Court condemned the prohibition as “hegemonic patriarchy”.
The main opinion shared by Chief Justice of India (CJI) Dipak Misra and Justice A.M. Khanwilkar said, “One side we pray to goddesses, on the other, women of a certain age are considered ‘impure’. This dualistic approach is nothing but patriarchy practised in religion. The ban ‘exacts’ more purity from women than men”.
It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional. It amounted to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women.
Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion. Here are the reasons why Judge Indu Malhotra gave dissenting judgement in the case..
- On challenging religious practices
According to Justice Malhotra, entertaining PILs challenging religious practices could cause harm to the secular fabric of the country. In her judgement, she said, “In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country.”
- On right to equality
The article 14, right to equality, Justice Malhotra said that it cannot be the only touchstone to test religious customs and practises. She said, “Article 25 (freedom of religion) specifically provides the equal entitlement of every individual to freely practise their religion. Equal treatment under Article 25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith.”
- On gender equality
Justice Malhotra observed that there are 1000 temples of Lord Ayyappa where women are not denied entry. She said,” The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is no similar restriction in those temples. It is pertinent to mention that the Respondents, in this context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply.
- On essential practices
Justice Malhotra observed that a religion can lay down a code of ethics, and also prescribe rituals, ceremonies etc. which are also regarded as an integral part of religion and hence are to be protected as a religious belief. She said, “The religious practice of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practice’ followed by the Respondents. The said restriction has been consistent, followed at the Sabarimala Temple for years.”
- On women being treated as untouchables
Justice Malhotra observing petitioners’ argument based on women being treated as untouchables, thus drawing a parallel between the rights of dalits under Article 17 which abolishes untouchability, said that the analogy is “misconceived”. She said,” The right asserted by dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about.” Justice Malhotra concluded that the Article 17 referred to the practice of untouchability as committed in the Hindu community against harijans or people from depressed classes, and not women, as contended by the Petitioners.