INDIAN YOUNG LAWYER’S ASSOCIATION V. STATE OF KERELA 2018

1. STATE OF KERELA  2018 

CITATION –  (2019) 11 SCC 1 

COURT AND BENCH – 

The case was decided in the Supreme court of India, by  Constitutional Bench comprising of Justice Dipak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice R.F. Nariman.

DATE OF JUDGEMENT – 28th September 2018

PARTIES TO THE CASE –

PETITIONERS –

Indian Young Lawyer’s Association 

RESPONDENTS –

State of Kerala, Travancore Devaswom Board, Chief Thantri of Sabarimala Temple and District Magistrate of Pathanamthitta

FACTS –

• The Sabarimala temple is situated in Periyar Tiger Reserve region in the district of Pathanamthitta, Kerala. The terrain on which the temple is built is mountainous, located in the Western Ghat region of Kerala. 
• The deity of the temple is Lord Ayyappa, which is a celibate deity. 
• As per the custom of the temple, women in their menstruating age were not allowed to enter the temple and offer their prayers to the deity. 
• This custom was challenged in the High Court of Kerala, wherein the Court upheld the validity of the custom. 
• Later, Indian Young Lawyer’s Association filed a Public Interest Litigation under Article 32 of the Indian Constitution against the State of Kerala in the Supreme Court of India, which challenged the prohibition of entry of women in the temple. The petition was filed in 2006, challenging the verdict of the High Court of Kerala. 

LEGAL ISSUES –

• Does the prohibition on menstruating women’s entry in the Sabarimala Temple violate the Right to Equality and the Right against discrimination and the abolition of untouchability?
• Are Lord Ayyappa’s devotees a separate religious denomination, hence bearing the right to manage the administration of their own affairs in matters of religion?
• Is women’s exclusion an ‘essential religious practice’ under Article 25?
• Does Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permit a ‘religious denomination’ to ban the entry of women between the ages of 10 to 50 years?
• Do the Public Worship Rules allowing the custom go against the parent legislation, which disallowed discriminatory practices?

ARGUMENTS OF THE PARTIES –

KEY CONTENTIONS BY THE PETITIONER –

• The learned counsel for the petitioners contended that the writ petition was maintainable under Article 32 of the Constitution, as the case involved the enforcement of fundamental rights against the State and its instrumentalities. It was argued that the Travancore Devaswom Board and the Chief Thantri, being appointed under statutory authority, fall within the definition of “State” under Article 12, thereby making their actions subject to judicial review.
• The petitioners argued that the impugned custom prohibiting the entry of women between the ages of 10 and 50 years amounts to a “law in force” within the meaning of Article 13(3)(a) of the Constitution. Hence, any such custom or usage inconsistent with fundamental rights must be declared void.
• The learned counsel for the petitioners had submitted that the custom of not allowing women who are in their menstruation years to enter the temple and worship the deity amounts to violation of their rights under under article 14 and 15. 
• Further, the counsel also submitted that such exclusion of women based on their physiological condition also amounted to untouchability under Article 17. 
• The counsel also contended that the such practice of excluding women does not qualify as an essential practice under Article 26 of the Constitution. Further, such essential practices are also subject to law, public order and morality. 
• The counsel also submitted that the such a practice also amounted to violation of right to worship and freedom of practicing religion of the prohibited class of women under Article 25 of the Constitution. 
• Further, the counsel also contended that the Ayyapan community does not constitute as a separate religious denomination under Article 26 of the Constitution and therefore, cannot avail the benefits of the same.
• Additionally, the counsel argued that for the purpose of eligibility of women pre menarche and post menopause for entering into the temple, disclosure of the same to the temple authorities will amount to breach of right to privacy under Article 21 of the Constitution

KEY CONTENTIONS BY THE RESPONDENT –

• The learned counsel for the respondents raised a preliminary objection to the maintainability of the writ petition under Article 32 of the Constitution, arguing that the matter pertained to religious customs and personal faith, which fall outside the scope of judicial review. They contended that issues involving religious practices should not be subjected to constitutional scrutiny, as doing so would amount to excessive interference by the judiciary in matters of religion.
• The counsel argued that the practice of prohibition of entry of women between the age of 10 to 50 i.e. during their menstruation years is a custom which has been followed and observed since years, and thus, is an essential practice. 
• Further, the respondents justified the restriction on the entry of women by referring to Ayurvedic and traditional beliefs, which consider menstruation a natural period of rest and seclusion. They argued that women undergo physical discomfort during menstruation, making it difficult to observe the 41-day penance (Vratham) required before visiting the temple. Therefore, the restriction was not discriminatory but intended to preserve the sanctity of the temple and the health of women.
• The counsel also contended that since women as a class is not prohibited from entering into the temple, the practice is not violative of their right to equality and right to freedom of religion and worship under Articles 14 and 25 of the Constitution and therefore, the practice is not unconstitutional. 
• The respondents relied on Sections 3 and 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, to justify the validity of the restriction on the entry of women. They argued that while Section 3 ensures that all classes and sections of Hindus shall be allowed to enter and worship at public places of worship, Section 4(1) empowers the trustees or persons in charge of a temple to make arrangements for the proper conduct of worship and maintenance of order and decorum in the temple. Hence, the restriction on women between the ages of 10 and 50 years was presented as a reasonable regulation made in exercise of this authority to preserve the sanctity of the deity and the religious practices of the temple.
• The counsel also advocated the Deity’s rights in the light of public and constitutional morality, and contended that the celibacy of the deity as its right must be respected. 
• Further, the counsel submitted that the followers of Lord Ayyappa qualify as a separate religious denomination, and therefore, have the right to administer the temple and it’s customs, and have the freedom to do so under Article 26 of the Constitution. 

JUDGEMENT –

• The court held the petition maintainable, and passed the verdict in the favour of the petitioners. The court further issued orders and directions to the temple administration to allow all women, irrespective of their age and physiological conditions to enter the temple and offer their prayers to the deity. 

REASONING OF THE COURT 

•  The court held the practice of exclusion of women was violative of their fundamental rights guaranteed under Articles 14, 15, 17 and 21. The court held that such practices are manifestation of patriarchy, and thus, violate the dignity of women. Women have always been considered inferior to men. If God Himself created both, men and women, how could he deny prayers offered to him by his own creation? Menstruation as a biological feature is a gift to women; it’s because of this procreation is possible, and through this God manifests His own creation. 
• The court observed that such a classification of women is unreasonable and even if is based on some intelligible differentia, there is no rational nexus between this classification and the practice being followed. 
• The Court observed that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was ultra vires the parent Act, as the statute intended to ensure equal access to places of public worship without discrimination. Further, relying on the Shirur Mutt test, it was held that the followers of Lord Ayyappa do not constitute a separate religious denomination, as their faith and rituals originate from the broader tenets of Hinduism and are subject to state regulation.
• Further, the court also held that the followers of Lord Ayyappa are not a separate religious denomination as the rituals followed in the temple hail from basic tenets of the Hindu religion, are regulated by statutes and are state funded. Further, such an exclusionary practice is against the values and tenets of Hindu religion, wherein women are equally respected and are also worshiped and revered as forms of Goddesses. 
• In addition to this, the court held that this practice is violative of the right to worship of women guaranteed under Article 25 of the Constitution. 
• The Court also invoked India’s international obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as recognised in Vishaka v. State of Rajasthan, to reinforce that the State bears a duty to eliminate social exclusion and uphold women’s right to equality and participation in religious life.
• Additionally, the court also held that even if the community is considered as a separate religious denomination, the rights guaranteed under Article 26 (autonomy to manage religious affairs) are not absolute in nature, and are subject to law and public morality. Therefore, on these grounds, the practice is unconstitutional. 
• The court also held that the practice is based on physiological factors and phenomena exclusive to women, it casts a social stigma and amounts to untouchability in a sense, and is also discriminatory under Article 15 and violative of Article 17 respectively. Menstruating women being denied entry in temples is similar to the treatment given to untouchables in the same context, and therefore it amounted to violation of right against untouchability under Article 17. 
• The temple, though administered by private authorities, came under the realm of ‘public place’ and therefore, it’s practices must be in accordance to the laws and public morality, the court held. 

CONCLUSION –

This landmark judgement by the Supreme Court marked the beginning of a change in the social mindset of the people. Even today, in many parts of the country menstruating women are not only denied entry into the temples, but are also treated differently by their own family members in their homes. Under the pretext of religion, many ill practices are followed by such women and are held mandatory by the society. In addition to these are myths related to menstruation, which spreads superstitions and negative perception of this phenomena in the minds of women and the society. However, these practices, beliefs, customs fail to answer one question, ‘How can God consider a phenomena polluted, when He Himself created it?’ Many try to back this concept by providing reasons and articulate them with the help of ancient texts and scriptures, but still fail to rationalize it in the eyes of science and morality. It is with this step that a State institution has decided on this subject, and has made an attempt to discard it from the actions and minds of the people. Without disrespecting the religion and its authority, this act of the court tries to eliminate irrational factors that govern (and pollute) the very core aspects and objects of it. Such measures taken by the State in the interest of public welfare not only promote constitutionalism and rule of law, but also safeguards rights of the people and overall integrity and morality of a society.