The author of this blog is Ms. K.Yugantara, 2nd year B.Com .LL.B, Sastra University.
There exists a dualistic approach where on one hand the women are glorified as the goddess and on the other hand, they face meticulous sanctions based on religious restrictions. The Sabarimala case[1] is a case on point which clearly draws a mark of divergence between the liberal and revolutionary objective of the Constitution. The notion of Constitutional Morality helps us achieve the entity of moral norms that are underpinning in the Constitution. The revolutionary concept realizes the ideals which are enshrined in our preamble and force the state to interfere when there is a deviation, while the former aims to govern the relationship between an individual and the state. In the above-mentioned verdict, the judgment was passed with 4:1 the majority, where Justice Chandrachud’s accorded opinion was dissented by Justice Malhotra’s view.
There was a legislation[2] which had been enacted by the Kerala government for allowing all the Hindus to access public places of worship. Rule 3(b) of the said Act[3] excluded the women aged 10 to 50 years from accessing the holy shrine. This was challenged through a complaint which was converted to Public Interest Litigation[4] (PIL) under Article 226 of the Indian Constitution in the High Court of Kerala. The High Court was not in favor of menstruating women to access the sanctum sanctorum and upheld such exclusion as valid due to religious freedom of denomination. The matter was further referred by a constitutional court; bench comprising of three judges of the Supreme Court. Justice Malhotra was the only judge out of the five who affirmed with the Kerala High Court’s decision by making her stance that the Ayappans are a religious denomination. The majority opined that the devotees failed to be part of the religious denomination which was specifically laid down in S.P. Mittal v. Union of India.[5] And here laid the question as to whether the devotees praying at the shrine constitute religious denomination or not?
This decision on the Sabarimala judgment was indeed an unprecedented one. Such changes in the review petitions in the past have rarely undergone any changes. Article 25(1) of the Indian, Constitution ensures the freedom for all individuals to practice, profess, and propagate the religion of their choice. The religious affairs have to be in conformity with public order, morality, or health.[6] It can neither override the right to equality nor right to religious freedom which is both Fundamental Rights having been guaranteed to all individuals under the Constitution. Article 25(2)(a) allows the state to regulate any secular activities which have been associated with religion. Further, states can enact laws for social reform and its welfare according to Article 25(2)(b). The notion of equality and non-discrimination acts as a facet of Constitutional Morality and it cannot be isolated. A balance has to be made between these principles and the liberties guaranteed under Article 25, 26 of the Indian Constitution. The dissenting opinion asserted that the devotees were a part of religious denomination and were protected under Article 26 of the Constitution which guarantees every religious denomination the freedom to maintain any religious institutions and to manage its affairs on their own manner except not to any provision in Part III. Justice Malhotra further deemed that Article 25(2)(b) is merely an enabling provision. It is not a substantive right which can be conferred on its citizens. She felt that the courts should not interfere with the religious age-old practices which are sometimes found discriminatory. It was contended that the ban on entry of women was violative of Article 17 which is applicable to both states and3 non-states[7] having passed through central legislation. It abolishes untouchability in any form including social factors. Here it was found to be menstrual discrimination. To make their stance clear, they drew support from National Legal Services Authority v. Union of India, enforcing on the fact that such treatment of women was found as violative of Article 14 and 21 of the constitution. Devotion should not be in subjection to stereotypes relating to gender. To this, the minority contended that the provision was for the prestige of Dalits who were denied equal access to temples. It should be limited only to caste-based[8] and religion-based untouchability and it cannot expand itself to gender-based untouchability. Such provisions should not be interpreted directly and that the statutory provisions circumstance the social reforms.
The court is the superior adjudicator cautiously takes a decision in case of deciding a religious ceremony by undertaking judicial scrutiny. It strictly evaluates a religion which is said to be a religious denomination. It propounded the ides of ‘transformative constitutionalism’. When we take the view of the classical notion of the constitutional liberalism, it is opined that the Fundamental Rights are enjoyed by an individual, so is it rationale in their side to vest such Fundamental Rights with a religious and cultural group? But both the groups collectively arise from the same source, i.e. Article 25(1) of the Indian Constitution. The three main pillars encapsulated in preamble liberty, fraternity, and equality, which need a striking balance between them.
Justice Malhotra’s contention was that the petitioners were not even the aggrieved devotees and that they lacked standing to invoke the writ jurisdiction through PIL. Unlike the situation here, she cited various instances wherein either the member of the religious group concerned or the state; had challenged such practices. It should take utmost care while delivering the judgment which is closely related to the sentiments of the people, devotees, and other religious members of that group as it may end up in endangering the freedom of the religious groups. But this issue is still debatable as to whether the court should have waited for an aggrieved insider person to file a petition and to grant a denominational status to it.
The intermediate years had witnessed the struggles of women to enter into the Sabarimala shrine despite all the rampant threats, harsh speeches. Such endeavors on the debate as to what is integral to a religion kept on taking dynamic stances. Many instances were referred to the allowing of Muslim women into mosques to equalize the personhood. It is believed that the restriction of women on the basis of menstrual taboos attracts Article 15(2) on such analogous grounds which are seen as discriminative in nature. It is also contended that the exclusionary practices that stigmatize the individuals seek no place in the constitutional order. Such notions have no place in the modern era. Thus it is aptly said that “Women’s right must not be the sacrifice by which peace has been achieved.

[1] Indian Young Lawyers Association v. State of Kerala, W.P. (C) No.373 of 2006.
[2]  Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, No. 7 of 1965, INDIAN CODE (1993), http://indiacode.nic.in.
[3] Kerala Hindu Places of Public Worship Act, supra note 2.
[4]  S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram & Ors., AIR 1993 Ker 42.
[5]  S.P Mittal v. Union of India, (1983) 1 SCC 51.
[6]  Acharya Maharajshri v. State of Gujarat & Ors., 1974 AIR 2098, 1975 SCR (2) 317.
[7]  THE PROTECTION OF CIVIL RIGHTS ACT, 1955, Act No. 22 of 1965.
[8]  M.P JAIN, INDIAN CONSTITUTIONAL LAW 1067 (Revised by Justice Ruma Pal and Samaraditya Pal, 6th ed. 2010).