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

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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