Author: Raju Kumar, IV year of B.A.,LL.B.(Hons.) from Chanakya National Law University, Patna
Co-author: Priya Singh, IV year of B.A.,LL.B.(Hons.) from Chanakya National Law University, Patna
In a landmark judgment delivered on November 14, 2019, the Supreme Court of India by a 4-1 Majority held that the practice of barring entry to women between the age of 10 to 50 in the Sabarimala temple is Unconstitutional. The case – Indian Young Lawyer Association involved a constitutional challenge to the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). These legislative enactments were in contrast with the Constitutional provisions like Article 14 (Equality before Law), Article 15 (1) (Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), Article 25 (1) (freedom of Worship), and Article 26 (Freedom to manage religious affairs). The 4 out of 5 judges expressed their view in the favour of women, while Indu Malhotra J. expressed her dissenting opinion. This blog aims to critically examine the judgment.
Dipak Misra CJI and Khanwilkar J.
CJI Misra and Khanwilkar J. relied upon the test of “Separate denomination” and constituted that the Sabarimala have failed to establish the claim of “separate religious denomination” (paragraph 88 onwards). Misra and Khanwilkar J. Observed that the temple is being governed by a statutory body (the Devaswom Board) hence, fundamental rights apply to it and by quoting Article 25(1), it was held that the women have the right to entry. Furthermore, this practice was appeared to have commenced only in 1950, and consistent character and practice from time immemorial are a sin quo non for “essential religious practice” was missing (para 125). Furthermore, rule 3 (b) was in contrast with section 3 of the 1965 Act. It was observed that since it violates the parent act, rule 3 (b) is ultra vires (paras 132 and 141 – 142).
Nariman J.
Nariman J. Agrees with the Majority but he adopted a different approach. He disagreed with the CJI and Khanwilkar J. and observed that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore it is protected by Article 25(1) (paragraph 25). However, he agrees with the viewpoint of CJI and Khanwilkar J. that Sabarimala fails the test of “Separate denomination”. Thereby, Article 26, as well as section 3 of the Act, can’t be attracted (paragraphs 26 – 27). By quoting the text of Article 25 (1) – “equally entitled”, he gave the judgment in the interest of women (Para 29). Furthermore, Nariman J. also held that Rule 3 (b) is contrary to Article 15 (1), and strikes it down.
Justice Chandrachud
Interestingly, Chandrachud J. in his judgment gives importance to the point on caste and patriarchy (para 2). Furthermore, Chandrachud agrees with the point of other judges and observed that the respondent has failed to establish that the exclusion of Women is a part of ERP (para 51). Moreover, Chandrachud J. Rejected the traditional belief that menstruation is a symbol of impurity and observed that it doesn’t find a place in a constitutional order. Furthermore, on this point that whether the exclusion of women from Sabarimala amounts to “untouchability” within the ambit of Article 17 or not. CJI and Nariman J. do not address this argument. While Malhotra J. Disagreed. On the other side, Chandrachud held that it is a violation of Article 17.
Malhotra J.
Malhotra J. Point is quite interesting. She goes to such an extent that the PIL is not maintainable on the ground that the petitioner’s personal rights to worship have not been violated under Article 32. She delivered a dissenting opinion on a vision of group autonomy. She observed that the right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (para13.9) Malhotra disagrees with the other judges and held that exclusion of women is an essential religious practice and is protected under Article 26(b) (Paragraph 10.10). She held that the Section 3 (b) of Kerala Hindu Places of Public Worship Act 1965 was consistent with the article 26(b) because worshippers constitute a separate “religious denomination” and therefore protected under Article 26.
Conclusion
In Indian Young Lawyer Association case Supreme Court has overruled the judgment of High court and has protected the Fundamental rights of women. This judgment of court has opened a new gateway for further developments in Indian equality and Non discrimination law. This judgment has also validated the opinion that, if you make laws which tend to be discriminatory in nature, it can’t be a justification that it is for their benefit. You can’t make any laws, which is against the women; this is the ‘Rule of the land’.
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