WHETHER THE RESTRICTION OF WOMEN TO ENTER THE TEMPLE IS

VIOLATIVE OF FUNDAMENTAL RIGHTS OF WOMEN OR NOT.

Religions are simply different paths to reach the universal one. Religion is basically a way of
life to realize one’s identity1. Article 25 of the Constitution ensures Freedom of conscience
and free profession, practice and propagation of religion. At the same time it becomes sheer
necessity to protect the interests of women as well as dignity of women.

2.1 Customary practice is not valid

1. Customs play a major role in making of laws. Because custom has always been given a
very important place as a source of law by the Hindu Jurists.

Custom2 is a practice that by its common adoption and long, unvarying habit has come to
have the force of law.

Usages3is merely a customary or habitual practice; Usage denotes something that people are
accustomed to do it because of a general agreement that it is the proper thing to do.

2. For a custom to be valid there are few requisites, which must be satisfied. First, a custom
must be reasonable. Secondly, a custom must not be contrary to an Act of Parliament.
Thirdly, it must be observed as a matter of right. And lastly, it must have continuance i.e.,
immemorial antiquity4.If there is any custom or usage which is in force in India, which is
inconsistent with the fundamental rights, that custom or usage is void.5

4. While referring to the decision of the Supreme Court, it is said that;

“Any custom or usage irrespective of even any proof of their existence in pre-
constitutional days cannot be countenanced as a source of law to claim any rights when it is
found to violate human rights, dignity, social equity and the specific mandate of the
constitution and law made by Parliament. No usage which is found to be pernicious and

1
Indian Young Lawyers Association and others v. State of Kerala and others, (2018)Indlaw S.C. 905
2
Custom, Black’s Law Dictionary (9th edition) pg.442
3
Usage, id., 1680
4
P.J . Fitzgerald, Salomond on Jurisprudence, 198-202, 12th ed. (2010)
5
State of Bombay v NarasuAppa Mali, (1952) A.I.R.Bom 84
considered to be in derogation of the law of the land or opposed to public policy or social
decency can be accepted or upheld by courts in country.”6

5. It is therefore submitted that, custom is not practiced by them from time immemorial and it
lacks reasonableness. At the same time it is contrary to the fundamental right of women, to
freely profess and practice religion. The notification issued by the temple board, which
particularly mentions that there is a deviation in the custom and practice7, which is purely
evident that the so called custom was not practiced for long time. Therefore customary
practice is not valid.

2.2 Fundamental rights of women are violated

2.3.1. There is violation of article 14:

The practice of preventing women including girl children based on physiological factors
exclusively to be found in female gender violates Article 14 of the Constitution of India. The
classification which has been made does not have a constitutional object. It is equality of
women before Law which is also in par with the equality of men8. According to Article 14
there is classification between men and women as separate classes, but there cannot be any
further sub- classification among women based on physiological factors. Physiological
factors neither serve any valid object nor satisfy the test of reasonable classification under
Article 14 of the Constitution9.In the case at hand there is violation of Article 14 by
restricting women and girl children to enter the sanctum sanctorum of the Temple, which
stands unreasonable.

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika
Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost
requirement for all the followers, women between the ages of ten and fifty must not be
allowed in Sabarimala. There is an assumption here, which cannot stand constitutional
scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity
observed by the followers would be caused by the presence of women. Such a claim cannot
be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a
man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is

6
N. Adithyan v. Travancore Devaswom Board and Ors., (2002) 8 SCC 106
7
Id.,para.10
8
Subrata Roy Chowdhury, Equality before the Law in India, Cambridge L.J. 223 (1961)
9
ShayaraBano v. UOI and Ors., (2017) 9 SCC 1
then employed to deny access to spaces to which women are equally entitled. To suggest that
women cannot keep the Vratham is to stigmatize them and stereotype them as being weak
and lesser human beings.

2.3.2. There is violation of Article 15(1) and Article 17:

1. Article 15(1) speaks that, “The state shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them10”. It prohibits discrimination
on grounds of religion, race, caste, sex, or place of birth. Even though this article is outlawing
about discrimination, it is a manifestation of equality as well. In the present case women
were prohibited from entering into the temple, which shows discriminations towards women
based on ‘sex’.

In the case of Anuj Garg and Ors.v. Hotel Associationof India and Ors.11that, “ the
difference between human beings, whether perceived or real, and whether biologically or
socially based, should not be permitted to make a difference in the lived-out equality of those
persons. I call this model of equality as acceptance. To achieve this form of sexual equality,
male and female differences must be costless relative to each other”.

2. Article 17 of the constitutions says “Untouchability is abolished and its practice in any
form is forbidden.”12“Prejudice against women based on notions of impurity and pollution
associated with menstruation is a symbol of exclusion. The social exclusion of women based
on menstrual status is a form of untouchability which is an anathema to constitutional
values”.

Violation of Article 17 as the expression ‘in any form’ in Article 17 includes untouchability
based on social factors and is wide enough to cover menstrual discrimination against women.
Therefore it is clear from the above that the notice has violated the fundamental rights of
women.

2.3.3. There is violation of Article 21:

In the present case, where the practice in which women were not allowed to enter into the
temple, is violative of article 21 of the constitution. It shows its impacts upon the dignity of
women. According to the notice that is issued by the temple authorities, it is said that, women

10
Consitution of India, Art.15
11
Anuj Garg and Ors v. Hotel Association of India andOrs.(2008) 3 SCC 1
12
Constitution of India, Art.17
including girl children are forbidden from entering the Temple, in order to maintain the
Purity and Holiness of the Temple and to keep up the past traditions13.

“No person except according to procedure established by law shall be deprived of his life or
personal liberty”. Fundamental rights under Art.21 of the object personal liberty except
according to procedure established by law is to prevent encroachment on and laws of life,
which includes the protection of dignity and rights of women as well.

2.3.4. There is violation of Article 25(1):

Fundamental right is the fleshing out of what is stated in the Preamble to the Constitution as
“Liberty of thought, belief, faith and worship”. Therefore all persons are entitled to freedom
of conscience and the right to freely profess, practice and propagate religion. The right of a
woman to visit and enter a temple as a devotee of the deity and as a believer in Hindu faith is
an essential aspect of her right to worship. When no such aspect is clearly made in to practice
there it is clear that her right to worship has been violated.

1.Article 25(1) gives “freedom of conscience” to every citizen. It recognizes fundamental

rights in favor of “all persons” which has reference to natural persons. This fundamental right
equally entitles all the persons to the said fundamental right. What is freedom for one, cannot
be freedom for another, in equal measures.

“ ....every person has a fundamental right under our constitution not merely to entertain
such religious belief as may be approved of by his judgment or conscience but to exhibit his
belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to
propagate his religious views for the edification of others.14”

In the case at hand, the notification which was issued by the temple authority forbids the
entry of women into the temple. Harimala temple is a place of Public place worship in the
state of Varela.

2.“Place of public worship means a place, by whatever name known, which is used as a
place of public worship or which is dedicated generally to, or is used generally by persons

13
Proposition, para 10.
14
RatilalPanachand Gandhi v. State of Bombay (1954) SCR 1055, 1062-63
professing any religion or belonging to any section thereof, for the performance of any
religious service, or for offering prayers”15

From the above definition, it is clear that, Harimala is a place of public worship and
therefore, it is open even for women as well. Hence is there no bar for women to enter the
temple. It is also said that, “ The public character of the temple gives birth to the right of the
devotees to enter it for the purpose of darshan or worship and this universal right to entry is
not a permissive right dependent upon the temple authorities but a legal right in the true
sense of the expression16”

3.Article 25(1) guarantees the right to practice religion to every individual and the act of
practice is concerned, primarily, with religious worship, rituals and observations as held in
Rev. Stainislaus v. State of Madhya Pradesh and Ors17. The right under Art. 25(1) is a non-
discriminatory right and therefore it is free to be professed by both men and women equally.

2.3.5. The ban on entry of women was unconstitutional:

It is here by submitted before the court that, the customs and usages which were practiced
cannot be termed as past traditions. The conditions for a custom to be valid and lawful were
not satisfied and therefore the customary practice is invalid.

Also the fundamental rights of a women were violated by banning the entry for them in to the
Temple. Since temple is a place of worship for every Hindu18, women shall also be allowed
to enter the temple. There is violation various Articles, which were enumerated in the
constitution. Therefore the notification issued under Rule 3(b) of the Varela Hindu Places of
Public Worship (Authorization of Entry) Rules 1965 stands unconstitutional.

15
Protection of Civil Rights Act, 22 of 1955 ,section 2 (d)
16
Supra, pg. 17
17
Rev. Stainislaus v. State of Madhya Pradesh and Ors. (1977) 1 SCC 677
18
The Travancore –Cochin Hindu Religious Institutions (Amendment) Acct, 1999, section.2(a)