Sabarimala Case : SC lifts ban on woman says, “it’s a form of untouchability”
A five-judge Constitution Bench of the Supreme Court, in a majority judgment, on Friday upheld the right of women of all ages to worship in places of their choice. This verdict will pave the way for the famed temple of Lord Ayyappa in Sabarimala, Kerala, to open its doors to women in the menstruation age in the hearing of Sabarimala case.
Women between the ages of ten and fifty have been banned from entering the Sabarimala temple for centuries. That has changed with today’s Supreme Court verdict. The five-judge constitution bench of the Supreme Court today gave a 4-1 verdict allowing women of all ages to enter the Sabarimala temple in Kerala. Calling the practice to ban entry to women between the ages of ten and fifty at the Ayyappa temple at Sabarimala as “a form of untouchability”, Justice DY Chandrachud said, “Religion cannot be cover to deny women the right to worship.” He went on to say, “To treat women as children of a lesser god is to blink at constitutional morality.”
In his judgment, Justice D.Y. Chandrachud mentions 1951 judgment of the Bombay High Court in the State of Bombay v. Narasu Appa Mali case, said any customs or rituals that contradict with the fundamental rights of citizens must be quashed. This is in contradiction with the famous Narasu Appa Mali case judgement.
In this 1951 case, Justices Chagla and Gajendragadkar held that uncodified personal laws may not be scrutinised for fundamental rights violations. They did so on the technical reasoning that Article 13 of the Constitution subjected only “laws” and “laws in force” to the scrutiny of fundamental rights, and that “personal laws” are neither “laws” for this purpose, nor “laws in force”.
Ever since the Narasu Appa Mali case, there has been a domain of law — i.e., uncodified personal law — that has simply been deemed to be beyond the realm of the Constitution, and beyond the scrutiny of constitutional norms such as equality, freedom of conscience, and the right to personal liberty.
“Religion is a way of life basically to link life with divinity,” and banning entry of women “violates their rights,” the bench, headed by Chief Justice Dipak Misra said.
Justice Chandrachud also said that “exclusion of women is a violation of right to liberty, dignity and equality.”
“Exclusion of women because she menstruates is utterly unconstitutional,” he said, before highlighting that “popular notion about morality can be offensive to dignity of others.”
Towards the end of his judgement, Justice Chandrachud said, “Prohibition on women is due to non-religious reasons, and is a grim shadow of discrimination going on for centuries.”
Justices RF Nariman and DY Chandrachud went ahead and concurred with Chief Justice Dipak Misra and Justice AM Khanwilkar. Justice Indu Malhotra however, gave a dissenting verdict.
Chief Justice Dipak Misra said that “devotion cannot be subjected to any discrimination” and that “patriarchal notion cannot be allowed to trump equality in devotion.”
Justice Indu Malhotra, the only woman judge in the bench, passed a dissenting judgement and said that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere in the country. In her judgment Justice Malhotra says the issues raised have impact not just with respect to Sabarimala but other places of worship too. Religious practices cannot be solely tested on the basis of Article 14, she states.