SC JUD GE ME NT ON SABAR I MA LA I SSUE
Why in News?
Recently, Supreme Court granted women of all ages the right to enter the Sabarimala temple.
More on News
• The Supreme Court in Indian Young Lawyers’
Association v/s State of Kerala Case declared Rule
3(b) of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act of 1965, which authorizes restriction on women “of menstruating age”, as ultra vires the Constitution.
• Supreme Court set aside a Kerala High Court judgment of 1991 that upheld the prohibition, pointing that the celibate nature of the deity was “a vital reason for imposing this restriction on young women”.
Arguments against restrictions of women:
• Banning entry was derogatory for women: Morality must not be viewed narrowly from the perspective of an individual, a section or religious sect. Individual dignity of women could not be at the mercy of a mob.
• Prohibition was a hegemonic patriarchy:
Article 14: provides for Equality before law and equal
protection of the law.
Article 15: Prohibits discrimination on the grounds only of religion, race, caste, sex or place of birth.
Article 17: Abolishes untouchability and forbids its practice in any form.
Article 25 provides that all persons enjoy the right to freely practise their religion.
• The ‘essentiality’ test was evolved by the Supreme Court to determine whether a religious practice was protected under Article 25.
• The essential practice of a religion is beyond interference by the State and subject only to the restrictions on the basis of the grounds contained in Article 25.
• On the other hand, a non-essential religious practice is not a fundamental right and can be restricted by the State on any reasonable ground.
Patriarchy in religion cannot trump the freedom to practise religion.
• Exclusion on the grounds of biological and physiological features was unconstitutional: it violated the right to equality and dignity of the women under Article 14 and 15 of the Constitution. Moreover, prohibition was a form of untouchability and was thus against Article 17 of the Constitution.
• Prohibition was not an essential practice of religion under Article 25 of the Constitution: thus it was not covered under the right to freedom of religion.
• Fundamental Rights are meant for individuals and not deities or idols: The Fundamental Rights guaranteed under Part III of the Constitution recognizes the individuals as a basic unit. The argument that the right to preserve the celibacy of the deity is a protected constitutional right does not apply.
• Right to worship is equally available to men and women: Woman’s right to pray was not dependent on any law but it is a constitutional right. Religion cannot become a cover to exclude and deny this basic right to worship to women.
Arguments in favor of restrictions on women:
• Religious communities/denominations should decide what constitutes an essential religious practice: It should not be decided by judges on the basis of their personal viewpoints.
• Judicial Overreach: by determining whether a particular practice or custom is essential or integral to a religion, the court leaves the rational world of laws and constitutional rights and enters into the realm of theology, thus leading to judicial overreach.
• Judgment confuses diversity with discrimination: it ignores the ground social realities of India and immense diversities. Also judges must take special care while dealing with a sensitive issue like religion.
• India being a pluralistic society with diverse faiths, constitutional morality gave freedom to practice even irrational or illogical customs and usages: Constitutional morality required harmonization of rights of all persons, religious denominations or sects, to ensure that the religious beliefs of none were undermined.
• Freedom to practice their beliefs as enshrined in Article 25 of the Constitution: Ayappa devotees had attributes of a religious denomination such as distinct names, properties, etc. Also Sabarimala, temple was not
70 www.visionias.in ©Vision IAS
funded out of the Consolidated Fund. Temple Management thus contends that they were allowed to frame
rules for the shrine without State’s interference.
• Historic Origins of the restrictions: as the entry of women and girls of menstruating age was antithetical to
the “Naishtika Brahmachari” (celibate) nature of the deity, the prohibition was not based on misogyny.
• It was physiologically difficult for women to observe a 41-day penance for the deity: the pilgrimage requires tough processes to be carried out for 41 days which would be difficult for women.
• Challenging religious practices: In a pluralistic society comprising of people with diverse faith, belief and traditions, to entertain PILs challenging religious practices followed by any group, sect or denominations, could cause serious damage to the constitutional and secular fabric of the country.
• Unique geographical aspects and specific circumstances at the hill temple should have been considered: given that the temple lies at ecologically sensitive Western Ghats, providing extended facilities for women devotees would require expansion and would impact negatively on the environment.
Way Forward
• Internal pressures to change secure long--lasting reforms with less of a backlash than when reforms are imposed by the law. Religious reforms in matters that positively affect life and liberty does call for judicial intervention, however, Courts cannot be substitute for social reform movements.
• The ruling will have wider impacts on other similar customs and practices at other places of worship too.
• The Temple management must provide adequate amenities for women devotees to smoothly implement the
SC order.
7.2. DOWR Y HAR ASSME NT L AW
Why in News?
The Supreme Court restored an immediate arrest provision in the dreaded Section 498A, IPC
Background
• The Supreme Court last year ordered that ‘family welfare committees’ to be set up in districts and these committees were supposed to act as a vanguard against “disgruntled wives” using the anti-dowry harassment provision of Section
498-A of the Indian Penal Code (IPC) as a “weapon” against
their husbands and in-laws, young and old, rather than as a
“shield”.
Section 498A IPC
Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
• It had held that no arrest should normally be effected on dowry harassment complaints until the committee confirms the genuineness. Even the police could register an FIR only after the committee concerned cleared the complaint as valid and not frivolous.
New verdict
• Supreme Court in its latest verdict held that such panels had no place under the established criminal procedural law and they were beyond the Code of Criminal Procedure Code.
• It restored police’s power to immediately register an FIR and act on a dowry harassment complaint filed by a married woman.
• Those arrested for cruelty to a married woman over dowry can approach the courts for bail to prevent the alleged misuse of the law.
• The offence is both non-cognisable and non-bailable, which implies that bail can only be granted at the discretion of a magistrate. The bail petitions will be heard the same day as far as possible.
Section 498A IPC- Analysis
Arguments Against
• The law has become a source of blackmail and harassment of husbands and others. As once a complaint (FIR)
is lodged it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and
71 www.visionias.in ©Vision IAS
other relatives without even considering the intrinsic worth of the allegations and making a preliminary investigation.
• When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.
• Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated.
• It is pointed out that the sting is not in Section 498A as such, but in the provisions of CrPC making the offence non-compoundable and nonbailable.
Arguments in favour
• Section 498A and legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted.
• The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests.
• Once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly.
Way forward
• The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.
• The “Crime Against Women Cells” should be headed by well trained and senior lady police officers. These
steps would go a long way in preventing the so-called misuse.
• Steps can be taken to effect conciliation between the spouses in conflict and the recourse to filing of a charge- sheet under section 498A shall be had only in cases where such efforts fail and there appears to be a prima facie case.
• Counselling of parties should be done by professionally qualified counsellors and not by the Police.
Why in News?
Recently, Supreme Court granted women of all ages the right to enter the Sabarimala temple.
More on News
• The Supreme Court in Indian Young Lawyers’
Association v/s State of Kerala Case declared Rule
3(b) of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act of 1965, which authorizes restriction on women “of menstruating age”, as ultra vires the Constitution.
• Supreme Court set aside a Kerala High Court judgment of 1991 that upheld the prohibition, pointing that the celibate nature of the deity was “a vital reason for imposing this restriction on young women”.
Arguments against restrictions of women:
• Banning entry was derogatory for women: Morality must not be viewed narrowly from the perspective of an individual, a section or religious sect. Individual dignity of women could not be at the mercy of a mob.
• Prohibition was a hegemonic patriarchy:
Article 14: provides for Equality before law and equal
protection of the law.
Article 15: Prohibits discrimination on the grounds only of religion, race, caste, sex or place of birth.
Article 17: Abolishes untouchability and forbids its practice in any form.
Article 25 provides that all persons enjoy the right to freely practise their religion.
• The ‘essentiality’ test was evolved by the Supreme Court to determine whether a religious practice was protected under Article 25.
• The essential practice of a religion is beyond interference by the State and subject only to the restrictions on the basis of the grounds contained in Article 25.
• On the other hand, a non-essential religious practice is not a fundamental right and can be restricted by the State on any reasonable ground.
Patriarchy in religion cannot trump the freedom to practise religion.
• Exclusion on the grounds of biological and physiological features was unconstitutional: it violated the right to equality and dignity of the women under Article 14 and 15 of the Constitution. Moreover, prohibition was a form of untouchability and was thus against Article 17 of the Constitution.
• Prohibition was not an essential practice of religion under Article 25 of the Constitution: thus it was not covered under the right to freedom of religion.
• Fundamental Rights are meant for individuals and not deities or idols: The Fundamental Rights guaranteed under Part III of the Constitution recognizes the individuals as a basic unit. The argument that the right to preserve the celibacy of the deity is a protected constitutional right does not apply.
• Right to worship is equally available to men and women: Woman’s right to pray was not dependent on any law but it is a constitutional right. Religion cannot become a cover to exclude and deny this basic right to worship to women.
Arguments in favor of restrictions on women:
• Religious communities/denominations should decide what constitutes an essential religious practice: It should not be decided by judges on the basis of their personal viewpoints.
• Judicial Overreach: by determining whether a particular practice or custom is essential or integral to a religion, the court leaves the rational world of laws and constitutional rights and enters into the realm of theology, thus leading to judicial overreach.
• Judgment confuses diversity with discrimination: it ignores the ground social realities of India and immense diversities. Also judges must take special care while dealing with a sensitive issue like religion.
• India being a pluralistic society with diverse faiths, constitutional morality gave freedom to practice even irrational or illogical customs and usages: Constitutional morality required harmonization of rights of all persons, religious denominations or sects, to ensure that the religious beliefs of none were undermined.
• Freedom to practice their beliefs as enshrined in Article 25 of the Constitution: Ayappa devotees had attributes of a religious denomination such as distinct names, properties, etc. Also Sabarimala, temple was not
70 www.visionias.in ©Vision IAS
funded out of the Consolidated Fund. Temple Management thus contends that they were allowed to frame
rules for the shrine without State’s interference.
• Historic Origins of the restrictions: as the entry of women and girls of menstruating age was antithetical to
the “Naishtika Brahmachari” (celibate) nature of the deity, the prohibition was not based on misogyny.
• It was physiologically difficult for women to observe a 41-day penance for the deity: the pilgrimage requires tough processes to be carried out for 41 days which would be difficult for women.
• Challenging religious practices: In a pluralistic society comprising of people with diverse faith, belief and traditions, to entertain PILs challenging religious practices followed by any group, sect or denominations, could cause serious damage to the constitutional and secular fabric of the country.
• Unique geographical aspects and specific circumstances at the hill temple should have been considered: given that the temple lies at ecologically sensitive Western Ghats, providing extended facilities for women devotees would require expansion and would impact negatively on the environment.
Way Forward
• Internal pressures to change secure long--lasting reforms with less of a backlash than when reforms are imposed by the law. Religious reforms in matters that positively affect life and liberty does call for judicial intervention, however, Courts cannot be substitute for social reform movements.
• The ruling will have wider impacts on other similar customs and practices at other places of worship too.
• The Temple management must provide adequate amenities for women devotees to smoothly implement the
SC order.
7.2. DOWR Y HAR ASSME NT L AW
Why in News?
The Supreme Court restored an immediate arrest provision in the dreaded Section 498A, IPC
Background
• The Supreme Court last year ordered that ‘family welfare committees’ to be set up in districts and these committees were supposed to act as a vanguard against “disgruntled wives” using the anti-dowry harassment provision of Section
498-A of the Indian Penal Code (IPC) as a “weapon” against
their husbands and in-laws, young and old, rather than as a
“shield”.
Section 498A IPC
Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
• It had held that no arrest should normally be effected on dowry harassment complaints until the committee confirms the genuineness. Even the police could register an FIR only after the committee concerned cleared the complaint as valid and not frivolous.
New verdict
• Supreme Court in its latest verdict held that such panels had no place under the established criminal procedural law and they were beyond the Code of Criminal Procedure Code.
• It restored police’s power to immediately register an FIR and act on a dowry harassment complaint filed by a married woman.
• Those arrested for cruelty to a married woman over dowry can approach the courts for bail to prevent the alleged misuse of the law.
• The offence is both non-cognisable and non-bailable, which implies that bail can only be granted at the discretion of a magistrate. The bail petitions will be heard the same day as far as possible.
Section 498A IPC- Analysis
Arguments Against
• The law has become a source of blackmail and harassment of husbands and others. As once a complaint (FIR)
is lodged it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and
71 www.visionias.in ©Vision IAS
other relatives without even considering the intrinsic worth of the allegations and making a preliminary investigation.
• When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.
• Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated.
• It is pointed out that the sting is not in Section 498A as such, but in the provisions of CrPC making the offence non-compoundable and nonbailable.
Arguments in favour
• Section 498A and legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted.
• The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests.
• Once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly.
Way forward
• The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.
• The “Crime Against Women Cells” should be headed by well trained and senior lady police officers. These
steps would go a long way in preventing the so-called misuse.
• Steps can be taken to effect conciliation between the spouses in conflict and the recourse to filing of a charge- sheet under section 498A shall be had only in cases where such efforts fail and there appears to be a prima facie case.
• Counselling of parties should be done by professionally qualified counsellors and not by the Police.
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