1. Introduction

Gender equality in India is most desired form, which our nation is craving for since long. Gender equality is no more a moral pressure or social issue but also a social, economic challenge. For overall development of the nation gender equality is very essential. In the era of full of opportunities india lacking in its gender equality. In india there exists an descriminatory attitude towards male and femalefrom the social angle and existed from centuries as far as alll we know.although constitution of India framed by Dr. B. R. Ambedkar, guarantees equal opportunities and rights for men and women. In most communities in India, being a male or female is not merely a matter of Gender- here in India males and female face diffrent expection about how they should dress up, behave, or work and where they can go or not from the ancient times. That are in their families, workplaces, religious places, or in the modern public sphere, the relation between men and women in the society also reflects the understanding of talents, characteristics, and behaviour appropriate to women and men. Gender thus differ from sex, and gender is projected as social and cultural rather than biological. But the scenario is changing nowadays, we can see that from shah bano, case and now womens are showing courage for attaining equality in the society actively.

2.    FACTS

• The sabarimala temple located in the state of kerala, this is an hindu temple dedicated to Lord ayyappan . the location of the temple is exactly inside the periyar tiger reserves in ‘pathanamthitta’ of Kerala.
  • The sabarimala temple is one of the famous temple in kerala as well as in south India,had restricted the women from entering temple(of menstruating age (10- 50))
  • Several women tried to enter the temple, but not succeded in that.
  • Group of women showed courage and group of five members moved to apex court challenging the decision of the Kerala High Court. Which upheld the customs of the ayyappa swamy temple and stated that “Tantrik(priest)” is empowered to religious decisions.
  • Womens are requesting to go against the customs of the temple i.e. to enter the premises of the temple¹.

3.    ISSUES

There wew mainly three issues raised in the young lawyers association case :-

• Whether this restriction imposed by the temple authourities violates Articles 15, 25 and 26 of the indian constitution?
  • Whether this restriction violates the procisions pf Kerala Hindu Place of Worship Act,1965?

1 INDIAN YOUNG LAWYERS ASSOCIATION & ORS. V. STATE OF KERALA & ORS. (2019) 11 SCC 1

• Whether the Sabarimala Temple has a denominational character?²

4.    CONTENTIONS

There are many contentions made y both petitioners and respondents. They may be classified as follows :-

• Argues in favour of women entry

Arguements in favour of women entry made by the petitioners consisting group of five women’s were – in the period of menstruation women are barred from participating in numerous activities causing to the social, cultural and religious norms that bar women from partcipating in such activities. They are considered impure and thus restricted from entering the kitchen, temple, touching the holy basil,etc.. the chief minister of kerala, Pinarayi Vijayan, said that gender equality is always supported in kerala state and by the political parties too. The practice of barring (specific group of) women from entering into the temple is violative of Article 14³ (equality principle) and also an discrimination of women without having reasonable restrictions.

• Barring of women entering into the temple is violative of constitutional principles such as Art 14, Art 15 and Art 26

Article 14 deals with equality principle

Article 15⁴ deals with “prohibition on the ground of religion, race, caste, sex, or place of birth”. Here the practice of barring women from entering into the temple violates Article 15 as discrimination made on the basis of ‘sex’.

Article 25⁵ deals with “freedom of conscience and free profession, propogation and practices of religion”. Here, the barring of women from entering into the temple leads to violation of Art 25, it prevents women from freedom of practice of religion.

Article 26⁶ deals with “freedom to manage religious affairs”. Here, this practice is clearly violative of the constitutional provision 26.

• Restricting women’s entry inside the premises of temple is supported by the provision’s of legislation namely Kerala Hindu Place of Public Worship Act, 1965⁷ is unconstitutional as it violates Art 14, 15, 25, and 26 of Indian Comstitution.
  • One of the leading arguements by the peitioner is that when the sabarimala temple doesn’t performs any unique religious practices or ‘puja’ and other religious ceremonies performed in other hindu temples how can they make seperate restrictions and seperate denomination for Article 26.

2 ibid

3 Art 14, Constitution of India.

4 Art 15, Constitution of India.

5 Art 25, Constitution of India.

6 Art 26, Constitution of India.

7 Kerala Hindu Place of Public Worship Act, 1965

• Arguements against women entry :-

The arguements given on favour of barring women from the temple premises from the respondents that – here the diety Lod ayyappa is brahmachari, his practice is not an discrimination but a discipline towars the temple not to disturb the lord’s concience by entering into a temple by a menstruating womrn from the age of 10-50 years of age. It is a tradition to respect the diety, not only sabarimala there exists several other temples where men are completely prohibited from worsipping, for example Attukal Bhagavati Temple, Brahmaji Temple, Kamrup Kamakya Temple, Kumari Amman Temple, Mata Temple, Chengannur Bhagavti Temple.

• The contention here is that, there is no violation of constitutional provisions such as Art 14, 15, 25, and 26. As the restriction imposed only in respect of women as specific age group but not as the women as an gender or class. If this practice of barring of women from entering the premises as an sex , gender or class at that timeit can be considerd as an descrimination and violation under the Article 15 of Constitution of India.
  • And the legislative provisions of Kerala Hindu Place of Public Worship Act, 1965 also supports the restriction imposed by the temple i.e. barring of specific age group women from entering the temple.⁸

5. RATIONALE

Rationale includes Obiter Dictum and Ratio Decidendi.

Ratio decidendi is latin term means “ rationale for the decision”, reffers to a key factual point or chain of reasoning in a case drives a final judgement.

On 28^th september 2018, the court delivered its verdictin sabarimala case by 4:1 majority, 4 male judges in favour of women can enter the temple and 1 female judge infavour of the temple that women to be barred from entering the temple, held that restriction imposed in sabarimala on womens is unconstitutional. It also held that practice violated the fundamental rights to equality, liberty and feredom of religion, Article 14, 15, 19(1), 21 and 25(1) respectively. It struck the legislative provision 3(b) of Kerala Hindu Places of Public Worship Act as unconstitutional and Rule 3(b) allowed for hindu denominations to exclude women from public places of worship, if the exclusion based on ‘’custom.’

In the verdict of the Apex court, it allowed entry of women of all age group without any restrictions to enersabarimala, and held that “ Devotion cannot be subjected to Gender Discrimination.”

Obiter Dictum

Obiter dictum from latin word, obiter means in passing and dictum means something that is said collectively a judges expression of opinion uttered in

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court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.

In the present case the court ruled:

“we have no doubt in sying that such practice infringes the right of women to enter a temple and freely practice the hindu religion.”

“Devotion cannot be subjected to Gender Discrimination”

Hon’ble Chief Justice of India stated in his judgement that religion is way of life linked to the dignity of an individual and patriarchal practices based on the exclusion of one gender in favour of another couldn’t be allowed to infringe upon the fundamental freedom to practice and profess one’s religion.⁹

6.    DEFECTS OF LAW

Savigny states that “ Law like language stands in organic connection with nature or character of the people and evolves with the people”. He is trying to express that the positive law lies in reality, it is in existence, in the common concious of the people. So, in accordance with the practice of the societythe positive laws are framed, custom is only the badge.

In an recent discussions on sabarimala casevarious customs and practices prevailing in the society looks upon the law as an instruement as an social change. In the sabarimala case court stepped ahead and given prefrence to the present condition of the society rather than the old customs existed from decades in the society. When the customs are in favour of the legislative laws has always secured in the lawitself, but when the customs are against laws they are to be handled very carefully. For instance, in the above case the court hasn’t taken steps to put a ban on the entire customs of the followers of the deity Lord ayyappan but court has smoothly removed a thread from the needle to solve the present issue only. In India judiaciary has not not reached to the leave where, it can give an ultimate solution to everybody without hurting other’s religious sentiments.

Ideally, the court followed the exact way to deal with the matter without hurting sentiments also. The refoms in the indian religious system wer started centuries ago. From the banning the system of sati the reform began and still on the way to achieve full justice.there seems there is no defect existing in the law but the progressive developments to the law to be made, to eliminate such evil moral from the societies and to attain the principle of constitutional morality.¹⁰

7.    INFERENCE

The alone woman on the bench, justice Indu Malhotra, dissented.

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10 https://blog.ipleaders.in/indian-young-lawyers-association-ors-vs-state-kerala-ors-2018/( last accessed on Aug 20,2023)

Chief justice dipak mishra, justice R.F.Nariman, Justice A M Khanwilkarand Justice D Y Chandrachud constituted the majority.

Chief Justice of India Hon’ble Dipak Mishra while reading out portions of the judgement for himself he stated that the women are never inferior to men.the freedom of faith is completely diffrent from the biological reason.

The verdict of the supreme court states that, the the religious practice followed by the followers, restricting specific age group women from entering the temple. The Act of the state, Hindu places of worship entry rule, 1965, Rule 3(b) is unconstitutional.

But, when we look at the history of the temple, The Lord Ayyappan is an hindu brahmachari. By allowing the menstruating women on thepremises of the temple it will affect on the virginity of the men. The intentions of our fore fathers is to attain concentration and discipline through practing vrutha and such connected things.

The court shouldn’t interfere with the core religious practices without making proper research, and from the proper angle the matter to be examined. Its not an public place by name itself it states that it is an religious state so that the court shouldn’t interefere in such things andshouldn’t create disharmony within such religious places. ¹¹ⁱ

i Authour – Bhanuprakash P Hegde Third year L.L.B student, M.E.S Law college, Sirsi-Karnataka

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