Temple entry for women : Gender Equality v/s Religious Freedom

Oct, 01, 2018

[op-ed snap] An ongoing quest for equality

Note4students

Mains Paper 2: Constitution| Historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights involved

Mains level:  The oped clears doubts over dissenting opinion shared by Justice Indu Malhotra.


News

Context

  1. Recently the Supreme Court delivered a 4:1 verdict, in Indian Young Lawyers Association v. State of Kerala, opening the doors of the Sabarimala temple to women of all ages.
  2. However the dissenting opinion raised by Justice Indu Malhotra speaks to a different, and constitutionally plausible, vision.
  3. The Supreme Court will soon have the opportunity to consider, once again, the differing visions offered in

Art. 25, 26 put through questions

  1. The judgment raises several thorny questions.
  2. It questions the court’s authority to decide ethical choices made by a community of believers.
  3. It raises questions to judge the integrity behind the religious practices and whether they susceptible to conventional constitutional standards of justice and equality.

The scope of Article 26

  1. The respondents in favor of entry ban justified the ban on entry of women chiefly at two levels.
  2. First, the temple, they argued, enjoyed denominational status under Article 26 of the Constitution, which allowed it to determine the manner in which it managed its religious affairs.
  3. Second, prohibiting women of menstruating age is supported by the temple’s long-honoured custom for the deity’s celibacy concern.
  4. Further ban was supported by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
  5. The court repudiated the validity of Rule 3(b), which, it said is at the core of discrimination.

Essential practices doctrine

  1. The real centre of the dissent lies in Justice Malhotra’s principled critique of the essential practices doctrine to which the court has virtually assumed constitutional perspective.
  2. Ordinarily in determining whether a religious command is constitutionally protected, the courts have sought to test whether such a belief is essential to that religion.
  3. The issue of what constitutes an essential religious practice is for the religious community to decide.
  4. CJI found that entry ban dispensable, in that the “nature” of the Hindu religion would not be “fundamentally altered” by allowing women to enter the temple.
  5. Justice Malhotra notes that there may well be practices that are so pernicious and oppressive which might well demand the court’s interference.
  6. For example, denial to women of the right to serve as priests, or to be ordained as bishops, be considered oppressive.

Judging the rationality of faith

  1. The judgment leaves us wondering how far the right to freedom of religion can really extend.
  2. And to what extent a group’s collective liberty can influence an individual’s equal right to freedom of religion.
  3. The court must look beyond the essential practices doctrine and examine claims by applying a principle of “anti-exclusion”.
  4. Where a religious practice causes the exclusion of individuals impairing the dignity or hampers the access to basic goods of individuals, the over-arching values of a liberal Constitution must come to picture.

Way forward

  1. When a religious practice goes so far as to deny women equal status in society and when notions of purity and pollution are employed to perpetuate discrimination, the Constitutional mandate must prevail.
  2. The real test is to assess whether an exclusion founded on religious belief, essential or otherwise, encroaches on a person’s basic right to dignity.
  3. Discrimination couched as plurality cannot be allowed to undermine the Constitution’s basic “quest for equality”.
Sep, 29, 2018

[op-ed snap] Freedom to pray: on Sabarimala verdict

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: SC verdict in Sabarimala temple issue and its overall bearing on fundamental rights of women


Context

Women’s right to worship vs religious freedom

  1. The Constitution protects religious freedom in two ways
  2. It protects an individual’s right to profess, practise and propagate a religion, and it also assures similar protection to every religious denomination to manage its own affairs
  3. The legal challenge to the exclusion of women in the 10-50 age group from the Sabarimala temple in Kerala represented a conflict between the group rights of the temple authorities in enforcing the presiding deity’s strict celibate status and the individual rights of women to offer worship there
  4. The Supreme Court’s ruling, by a 4:1 majority, that the exclusionary practice violates the rights of women devotees establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion

Breaking traditional notions of impurity

  1. The majority held that devotees of Lord Ayyappa do not constitute a separate religious denomination and that the prohibition on women is not an essential part of Hindu religion
  2. Beyond the legality of the practice, the court has also sought to grapple with the stigmatisation of women devotees based on a medieval view of menstruation as symbolising impurity and pollution
  3. Devotion cannot be subjected to the stereotypes of gender
  4. SC said that stigma built around traditional notions of impurity has no place in the constitutional order, and exclusion based on the notion of impurity is a form of untouchability

Way Forward

  1. Any rule based on segregation of women pertaining to biological characteristics is indefensible and unconstitutional
  2. The decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights
Sep, 29, 2018

Supreme Court opens Sabarimala temple to women of all ages

Note4students

Mains Paper 2: Indian Constitution| Historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights involved

Mains level: Temple entry issue and all aspects related to it.


News

Context

  1. The Supreme Court  in a majority opinion of 4:1 lifted the centuries-old practice of prohibiting women to enter the Lord Ayyappa temple at Sabarimala in Kerala.
  2. The Court condemned the prohibition as hegemonic patriarchy.

Entry ban is Un-Constitutional

  1. The main opinion shared that on one side we pray to goddesses; on the other, women of a certain age are considered ‘impure’.
  2. This dualistic approach is nothing but patriarchy practised in religion.
  3. It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional as it was violative of the right to equality and dignity of women.
  4. However the Nair Service Society countered the apex court’s observations about patriarchy.
  5. The prohibition was not based on misogyny but the celibate nature of the deity.

Entry ban  is a form of untouchability

  1. In a concurring opinion, Justice D.Y. Chandrachud held that to treat women as the children of a lesser God was to blink at the Constitution.
  2. The logic behind the ban was that presence of women deviated men from celibacy (brahmacharya).
  3. This was placing the burden of a men’s celibacy on women thus, stigmatizing women and stereotyping them.
  4. Individual dignity of women could not be at the mercy of a mob.

Entry ban isn’t fundamental to religion

  1. The Sabarimala prohibition was a prejudice against women, which was zealously propagated and was not an essential part of religion.
  2. The majority view declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which mandates the prohibition in Sabarimala temple, as ultra vires the Constitution.
  3. The CJI and Justice Khanwilkar held that the Rule violated the fundamental right of a Hindu woman to offer worship at a place of her choice. Right to worship is equally available to men and women.

Dissenting Opinions against the Ruling

  1. Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion.
  2. She held that the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints.
  3. She held that essentiality of a religious practice or custom had to be decided within the religion. It was a matter of personal faith.
  4. Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages.

Ruling is contrary to Art. 25

  1. Harmonization of fundamental rights with religion included providing freedom for diverse sects to practise their customs and beliefs.
  2. The Judge held that there were strong, plausible reasons to show that Ayyappa devotees had attributes of a religious denomination.
  3. They have distinct names, properties. Besides, the Sabarimala temple was not funded out of the Consolidated Fund.
Aug, 28, 2018

[op-ed snap] Ways to read the Constitution

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights and their interpretation

Mains level: How Sabarimala case will prove to be a bedrock of a new era of jurisprudence in India


Context

Sabarimala case: Debate on rights

  1. The arguments before the Supreme Court around the entry of women of a certain age to the Sabarimala temple in Kerala raise issues about religious freedom, gender equality and the right of women to worship
  2. The petitioners have argued that discrimination based on biological reasons is not permissible going by the constitutional scheme
  3. They maintain that due to the current exclusion, the right of women to worship the deity, Ayyappa, is violated
  4. On the other side, the Devaswom Board and others in support of the ban have cited it as an age-old custom
  5. It forms a part of ‘essential religious practice’ of worshippers under Article 25 of the Constitution
  6. It was also urged that matters such as who can or cannot enter the temple are covered under the rights to administer and manage religious institutions, under Article 26

Special arguments under Article 17

  1. A specific argument made in the court, based on Article 17, triggers interesting thoughts on constitutional interpretation
  2. In support of the petitioners, it was argued that the exclusion is a form of ‘untouchability’ since the exclusion is solely based on notions of purity and impurity
  3. But this argument was resisted on the contention that the prohibition of untouchability was historically intended only to protect the interests of the backward classes
  4.  The claim is that the makers of the Constitution never envisioned including women within the ambit of untouchability

What does this suggest?

The two arguments reflect the two approaches to reading the Constitution

  • The first is the ‘original intent’ approach which is based on the intent of the framers of the Constitution when they drafted the text
  1. Over time, originalism as a method of constitutional interpretation has been subject to serious criticism for being too rigid and inflexible
  2. This is because such a method would mean that the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs
  • The second approach — the ‘living tree’ doctrine — is very prominent in Canadian jurisprudence
  1. It involves understanding the Constitution to be an evolving and organic instrument
  2. For the living tree theorists, it matters little what the intentions were at the time of Constitution making. What matters the most is how the Constitution can be interpreted to contain rights in their broadest realm

How living tree approach read Article 17?

  1. The ‘living tree’ approach — being an alternative and a finer reading of the Constitution — supports a broader interpretation of Article 17
  2. Women have been kept out of Sabarimala because of menstruation. As a distinct class, they are being discriminated against
  3. If certain castes are considered ‘impure’ because of their social status, menstruating women are considered to be so because of their gender
  4. The criteria are different but the effect of exclusion is common
  5. It seems that such an interpretation does not do any violence to the language and content of Article 17, but only emancipates it

How is Sabarimala case important?

  1. The Sabarimala case is a test case not only for freedom of religion and women’s rights but also for constitutional interpretation
  2. It presents to the court an exemplary opportunity for an alternative reading of the Constitution
  3. If the court indeed reads Article 17 to have a wider meaning, it will signal a new era of transformative constitutionalism in Indian jurisprudence
Jul, 20, 2018

‘Nobody has an exclusionary right of temple entry’

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights involved, DPSP, SC judgements

Mains level: Temple entry issue and all aspects related to it


News

Read this article in continuation with-

[op-ed snap] Do all women have a right to enter Sabarimala

[op-ed snap] Do all women have a right to enter Sabarimala?

Temple entry rules in Kerela

  1. Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 allows a “religious denomination” to ban entry of women between the age of 10 to 50.
  2. This discrimination is a violation of the rights to equality and gender justice.

Supreme Court: No discrimination over Menstruation

  1. Justice D.Y. Chandrachud said “A woman is a creation of God, if you don’t believe in God, then of nature. Why should this (menstruation) be a reason for exclusion for employment or worship or anything,” he said.
  2. He quoted Article 25 (1) which mandates freedom of conscience and the right to practise religion.
  3. This means their right as a woman to pray is not even dependent on a legislation. It is the constitutional right. Nobody has an exclusionary right of entry to a temple, he observed.
Oct, 20, 2017

[op-ed snap] Do all women have a right to enter Sabarimala?

Image source

Note4students

Mains Paper 1: Social issues | Role of women & women’s organization

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights, DPSP, SC judgements

Mains level: Temple entry issue and all aspects related to it


Context

  1. The Supreme Court of India has repeatedly struck down discriminatory religious practices, the latest of which is the triple talaq (in Shayara Bano v. Union of India, 2017)
  2. Reference of the Sabarimala entry row to a five-member Constitution Bench is in itself a radical judicial move

Violation of rights in Sabarimala temple issue

  1. Preventing women’s entry to the Sabarimala temple with an irrational and obsolete notion of “purity” clearly offends the equality clauses in the Constitution
  2. It denotes a patriarchal and partisan approach
  3. The entry prohibition takes away the woman’s right against discrimination guaranteed under Article 15(1) of the Constitution
  4. It curtails her religious freedom assured by Article 25(1)
  5. Prohibition of women’s entry to the shrine solely on the basis of womanhood and the biological features associated with womanhood is derogatory to women, which Article 51A(e) aims to renounce
  6. The classification based on age is, in essence, an act of discrimination based on sex

How did the age bar start at Sabarimala temple?

  1. The practice rests on a fragile rule and an equally fragile judgment of the Kerala High Court ( S. Mahendran v. The Secretary, Travancore Devaswom Board, 1991)
  2. There is no unanimity on whether the Sabarimala temple bar is ‘age-old’

Rules for facilitating temple entry and contradictory clause

  1. The very purpose of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is to ensure entry of all Hindus to temples without being discriminatory
  2. Rule 3(b), which instigates obstruction to women’s entry on the ground of menstruation, apparently runs counter to the very object of the parent enactment and is therefore untenable

View of the framers of constitution, judiciary, and international jurists

  1. B.R. Ambedkar famously said that public temples, like public roads and schools, are places meant for public access and so the question of entry is, essentially, a question of equality
  2. The managerial rights of religious authorities under Article 26(b) of the Constitution cannot override the individual woman’s religious freedom guaranteed under Article 25(1)
  3. The former is intended to safeguard, not annihilate, the latter
  4. Liberty is tested at the individual level, for individuals alone can constitute the public in a republic
  5. In S.R. Bommai (1994), the Supreme Court said that “secularism operates as a bridge” for the country to move on from “tradition to modernity.”
  6. As American jurist Ronald Dworkin opined, political morality is to be brought into the heart of constitutional law

Not just about individual freedom

  1. It is erroneous to conceive of the issue only as one involving a fissure between individual freedom and gender justice on the one hand and religious practice on the other
  2. It also reflects a conflict among believers themselves
  3. It is essential to prevent monopolisation of religious rights by a few under the guise of management of religious institutions
  4. Article 25(2)(b) enables the state “(to provide) for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of the Hindus.”
Oct, 27, 2016

Ready to wait till 50 to enter Sabarimala: Women’s group

  1. Who: A group claiming to represent women devotees of Kerala moved the SC
  2. What: The group sought to intervene in the pending litigation on Sabarimala temple entry rights for women aged between 10 and 50
  3. The application said: There was no prohibition on women’s entry in Sabarimala
  4. Women below 10 years and above 50 years were allowed to have the darshan of the deity
  5. According to the group some temples even celebrate the menstrual phase of women
  6. They cited the cases of Kamakhya temple in Assam and the Devi temple in Kerala’s Chenganoor
Aug, 26, 2016

Haji Ali case: Bombay HC allows women’s entry in the dargah

  1. HC: Women should be permitted in the dargah along with men and Maharashtra government should ensure their safety
  2. The ban imposed on women is contrary to the fundamental rights of a person as provided in Constitution
  3. Background: In June 2012, an order was passed by the Haji Ali Dargah Trust banning women from entering the sanctum of the dargah
  4. The trust said the ban is integral to Islam and women cannot be permitted to touch the tombs of male saints and it is a sin for women to enter the innermost part of the dargah
  5. The NGO, Bharatiya Muslim Mahila Andolan, filed a PIL in November 2014 against the ruling, and urged the court to intervene and overthrow the trust’s diktat
Jul, 12, 2016

SC to hear arguments on Sabarimala

  1. News: Supreme Court decided to hear arguments for referring to a Constitution Bench a plea regarding restriction of women’s entry in Kerala’s Sabarimala temple
  2. Background: Women aged between 10 and 50 years are not allowed to enter the Sabarimala temple
  3. A range of questions would be discussed including whether right to equality under the Constitution can be agitated to ‘interfere’ with the Hindu tradition
  4. Whether a religious denomination centred around the temple had the fundamental right to restrict women from entering it
  5. Advocate appearing for the temple authorities warned that the Supreme Court’s decision would create ripples in the practice and restrictions of other religions like Islam and Christianity
Apr, 19, 2016

SC: Why compel deity to see women?

  1. Context: Hearing of a petition filed against the ban on women of a certain age from entering and worshipping in the Sabarimala temple in Kerala where a celibate deity presides
  2. SC asked: Why should women compel the Sabarimala deity to grant them darshan when the deity does not want to as per tradition
  3. Argument: Access to worship for women aged between 10 and 55 at Sabarimala temple would “disturb” the celibate deity
  4. Counter: Morality based on tradition is subservient to constitutional morality that there should not be discrimination in the name of gender, sex, caste, etc.
Feb, 13, 2016

Is spirituality the exclusive domain of men, asks SC

  1. Context: Ban on entry of women into the Sabarimala temple
  2. Court’s Questions: Whether spirituality is the exclusive domain of men, and women are incapable of attaining the spiritual self
  3. Whether the Vedas, Upanishads and scriptures discriminate between men and women
  4. Is this tradition of prohibition bound to stay on, despite the fundamental right of equality envisaged in the Constitution
Feb, 10, 2016

Maharashtra bats for women’s entry in Haji Ali Dargah

  1. Context: Restrictions on entry of women in places of religious worship
  2. Update: The Maharashtra govt backed the entry of women into the Haji Ali Dargah, by informing Bombay HC that equality must rule over tradition and customs
  3. Contraint: If Dargah Trust is able to prove that the ban is part of their religious practice with reference to Koran
  4. Recent controversies: Sabrimala temple in Kerala and Shani Shingapur temple in Maharashtra are also facing similar challenge
Jan, 12, 2016

Is it constitutional to keep women off Sabarimala, asks Supreme Court

  1. The SC said no temple or governing body could bar a woman from entering the Sabarimala shrine in Kerala where lakhs of devotees throng every year.
  2. The court took a swipe at religious customs and temple entry restrictions violating women’s constitutional rights.
  3. The temple board argued that the prohibition was based on custom followed for the past 50 years.
  4. The Constitution rejects discrimination on the basis of age, gender and caste.
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