Upholding the Supremacy of Constitution over Religious Practices

Menstruation is a normal phenomenon in the life of women. In India there are several taboos and myths surrounding menstruation. Most communities and religions believe that menstrual blood is dirty and impure and menstruating women unhygienic and unclean. Hence, menstruating women and girls are subject to various forms of restrictions. During this phase, women and girls are generally restricted from entering places of worship, offering prayers, reading holy books, etc. They also face a number of restrictions within the home like not entering the kitchen and cooking food, not touching preserved food, not interacting with men in the family, etc. This leads to women and girls being excluded from many aspects of social and cultural life. Because of the belief that menstruating women are impure, many places of worship do not allow women in the reproductive ages to enter their premise and offer prayers. One such case is the Sabrimala temple in Kerala where entry of girls above the age of 10 and below the age of 50 has been restricted since 1991, on the ground that they are of menstruating age. The Sabarimala temple is dedicated to the Hindu celibate deity Lord Ayappa, who according to common belief is the son of Lord Shiva and feminine incarnation of Lord Vishnu. Since the deity is a celibate, it is a local belief that menstruating women should be restricted from offering worship at the shrine.

In 2018, a constitutional bench of the Supreme Court in the case Indian Young Lawyers Association v.s State of Kerala granted women, of all age groups, entry into Kerala’s Sabarimala temple by a 4:1 verdict.

The entry of women to the Sabarimala temple was restricted through a judgment of the Kerala High Court in the S. Mahendran v.s The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42) case. The judgment put restrictions on the respondent, the Travancore Devaswom Board, from permitting women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with pilgrimage and from offering worship at the Sabarimala Shrine. The judgment further stated that restrictions imposed are not violative of Articles 15, 25 and 26 of the Constitution of India, they are also not violative of the provisions of Hindu Place of Public Worship (Authorizations of Entry) Act, 1965 since they do not restrict persons from any particular class or section of society to enter the shrine, the prohibition is only in respect of women of a particular age group and not women as a class.

Restricting the entry of women above the age of 10 and below the age of 50 was challenged through a Public Interest Litigation filed by the Indian young lawyers association in 2016 in the Supreme Court, stating that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) 1965 which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship,” violates constitutional guarantees of equality, non-discrimination and religious freedom. In 2018, a constitutional bench of the Supreme Court in the case Indian Young Lawyers Association v.s State of Kerala granted women, of all age groups, entry into Kerala’s Sabarimala temple by a 4:1 verdict. The opinion of the Hon Judges in this regard is worth noting.

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Justice Dipak Misra and Justice Khanwilkar opined that religion is a way of life intrinsically linked to the dignity of an individual, and patriarchal practices based on exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one's religion. Justice Rohinton Nariman felt that the exclusion of women from the temple effectively rendered their right under Article 25 meaningless. He emphasized that Article 25(1) protects the fundamental right of women between the ages of 10-50 years to enter the Sabarimala Temple and exercise their freedom of worship. Justice D Y Chandrachud stated that the physiological characteristics of women, like menstruation, have no significance or bearing on the entitlements guaranteed to them under the Constitution. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity and the stigma around the same had no place in a Constitutional order. Justice Indu Malhotra who gave a dissenting opinion, on the other had felt that Court must respect a religious denomination's right to manage their internal affairs, regardless of whether their practices are rational or logical.

Most communities and religions believe that menstrual blood is dirty and impure and menstruating women unhygienic and unclean. Hence, menstruating women and girls are subject to various forms of restrictions.

In a similar case, women were denied entry into the sanctum sanctorum at the Haji Ali Dargah in Mumbai. The grounds for denying entry to women were that entry of women in close proximity to the grave of a Muslim saint was a grievous sin and also because it was argued that menstruating women were unclean and impure in Islam and hence, could not offer prayers or visit a Dargah or a mosque. A Public Interest Litigation was hence filed in the High Court of Bombay. The Court, in its Judgment in the case, Dr. Noorjehan Safia Niaz and another v.sState Of Maharashtra and others stated that the ban imposed prohibiting the entry of women is in contravention of Articles 14, 15 and 25 (right to equality, right to non- discrimination and right to practice any religion), the ban was hence lifted and women were permitted to enter the sanctum sanctorum at par with men.

In 2018, a review petition was filed to relook into the issue of permitting women to enter the Sabarimala temple. In the case Kantaru Rajeevaru v.s Indian Young Lawyers Association, the Supreme Court gave a judgment by a 3:2 verdict which stated that it is not just the issue of restricting entry into Sabrimala, but the constitutional validity of practices restricting entry of women in other places of worship like Muslim women in mosques or dargahs, Parsi women married to non Parsi, into the holy fire place of an Agyari and religious practices like Female Genital Mutilation, prevalent amongst the Dawoodi Bohra community need to be looked into. They hence suggested the constitution of a larger bench to decide on the constitutional validity of such practices.

The above pronouncements show the important role of the Judiciary, in ensuring substantive equality to enable women have and exercise the same rights and freedoms as men.

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Anuja Gulati is a Gender Consultant at Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.