Women’s entry into places of worship: India
This is a collection of articles archived for the excellence of their content. |
Contents |
Gender and temples
The Times of India, Jan 31 2016
DEVDUTT PATTANAIK
Gender bias in temples as old as the walls around them Why were temples built in India? They did not always exist. Before temples, people worshipped rocks and rivers and stars: Kumbh Mela is a classic example of Hindu ritual that does not involve any artificial structure. If one goes to the temples of Kamakhya in Assam or Vaishnodevi in Jammu, we realize that what is assumed to be a `temple' is essentially a structure built around very simple natural rock formations. The structure then is the boundary that defines and delimits the sacred space around something very organic and natural. This creation of boundaries is the essence of patriarchy , for with boundaries come divisions and hierarchies, that prop up the privileged. The physical boundaries express psychological boundaries that emerged long ago, before the structures, before gods and goddesses, in the earliest phases of civilization, when humanity emerged out of the animal kingdom and sought meaning. Every village of India is associated with grama-devis and grama-devas, often classified as fertility goddesses and guardian gods. The female divine provides, and the male divine protects. For the female divine, the male minion is just a seed provider. Nothing more. The male divine protects the female divine. Sometimes he is also the seed provider.At other times, he is celibate like Hanuman, Bhairo baba and Aiyanar. Through celibacy these guardian gods express their re spect for the Goddess, their mother. Celibacy , hence semen retention, also makes them powerful.
This notion of celibacy giving supernatural power gave rise to monastic orders. Monks sought to control the natural forces: the ability to walk on water or fly through air, the ability to change shape, be immortal. They also sought control over the mind: freedom from suffering, from fear.These accomplished ascetics (siddhas) shunned all things sensual like the female temptresses (yoginis) who wandered in groups as matrikas and mahavidyas.
Buddha created the earliest organized, institutionalized, monastic order in India. In his monasteries (viharas) women were not permitted. When they were, finally, they were forced to follow more rules than men, as they had not only to control their own desires, they also had to ensure they did not `tempt' men. These viharas were built around chaityas which housed the stupa that contained a relic of the Buddha. These were the first grand structures of India, carved into rocks. Before that shrines (devalaya) of fertility goddesses and guardian gods existed only under trees, beside rivers and inside caves, unrestrained by artificial walls and roofs.
Temples of stone were built to counter Buddhist thought by highlighting the joys of household life.Temple walls and temple customs expressed song and dance and food and pleasure. The enshrined deities got married in grand ceremonies (as in Brahmotsavam in Tirupati). They were taken care of by priests and temple dancers. These complexes were a far cry from the serenity and silence of the vihara.They celebrated power and pleasure and beauty on a grand scale. But like Buddhist monasteries, these temples were controlled by men, the Brahmins.When the devadasis became too powerful, they were kicked out by being declared `prostitutes', with a being declared `prostitutes', with a little help from the British.
Ironically today , temples -that embodiment of household life are controlled by Hindu monks (mahants). Celibacy is seen as the hallmark of religiosity and purity , and embodied as celibate, women shunning deities such as Shani and Ayyappa. In ashrams of mod ern-day gurus, male sanyasis are called `swami' or master, while female sanyasis are called `maa' or mother, thus endorsing traditional roles of man as protector and pro prietor and woman as procreator and provider.
Is celibacy a sign of respect for women, or just a clever form of misogyny? Why do the guardian gods, gurus, monks and male devotees shun the feminine? Is it to retain their semen, hence gain supernatural powers, a common belief in tantrik texts? Or is it because they want to purify themselves, and so stay away from pollut ants, such as menstruating women? These are popular ideas (traditional beliefs? superstitions?) that most activists do not want to engage with, for it will open a huge can of worms.
We prefer the sterility of neo-Vedanta popular ized by male-dominated monastic Hindu `mis sions' in the early 20th century, where God has no gender, or sexuality, hence looks upon men and women equally . Women breaking into men only temples may be dramatic, like storming of the Bastille, but it does not challenge the patriar chal psychology that makes `celibacy' purifying, and `sexuality' polluting.
Maharashtra
The Times of India, Jan 31 2016
RadheshyamJadhav
Progressive Maharashtra is dotted with temples and dargahs that keep women out
Knocking at Shani's door? There are many more temples that are shut
There is a long history to the agitation led by Trupti Desai who heads the BhumataRanragini Brigade (BRB) that is demanding an end to the ban on entry of female devotees into Shani Shin gnapur temple in Maharashtra. The first major movement goes back to the 1930s when Dr BabasahebAmbedkar launched a movement seeking temple entry for dalit men and women to the Kalaram temple in Nashik. But even now women don't have unfettered entry to Nashik's Trimbakeshwar temple. “Lots of social reform movements have taken root in Maharashtra since the 1930s and dalits are now allowed to enter any temple. But this is not the case with women,“ says advocate Varsha Deshpande of Dalit MahilaVikas Man dal. In December last year, Deshpande led a group of women to the Shanaish war temple at Solashi in Koregaon ta luka of Satara district. The Shanaish war Devasthan Trust priests immediately “purified“ the temple using `go mutra' (cow urine), which angered women activists. They have filed a complaint against the trust for violating the constitutional rights of citizens. Desphande and other women are , agitating to gain entry into other temples including Ghatai Devi and Sola Shivling in Satara. “These temple trusts have been registered under Trust Act or Society Act which operate as per the Constitution. Religious traditions and fanaticism cannot supersede the Con stitution,“ she says. On the outskirts of Satara is the Abapuri temple of Kartikeya where women are not allowed within a kilometre of the shrine. “There are hundreds of temples, especially those dedicated to Hanuman and Kartikeya, where women are banned. The Maharashtra AndhashraddhaNirmoolanSamiti (MANS) led by Dr Narendra Dabholkar had filed a PIL in 2000 in Bombay High Court seeking permission for women to enter temples where they were forbidden. The Court, despite a prolonged hearing, has not delivered a judgement,“ says MANS head AvinashPatil.Dabholkar championed the cause along with another rationalist, Govind Pansare -both were killed within two years of each other. Says Pansare's daughter-in-law Megha: “We have fought long against the trust of the Ma halaxmi temple in Kolhapur where women were not allowed into the sanctum sanctorum. Finally in 2011, the trust relented. Once women started entering the sanctum, no one objected,“ she says, adding that politicians should support these agitations. But Pansare may be asking for too much. This is state rural development minister PankajaMunde's recent comment on the issue: “These are traditions and cannot be considered insulting to women. The outrage over the woman entering the Shani temple is a non-issue.“ Interestingly, Pankaja herself had broken a taboo by performing the last rites of her father and BJP stalwart GopinathMunde. But then the WaibatwadiMaruti temple establishment in her hometown of Beed is determined not to allow women. Even in an otherwise liberal city like Pune, women are not allowed into the Kartikeya temple on Parvati hill. Just 52 km from Pune, the Mhaskoba temple in Veer village (Purandar) allows women to enter temple premises only during the nine days of Navaratri and another 10 days during the annual yatra. The Muslim community too is debating a similar issue. The Bharatiya Mus limMahilaAndolan (BMMA) has launched an agitation in Mumbai seeking entry into the Haji Ali dargah for women. The gender ban was imposed by the dargah trustees in 2011. “There are many more dargahs -like the one in Shivapur (Pune) --where women are not allowed. We feel that (religious) rights -to perform namaz in a mosque and enter a kabristan -should be given to women,“ says ShamsuddinTamboli, head of the Muslim Satyashodhak Mandal founded by the late reformer Hamid Dalwai.
Moulana Anwar Sohail, attached to a leading Pune mosque, maintains that Islam frowns on strangers of both sexes meeting in crowded places. “They maystart talking and men may look at the women with bad intentions, a sin in Islam. Islam has restricted women from visiting dargahs and kabristans to deter men from committing a sin. They can offer prayers outside the dargah, but not at the mazar (the tomb),“ he says. Hindu traditionalists too rationalize the curbs on women. Says Anita Shete, who was recently elected the first woman on the Shani Shingnapur temple trust: “I believe in tradition and will ensure that it remains intact“. Ask her to explain the “tradition“ she is defending and she wordlessly looks at the male trustees around her.
Shirdi gives away more than Siddhivinayak
Nitin Yeshwantrao timesofindia 2013/05/13
The more generously devotees give, the more they receive too, it seems. The Shirdi Saibaba temple grossed Rs 1,009 crore in cash collections from grateful devotees in the past four years while the Siddhivinayak temple earned Rs 206 crore. The two religious trusts — the richest in Maharashtra — spent 50% and 13% of their earnings, respectively, on charity in the same period, shows a document tabled in the state assembly by the state law and judiciary department.
For perspective, in 2011 alone, the Tirupati Devasthanam in Andhra Pradesh earned Rs 1,100 crore in donations from devotees, in addition to interest earned from fixed deposits in banks. The Vaishnodevi shrine reported an annual income of nearly Rs 500 crore in the same period.
The Shirdi shrine, administered by the Shri Sai Baba Sansthan Trust, spent Rs 540.49 crore of its cash collection on charity while the Siddhivinayak temple in Mumbai spent Rs 27.02 crore.
At the Shirdi temple, cash received from devotees rose from Rs 196.7 crore in 2009-10 to Rs 298.4 crore in the eight month period from April to November 2012, a 51% increase. The average annual income of the Shirdi trust for the period worked out to Rs 252-plus crore while the average financial assistance provided by it was Rs 135 crore, a politician familiar with the trust said.
The audit statements of the Sansthan at the end of 2012 showed that close to Rs 150 crore of its money was deposited in nationalized banks, in addition to Rs 50 crore worth of jewellery received from devotees, he said.
Officials said the Siddhivinayak shrine’s average annual cash collection was around Rs 51.5 crore while it spent an average of Rs 6.8 crore every year from 2009 to 2012 on charity. The bulk of its funds are in bank deposits.
The temple trusts say they would spend more on charity but for the many restrictions on imposed on charity spending by the Maharashtra government.
Temple trusts also seat of politics
As much as temple trusts have to do with religious activities and charity, politicians have long jostled for their control, given the generous funds they have and their clout and goodwill. The trustees, who are political appointees, have an important say in how the funds are spent. For instance, the Congres and the NCP have been vying for control of the Shri Sai Baba Sansthan Trust which runs the Shirdi Saibaba temple.
NCP MLA Jitendra Awhad says the Shirdi shrine’s funds should be used for the welfare of the devotees. “Ideally, the Sansthan should give 85% of its collection to the chief minister’s relief fund. The remaining 15% of the funds should be retained with the trust for dayto-day upkeep and administrative work. A small portion from this amount should be used to build shelters for devotees who trek hundreds of miles to reach Shirdi.’’
He added the Sansthan should spend more upgrading the road leading to Shirdi, rather than on fancy projects like building airports.
Trimbakeshwar
The Times of India, April 3, 2016
The Trimbakeshwar Temple authorities imposed a restriction on men's entry too into the sanctum sanctorum of the Lord Shiva shrine with an aim to provide "equal treatment" to both the genders, a trustee said.
The decision, which takes effect from tomorrow, comes in the wake of the Bombay High Court verdict giving women equal right to men with regard to entry into temples.
It was decided this morning after a board meeting of the Trimbakeshwar Devasthan Trust under Chairperson and District Judge Urmila Phalke Joshi, Lalita Shinde, one of the trustees told .
The meeting was attended by Secretary N M Nagare as well as Trust members Kailas Ghule, Yadavrao Tungar, Shrikant Gaidhani, and Sachindra Pachorkar.
"The decision was taken to ensure equal treatment to both men and women," Shinde said.
The development comes a day after Bhumata Ranragini Brigade Trupti Desai and 25 other women activists were taken into preventive custody to stop them from entering into the inner sanctum of the famous Shani temple in Ahmednagar's Shignapur village. They were later released.
The ancient temple, located 30 kms from Nashik, is a major Lord Shiva shrine of the country, which has one of the 12 'jyotirlingas', drawing devotees from far and wide.
According to Ghule, a member of the Trimbakeshwar Temple Trust, the ban on entry of women into the 'garbhagriha' is an age-old tradition and not something enforced in recent times. The ban goes back to the Peshwa period.
As per tradition, only men were allowed entry daily between 6-7 AM into the area where the main 'linga' is placed, that too by putting on a specific gear called the sovala (silk clothing).
Women, can, however have 'darshan' from outside the core area.
Some priests in the temple town said most of the women devotees might not want to defy the tradition.
Kerala, Padmanabhaswami temple
The Hindu, December 8, 2016
Dress code is back in Kerala’s Sree Padmanabhaswami Temple;;;
K.C.Gopakumar
Only sari and dhoti-clad women are allowed inside the ancient temple.
Kerala High Court has stayed an order that allowed Chudidhar-clad women to enter the temple
A Division Bench of the Kerala High Court has put on hold the order of the Executive Officer of the Sree Padmanabhaswami Temple in Thiruvananthapuram allowing chudidhar-clad women devotees into the temple.
The Bench, while considering a writ petition filed by four devotees challenging the Executive Officer's order, ordered that the status quo available prior to the EO’s order be continued for the time being.
The court also pointed out that that M.P. Parameswaran Namboodiri, Thantri of the temple was also of the opinion that the situations prior to the EO’s order should be continued.
The temple’s dress code for women allowed them to be clad in saris, dhoties or skirts, according to their age. Young girls below the age of 12 are allowed to wear frocks. Men are allowed to wear only dhotis with or without angavastra. But women devotees wearing pants and chudidhar were allowed inside the temple if they cover it with a dhoti.
With the Executive Officer’s order triggering a controversy, the administrative committee had frozen the executive officer’s order. The petitioners alleged in their petition that despite the administrative committee’s decision, the women wearing chudidhars were allowed into the temple premises.
SC’s Sabarimala verdict
SC observation on Sabarimala is momentous, July 19, 2018: The Times of India
The Supreme Court’s observation that the religious custom that barred girls and women from entering places of worship has no constitutional legitimacy, is consequential in many ways. While hearing a petition challenging the rules of the famous hill shrine of Lord Ayyappa at Sabarimala in Kerala, where females between the age of 10 and 50 years are not allowed entry, the five-judge bench declared that there is no concept of a private temple in a public place and therefore there could be no discrimination on the basis of gender and physiology.
In many Hindu temples menstruating females are considered to be ‘dirty’ and ‘polluted’, and therefore not eligible for entry and worship. But the court remarked that all citizens of India are entitled to the freedom of conscience and the right to profess, practice and propagate religion. This is significant because when the apex court verdict comes, in line with such observations, it will force a religious institution to amend its discriminatory rules and subsequently have a wider impact on many other dogmatic traditions of various belief systems. As a likely aftermath, it will put a question mark on the patriarchal practice of only male priests conducting religious prayers in temples, mosques and gurudwaras.
Although it is estimated that India has around 1600 Hindu female priests, there is an ongoing organic movement supporting training of women as priests for various religious ceremonies. In a first in the history of India, a Kerala woman, Jamitha, took the role of an Imam in January this year and led the Friday congregational prayers for a mixed group of men and women. However, religious fundamentalists threatened to kill her a day later, for defying Sharia. In view of such women-driven movements, the Supreme Court’s observations are momentous and will usher in modern values of equality in a highly patriarchal society.
Commentaries
Aiyar: What’s good for Haji Ali must be good for Sabarimala
The Supreme Court order on admitting women to the Sabarimala Temple is being flouted by Hindu mobs...
If the Constitution and Supreme Court matter so little, is mob rule going to become the new political norm?...
Most mosques prohibit menstruating women from praying, and some prohibit even their entry. The famous Haji Ali shrine in Mumbai decided in 2011 to ban Muslim women from entering the sanctum sanctorum of the dargah to lay flowers or chadors (sacred sheets) on the Sufi saint’s grave. The Bharatiya Muslim Mahila Andolan, a courageous group of Muslim women activists led by Noorjehan Sadia Niaz and Zakia Soman, petitioned the courts saying their fundamental rights were being violated.
The dargah trust gave the Bombay High Court a variety of … reasons for imposing these restrictions on women. It said that the “free mixing” of men and women was discouraged in Islam, that menstruating women were unclean, and that it was a sin to allow women close to a male saint’s grave. It even alleged that women might “show their breasts” while bending over the grave, and that they wished to protect women from sexual harassment.
None of this explained why women had been allowed to enter the inner sanctum of the dargah from 1430 to 2011, albeit through a separate entrance. If for centuries women were not viewed as unclean trespassers on a sacred spot, how did this become an issue in 2011? If till then millions of Muslim women had visited the shrine without “showing their breasts” when bending down, and hence attracting male molesters, what caused the new concerns of the dargah trust in 2011? …
The Bombay High Court quite rightly dismissed the objections of the dargah trust and said the inner sanctum should be open to women. The trust appealed to the Supreme Court, but got no relief.
Did the dargah or Muslim males in Mumbai form mobs to flout court orders, and keep women out, as at Sabarimala? No, despite much Muslim dismay and wailing about court intrusions into religious matters, the dargah implemented the court instruction on equal treatment of men and women. It created a separate entry path for women but allowed men and women equally into the sanctum. It built a railing keeping both male and female worshippers some distance from the grave itself. …
The BJP had hailed the Supreme Court ban on instant triple talaq as a great victory for women’s rights. Why then did it oppose women’s rights at Sabarimala? Did only Muslim women have rights, not Hindu women?
In both the Haji Ali and Sabarimala cases, the issue was whether religious traditions on the pollution of holy places by supposedly impure menstruating women could negate their constitutional fundamental rights. In both cases the Supreme Court said no. Its stance was logical and consistent. That cannot be said of [the politicians].
Mahapatra: SC must give secular ruling for women’s rights to religious places
In Srinagar, there is the holy shrine of Hazratbal, surrounded by rows of chinar trees. Built in white marble, it oozes serenity in a reverential ambience. But if you are accompanied by your wife, daughter or female friends or relatives, they can’t enter the shrine. They will only be allowed a peep into the shrine to catch a glimpse of the place where the holy relic is kept.
There are hundreds of such religious places in India which bar women’s entry. The Supreme Court has got an opportunity, in the shape of PILs questioning Sabarimala temple barring entry of women in the 10-50 age group, to give a secular ruling to throw open doors of all religious places to women.
If the Sabarimalas and Hazratbals discriminate against women, then it is a common practice among Catholic Christians to bar women from entering the church altar. Women priests are alien to Catholics and their churches, which have two main divisions — worship ministry and service ministry.
The worship ministry, assigned to perform rituals and conduct mass, is a men’s only department. The service ministry has nuns, who stay in a convent. A male priest has to visit the convent to conduct Sunday mass as the nuns, despite dedicating their lives for service and charity, are barred from taking part in worship ministry affairs.
During the hearing on a bunch of petitions challenging the constitutional validity of Sabarimala temple’s custom barring entry of women of a certain age group, a five-judge bench headed by CJI Dipak Misra had observed that a temple could not deny entry to anyone who believed in and was devoted towards the deity.
This secular observation must translate into an omnibus declaration that the fundamental right to equality and non-discrimination on the ground of gender, caste or class will always prevail over the right to practice and profess religion and its customs.
The five judge bench’s common refrain — we are viewing the Sabarimala issue purely from the constitutional perspective and principles — is easier said than done. More than 70 years ago, all judges of the SC sat together (there were a total of seven SC judges at the time) to decide a tricky religious issue with constitutional overtones in what is popularly known as Shirur Math case [1954 AIR 282].
CJI M C Mahajan and Justices B K Mukherjea, S R Das, Vivian Bose, Ghulam Hasan, N H Bhagwati and T L V Aiyyar made an important ruling, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral part of religion, and these forms and observances might extend even to matter of food and dress.”
It laid down the golden rule “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself ”, which is now being used by senior advocate Rajeev Dhavan, appearing for Muslim parties in the Ayodhya dispute, to question a bald statement in a 1994 judgment by a five-judge bench in Ismail Faruqui case saying “mosque is not essential to offering of namaz”.
The seven-judge bench had said, “If the tenets of a religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at a certain period of the year or that there should be a daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as part of religion and the mere fact that they involve expenditure of money or employment of priests or servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character, all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).”
How far this finding of the seven-judge bench in 1954 supports the Sabarimala custom of barring entry of women into the temple will be examined by the five-judge bench. But it surely will be a gigantic task if the SC intends to take a holistic secular view of the complex issue instead of examining the validity of rituals and practices, which bar women from participating in religious ceremonies, be it temple, mosque or church, from a narrow constitutional microscope.
What if a PIL is filed in the SC seeking equality for goddesses in the Hindu scheme of worship? In the trinity of Brahma, Vishnu and Mahesh, there are no goddesses. Does it violate right to gender equality among idols for worship? Does the bar on women’s entry to church altar violate right to equality? Among Muslims, a woman imam is extremely rare. It will be worth waiting for the SC verdict in the Sabarimala case, as it promises to narrow down gender inequality in religious practices. Will the SC go the whole hog or concentrate only on Sabarimala?
SC: Shrines must prove bar on women integral to faith
The Supreme Court made it plain that religious institutions not letting in women would have to establish that the gender discrimination they practised was integral to their religion, in a clear indication that the court is willing to entertain challenges similar to one that faces Kerala’s Sabarimala Ayyappa temple barring entry of women of menstrual age.
The SC’s reply came after the Travancore Devaswom Board, which administers the shrine, asked whether the court would adjudicate on similar practice in other religious places.
Open to hear PILs on biased customs: SC
The apex court has repeatedly questioned the ban on the entry of women aged between 10 and 50 at Sabarimala. “The moment anyone comes to the court and points out that her/his fundamental right has been violated because of a discriminatory practice, the onus shifts on the institution which practises this allegedly discriminatory practice to shore up evidence to defend the practice as integral to their religion. The problem is that women are being barred only because of their physiological character during a certain age group,” a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said.
Indicating its openness to examine PILs challenging similar discriminatory customs in other Hindu and non-Hindu religious denominations, the bench said, “We cannot strike down all such practices in one go. We will deal with it as and when we are asked to go into it.”
The board, through senior advocate A M Singhvi, attempted to link the practice to the faith and belief of Ayyappa devotees and argued that custom was not anti-women as those below 10 years or above 50 years were treated equally with men.
“It is a matter of faith and belief of Sabarimala followers. This custom has been in vogue uninterruptedly for decades and hence protected by the fundamental right of members of the denomination. There are several such practices in other Hindu and non-Hindu religious places, which a progressive modern mind would not approve of. But they are protected under Article 26 of Constitution,” he said.
SC: Essential religious practices, if biased, can be struck down
Making it clear that fundamental rights do not offer iron cast protection for “essential and integral” religious practices, the Supreme Court on Wednesday observed that such traditions can be struck down as unconstitutional if they discriminate on grounds of caste or sex.
Hearing a batch of petitions challenging Sabarimala Ayappa temple’s custom of barring entry of women in 10-50 age group, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said both Article 15 and Article 25(2) enjoin a duty on constitutional courts and governments to act against a religious practice discriminatory towards women.
Appearing for Nair Services Society, senior advocate and for mer attor ney general K Parasaran said the Sabarimala Temple custom does not discriminate against women as it permits entry for those below 10 years and above 50 years. “Lord Ayappa is a naishthik brahmachari. The devotees believe in the God’s pristine celibate state, that is the reason why women in the menstruating age group are not allowed entry...,” he said. The lawyer’s arguments on the intricacies and nuances of Hindu religion and spirituality succeeded in briefly halting the bench’s desire to test the temple’s customs on the constitutional touchstone.
Justices Nariman and Chandrachud waited till Parasaran completed his potent religion-coated arguments to focus on Article 25(2), which provided that legislature can enact a law to provide for “social welfare and reforms or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.
Both judges said the theme of Article 25 is meant to apply to all religions and when the Constitution says no religion can discriminatingly restrict women, it applies to all religions. Parasaran said Articles 15, 17 and 25 did not bar the legislature from enacting laws to bring in social reforms, but the Constitution through a fundamental right has protected practices and customs that are essential and integral to a religious denomination.
Justice Chandrachud said: “Even if it is part of Hindu religious custom to exclude any particular category from entering the temple, the state has been empowered (by the Constitution) to enact a law to throw open temples to all categories of persons.”
Justice Nariman said since untouchability and discrimination on ground of sex is prohibited under the Constitution, the Sabarimala Temple custom to bar entry of women in a certain age group could also fall foul of constitutional ethos.
The SC on Sabarimala, 2019
Bigger Bench For Sabari, Open To Women For Now
Dhananjay Mahapatra, Nov 15, 2019: The Times of India
From: Dhananjay Mahapatra, Nov 15, 2019: The Times of India
The Supreme Court did not alter its ruling allowing women of all ages to enter the Ayyappa temple at Sabarimala but asked a seven-judge bench to evolve guidelines to decide cases involving a clash between the right to equality and the right of denominations to follow their customs — a tussle that has been brought to the fore by the campaign to let women into temples, mosques and Parsi agiyaris (fire temples).
A five-judge bench of CJI Ranjan Gogoi and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, by a 3-2 majority, said the seven-judge bench would evolve a comprehensive judicial policy to guide the court in future adjudication of cases of conflict between citizens’ right to equality and a believer’s faith in religious practices and customs.
CJI Gogoi, in a nine-page judgment also written on behalf of Justices Khanwilkar and Malhotra, said reference to a seven-judge bench was needed as the possibility of a collision between fundamental rights — between the right to equality on the one hand and the right of individuals to practise their faith and of denominations to follow their affairs on the other — went beyond the Sabarimala temple entry case. The conflict has also inspired petitions “regarding entry of Muslim women in dargah/mosque, Parsi women married to a non-Parsi in agiyaris and the practice of female genital mutilation in the Dawoodi Bohra community”.
But in their minority opinion, Justices Nariman and Chandrachud responded with a 59-page dissent criticising the CJI for raking up future cases of likely faith versus fundamental rights scenarios. They said the case in hand related to the entry of women into Sabarimala temple, comprehensively decided on September 28, 2018, and the present five-judge bench should not be concerned about pending petitions.
Can courts rule in clash of rights and customs, asks CJI
They said the previous judgment must be implemented in letter and spirit and any attempt to thwart — or encouragement to thwart it — “cannot be countenanced”. The two judges told the Kerala government to evolve a consensus by holding talks with various stakeholders in the Sabarimala case to ensure the entry of women of all ages into the temple.
CJI Gogoi, however, raised a seminal issue — the power of constitutional courts to tread on questions such as those involving a particular custom which, while essential to a religion, happens to be violative of fundamental rights. “It is time that this court should evolve a judicial policy befitting its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges,” he said.
“It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issue in the same court for which all cases must proceed together,” he said.
The majority judgment said the seven-judge bench would also decide if the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, mandating the entry of all Hindus into all temples, applied to Sabarimala. It said the bench would “grant fresh opportunity to all interested parties” and consider their arguments.
In 2018, then CJI Dipak Misra and Justices A M Khanwilkar, Nariman and Chandrachud had all veered to the conclusion that women of all ages be allowed to enter Sabarimala as the custom barring females in the 10-50 age group smacked of a gender bias that violated the right to equality. However, Justice Malhotra had penned a strong dissent, warning courts against venturing into the field of faith and customs.
Longer dissenting, separate verdicts
The dissenting and separate judgments in the Sabari and Rafale cases were longer than the majority verdicts. While Justices R F Nariman and D Y Chandrachud penned a 59-page dissent note criticising the 9-page majority order on Sabari, Justice K M Joseph wrote a 75-page separate order concurring with the 8-page unanimous verdict.
3 cases that SC clubbed with Sabarimala
B S Anil Kumar and B Sreejan, Nov 15, 2019: The Times of India
While pronouncing its Sabarimala verdict, SC said the case brings into consideration the larger issue of "essential religious practice", and hence other similar debates would also be referred to the seven-member constitution bench:
1. Entry of Muslim women in dargah/mosque
The petition seeks permission for Muslim women to enter mosques through the main door of mosques and the right to visual and auditory access to the musalla(main prayer area outside a mosque) and any fatwa' restraining women from entering mosques of Muslim bodies be set aside.
2. Entry to fire temple for Parsi women married to non-Parsi men
The petition filed by a woman pertains to the question of whether the Parsi religious custom that a Parsi woman ceases to be a Parsi in the event of her marrying a non-Parsi is permissible or not. According to Parsi custom, women thus excommunicated are not allowed to enter or offer prayers in a Parsi temple or participate in the funeral rites.
3. Genital mutilation in Dawoodi Bohra community
The petition seeks a ban on the practice of female genital mutilation prevalent in Dawoodi Bohra community, a Shia Muslim sect. The Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF), a representative association of 72,000 Dawoodi Bohra women, had argued that khafz or female circumcision practised by them was not female genital mutilation as practised by others.
