• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

DELAYED JUSTICE AND THE SABARIMALA JUDGMENT


“To exclude women of the age group 10-50 from the temple is to deny dignity to women. To treat women as children of lesser god is to blink at the Constitution.[1]

-Justice Nariman

The historic judgment given by the Supreme Court bench in the case of Indian Young Lawyers Association v State of Kerala, also known as the Sabarimala Case, has been considered as a step towards lessening the existing disparities and envisioning a society whose foundations lie in gender equality. The bench, headed by the then Chief Justice of India Dipak Mishra, along with Justice AM Khaniwilkar, Justice RF Nariman, Justice Indu Malhotra and Justice DY Chandrachud, challenged the norms of patriarchy and resolved to show that women form an essential part of our society and they should be treated as equals and provided equal opportunities. Justice Chandrachud's entire judgment was based on the argument that an individual's dignity formed the core of our liberal constitutionalism. This enabled J. Chandrachud to ascertain an interlink between constitutional interpretation and the goal of social transformation. Thus, with the view of ending gender based discrimination, the Sabarimala judgment was given. But the question that still remains unanswered is- whether India ready for the Sabarimala judgment.A failure in the execution of the Supreme Court's order has been observed, which goes on to depict that public opinion holds more power than adjudication in the matters of religion in India. This situation of chaosfurther sheds light upon the existing imbalance and social prejudice prevalent in the society and the constitutional protection provided to the regressive grounds associated with orthodox religious practices under Article 25 of the Constitution of India.

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965[4][5], used as a basis to exclude women, was challenged by a group of five lawyers on the grounds that it was discriminatory on the basis of gender and violated the basic fundamental rights guaranteed to the citizens of India. The aforementioned rule authorized the restriction on women of menstruating age i.e., between the age of 10-50, to enter and offer prayers in the Sabarimala temple. In the past, several judgments have been given by the Judiciary that has resulted in the weakening of the status of women in our country. One such was given by the Kerela High Court in April 1991, wherein they dismissed the discriminatory nature of the rule barring the entrance of women and decided to uphold the ancient restrictions, and granted power to the temple priest to take decisions regarding their traditions and customs. This led to further stigmatization on menstruating women and promotion of injustice. A petition was then filed by the Indian Young Lawyers Association in 2016, challenging the validity of the ban on entry of women as it infringed a woman’s right to profess and propagate any religion of their choice, guaranteed to every individual under Article 25 of the Constitution of India. On September 28, 2018, in a 4:1 majority judgment, the Supreme Court bench ruled in favor of the petitioners and lifted the ban, allowing the entry of women of all ages. While Justice Indu Malhotra, the only female judge, penned the lone dissenting verdict declaring the matter beyond the ambit of Judiciary, the other four judges acknowledged the existing structure of patriarchy in our country and the role religion plays in it, declared this a necessary step towards creating a just society.


It has been more than a year since the aforementioned judgment was given by the Apex Court and a woman is still yet to enter the Sabarimala Temple. In a country where the “Naishtika Brahmachari” characteristic of a deity is given more importance over the declaration by the highest court, women stand very low chances of achieving equality. The Sabarimala judgment is a classic case of judicial failure in India’s clash between legality, religion, politics and mentality. The Sabarimala controversy highlighted many issues that still needs to be addressed in our country, such as gender equality, religious freedom, female autonomy and female anatomy. There are abundance of laws and precedents in India. Hence, only blaming the judiciary, while ignoring the role that morality, customs, power and religion play, won’t be justified.

India is a country of many beliefs and cultures. It is also a male dominant country, full of well-documented customs and practices, used by male priests to subjugate women around the world since the inception of organized faith. While practices such as devadasi system and sati have been abolished after years of protests and sacrifices, menstruation is still considered a taboo in India. In case of the Sabarimala Temple, the celibate nature of the Ayyapan deity is cited as the reason for not letting women between the age of 10-50 enter the temple. Another reason for keeping menstruating women away from the temples is that they are considered impure. Justice DY Chandrachud, in his judgment, compared restricting women from entering temples due to menstruation with untouchability and said that “exclusion of a woman because she menstruates is utterly unconstitutional and the court must not grant legitimacy to religious practices which derogate women.”[6] Religious taboos regarding menstruation further lead to practices like segregation and even though attempts are being made and awareness is being spread, this mentality is rooted in our religions and our culture. It is this same mentality that prevents women from entering a temple.


Section 29A sub-section 5 of the Representation of the People Act, 1951[7] governs the registration of the political parties and clearly states that an undertaking is to be given by the political parties declaring “that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.”[8]It is worrisome to watch eminent political parties openly orchestrating various rallies, marches and social media campaigns wherein speeches and calls are made in an attempt to resist the implementation of the judgment by the Apex Court. But the fact that no suo moto cognizance is taken up by the courts to address the blatant disregard and contempt of court’s orders goes on to show that this is a country ruled by power and public opinion rather than law and order.

As per J. Chandrachud, the Constitution of India ensures equality, justice, fraternity and liberty to all its citizens. While including provisions like right to equality and freedom of religion, it presents individual dignity as the guiding principle of the public life of this country. Thus, when deliberate attempts are made to malign and undermine the authority of courts and laws, it shakes the trust of the public in the system, causing an irreparable damage to judiciary’s image in the public perception. While the Supreme Court has struck off rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry)[9] Rules along with the age-old ban on entry of women, declaring it discriminatory to women and violative of the basic human rights, it needs to initiate contempt charges against the government of Kerala for not carrying out the order and failure to provide justice. If the said is not done and the right to women of all ages to enter the Sabarimala temple remains theoretical, it falls nothing short of denial of justice itself. The issue of Sabarimala provides the judiciary with an opportunity to stand firm and take the fight for gender equality further. As said by CJI Dipak Mishra, “God does not discriminate between men and women”[10], then why should we?


This article is written by Tanya Arora, 5th Year Student of Amity Law School, Amity University. Noida

[1]Md. Rahul, Freedom of Religion and Sabrimala Judgement,http://www.legalserviceindia.com/legal/article-418-freedom-of-religion-and-sabrimala-judgement-2018-.html(last visited June 12, 11:26 PM) [2]Indian Young Lawyers Association v State of Kerala, Writ Petition (Civil) No. 373 of 2006 [3]25(1)- Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion [4]Rule 3(b)-Women at such time during which they are not by custom and usage allowed to enter a place of worship. [5]Constitutional and legal bases of Sabarimala verdict, financial express, Oct 17, 2018, https://www.financialexpress.com/india-news/the-constitutional-and-legal-bases-of-the-sabarimala-verdict-october-17-2018/1352605/ [6]Vicky Nanjappa, Sabarimala Verdict: What the five judges of the Supreme Court said, https://www.oneindia.com/india/sabarimala-verdict-what-the-five-judges-of-the-supreme-court-said-2784370.html(last visited June 13, 01:36 PM) [7]29A(5)-The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India. [8]Section 29A in The Representation of the People Act, 1951, supra footnote 7 [9]Constitutional and legal bases of Sabarimala verdict, financial express, Oct 17, 2018, https://www.financialexpress.com/india-news/the-constitutional-and-legal-bases-of-the-sabarimala-verdict-october-17-2018/1352605/ [10]Enough is enough: India women fight to enter temples, BBC News, 18 February 2016, https://www.bbc.com/news/world-asia-india-35595501

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