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Judiciary versus ‘tradition’

The Supreme Court asserted on Monday that it would decide on the right of women to enter the historic Sabarimala shrine in Kerala on the basis of constitutional principles and not by the prevalent customary practices. The court slammed temple authorities regarding a ban on entry of women into the temple. It asked whether such archaic traditions were more important than constitutional rights. "What is the basis on which women have been denied entry into temples? Anyone can worship god, he is omnipresent," the apex court observed and said gender discrimination in such a matter was unacceptable. Only females over the age of 50 and under the age of 10 are allowed inside the temple. The rule is aimed at keeping menstruating women away from the premises as they are considered "impure" by the conservative section of Hindu society. Last year, the head of the temple's board said that women will be allowed to enter the temple only after a body scanner is created to determine their purity.  “A time will come when people will ask if all women should be disallowed from entering the temple throughout the year,” he said. “There will be a day when the machine is invented to scan if it is the "right time" (not menstruating) for a woman to enter the temple. When that machine is invented, we will talk about letting women inside.” These remarks had led to a nationwide outrage last year. In response, many women, particularly in urban India, participated in the “happy to bleed” movement—a campaign against menstrual taboos prevalent in Hindu society. The total ban on women in temples is merely based on decisions of all-male establishments that discriminate against women on the basis of biological and physical conditions intrinsic to their gender. India is loaded with such religious practices.  

But much of the opposition to such practices is based on the notion that they are not in tune with the true traditions of Hinduism. Many argue that such practices often arise from more corrupted forms of organised religion. However, in its latest pronouncements, the court raised other critical questions. Are religious diktats insulated from secular laws? Can tradition be subject to the scrutiny of laws based on the Constitution? The Supreme Court raised the same questions recently while examining the custom of triple talaq in Islam. The court categorically said that a review of the practice was necessary to prevent women from being treated as “chattel”. It felt that a summary rejection of marriage by one of the partners without an inbuilt mechanism for reconciliation was unjust and goes against socially accepted norms governing marriages. Along expected lines, conservative bodies like the All India Muslim Personal Law Board said that the Supreme Court had no jurisdiction to undertake the exercise as its personal law was based on the Quran and not by a law enacted by Parliament. But in a recent column for Scroll, noted academic Tahir Mahmood argued against such a contention. He said that the apex court could undertake such an exercise since certain uncodified personal laws were in force because they were recognised by state legislation. For example, in the case of the Sabarimala temple, the restrictions on women are recognised under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1956. This piece of legislation recently was challenged by a public-interest litigation that called it a violation of the right to equality and freedom of religion. These observations by the Supreme Court come at a time when the judiciary is really pushing for gender equality in places of religious worship. 

In a significant development last month, the Bombay High Court said there is no law that prevents women from entering a place of worship. The court was hearing a plea that challenged the century-old tradition of disallowing the entry of women inside the sanctum sanctorum of Maharashtra's Shani Shingnapur temple. Ruling that women cannot be barred from entering the temple, the court said that women should have “equal access to places of worship”. The plea presented before the court by two women activists said that the prohibition established by the temple “encouraged gender disparity” and was “arbitrary, illegal and violative of the fundamental rights of a citizen”. In other words, no evolved civilisation can allow this to happen, especially a nation that is proud to call itself a secular and representative democracy.
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