The Sabarimala singularity (Gender justice issues)

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The Sabarimala singularity (Gender justice issues)

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• The Sabarimala question: The S.C. is hearing arguments on the Sabarimala temple controversy where rules restricting entry of women between 10-50 years are being questioned, in the Indian Young Lawyers Association versus State of Kerala case. Sabarimala temple is represented by Travancore Devaswom Board.
• Easy, or tough? A cursory look shows it’s an easy case to understand, related to gender injustice. But deeper issues are involved too, related to “Right to Religious Freedom” clauses in our Constitution.  CONCEPT
• Legal facts and arguments in the matter: 

1. Articles 25 and 26 guarantee the right to religious freedom (to individuals and groups)
2.  Article 25 – Right to freedom of conscience, and to freely profess, practice and propagate religion subject to public order, morality, health, and other fundamental rights 
3. Article 25(2) (b) – another exception – State can make laws opening up public Hindu religious institutions to all Hindus
4. Article 26 – All religions can establish and maintain religious institutions and manage them (subject to same conditions)
5. Cases barring entry to temples so far have been tested under Article 25(2) (b).
6. In Sri Venkataramana Devaru vs. State of Mysore (1958), the SC examined the Madras Temple Entry Authorisation Act of 1947 and found it valid under Article 25(2) (b) {which was a broad exception to Article 25, and Article 26} [the law was liberal] 
7. Today, the reverse attack is taking place. Rule 3(b) of Kerala Hindu Places of Worship Rules 1965 which prohibits some women from entering places of worship. The temple claims its deity Lord Ayyappa to be a naisthik brahmachari and young women can affect his celibacy and austerity. 
8. So the groups whose rights are involved are – (i) the temple with a right to decide for itself, (ii) some devotees who believe some women must not be allowed, and (iii) those women who are not being allowed

• SC’s approach so far: It relies on the doctrine that defines what is “an essential religious practice”. If the SC gets into a trial court approach, it runs the risk of using dogmatic power over theology. The key question is whether the Sabarimala Temple represents a separate denomination or not. If not, the case is clear.
• If all claims are entertained … The society will immortalise discrimination. As per Prof. Madhvi Sunder (2002), if the law starts favouring the autonomy of the group over the autonomy of the individuals, then the Law will be accepting the version of the powerful against those of the subordinate (women, children, sexual minorities).
• Time for a radical re-reading of the Constitution: Go beyond the standard “essential religious practice” doctrine and see this for what it is – denial of rights to women.
• Summary : The Sabarimala temple entry controversy must not be judged solely by the restrictive reading of “essential religious practice”, but as an issue of gender justice.

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