Sabrimala Temple - (Blog)


Sabrimala temple is build in Periyar Tiger Reserve in the Perinad village, Pathanamthitta district Kerala, India. So before dealing with the case we have to deal some of the following things that we have to keep in mind that Custom prevail over law only when the custom is disinterupted and whose establishment is beyond reasonable doubt and Whenever any issue is taken to the court then the court will decide the case is right and merit of law and no hinder influence of emotions and disrupted customs.

Issue of Sabrimala can be dealt in the following two judgments-

1.      S. Mahindra v. The Secretary Travancore (1991) this case was registered in the High Court of Kerala.

2.      Indian young lawyers association v. The State of Kerala (2018) this case was registered in the Supreme Court of India.

In Indian law, for a custom to qualify as a law the customs have to be Followed from time immemorial, The custom that is followed that should be continuous in the nature, custom should be followed by the majority of concerned people, custom should not be against the public policy and custom should not be against the law of land.

The custom to become law must be Continuous and popular among people. It is contended that women from the ages have not entered into the temple but there are instances when women have visited the temple that are a female actress shot her song in the temple by climbing 18 stairs to reach diety and queen of Travancore, 1939 visited the temple for the pooja.

Through the Kerala Hindus place of public worship (authorization of entry) act, 1965, restricted women from entering into the temple (aged 10-50) and during her mesuration and S. Mahindra v. the secretary Travancore(1991), here High court considered the question whether the ban is constitutional. And the judgement was that the court held that it is not unconstitutional and nor violative of article 14, 15, 21 etc.

He examined the chief priest of the temple who is given power to decide over all religious matters and priest affirmed that women not entering into the temple of Sabrimala from the age (10-50) is a custom and has been followed from time immemorial (priest- tanthri sri neelakandaru ). Moreover under the 1965 act the dewaswom board of Travancore has all rights reserved to take decisions regarding the temple and after examining the family head who owns the temple court held the ban was a recognized custom and thus be followed.

 Indian young lawyers association v. the state of Kerala (2018) in this case section 3(b) of Kerala worship rules, 1965 was challenged to restrict the entry of women in the temple. The judgement of this case came on 28th September, 2018. This was a 5  judge constitutional bench which   included Chief Justice of India Dipak Mishra, Justice AM Khanwikar, Justice R F Nariman, Justice D Y Chandrachud and Justice Indu Malhotra. In this case there was a majority of 4:1and Indu Malhotra gave a dissenting judgement. In this case the court held that the entry of women in the temple is unconstitutional and also held that it is violative of article 14, 15, 19(1), 25(1). And the court struck down section 3(b) of Kerala worship act, 1965. And also said that women are not less than man and patriarchy must not trump ever faith. And religion is a fundamental freedom patriarchal practice based on exclusion of one gender for the want of either is not faith or the essence of religion and is so restricted by constitution under article 25(1).

 In this case there is violation of fundamental rights as article14 which states that there should be no unreasonable class, article15 which state that there should be no discrimination of gender, article 17 which states that there should be no other form of untouchability, article 21 which gives freedom of religion is also an intrinsic part of the freedom of right to life and personal liberty, article 21 which states every person has the right to worship and such right can’t be abridged.

As said by Baba Ambedkar “it’s not about entry but equality”. We have seen similar social movement to end the Dalit discrimination. Ben on Dalit to enter the temple ban on the entry is a matter of subordination and exclusion. The judgement made is not to hamper the custom or prejudice lord Ayyappa but to ensure that women don’t continue to get unequal pic for the sake of the purity and pollution.

 

 -Sonal Garg

Law College Dehradun.       

   


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