Another male bastion falls as SC opens Sabarimala to all women
Justice Malhotra, Lone Woman On Bench, Dissents
AmitAnand.Choudhary@timesgroup.com
New Delhi:29.09.2018
In a path-breaking verdict to ensure gender equality at religious places, the Supreme Court on Friday opened the doors of the Sabarimala Temple in Kerala to all women devotees, ending the age-old custom that barred women in the menstruating age group of 10-50 from entering the temple to worship Lord Ayyappa.
A five-judge Constitution bench by a 4:1 majority held that devotees of Lord Ayyappa were “exclusively Hindus” and did not constitute a separate religious denomination, and that the practice of exclusion of some women could not be regarded as an essential part of the religion.
Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar and D Y Chandrachud were unanimous in their view that the practice of barring women devotees in the 10-50 years’ age group was illegal, unconstitutional and arbitrary.
However, Justice Indu Malhotra, the lone woman judge on the bench, penned a dissenting verdict, holding that worshippers of Lord Ayyappa did belong to a separate religious denomination and the ban on entry of some women in the temple was an essential part of their religion.
Referring to restrictions on women, the apex court said any subversion and repression of women under the garb of biological or physiological factors (like menstruation) could not be given the seal of legitimacy and any discrimination against women because of their biological characteristics was not only “unfounded, indefensible and implausible but can also never pass the muster of constitutionality”.
“Patriarchy in religion cannot be permitted to trump the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion,” said Chief Justice of India Dipak Mishra, who wrote the judgement on behalf of himself and Justice Khanwilkar.
The verdict, another boost for gender equality, came a day after the apex court delivered its verdict decriminalising adultery.
“Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests,” the CJI observed.
CJI Misra said there is no place for discrimination in the matter of faith and religion but religious practices are sometimes seen as perpetuating patriarchy, thereby negating the basic tenets of faith and of gender equality, which must be discouraged. He said the notions of public order, morality and health cannot be used as “colourable device” to restrict the freedom to freely practise religion and discriminate against women by denying them their legal right to enter and offer prayers and that public morality must yield to constitutional morality.
CJI: No proof to show exclusion is part of the Hindu religion
The CJI said, “The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status. Society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man.”
“In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala Temple the status of an essential practice of Hindu religion,” he said. “In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature,” the CJI added.
Agreeing with the CJI, Justices Nariman and Chandrachud held that superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered essential parts of religion to be given constitutional protection. And, religion cannot become a cover to exclude and to deny women the basic right to find fulfilment in worship.
“The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings. These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief. To exclude women is derogatory to an equal citizenship,” Justice Chandrachud said. Justice Malhotra, however, proposed judicial restraint while examining the legality of a religious practice. “Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalizing religion, faith and beliefs, which is outside the ken of courts,” she said.
FULL COVERAGE: P 10
› Chandrachud: Morality of mob cannot overrule individual dignity, P 10 › Exclusion on the basis of menstrual status has to go, says SC, P 10
Justice Malhotra, Lone Woman On Bench, Dissents
AmitAnand.Choudhary@timesgroup.com
New Delhi:29.09.2018
In a path-breaking verdict to ensure gender equality at religious places, the Supreme Court on Friday opened the doors of the Sabarimala Temple in Kerala to all women devotees, ending the age-old custom that barred women in the menstruating age group of 10-50 from entering the temple to worship Lord Ayyappa.
A five-judge Constitution bench by a 4:1 majority held that devotees of Lord Ayyappa were “exclusively Hindus” and did not constitute a separate religious denomination, and that the practice of exclusion of some women could not be regarded as an essential part of the religion.
Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar and D Y Chandrachud were unanimous in their view that the practice of barring women devotees in the 10-50 years’ age group was illegal, unconstitutional and arbitrary.
However, Justice Indu Malhotra, the lone woman judge on the bench, penned a dissenting verdict, holding that worshippers of Lord Ayyappa did belong to a separate religious denomination and the ban on entry of some women in the temple was an essential part of their religion.
Referring to restrictions on women, the apex court said any subversion and repression of women under the garb of biological or physiological factors (like menstruation) could not be given the seal of legitimacy and any discrimination against women because of their biological characteristics was not only “unfounded, indefensible and implausible but can also never pass the muster of constitutionality”.
“Patriarchy in religion cannot be permitted to trump the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion,” said Chief Justice of India Dipak Mishra, who wrote the judgement on behalf of himself and Justice Khanwilkar.
The verdict, another boost for gender equality, came a day after the apex court delivered its verdict decriminalising adultery.
“Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests,” the CJI observed.
CJI Misra said there is no place for discrimination in the matter of faith and religion but religious practices are sometimes seen as perpetuating patriarchy, thereby negating the basic tenets of faith and of gender equality, which must be discouraged. He said the notions of public order, morality and health cannot be used as “colourable device” to restrict the freedom to freely practise religion and discriminate against women by denying them their legal right to enter and offer prayers and that public morality must yield to constitutional morality.
CJI: No proof to show exclusion is part of the Hindu religion
The CJI said, “The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status. Society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man.”
“In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala Temple the status of an essential practice of Hindu religion,” he said. “In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature,” the CJI added.
Agreeing with the CJI, Justices Nariman and Chandrachud held that superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered essential parts of religion to be given constitutional protection. And, religion cannot become a cover to exclude and to deny women the basic right to find fulfilment in worship.
“The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings. These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief. To exclude women is derogatory to an equal citizenship,” Justice Chandrachud said. Justice Malhotra, however, proposed judicial restraint while examining the legality of a religious practice. “Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalizing religion, faith and beliefs, which is outside the ken of courts,” she said.
FULL COVERAGE: P 10
› Chandrachud: Morality of mob cannot overrule individual dignity, P 10 › Exclusion on the basis of menstrual status has to go, says SC, P 10
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