Revision as of 11:02, 3 September 2018

SC’s Sabarimala verdict

SC observation on Sabarimala is momentous, July 19, 2018: The Times of India

The Supreme Court’s observation that the religious custom that barred girls and women from entering places of worship has no constitutional legitimacy, is consequential in many ways. While hearing a petition challenging the rules of the famous hill shrine of Lord Ayyappa at Sabarimala in Kerala, where females between the age of 10 and 50 years are not allowed entry, the five-judge bench declared that there is no concept of a private temple in a public place and therefore there could be no discrimination on the basis of gender and physiology.

In many Hindu temples menstruating females are considered to be ‘dirty’ and ‘polluted’, and therefore not eligible for entry and worship. But the court remarked that all citizens of India are entitled to the freedom of conscience and the right to profess, practice and propagate religion. This is significant because when the apex court verdict comes, in line with such observations, it will force a religious institution to amend its discriminatory rules and subsequently have a wider impact on many other dogmatic traditions of various belief systems. As a likely aftermath, it will put a question mark on the patriarchal practice of only male priests conducting religious prayers in temples, mosques and gurudwaras.

Although it is estimated that India has around 1600 Hindu female priests, there is an ongoing organic movement supporting training of women as priests for various religious ceremonies. In a first in the history of India, a Kerala woman, Jamitha, took the role of an Imam in January this year and led the Friday congregational prayers for a mixed group of men and women. However, religious fundamentalists threatened to kill her a day later, for defying Sharia. In view of such women-driven movements, the Supreme Court’s observations are momentous and will usher in modern values of equality in a highly patriarchal society.

A commentary

Dhananjay Mahapatra, SC must give a secular ruling to fortify women’s right to enter religious places, July 23, 2018: The Times of India

In Srinagar, there is the holy shrine of Hazratbal, surrounded by rows of chinar trees. Built in white marble, it oozes serenity in a reverential ambience. But if you are accompanied by your wife, daughter or female friends or relatives, they can’t enter the shrine. They will only be allowed a peep into the shrine to catch a glimpse of the place where the holy relic is kept.

There are hundreds of such religious places in India which bar women’s entry. The Supreme Court has got an opportunity, in the shape of PILs questioning Sabarimala temple barring entry of women in the 10-50 age group, to give a secular ruling to throw open doors of all religious places to women.

If the Sabarimalas and Hazratbals discriminate against women, then it is a common practice among Catholic Christians to bar women from entering the church altar. Women priests are alien to Catholics and their churches, which have two main divisions — worship ministry and service ministry.

The worship ministry, assigned to perform rituals and conduct mass, is a men’s only department. The service ministry has nuns, who stay in a convent. A male priest has to visit the convent to conduct Sunday mass as the nuns, despite dedicating their lives for service and charity, are barred from taking part in worship ministry affairs.

During the hearing on a bunch of petitions challenging the constitutional validity of Sabarimala temple’s custom barring entry of women of a certain age group, a five-judge bench headed by CJI Dipak Misra had observed that a temple could not deny entry to anyone who believed in and was devoted towards the deity.

This secular observation must translate into an omnibus declaration that the fundamental right to equality and non-discrimination on the ground of gender, caste or class will always prevail over the right to practice and profess religion and its customs.

The five judge bench’s common refrain — we are viewing the Sabarimala issue purely from the constitutional perspective and principles — is easier said than done. More than 70 years ago, all judges of the SC sat together (there were a total of seven SC judges at the time) to decide a tricky religious issue with constitutional overtones in what is popularly known as Shirur Math case [1954 AIR 282].

CJI M C Mahajan and Justices B K Mukherjea, S R Das, Vivian Bose, Ghulam Hasan, N H Bhagwati and T L V Aiyyar made an important ruling, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral part of religion, and these forms and observances might extend even to matter of food and dress.”

It laid down the golden rule “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself ”, which is now being used by senior advocate Rajeev Dhavan, appearing for Muslim parties in the Ayodhya dispute, to question a bald statement in a 1994 judgment by a five-judge bench in Ismail Faruqui case saying “mosque is not essential to offering of namaz”.

The seven-judge bench had said, “If the tenets of a religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at a certain period of the year or that there should be a daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as part of religion and the mere fact that they involve expenditure of money or employment of priests or servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character, all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).”

How far this finding of the seven-judge bench in 1954 supports the Sabarimala custom of barring entry of women into the temple will be examined by the five-judge bench. But it surely will be a gigantic task if the SC intends to take a holistic secular view of the complex issue instead of examining the validity of rituals and practices, which bar women from participating in religious ceremonies, be it temple, mosque or church, from a narrow constitutional microscope.

What if a PIL is filed in the SC seeking equality for goddesses in the Hindu scheme of worship? In the trinity of Brahma, Vishnu and Mahesh, there are no goddesses. Does it violate right to gender equality among idols for worship? Does the bar on women’s entry to church altar violate right to equality? Among Muslims, a woman imam is extremely rare. It will be worth waiting for the SC verdict in the Sabarimala case, as it promises to narrow down gender inequality in religious practices. Will the SC go the whole hog or concentrate only on Sabarimala?

SC: Shrines must prove bar on women integral to faith

Dhananjay Mahapatra, SC: Shrines must prove if bar on women integral to faith, July 25, 2018: The Times of India

The Supreme Court made it plain that religious institutions not letting in women would have to establish that the gender discrimination they practised was integral to their religion, in a clear indication that the court is willing to entertain challenges similar to one that faces Kerala’s Sabarimala Ayyappa temple barring entry of women of menstrual age.

The SC’s reply came after the Travancore Devaswom Board, which administers the shrine, asked whether the court would adjudicate on similar practice in other religious places.

Open to hear PILs on biased customs: SC

The apex court has repeatedly questioned the ban on the entry of women aged between 10 and 50 at Sabarimala. “The moment anyone comes to the court and points out that her/his fundamental right has been violated because of a discriminatory practice, the onus shifts on the institution which practises this allegedly discriminatory practice to shore up evidence to defend the practice as integral to their religion. The problem is that women are being barred only because of their physiological character during a certain age group,” a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said.

Indicating its openness to examine PILs challenging similar discriminatory customs in other Hindu and non-Hindu religious denominations, the bench said, “We cannot strike down all such practices in one go. We will deal with it as and when we are asked to go into it.”

The board, through senior advocate A M Singhvi, attempted to link the practice to the faith and belief of Ayyappa devotees and argued that custom was not anti-women as those below 10 years or above 50 years were treated equally with men.

“It is a matter of faith and belief of Sabarimala followers. This custom has been in vogue uninterruptedly for decades and hence protected by the fundamental right of members of the denomination. There are several such practices in other Hindu and non-Hindu religious places, which a progressive modern mind would not approve of. But they are protected under Article 26 of Constitution,” he said.

SC: Essential religious practices, if biased, can be struck down

Dhananjay Mahapatra, SC: Essential religious practices, if biased, can be struck down, July 26, 2018: The Times of India

Making it clear that fundamental rights do not offer iron cast protection for “essential and integral” religious practices, the Supreme Court on Wednesday observed that such traditions can be struck down as unconstitutional if they discriminate on grounds of caste or sex.

Hearing a batch of petitions challenging Sabarimala Ayappa temple’s custom of barring entry of women in 10-50 age group, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said both Article 15 and Article 25(2) enjoin a duty on constitutional courts and governments to act against a religious practice discriminatory towards women.

Appearing for Nair Services Society, senior advocate and for mer attor ney general K Parasaran said the Sabarimala Temple custom does not discriminate against women as it permits entry for those below 10 years and above 50 years. “Lord Ayappa is a naishthik brahmachari. The devotees believe in the God’s pristine celibate state, that is the reason why women in the menstruating age group are not allowed entry...,” he said. The lawyer’s arguments on the intricacies and nuances of Hindu religion and spirituality succeeded in briefly halting the bench’s desire to test the temple’s customs on the constitutional touchstone.

Justices Nariman and Chandrachud waited till Parasaran completed his potent religion-coated arguments to focus on Article 25(2), which provided that legislature can enact a law to provide for “social welfare and reforms or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

Both judges said the theme of Article 25 is meant to apply to all religions and when the Constitution says no religion can discriminatingly restrict women, it applies to all religions. Parasaran said Articles 15, 17 and 25 did not bar the legislature from enacting laws to bring in social reforms, but the Constitution through a fundamental right has protected practices and customs that are essential and integral to a religious denomination.

Justice Chandrachud said: “Even if it is part of Hindu religious custom to exclude any particular category from entering the temple, the state has been empowered (by the Constitution) to enact a law to throw open temples to all categories of persons.”

Justice Nariman said since untouchability and discrimination on ground of sex is prohibited under the Constitution, the Sabarimala Temple custom to bar entry of women in a certain age group could also fall foul of constitutional ethos.