The prohibition of entry to women in Sabarimala shrine is being contested by lawyers in the Supreme Court which will open a pandora’s box for other faiths too
The Supreme Court on 11th January, has asked the government of Kerala that why women cannot be given entry to the Sabarimala temple. Gautam Bhatia, a Delhi based lawyer has offered interesting insights into the case. The SC is hearing a 10 year old petition filed by Indian Young Lawyers’ Association (IYLA). The case is coming up for hearing again on 18th January. Women between the ages of 10 and 50 have been traditionally denied entry in the temple on the grounds that they are ‘impure’. This has been a custom going back 1500 years. The Travancore Devaswom Board (TDB) which administers the temple is responsible for enforcing this custom.
The challenge to enforcing the custom by the board brings judiciary to interpret the laws pertaining to rights guaranteed by the constitution to individuals. Article 25 (1) guarantees to all persons the right to freely profess, practise, and propagate their religion. Article 26 (b) grants to religious denominations the right to manage their own affairs in the matter of religion. However, Article 25 (2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.
The temple board has argued that the custom is essential to the practise of the religion. If the board fails to prove that prohibiting women is an essential religious practice, then it cannot claim immunity under Article 26 (b). Women worshippers can also argue that prohibiting them from access violates their right to worship under Article 25(1). This takes us to the question of interpreting the law from the aspect of ‘state-shrine’ relationship. Article 25(1) is enforceable against the state and not individuals, or corporate bodies. If the board can argue that it is corporate body, Article 25 (1) cannot be applied.
If this be so, then IYLA can argue that it is the duty of the state to guarantee a woman’s right to worship. The women devotees may ask the court to direct the state to take all necessary steps to guarantee their access and safety to the shrine. Interestingly, judgement in this case will open up issues pertaining to other religions also. There is a case pending in Bombay High Court, filed by Muslim women asking for the recognition of their right to enter the inner sanctum for worship at the Haji Ali shrine in Mumbai. The question of gender justice in religious institutions is the charter of state which is responsible to enforce the constitution. Being a secular state, the governments have not interfered in the matters of individual religions which are administered by their respective religious bodies. The ramification of judgement in this case will be then to find a solution which will advance the constitutional guarantee of equality, non-discrimination and freedom of religion.
Guru Aiyar is a research scholar with Takshashila Institution and tweets at @guruaiyar.
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