Patently unjust and discriminatory practices that serve no purpose but to reinforce notions of (im)purity are against the spirit of our constitution.

Why disallowing menstruating women into Sabarimala is against the spirit of the constitution
Voices Sabarimala Thursday, January 14, 2016 - 12:22

By Sudha Ramalingam

The Supreme Court is currently hearing an appeal on the ban of women into the Sabarimala temple. The Sabarimala Ayyappan temple in Kerala is revered by a large segment of the Hindu population. The administering Travancore Devaswom Board claims that women between 10 and 50 years (those of menstruating age) have been prohibited from entering the Temple for the past half century. This customary ban has also been codified in Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The Kerala High Court had upheld the rules and allowed the Devaswom Board to enforce the ban.

The Supreme Court had referred the challenge to the ban to a 3-judge bench in 2008 and this case has finally come up for hearing in 2016. This is an important case that implicates freedom of religion, secularism, gender and social justice. The Constitution of India guarantees freedom to profess, practice and propagate oneā€™s religion, subject to certain restrictions. Article 26 states that every religious denomination or section of denomination has the right to manage its own affairs in matters of religion. Article 25(2) states that the State can make any law ā€œproviding for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindusā€.

One of the big contentions in Indian constitutional law has been whether in light of secularism (which translates into the separation of church and state as well as non-interference of the state in religious affairs), customary religious practices that are discriminatory should be allowed to continue. Given that most religions, Hinduism included, have entrenched rituals and practices that regard certain sections of the population, particularly women and low caste persons, as inferior and denies them access or treats them discriminatorily, complete non-interference with religion would mean severe impediment to the ideals of substantive equality and social justice. The Courts have thus been fairly proactive and engaged in reform. This reformist agenda of the Courts sits uneasily with the idea of secularism; thus the Courts have refrained from interfering in ā€œessential religious practicesā€ or beliefs. This means that the Courts would engage in fact finding as to whether the impugned discriminatory practice constitutes an essential religious practice. The Courts look to the religious teachings to arrive at this answer.

The Supreme Court, in deciding on the constitutionality of this ban will need to engage in this enquiry and dwell on whether banning entry of women of menstruating age is essential religious practice to Hindus. As stated earlier, the Courts have been fairly liberal in striking down discriminatory practices by coining the ā€˜essential religious practiceā€™ test. However, the recent judgment of the Supreme Court that allowed Agamas to decide on appointment of archakas, indicates reversal of the liberal trend. The SC in the archakas case had, in effect, swept aside concerns of untouchability (Article 17) and ignored the long-fought battle of the lower castes for temple entry and access to the sanctum sanctorum of temples.

Temple entry bans are archaic, regressive and a blot on any society that strives to be egalitarian and just. The recent judgment of the Supreme Court in the archakas case reminds us that the fight against untouchability is far from over. Similarly, the Sabarimala ban brings to light how deeply discriminatory and unjust our social practices are. Irrespective of whether the Court rules the temple entry ban to be an essential religious practice and strikes down the ban as unconstitutional, no constitutional governance can tolerate or allow such a discriminatory practice to continue. Article 25(2) allows the State to make laws to reform religion as well as open temples to all sections of the public. The State can, and should, amend the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 to nullify the ban and allow entry of women of all ages to Sabarimala. Patently unjust and discriminatory practices that serve no purpose but to reinforce notions of (im)purity are against the spirit of our constitution.  

(Sudha Ramalingam is a senior lawyer and human rights activist.) 

 

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