Women across the country and across creeds are asserting their rights and demanding an end to discrimination in the name of religion. After the police stopped women from entering Shani Shingnapur temple in Maharashtra’s Ahmednagar district on Republic Day, they appear determined to break the age-old tradition.
The Supreme Court has to decide — Indian Young Lawyers Association’s petition seeking direction to allow entry of women without age restriction — on the legality of the ban on the entry of women of menstrual age into Ayyappa temple at Sabarimala in Kerala. Muslim women are locked in a fierce legal battle with the trustees of Haji Ali Shah Dargah in Mumbai, where they are denied entry on the ground that proximity to a female is not good for a saint.
The matter is pending before the Bombay high court which has said that it would await the decision of the Supreme Court in the Sabarimala case. Thus, the ruling of the apex court in this case is going to be a landmark one that will define the rights of women vis-à-vis Articles 25 and 26 of the Constitution that guarantee the right to freedom of religion.
Though the case is yet to be decided, the oral observation of Justice Dipak Misra, that the Constitution rejects discrimination on the basis of age, gender and caste, has spawned a fierce debate on the issue of discrimination against women in the name of religion.
The Kerala high court had upheld the ban on women in Sabarimala in 1993, ruling that the Travancore Devaswom Board, authorised to manage the temple, could deny women in the age group of 10 to 50 entry. Based on Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, which bars entry of women at a time during which they are not by custom and usage allowed to enter a place of worship. The Public Interest Litigation says that this decision is violative of Articles 14 (equality before law and equal protection of law), 25 and 26 (freedom of religion) of the Constitution.
It may be argued that Article 25 of the Constitution guarantees freedom to practice, profess and propagate any religion, and so the priests are free to decide how it is to be practised. But this right is subject to public order, health, morality and other provisions relating to fundamental rights.
Article 25, which guarantees rights to an individual, should be read along with Article 26, which gives such rights to an organised body. The Constitution does not define “religion”, but the Supreme Court gave a comprehensive definition in Commissioner, HRE vs L.T. Swamiar, 1954, “Religion is certainly a matter of faith with individuals or communities and is not necessarily theistic… A religion undoubtedly has its base in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief.
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 parts of religion, and these forms and observations might extend even to matters of food and dress.”
On this basis, it may be ratiocinated that an organised body is free to frame its own code. There is one Attukal Devi temple in Thiruvananthapuram, popularly known as Lady Sabarimala temple, where entry of men is totally banned, irrespective of age.
However, it is well-nigh impossible to surmise that Articles 25 and 26 allow for discrimination on the ground of sex, especially when it is a place of public worship. Justice Misra’s observation, that “there is a difference between a temple meant for public worship and a mutt (monastery),” appears logical and judicious.
During the brief hearing, the bench put a pointed question whether it could say with certainty that no women entered the temple in the last 1,500 years. K.K. Venugopal, counsel for the Kerala government, argued that women who have not attained menopause cannot “preserve the purity” during the 41-day journey to the temple. Legally speaking, any such ban on the ground of gender is difficult to pass muster. The court is empowered to examine whether a particular practice constitutes an inextricable part of religion.
The Supreme Court observed in H.H. Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami vs State of Tamil Nadu, “What constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as part of its religion.”
Thus, in Sajjanlal vs State of Rajasthan, the Supreme Court examined the religious tenets as regards the management of Jain religious endowments. In Abdul Jalil vs State of Uttar Pradesh, the Supreme Court ruled that no text in the Holy Quran prohibits removal or shifting of graves.
In N. Adithyan vs Travancore Devaswom Board, the apex court upheld the appointment of a non-brahmin to worship and perform religious rites in a Shiv temple, stating, “As long as anyone well-versed, properly trained and qualified to perform the puja in a manner conducive and appropriate to the worship of the particular deity, is appointed as shantikaran dehors his pedigree based on caste, no valid or legally justifiable grievance can be made in a court of law.”
Now the same Travancore Devaswom Board is facing a challenge in the Supreme Court over the issue of the entry of women in Ayyappa temple.
As early as in 1954, the Supreme Court clarified in Ratilal Panachand Gandhi vs State of Bombay that the state can regulate, under Article 25(2)(a), activities which are of an economic, commercial or political character though these may be associated with religious practices.
Besides, under Article 25(2)(b), measures of social reform are permissible which cannot be struck down on the ground of interfering with the freedom of religion. Thus, the Hindu Marriage Act, 1955, mandating monogamy for Hindus was considered valid providing for social reforms by the Supreme Court in State of Bombay vs Narasu Appa Mali.
The case against women entering places of worship, whether menstruating or not, has to be examined from the perspective of patriarchy that has kept all powers over centuries — economic, religious and political — with men. From abolishing Sati, dowry, domestic violence, to giving women their righful share in father’s/husband’s property, to enacting laws against sexual abuse, many of patriarchal provisions and practices have been challenged and what was legally just and right was done. It’s now time for another old patriarchal prejudice to go.