Mentor’s Comment:

This question is very contemporary based on the burning issue of violation of women rights for entering into temples. The SC has also pronounced its verdict allowing women into temple, but still the protest and restriction continues.

Introduce about the violation of women rights citing some customary laws  which prohibit women of certain ages from entry into temples. And the ongoing movement by women rights activists.

Mention Constitutional provision (if any) and analyze its consequences mostly criticisms.

Further mention about the SC’s verdict with relevant explanations.

Conclude with your own views with a balanced note.

Model Answer:

• There has been the wide protest from the group of women for their rights to enter and worship into the temple who are being debarred from the ages citing some customary law which permit prohibiting women from accessing places of worship.
• Here the right is not only for entering and worshiping but the equality and dignity of women which is being violated. The prohibition also legalizes the male domination and continuation of male appropriation over religion.
• Indian constitution under Article 25(1) guarantees to all persons the right to freely profess, practice, and propagate their religion. Mirroring this, Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion. Overriding both these provisions, Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.
• Despite all these constitutional provisions 50% of our population (women) is being neglected from their rights. It is the State government’s duty to protect the rights of women. The prohibition is arbitrary, illegal and violative of the fundamental rights of a citizen.

The Recent Supreme Court Verdict:

• The Supreme Court’s ruled with a 4:1 majority, and allowed the women entry into religious places (Sabrimala Temple) citing that the exclusionary practice violates the rights of women devotees establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion.
• The three concurring opinions that form the majority have demolished the principal defences of the practice — that Sabarimala devotees have constitutionally protected denominational rights, that they are entitled to prevent the entry of women to preserve the strict celibate nature of the deity, and that allowing women would interfere with an essential religious practice.
• The majority held that devotees of Lord Ayyappa do not constitute a separate religious denomination and that the prohibition on women is not an essential part of Hindu religion.
• In a dissenting opinion, Justice Indu Malhotra chose not to review the religious practice on the touchstone of gender equality or individual freedom. Her view that the court “cannot impose its morality or rationality with respect to the form of worship of a deity” accorded greater importance to the idea of religious freedom as being mainly the preserve of an institution rather than an individual’s right.
• Beyond the legality of the practice, which could have been addressed solely as an issue of discrimination or a tussle between two aspects of religious freedom, the court has also sought to grapple with the stigmatisation of women devotees based on a medieval view of menstruation as symbolising impurity and pollution.
• The argument that the practice is justified because women of menstruating age would not be able to observe the 41-day period of abstinence before making a pilgrimage failed to impress the judges.
• To Chief Justice Dipak Misra, any rule based on segregation of women pertaining to biological characteristics is indefensible and unconstitutional. Devotion cannot be subjected to the stereotypes of gender.
• Justice D.Y. Chandrachud said stigma built around traditional notions of impurity has no place in the constitutional order, and exclusion based on the notion of impurity is a form of untouchability.
• Justice Rohinton F. Nariman said the fundamental rights claimed by worshippers based on ‘custom and usage’ must yield to the fundamental right of women to practise religion. The decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.

Conclusion:

• The Sabrimala governing board’s argument is that the prohibition of women is “justified by custom”. They rely upon the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1956, which permit prohibiting women from accessing places of worship where “custom” or “usage” requires it.
• The Supreme Court has held that while personal law is exempt from the application of the Constitution, mere ‘custom’ is not. It might therefore simply strike down the offending rule on the ground that it discriminates on grounds of sex, and therefore violates the Constitution.
• The Supreme Court has also held that if one private party obstructs another private party from exercising her constitutional right, then it is the duty of the state to effectuate her right by restraining the former from continuing with its obstruction.
• Such verdict however adroitly negotiates the difficulties hewing closely to the constitution, to law, and to the judicial task of defending individual rights. For that, the Supreme court must be praised and its judgement upheld.