The supreme court is hearing a public interest litigation (PIL) questioning the ban on entry of women of the reproductive age in the Sabarimala temple in Kerala. The PIL was filed in 2006 by Indian Young Lawyers’ Association in the midst of a raging controversy over temple authorities conducting ‘purification’ rituals and attempts being made to prosecute Kannada actress Jaimala after she confessed to have touched the feet of Lord Ayyappa about 20 years ago in 1987.

The petitioners have sought an end to the “ill conceived” custom barring entry of women aged between 10 and 50 (menstrual age group) and quashing of rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which backs bar on entry of women into temples “at such time during which they are not by custom or usage allowed to enter a place of worship”.

The PIL is limited to Sabrimala but there are several temples in India which restrict access of women. With the PIL now coming up for final disposal, the movement has intensified with women demanding parity with men at the Shani temple at Shingnapur, Maharashtra, and Haji Ali dargah in Mumbai. While a group of women threatened to forcibly enter the Shani temple, another had approached the Bombay high court for unrestricted access to the Haji Ali dargah.

Though the supreme court refused to interfere in a similar matter last year, the bench hearing the Sabrimala case sparked hopes of reform by raising questions on the discriminatory practice. Pointing to the right against discrimination on the ground of gender, justice Dipak Misra, who is presiding over the bench, observed: “Unless you have a constitutional right to prohibit entry of women, you cannot prevent them from worshipping at the shrine.”

With the government evidently failing to prevent discriminatory treatment of women, activists are looking towards the court for justice.
Apart from causing reverberations in Shingnapur and Mumbai, the case also stirred up the political leadership in Kerala. Taking a U-turn, the state government decided to withdraw its November 2007 affidavit and filed a fresh one supporting the temple management on the ban.

“In matters of religion, it is the opinion of the priests that is final,” the state government said, while pointing to the right of religious denominations under Article 26. Without directly touching upon the corresponding rights of women, the state government said that the bar was based on the beliefs, customs and usages of the temple and not on the ground of caste, birth or sex. In 2007, it had stated that the bar was “not fair”.

The petitioners have contended that the ban violated the fundamental rights guaranteed under Articles 14 (the right to equality), 15 (protection against discrimination on the ground of gender) and Article 25 which give people the right profess, practise and propagate religion. They have also sought to draw support from the fundamental duty under Article 51A(e) which casts an obligation to renounce practices derogatory to the dignity of women.

While the outcome of the case will hinge on the interpretation of constitutional provisions, the task may not be as easy. With religion having deep roots in secular India, the constitution guarantees religious freedom not just to individuals (Article 25) but to religious denominations (Article 26) as well.

The state government and the temple management are harping on the fundamental right under Article 26 which guarantees to religious denominations the freedom to “manage religious affairs”. The provision is aimed at preserving the essential and integral practices of any religion.

Apart from public order, morality and health, the freedom under Article 25 is subject to “other” fundamental rights. Though Article 26 does not specifically make the right subject to other fundamental rights, courts have read it harmoniously with other provisions of the constitution. While the provision safeguards rituals, ceremonies and other practices integral to religion, it does not generally come in way of religious reforms initiated by the government. Article 25(2)(b) empowers the state to make laws to provide for “social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

The customary bar against Harijans entering temples was abolished with the enactment of laws to do away with discrimination against people on the basis of caste.

Upholding the Madras Temple Entry Authorisation Act enacted to throw open Hindu temples to Harijans, the supreme court held in 1957 that the right of a religious denomination under Article 26 “must yield to the overriding right declared by Article 25(2)(b) in favour of the public to enter into a temple for worship. Giving a harmonious interpretation, the court stressed that the management could regulate the right to entry but there could not be total or substantial bar so as to make the right meaningless.

While the court cleared the reform for entry of Harijans, the ongoing controversy over bar against women may not be on the same footing. The reform in the case of the former was ushered in by the state and the court merely upheld it. Here reform is being sought through judicial intervention.

In one of the latest cases of the kind, the supreme court in 2015 observed that it would not strike down religious customs even if they discriminated against women as the constitution had specifically entrusted upon the executive the task of ushering in such reforms.

“…in a pluralist society as existing in India, the task of carrying out reforms affecting religious believes has to be left in the hands of the state,” a supreme court bench observed in the Ritu Prasad Sharma case ((2015) 9 SCC 461). The decision came on a petition seeking to quash a custom pertaining to a temple in Guwahati where women were barred from voting to elect the temple priest.

“The court can surely examine and strike down a state action or law on the grounds of Articles 14 and 15. But in a pluralist society as existing in India, the task of carrying out reforms affecting religious beliefs has to be left in the hands of the state,” the court said, while refusing to interfere.

With Article 25(2) entrusting the task of reforms to the state, the court had thought it fit to leave it to the government to take a call on reforms.
But the case at hand is easily distinguishable.

There being no likelihood of reform in sight with the Kerala government backing the custom, the petitioners can only hope for justice through judicial intervention.

The Kerala government has argued that the fact that the state had been empowered to throw open temples to all classes of Hindus gave implicit right to religious denominations to exclude persons who could not worship according to the religious tenet of that denomination. It relied on a Kerala high court order in the S Mahendran case (AIR 1993 Kerala 42) upholding the bar against women on the ground that the deity was in the form of a brahmachari. “There is a vital reason for imposing this restriction on young women. It appears to be more fundamental,” the high court said, while quoting Manu Smriti on rules of conduct to be observed by a brahmachari.

The state government affidavit has quoted a passage from the 2015 Ritu Prasad Sharma case to dissuade the court from entertaining the petition. “Religious freedoms protected by Articles 25 and 26 can be curtailed only by law, made by a competent legislature.”

The state may well be within its right not to usher in reforms and the temple management may have based its claims on the fundamental right guaranteed to it but the extent and scope of the right of temple management can only be determined by considering the competing rights of women under Articles 14, 15, 25 and 51A(e) of the constitution. And hence the supreme court has a vital role to play.

(The column appears in the February 16-29, 2016 issue)