Monday, October 1, 2018

Dinesh Kamath's Editorial 'SC comes up with Sabarimala verdict' that was published in Newsband


SC comes up with Sabarimala verdict
The Constitution protects religious freedom. The exclusion of women in the 10-50 age group from the Sabarimala temple in Kerala had become an issue. The Supreme Court came up with the ruling, by a 4:1 majority, that the exclusionary practice violates the rights of women devotees. The majority held that the prohibition on women is not an essential part of Hindu religion.
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 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. 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.
There was less movement and physical exertion of woman in earlier days during the period, and no modern accessories like sanitary napkin etc. were available. Those facts underlined the taboo of visiting even local temples. The practice was more tuned to aesthetics than equality under constitution.
The pilgrims of Shabrimala do not know about the true meaning of worship and they do not have the knowledge of soul and body. They are not able to differentiate between body and soul. They need to learn that ''soul is neither male nor female.'' That means, they are only looking at body not at that soul which is always pure. Lastly, there could not be impartiality between male or female in the door of God.
However, this verdict is a product of a limited majority. There is a larger and more powerful and yet silent and law abiding majority with the intellect to discriminate better. That majority consists of centuries old traditions and customs compliant Ayyappa devotees of men and women of all ages. Let us see how many women from such a majority will come forward to break the tradition and custom to enjoy the new liberalism
The judgment of the Apex Court is a shot in the arm for women. The judgment is based on the fundamental rights to equality of worship. It has also put an end to long held view of the Bombay High Court that personal and religious customs are outside the purview of the Contitution. Hereafter all personal and group laws and rules have to satisfy the magnificent framework of fundamental rights enshrined in the Constitution. The Court has correctly held that biological and natural factors cannot be used to discriminate against women.

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