LST PROJECT

CONTEMPORARY ISSUE REGARDING WOMEN

UNTOUCHABILITY: MENSTRUAL DISCRIMINATION

1
 INTRODUCTION

The beauty of the Indian Constitution is that it includes ‘I’ ‘you’ and ‘we’. Such a grand,
passionate and historic document embodies inclusiveness which has been further nurtured by
judicial sensibility and rigor by the development of the concept of golden triangle of fundamental
rights. If we have to apply the notion of a fundamental right, it is an expression of judicial
sensibility which further enhances the complexity and beauty of the Constitution in its real sense.
In such a situation, the essentiality of the rights of women gets the real requisite space in the
living room of individual dignity rather than the space in an annex to the main building. That is
the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized
society. The civility of a civilization earns warmth and respect when it respects more the
individuality of a woman. The said concept gets a further accent when a woman is treated with
the real spirit of equality with a man. Any system treating a woman with indignity, inequity and
inequality or discrimination invites the wrath of the Constitution. Any provision that might have,
few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux
of time and growing constitutional precepts and progressive perception. A woman’s thinking
process cannot be equated to that of a man or as how the society wants to impose its ideals on a
woman. An equivalent thought such as aforementioned is abhorrent, for it slaughters the core
identity of a woman. Equality is the governing parameter. All historical perceptions should
evaporate and their obituaries be written.

Dignity is a universal human concern. Its moral agenda is to attempt a double kind of evaluation of
the individual community on the one hand and the entire social formation on the other. Today
various forces challenge the basic dignity of the people all over the world. Dignity has a critical
relationship with caste, class, race, religious and gender divisions. Women are objectified after
all, in order to maintain the ‘dignity’ of a patriarchal society. Image of oneself is at the very heart
of dignity, and they have to be combined with the notion of a truly democratic state. Employment,
education, health, freedom from hunger, guaranteed livelihood, social security and related
economic and social rights are crucial means of ensuring a dignified existence to all human
beings.

There is not an iota of apprehension that we are in the middle of a great revolution in the history
and present of women. The evidence lies everywhere and moreover, the voice of women is
increasingly being heard in Parliament, courts and in the streets. The story of women in the West
is a little different from what the story is in India. The western women had to fight for over a
century to get some of their basic rights, like the right to vote, the Constitution of India gave
2
women equal rights with men from the very beginning. But what is unfortunate is that, in the
name of religion, women are still being subjugated, and subjected to discrimination on the basis
of their biological differences from men.

Men have always played an important role in transmission of divine messages, while women have
largely remained at the passive receiving end of the teachings and ardent practitioners of religious
rituals. The patriarchal interpretations of religious belief have defined and shaped the social and
cultural contexts of Indian women and the bubbling attitude arounds it which has resulted in their
disempowerment and inferior status. In India, where politics successfully uses religion as a tool
to influence the masses, women bear the barrage of the consequences of cultural attitudes and the
impact of religion and politics in their particular case. The language and symbolism coupled with
the culturally conditioned interpretation of religious scriptures have evolved a practice that leave
out women and their role in the primary domain and even attracts exploitation and violence
towards them.

Lubna Sarwath, a social activist and scholar in Islamic economics, declared that Islam has moved
away from God and the teachings of the Quran. Usha Rani Vongur, a Marxist feminist, said,
"Religion controls our thoughts. It distorts reality and obstructs us from questioning."
Manusmriti, the divine code of conduct for Hindus, depicts women in a very poor light and is full
of derogatory statements about them. It advocates total control of women by the men in their
lives.1 It also divided Indian society into castes, granting privilege to the higher castes and
penalties to the lower ones.2 The religious disciplines that women adhere to, do not seem to
compensate them in terms of tangible privileges. By privileges, it is meant simple basic
humanistic rights. The constitution does guarantee them. But, in a society as saturated with
religion as India’s, it is hard to effect real change without implicating religion in some measure.
Yet, religion on a prima facie basis seems antithetical to women’s rights.

Indian women today are caught in this flux. On one hand, they are either being pushed or are
being invited into the outdoors, as learners, workers, and educators, while on the other hand, the
country is becoming infamous for its crimes against women, poor gender ratio, and deep-rooted
gender biases. We can take Hinduism as an example: age old laws and texts are used to defend
and validate the most reactionary, and violent institutions of this society. Khap panchayats, sati
pratha (now abolished), or any other forms of organised misogyny – all cite religion and ancient
texts as an authority. One example of a textual source which is full of misogynistic attitudes of

1
https://www.globalsistersreport.org/column/equality/power-religion-over-women-india-43236.

3
Indian society is the Manusmriti.

Even in the present times, women continue to fight for their birth rights as human beings, they
continue to find their rightful place in the so-called-civilized society as equals of men. There have
been innumerable cases wherein arbitrary, discriminatory and sexist restrictions have been put
against women. Previous generations of women learned to either submit or negotiate with these
codes of conduct. This position has witnessed a change due to increasing awareness of women’s
rights paradigm that these repressive laws and tendencies set aside, and if they are an integral
aspect of the religion one is born in, then perhaps religion and its entire foundation needs to be
reevaluated. Or else the result will be a pervasive spiritual schizophrenia.

4
 ARTICLE 17: UNTOUCHABILITY

Untouchability refers to lower caste people, called Dalits, who are considered polluting to higher
caste people.2 Untouchables’ had been specifically enumerated in the Government of India Act
of 1935, the predecessor of the Indian Constitution and the Constitution itself, Article 17 of the
Constitution of India bans untouchability and makes it a punishable offence.

Untouchability has been an evil persisting in India since the olden ages. Though after it being
made a punishable offence, the apparent open discrimination has been reduced drastically.
However, the evil still persists within the roots of the nation. Over the years, it has also been
identified with changing times and changing social settings that untouchability practice is not only
in regards to caste based discrimination, but other forms of discrimination as well. This
discrimination is one that arises of natural characteristics of a person and not because of one’s
acts or choices. For eg: one has no control over the caste one is born into. At the base line, we all
are human. Hence one shouldn’t be subject of inferiority in the basis of the birth. However, if one
is ostracised from the society due to his/her criminal acts, such ostracization won’t be termed
untouchability.

Digging deeper into the Constituent Assembly debates, it can be found that untouchability was
meant to also signify right of everyone to enjoy ‘equal social conditions’, ‘equal rights’, ‘social
equality’, the abolition of ‘social inequity … social stigma and … social disabilities’ and as a
remedial clause for ‘those who have been left behind in social and economic matters.3 The present
case of Sabarimala made the judges re-open the texts of Constituent Assembly to understand the
meaning of untouchability.

Below is an excerpt of the judgment:

“A broad reading of Article 17 means that not only the caste-based practice of
untouchability falls within the ambit of the constitutional prohibition, but
practices that bear a family resemblance to “untouchability” are captured as
well. This requires the Court to ask whether a particular practice, like
untouchability, is a practice of social subordination, exclusion, and
segregation, based upon an idea that certain personal characteristics (whether

2
Kalpana Kannabiran, ‘Denying Women Entry to the Sabarimala Temple Amounts to Untouchability’, The Wire, 19
July 2018, available at https://thewire.in/law/sabarimala-temple-women-entry-supreme- court.
3
Gautam Bhatia, ‘The Sabrimala Hearings and the Meaning of “Untouchability” under Article 17 of the
Constitution’, Indian Constitutional Law and Philosophy, 18 July 2018, available at
https://indconlawphil.wordpress.com/2018/07/18/the-sabrimala-hearings-and-the-meaning-of- untouchability-under-
article-17-of-the-constitution/.
5
 caste, or gender, or menstruation) can justify relegating individuals to an
inferior position in society. Under this framework, menstruation-based
discrimination is a prime candidate to qualify under Article 17.”4

Following the judgement, emerged the new concept of equating women to untouchability class.
The Court said in the issue that connotating women’s menstrual cycles and that period to impurity
leading them not to be part of key social activities (in this case, religious practices), was enough to
get this type of discrimination under the ambit of untouchability under Article 17 as had been
intended by the Constitution framers of the country.

4
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., 2018 (8) SCJ 609.

6
 MENSTRUAL SCAVENGING

Menstruation is a phenomenon unique to girls. However, it has always been surrounded by taboos
and myths that exclude women from many aspects of socio-cultural life. In India, the topic has
been a taboo until date. Such taboos about menstruation present in many societies impact on girls’
and women's emotional state, mentality and lifestyle and most importantly, health.5

Banning menstruating women to enter places of worship by priests is not new in India. What is
interesting is that a few fundamentalist forces want to nurture and continue this practice in the
name of religion and cultural practices. Orthodox Hindu households have traditionally kept women
out of the main portions of the house, for instance the kitchen and the household shrine, during
their monthly menstruation periods.6 Even today, in several social milieus across the country,
women are not allowed to visit places of worship or attend religious festivals and family functions
because of the “impurity” associated with menses.

The impression that the periodic biological function is “impure” gets so deeply ingrained in the
minds of young girls that they find it difficult to break free of the regressive thinking and as adults
continue to carry on with the “customs and beliefs”.

Even women who are not religiously inclined admit that “it becomes difficult to break from the
tradition”.

Sabarimala is one such temple where such a practice was given a formalised form. The temple
had prohibited the entry of all women in the menstrual age group because it believes that bleeding
makes them impure which is not only an attack on women’s rights, but it is a question of one’s
privacy.7 In a secular country like India, which promises to protect the rights of its citizens to
practice religion and faith of his or her choice, such ‘practices of religion’ are a violation of one’s
rights.

Actually, the discrimination women have faced silently within households and in the community
to which they belong became a topic of national debate when the president of the Travancore
Devaswom Board, which is in charge of the Sabarimala temple, commented in a casual manner

5
Suneela Garg and Tanu Anand, ‘Menstruation related myths in India: strategies for combating it ‘, J Family Med
Prim Care, Apr-Jun; Vol. 4, Issue 2, 2015, pp. 184–186, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4408698/.
6
Purnima Tripathy, ‘Notion of Impurity’, The Hindu, 13 May 2016, available at
https://frontline.thehindu.com/cover-story/notion-of-impurity/article8523635.ece.
7
Anant Kumar, ‘Menstruation, Purity and Right to Worship’, EPW Journal, Vol. 51, Issue No. 9, 27 Feb 27, 2016,
available at https://www.epw.in/journal/2016/9/web-exclusives/menstruation-purity-and-right-
worship.html?0=ip_login_no_cache%3D4bab2b30a3d8d8259552da47b5c8ec66.
7
in November 2015 that women would be allowed entry into the Lord Ayyappa temple premises
the day a machine to detect whether a woman was menstruating or not was found.

Many girls and women are subject to restrictions in their daily lives simply because they are
menstruating. It is for this reason that a sub-topic of ‘menstrual scavenging’ has been dedicated
in the project so as to highlight the efforts of patriarchy to enter into the arena of women to use
menstruation as a tool of oppression.

Chief Justice Dipak Misra pointed out the same in the judgment of Sabarimala as:

"Women is not lesser or inferior to man. Patriarchy of religion cannot be

permitted to trump over faith. Biological or physiological reasons cannot be
accepted in freedom for faith Religion is basically way of life however certain
practices create incongruities…"8

8
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., 2018 (8) SCJ 609.
8
 SECULARISM VIS-À-VIS RELIGION
Secularism in India has been stated by the Supreme Court to be part of the basic structure and is
an essential element which cannot be done away even by making amendments in the
constitution.9 In the constitution, Articles 25 to 28 provides to individuals as well as groups the
Right to Freedom of Religion. But, the right under Article 25 is not absolute and is subject to
restrictions like interests of general public, public order, morality and health and various other
rights which are provided in Part III of the Constitution. Thus, Legislature is well within its
competence to give primal importance to social welfare and reform over and above religious
interests. Indeed, the only uncommon example in the constitution which prohibits and
criminalizes untouchability, which is a common practice among Hindus, is Article 17.

Further, it is specifically mentioned in the Article 25 that restriction of access only to upper castes
in the Hindu places of worship is not valid and any such practice would be unconstitutional. This
stance that has been concurred to the freedom of religion in the Constitution is obviously not
quite the same as the way where this has been happened in courts and Indian political fields.

The Supreme Court has been taking an active part in most of such aspects. Although it has been
expressly provided in the constitution relating to power of judicial review of legislation yet over
the period of time it has been observed that it is merely “abundant caution”10 as Judiciary has the
inherent power of judicial review. Therefore, all it makes sure that all the laws are in compliance
with the Part III of the Constitution which provides for fundamental rights which also includes
the right to freedom of religion.

Secularism became interrelated to religion on account of a peculiar background in USA. The

teachings of Christian preachers and also their activities would have stood in the way of correctly
understanding the purport of the decision or directives of the government and in such a context a
judgment pronounced by the Supreme Court of United States had rendered a ratio explaining
secularism as disjuncted from religion vide the decision of the Supreme Court in Raynolds v.
United States11 made the position clear that even the Federal government of USA shall not do
anything directly or indirectly helping religious activities. The ratio may be relevant for that
context. Eventually other decisions were rendered by the judiciary in approval of the above
judgment. Yet another cause for the restricted meaning is due to the impact of the distinction
between theocratic nations and other republics, the latter came to be known as secular nations. I

9
S.R. Bommai v. Union of India, AIR 1994 SC 1918.
10
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
11
98 U.S. 145 (1879).
9
venture to add that secularism is not merely one negating theocratic form of government.

It has been stated by the Supreme Court and High Courts in India, time and again, that one of the
basic features of the Indian Constitution is secularism. The historic judicial pronouncement in the
constitutional history of India was delivered in the case Kesavananda Bharati v. Union of India12.

That case was heard by the largest bench ever constituted (13 judges) and for the longest number
of days which resulted in the pronouncement of the lengthiest judgment ever pronounced in India.
Though most of the judges on the bench wrote separate judgments in that case it was the
unanimous view of the judges that secularism is one of the basic features of the Indian
Constitution. One must remember that when the Constitution was made the word secularism was
not employed anywhere in the Constitution. Some members of the Constituent Assembly
demanded the inclusion of the word secularism in the preamble of the Constitution, but Dr.
Ambedkar who piloted the debates was not in favor of such inclusion. He said that since
Constitution of a republic must be a sacred document it shall avoid, as far as possible,
sloganeering terminological expressions and that secularism shall be reflected through different
articles of the Constitution and not by merely employing the word in it. But in 1977 Prime
Minister Indira Gandhi succeeded in getting the words “Sovereign Socialist Secular Democratic
Republic” incorporated in the Preamble of the Constitution.

It happened in the background of the declaration of the infamous Emergency by which many of
the fundamental rights of Indian citizens were suspended and the secular credentials of the
Constitution were considerably impaired. As nobody had the freedom to raise any criticism
against inclusion of such empty words and since all possible critics were incarcerated in prisons
the protagonists of the emergency succeeded in securing easy passage for amending the Preamble.
But when Emergency ended and the people regained their freedom, many of the amendments
brought about during the Emergency period were re-amended. However, the amendment made
in the Preamble was not deleted as the new leaders of the government treated those words as
redundant only and retention of them would not cause any disadvantage to the people.

The most important standard attributed to secularism in the Constitution is that dignity of the
individual is paramount as recognised in the Constitution. The basic plaque of secularism is that
dignity of the individual should be preserved untrammeled by all diversionary factors.

Under Article 14 of the Constitution all citizens of India are given the right to equality before law
and equal protection of the laws. This is one of the important pointers of secularism. Under Article

12
Kesavananda Bharati v. Union of India (1973) 4 SCC 225.
10
15 no discrimination is allowed on the basis of religion, cast, race, sex or place of birth as between
the citizens. Article 16 enjoins that every citizen has equal right to any office. These are the by-
products of the secularist principle adumbrated in the Constitution. Same are the precepts
envisaged in Article 21 ensuring protection of life and liberty for every citizen except through the
procedure established by law. The right to freedom of religion includes the freedom not to believe
in any religion. At the same time, the right to profess, practice and propagate religion is placed
only as subject to public morality, public health, public order and other fundamental rights. This
shows that the Constitution makers had in their mind that freedom of religion shall be subservient
to those four topics. Similarly, public money shall not be spent for the upliftment for any religious
denomination and also that no religious instructions shall be imparted in any educational
institution run by the government or in any institution receiving aid from the government. While
Article 29, which has the title “Protection of interest of minority rights”, specifically mentions
that any section of citizens having a distinct language, script or culture shall have the right to
preserve them, it contains a prohibition against denial of admission to any educational institutions
owned by the state or aided by the state fund on any of the grounds relating to religion, race etc.
All those provisions are the declared evidence of the secular credentials of the Constitution.
Article 30 mentions about the right of minorities, including religious or linguistic minorities, to
establish and administer educational institutions. Fortunately the 11 judge bench of the Supreme
Court in T.M.A. Pai Foundation v. State of Karnataka13 made it clear that no minority can claim
a greater right than what is claimable by the majority and further made it clear that what is
included in Article 30 is a protection of the rights for minority relating to educational institutions
and not any higher right.

Article 44 of the Constitution enjoins on the state to bring about uniform Civil Code, Article 51A
enumerates fundamental duties of citizens of India. One of them is that it is the duty of every
citizen of India to promote harmony and the spirit of common brotherhood, transcending religious
linguistic regional or sectional diversities. Equally important is that it is the fundamental duty of
every citizen to develop scientific temper, humanism, spirit of inquiry and reform. All those are
explicit evidence of the secular character of the Indian Constitution.

Jawaharlal Nehru, the first Prime Minister of India was eminently the strongest advocate of
secularism. In 1952 he was invited to inaugurate the World Conference of Christian Youth, but he
declined the invitation on the ground that a constitutional functionary of a secular republic shall
avoid officially participating in any religious conclave. It is sad that the convention set up by

13
T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
11
Jawaharlal Nehru was not seen followed by many other officials in India. According to me the
practice of subsidizing the expenses of pilgrims for visiting places of religious importance by
bearing the subsidy amount from the government treasury is also inconsistent with the secular
principles envisaged in the Constitution. The maximum which the government can provide is
arranging transportation facilities, police protection and similar facilities for the convenience of
their journey.

12
 SUPREME COURT’S INTERFERENCE IN RELIGIOUS MATTERS

SABARIMALA ROW

Sabarimala Sree Dharma Sastha Temple is dedicated to Lord Ayyappa. It is the most famous and
prominent among all the Sastha temples in Kerala. It is the largest annual pilgrimage in the world
with an estimated 50 million devotees visiting every year.14

The temple is open to people belonging to all religions. There is a place near the temple; east of
Sannidhanam (the abode of Lord Ayyappa), dedicated to Vavar (a close friend of Lord Ayyappa)
which is called Vavaru Nada, an epitome of religious harmony.15

Another unique aspect of this temple is that it is not open throughout the year but only during a
certain period. It is said that the pilgrims have to observe celibacy for 41 days before going to
Sabarimala. The important message given at the temple is the ultimate knowledge that each
individual is a God unto himself/herself, Tat Tvam Asi in Sanskrit meaning "That is you".

The temple has been known to have men as its devotees and visitors to the temple. Women
between the ages of 10 and 50 were not allowed to enter the temple, since the story attributed to
Ayyappa prohibits the entry of the women in the menstrual age group. This is because Ayyappan
is believed to be a Bramhachari or a celibate.

The ban on women entering the temple premises had been in practice for centuries due to the
belief of devotees that Lord Ayappa, the presiding deity of the temple, is a celibate. Following
this practice, the Kerela Government published a rule whereby prohibition of women to enter the
temple was formalised as the rule. This prohibition was enforced under Rule 3(b) of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which read as- “Women
who are not by custom and usage allowed to enter a place of public worship shall not be entitled
to enter or offer worship in any place of public worship.”

In 1991, the Kerala High Court restricted entry of women above the age of 10 and below the age of
50 from Sabarimala temple as they were of the menstruating age.

27 years later, on September 28, 2018, the Supreme Court lifted the ban, saying that
discrimination against women on any grounds, even religious is unconstitutional. Women’s

14
Pravin Agrawal, ‘Lesser known facts about Sabarimala’, Speaking Tree, 28 Nov. 2018, available at
https://www.speakingtree.in/allslides/lesser-known-facts-about-sabarimala/220366.
15
Sabarimala, Information and Public Relations Department, Government of Kerela, available at
http://sabarimala.kerala.gov.in/.
13
groups and organisations had come forward and challenged this whole notion of “purity-impurity”
and are protesting against this unjust ruling by the temple heads in the name of god, religion,
culture and practices.

The Supreme Court delivered one of the most landmark judgments in the Sabarimala case. By a
4:1 majority, the Court has permitted entry of women of all age groups to the Sabarimala temple,
holding that ‘devotion cannot be subjected to gender discrimination’. However, ever since the
Supreme Court delivered the landmark ruling, lifting age restrictions for the entry of women at
the popular Sabarimala temple in central Kerala, the raging issue has divided the state with
supporters on either side.

Temple's head priest, Kandaru Rajeevaru, said they were "disappointed" by the court order but
accepted it. However, the temple has not yet left the light of controversy due to various protests
staged outside it, violence eruption and political invasion into the whole issue. The matter
however, has now been as a respite been decided by the Court that entry of women be not banned
under the garb of religion.

"Religion cannot be used as cover to deny rights of worship to women and it is

also against human dignity. Prohibition on women is due to non- religious
reasons and it is a grim shadow of discrimination going on for centuries."16

- Justice Chandrachud

In an unprecedented order, the Bombay High Court issued a directive allowing the entry of
women into the inner sanctum of the sacred Haji Ali Dargah in Mumbai, banned since 2011.
While most have celebrated the decision as a landmark victory for women’s rights, there are some
who question the constitutionality of the verdict. After all, they say, the Constitution of India
protects the rights of the trustees of the Dargah to manage its own affairs in matters pertaining to
religion in Article 26. Such a reading of the religious freedom clauses (Articles 25 and 26) can
only be called a gross and convenient oversimplification of the Constitution of India. Ironically,
for those concerned with the worrying rise of ‘judicial activism’ and ‘judicial overreach’, the Haji
Ali, and now the Sabarimala Temple verdict has its very roots in these two clauses.

Article 25(1) guarantees the right to freedom to profess, practice and propagate religion.
However, there is also a sub-clause which is often ignored. The wording of the clause reads as:

16
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., 2018 (8) SCJ 609.
14
“Subject to public order, morality and health, and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion.” It is important to note that unlike the language of Article 19 where the main
article lists out all the fundamental rights followed by the reasonable restrictions they are subject
to, Article 25 begins with restrictions subjective to judiciary’s discretion, in the case of conflict.
In fact, Article 25(2)(a) allows the state to make laws “regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice.”
Article 26(b) guarantees the right of religious denominations to manage their own affairs -
implicitly, without state intervention- in matters of religion, and Article 26(d) guarantees these
denominations to administer property in accordance with law, ultimately subjecting the said
administration to state-made laws.

In the case of the Haji Ali dispute, the petitioners belonging to Bhartiya Muslim Mahila Andolan
(BMMA) contended that Article 25(1) protects their right to practice religion, which includes the
right to worship. And in the Sabarimala Temple issue, the Indian Young Lawyers Association
contended that women were being discriminated against by banning their entry into the temple,
the ban pertaining to their biological conditions.

While it is true that Articles 25 and 26 were written to protect not only matters of doctrine and
belief but also acts followed in the pursuance of beliefs (forbidding women to enter the inner
sanctum, in the cases at hand), they are limited to “rituals and observances, ceremonies and modes
of worship which are integral parts of religion.”17 Since the constitution does not define what can
be termed as “integral parts of religion”, the matter ultimately comes to judiciary to interpret on
a case-to-case basis. In the case of Commissioner, Hindu Religious Endowments, Madras v.
Lakshmindra Thirtha Swamiar18 the Supreme Court pronounced the dictum that “what constitutes
the essential part of a religion is primarily to be ascertained with reference to the doctrines of that
religion itself.” In the Haji Ali dispute, the petitioners contended that neither the Quran nor the
Hadith forbade women from entering the mosque or gender inequality of any kind. In fact, the
respondent’s main claim was that a woman being so near the grave of a male Muslim saint is a
“grievous sin” per Shariyat Law, which, contrary to popular view, does not come from the basic
scriptures of Islam. Thus, by their own admission, the respondents preclude their main argument
from judicial consideration.

17
Sardar Syedna Taher Saifuddin v. State of Bombay, AIR 1962 SC 853.
18
Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar AIR 1954 SC
282.

15
At this point, any critical thinker will question the “essential practices test” and whether or not the
judiciary has the right or competency to decide what is essentially religious and what is not; in fact,
the term “essential religious practices’ finds no mentions in the constitution at all, then why look
to it? The answer can be found, not very far, in the words of the father of the Indian Constitution,
Dr BR Ambedkar: “The religious conceptions in this country are so vast that they cover every
aspect of life, from birth to death. There is nothing which is not religion and if personal law is to
be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is
possible to accept a position of that sort. There is nothing extraordinary in saying that we ought
to strive hereafter to limit the definition of religion in such a manner that

16
we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which
are essentially religious”.19

With the Haji Ali and the Sabarimala verdicts, not only has the court excluded the trust and its
ban against women from constitutional protection, by opining on whether the ban is essentially
religious, it has redefined the respective religions themselves in a more progressive direction.
To say that these verdicts are cases of judicial overreach is to undermine the spirit of the religious
freedom clauses written in the Constitution, and is by no means is violative of it. In fact, it is
giving stalwarts like Dr. B.R. Ambedkar little credit for foreseeing such disputes and wisely
leaving enough space for the state to pass reformative and social legislature.

19
https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-12-02#7.65.178.

17
 CONCLUSION
“The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer
explanation or justification to substantiate the substratum of the said rule. Mankind, since time
immemorial, has been searching for explanation or justification to substantiate a point of view
that hurts humanity. The theoretical human values remain on paper. Historically, women have
been treated with inequality and that is why many have fought for their rights. Susan B. Anthony,
known her feminist activity, succinctly puts, “Men, their rights, and nothing more; Women, their
rights, and nothing less.” It is a clear message” – CHIEF JUSTICE DIPAK MISRA in the present
case has pointed out at the outset of the case of Indian Young Lawyers Association
v. The State of Kerala.19
Before the God, all the believers are equal and less mortals like humans can never challenge the
status of God in any form. The Review petitioner has chosen to look away from the times we
live in by continuing to live in the dark, overlooking the progress we have made, both societal
as well as jurisprudential.

The Sabarimala Temple and the Haji Ali Dargah Judgments are a step closer towards the making
of a true egalitarian democratic society. Though, we still have miles to go in realizing that dream,
as women still fight on a daily basis for securing for themselves an equal footing with men.
These kinds of increments help women strengthen their morale in standing up and confronting
and wining against the colossal societal evil which is Patriarchy and Stereotypes which stem
from Patriarchy.
Women all over the world are getting empowered and more educated about their rights. This has
led to them driving change into the world regarding their identity as well. However, with such
subtle discriminatory practices that continue to persist within the four walls of the home put a
barrier upon identity of the women. With the menstrual scavenging practices and discrimination
due to natural biological process, women have been led to be placed at a pedestal lower than the
other gender. Therefore, steps should be taken not only to spread awareness regarding menstrual
scavenging, but also to eradicate such thoughts from the minds of the women which they learn
growing up. The restrictions need to be questioned until a logic is discovered.

18