Sabarimala Issue-An Exaggerated Feminism or Misinterpreted Hinduism!
The Author of this blog is Ms. Sneha Maji, a student of 4th year, BBA LLB (H) at Amity Law School, Noida
Sabarimala Temple is located in the hilly
shrine of Western Ghats in Pathanamthitta,Kerala which is440 meters above from the sea
level. The Temple is governed by a statutory body named Devasworm Board which
has formulated The Kerala Hindu places of Public worship(Authorization of
Entry) Rules,1965 and thereby has barred entry of women in the Temple during
their menstruating age i.e. 10-50 years of age. There has been huge controversy
regarding the aforesaid rule.The Travancore Devaswom Board has depicted that
Lord Ayappa is the symbol of “hyper virility” as he was born out of the union
of two male God(Shiva and Vishnu). Any devotee is required to perform “Vratham”
i.e. living a life in seclusion and self-denial in order to restore purity, for
41 days. But women fails to attain the required standard of purity as
menstruation come in between hence they are prevented from entering the temple.
In the year 2006 Indian Young Lawyers Association filed a writ
petition in the Supreme Court challenging the constitutional validity abovementioned
rule as it infringes Article-14,15and 17 of The Constitution of India, 1949. This article focuses on the following
challenging custom lead to social instability and disrupt the tradition of a
Is the present
issue entailed discrimination against women only or the scope extended to
judicial intervention in the customary practice hurts religious sentiments?
Is right to
religion of women violated if they are denied from offering prayer in one
intervention on Custom
The constitution of India has defined the
term “Law” under Article-13 and it has included ordinance, order,bye-law,
rule,regulation,notification, custom or usage under the realm of law[i].According
to Salmond, a custom is the embodiment of certain principles which has
commanded upon themselves to the national conscience as principles of Justice.Thus
if the ingredient of public justice is missing from the stated custom it has to
be re-considered by the supreme authority in order to restore natural justice.
Customs are generally accepted principles having consent and acceptance of individual
at large and it has force of law as the judiciary has considered customs has a
valid source of law.A custom has purity of reason and acceptance of people. A
custom shall only be considered as a valid custom if it has conformity with the
statute law. According to Allen an existing custom shall be law till the time it
is not challenged, but once a custom is challenged and proved to be varying general
legal principles prevailing in the society then such custom shall be abrogated. Thus any law shall not be repugnant or
inconsistent with the supreme law of land i.e. the constitution and thereby
shall not infringe the fundamental rights ascertained by the constitution.[ii]Thus the judicial intervention as to check
the competency of the custom prevailing in the Sabarimala temple with respect
to entry of women in the temple and to ascertain the constitutionality of
rule-3(b) of The Kerala Hindu places of Public Worship act, 1965 is completed
justified and avowed by the principle of natural justice.In Seshammal
case[iii]it was held that
constitutional conformity is inbuilt in any law prevailing in the land. Every
law, custom, precedent shall meet the constitutional morality and
constitutional legitimacy shall always have overriding effect over any custom
classification and discrimination against women
Article-15 prevents any kind of
discrimination on the basis of biological differences. In Anuj Garg case[iv]
the apex court has highlighted the hidden concept of autonomous life enshrined
behind the prohibition of discrimination against caste, race,sex under
article-15. Impediments like Sex,Race, places of birth are not controllable
factors in one’s life and any discrimination based on such uncontrollable
factors hampers the autonomy of human life.On the other hand religion is a
personal choice of an individual, any kind of discrimination, as to the
unavoidable factors and or such discrimination which limits the individual
choices shall affect the individual autonomy and standard of life. Therefore
any such discrimination affecting the autonomous life of the individual shall
be scrapped to ensure a welfare state. In the present case women is
discriminated based on their natural ovulation which is beyond [v]human
control, thus accentuates an unreasonable classification thereby infringe
Artile-14. But in the present case classifying people based on their
physiological process is in contradiction to the principle of equality, liberty
and fraternity. The Devasworm Board accentuates that the present rule has been
a prevalent custom in existence since time immemorial and it has deep rooted
religion sentiments attached aims to ensure sanctity of the place. The exclusionary
practice has a stringent impact on the stigma of menstruation and puts psychological
impact on women and violates Article-17. If any practice is considering a
normal scientific process impure then it imposes threat to the scientific
intellect of the society at large sand embracing A-15(2) such enactments has to
be abrogated for the public morality and public welfare. InShayara Bano v.
Union of India and others[vi]
it is clearly averred that any classification based on physiological features
never attain validity under Article-14 and amount to unreasonable legislation.
discriminatory practice in the light of Hindu Philosophy
The judicial activism in nullifying
the discriminatory practice shall in no way violate the fundamental right to
freedom of conscience and freedom to profess religion. Such an undignified
practice shall not comprise an essential part of Hinduism. Hinduism is a very
inclusive religion and it emphasizes on the eternity of soul not focusing on
the transient form of life.The four Vedas of Hinduism clearly enumerates that atma or
the soul is an undivided, unique, eternal and supreme state of existence which
neither born or die. It is purely undifferentiated and an epitome pure consciousness[vii]
Upanishad, which is also called
Vedanta (i.e. the summary of Vedas) embraces the concept Stream Self or Brahman
and empirical self or Jiva i.e. the transient bodily outfit of inner soul.
Brahman is the only reality which shall always shine above any despicable barriers
in liberations.Geeta transpires soul cannot be destructed, moved, manifest,
produced or muted. Body cannot supersede the barrier of time but soul or atma
is above time or any barriers in the way to enlightenment.The scope of the
religion is so wide that a petty discriminatory practice in the name of
Hinduism is a blatant misinterpretation of Hinduism. The grand norm of the
country has clearly stated that right to religion is subjected to limitation
for public welfare in so far as such limitation does not interfere with the
practice or performance of any essential practice of the religion and what
comprises an essential part of the religion shall only be determined after
considering the doctrine of the religion[viii].
Essential part of the religion means the
fundamental beliefs of a religion.In order to determine whether a practice
falls under the category of essential part of the religion one must check
whether the fundamental pillars of the religion shall change in non-observance
of such practice[ix].
Thus it shall be evident to conclude that that the impugned practice is
antagonistic to Hinduism, which has always considered equivalent to Goddess.
The present judgment is a prominent example of social engineering and social reform done by the honorable court. The judgment reminds us of the legend social reformers like Iswar Chandra Vidya Sagar, Raja Ram Mohan Roy who had prevented malfunctioning in the society by indulging into malpractices like sati and profound widow remarriage breaking the prevailing customs and tradition in the then society. A change is the only constant in the society and if the change has not brought by abrogating malpractices, the society will degrade downward and that will cause fall of conscience of the entire human race at large. The present judgment has played an indomitable role in preventing misinterpretation of Hinduism thereby restored the dignity of Hinduism philosophy. The judgment has enshrined constitutional morality which was blatantly violated underKerala Hindu places of Public worship Act(1965). The tradition prevailing in Lord Ayappa temple barring the female from entering into temple has been connected with the impurity of menstruating women which is a stigma on a natural physiological process, thereby affecting the scientific cognition of society. The role of judiciary in preventing misinformation about a natural biological process i.e. menstruation is worth mentioning.
The Constitution of India, A-13(3) (b), (1949).
[ii]Smt. Amina v. Unknown, AIR 1992 Bom
Seshammal v. State of T.N., (1972) 2 SCC 11.
Anuj Garg v. Hotel Association of India, (2008) 3 SCC.
Deepak Sibal v. Punjab University,1989 AIR 903.
[vi]1985 AIR 945.
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and
others,1984 AIR 512.