Law have existed in a society or religion due

Law is an idea, concept or ideology which we derive from what we want. But, what we want is decided by what our history tells us, what our elected representatives tell or yet again by what our lordships tell us. In other words we derive our laws from customs, legislations and precedents. There is a very common notion among the masses that what our legislature and courts have formulated as laws are flawless, as they undergo the due process of law. However in the case of customs, what needs to be understood is that those may not be a suitable source of law, owing to the distorted understanding of history by different people. Customs are those practices and traditional values which have existed in a society or religion due to its existence in the past. Customs have the power to prevent us from doing something by creating some sort of a subconscious fear or respect.In the Indian society, customs are valued because we look at our history as a part of our present. It is a medium through which we show respect to our ancestors. Some customs, however bad they may be, remain in society because of their association with religion and God. Whenever God or in better understanding, whenever religion is involved, the society becomes zealous. Customs are like politics, wherein both have the power to play the rule and divide game. We have certain ‘thumb-rule’ conditions which contribute towards converting a custom into a customary law. These include, time period, continuity, and the reasonableness in it, its conformity with statutes and common law and the fact that it can be peacefully enjoyed. One such custom which has now come into public limelight is the ban on entry of women into a few religious places. Women and temples or places of worship share a common descent of customs. Both are held to be under the control of men and bound by restrictions. The only difference is that the latter is a sanctum sanctorum while the former is epitomized as a symbol of impurity who may distract men or pollute the deity. Both are treated as polarised elements, one above man and the other below him. But unlike temples, women too were created by God and not by man. And the creator has right over its creation.One such temple where the customs have been discriminatory towards women is the Sabarimala temple. The custom which is followed here is that menstruating women, or those women who are between ten and fifty years of age, are barred from entering the temple, thus denying them the right to worship their deity in his place of rest. The temple is located in Kerala, 3000ft above sea level and its uniqueness is that the temple is open to all, irrespective of caste, creed or religion. However the doors are closed for women between a particular age group.The myth behind this practice is that Ayyappa is a brahmachari (celibate) and thus menstruating women would pollute him. This practice is an age old one, however unsubstantiated by any scriptural evidence. The Sabarimala temple is one of the most sacred Hindu pilgrimage centres in the world and the God Ayyappa is worshipped in this sanctorum. The legend of Ayyappa, an avatar of God Vishnu, talks about his life on Earth in the human form as Manikantan. As a young man, he went in search for tigress’ milk as his step mother demanded for it, it to cure her stomach ache. Enroute he was attacked by a possessed woman “Mahishi”, whom he killed to release a beautiful woman who had been cursed to become Mahishi. On her release, she asked Ayyappa’s hand in marriage who in turn refused as he had chosen the path of celibacy. However, he promised that she would be visited by pilgrims and would be housed next to his temple, and if first timer pilgrims (Kanni Ayyappan) ever stopped visiting him then he would marry her. Hence, she is now worshipped as Maalikapurathamma. His legend makes it quite clear that he had no problem with menstruating women, considering that Maalikapurathamma, a woman herself, lives next to Ayyappa’s temple. The issue of allowing women into the sanctum sanctorum of Sabarimala has gained widespread national attention and hence a judgement to this regard is being addressed by the Supreme Court constitution bench. In 2006 a petition was filed by the Young Lawyers Association in which they sought the entry of women of all age groups into the Sabarimala temple. The focus on this issue has gained media attention post the Haji Ali verdict. The only difference between the two cases being that, Haji Ali started disallowing women from entry since 2012 whereas in Sabarimala only women between the age group of ten to fifty are disallowed and this practice has existed in Sabarimala since centuries. So, on the aspect of time period, the customary law prevails. In 1991 the same case had come into focus, when a group of women went on to the Sabarimala temple to offer their prayers. At that time the Kerala High Court accepted the contention made by the head priest. According to him, since the devotees were to observe 41 days of penance, the (assumed) impurity of women during menstruation would prevent them from doing so. The court accepted the contention that the practice of banning entry to women was being practiced for more than 1500 years. The other argument made by the temple authorities was that women would be physically incapable to complete the arduous rituals. All of these arguments are a clear indication of the fact that women have very casually been subjected to patriarchy. If the temple authorities had given reasons based on scriptures supporting the ban on entry of women, then, this contention could have some ground to it.The rule created by the Sabarimala temple authorities is in synch with the law put forth by the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965, section 4 which speaks of allowing Hindus from all castes to enter temples and rule 3(b) under the same section specifies a certain class of persons who shall not be entitled to offer worship in any place of public worship – ” women at such time during which they are not by custom and usage allowed to enter a place of public worship.” This legislation shows that the Kerala government acted more as an ambassador for discrimination against women and is it trying to prove a point through its regressive arguments. In the case of Sabarimala, the temple authorities i.e. Travancore Devaswom Board(TDP) said women will be allowed into the temple if someone invents a machine to check their “purity”, an allusion to menstruation. Such remarks from temple authorities is a disgrace, and it creates wrong ideas in the minds of gullible people and prevents change. The “Happy to Bleed” campaign was launched as a counter to the Sabarimala temple authorities who gave menstruation a dirty colour. The students who took part in this campaign asked the apex court whether modern society should continue to bear with “menstrual discrimination”, when the Indian Constitution mandates right to equality and health of women to achieve gender justice. The contention of calling a biological phenomenon impure without any scientific ground is baseless and especially then when such comments are made by men who have little experience in the subject. The TDB chief has even shamelessly contended that allowing women entry would only convert the temple into a sex tourism spot. He contended that the safety of women could be compromised with. The counter argument is that if this is the case, then men should be the ones who are to be banned from the temple. It may also be paradoxical to argue that the safety of women may be compromised with, considering that in our country incidents of sexual abuse of women is quite frequent, irrespective of their age.Though, some legal experts and women’s rights activists consider this custom as violating the structure of our constitution, there are some campaigners who contend that they are ready to wait. They, as in women, contend that they respect their traditions and are thus ready to abide by the existing customs. But by this argument are they trying to say that the Gods they believe in are so weak to be affected by their presence?As per a research study in 2016, “The reason behind the restriction on the entry of women of a particular age group into the Sabarimala temple is simple. Pilgrims to Sabarimala are expected to observe strict `Vrata’ (penance) of 41 days. It is called ‘Mandala Vrata’. For a woman, this may not be possible as her menstrual cycle, which is often a tiresome and painful experience repeats every month and interferes with Vrata. Since, Ayyappa at Sabarimala is a Naishtika Brahmachari, the energy in the temple may create an imbalance in the natural creative energy present in women of reproductive age, if they are repeatedly exposed to those energies over long period. This may in turn prevent Grihasta women from effectively doing their Swadharma. Hence, only those who are yet to attain puberty or those who have already reached menopause undertake the pilgrimage.” Moreover the naysayers argue that since the custom involves observance of a strict period of penance, menstruation would prevent them from keeping their focus and strength. This is an illogical argument in the present times, especially when we see that women in spite of their ‘biological issues’ have been able to conquer mountains, circumnavigate the world and explored the skies. It is very clear that within the same group, there are conflicting views. There are some who are pro entry for all into temples and some who are against it. This is a case of conflict between Individual and Group interests. Take the example of smoking, there are some who wish or like to smoke and there are some who are totally against it. Some may consider it to be their individual right while others see it as their group right. What is the recourse which should be taken in such situations where there are conflicting rights? When it comes to the ban of entry of women into temples, the temple authorities may believe that it is their ‘individual’ right to deny women entry ‘however it is the ‘group’ right of all the people, under the constitution of our country, to prevent such a ban on entry since it poses a question on the validity of our constitution. The right which should be ensured is the one which guarantees common good and welfare of the citizens, and it should be in conformity with the law. Now if the temple authorities allow women to enter temples it won’t necessarily pose a threat to men, perhaps it will destroy the self-made authority of men.  Now, why is there so much of a hullabaloo about menstruation? Since such taboos have seemingly come from religion, understanding what the holy books say is necessary. In the Hindu culture many people consider a menstruating woman as a polluter and expects her not be partaking in religious functions, even to the extent of staying away from daily household activities, in certain communities. In Islam, a woman does not have to perform certain prayers or keep fasts, during menstruations. “It is haraam for the menstruating woman to stay in the mosque and even in the Eid prayer-place.”In other words the women are treated like untouchables, during menstruation. Thus, the basic principle is that women are in a way treated as untouchables during menstruation, it raises the provision of the Untouchability offences act 1955 (UOA). Section 3 of the UOA states that whoever on the ground of “untouchability” prevents any person-(a) from entering any place of public worship which is open to other persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or watercourse, in the same manner and to the same extent as is permissible to other persons professing the same religion, or belonging to the same religious denomination or any section thereof, as such person; shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both. Keeping this in mind wouldn’t it be right to say that women are being treated as untouchables and so the people who propagate and encourage such regressive rules be dealt with legally. It may also be pertinent to mention that this was the exact treatment meted out to the untouchables a few years ago, only difference being that it was not gender specific.The greater points which need to be considered are whether this form of discrimination, violating article 15, on the lines of customs should be accepted and whether it violates the right to freedom of religion as guaranteed in article 25 of the constitution. Is the culture of India such that women are naturally discriminated or should this form of discrimination even be allowed to be accepted as a custom? The Sabarimala temple takes the legal defense of Article 26 wherein religious denominations have the fundamental right to manage their religious affairs. But they should note that like other fundamental rights, Article 26 too is not absolute. Moreover, Article 26 which reads- “Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right(a) To establish and maintain institutions for religious and charitable purposes;(b) To manage its own affairs in matters of religion;(c) To own and acquire movable and immovable property; and(d) To administer such property in accordance with law”This does not anywhere directly or indirectly conclude that religious affairs include the right to prevent or allow entry to the temples. Article 25 (1) of the constitution states that 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 to freely profess, practice and propagate religion. The exclusion of menstruating women clearly violates Article 25, Article 14 (Right to equality) and Article 15 (Prohibition of discrimination). Activist Trupti Desai of Bhumata Brigade, who in the recent past led women worshippers of the Shani Shingnapur shrine successfully, defying all odds, asserts: “If the Constitution of this country has given us equal rights, then we want to assert these rights. If men are allowed to enter inner sanctums at places of worship, we, too, want that right. By entering the inner sanctum, we are seeking to do away with the wrong traditions that exist in this country.” We as a nation must understand that, “Legal abolition of several antiquated practices such as Sati or untouchability did not witness a social transformation overnight. Law very often stimulates a corresponding socio-cultural evolution.”The moot question is that but by what authority are such rules imposed? Authority, which the temple/mosque have implied upon themselves. Have we forgotten the immortal God and started revering the male mortals? We also need to ponder upon as to who makes the laws in the temples or in other religious places especially when no one seems to have had a direct contact with God in order to claim some sort of authority over the people as a delegated authority. So the next question which we should answer is as to who owns/administrates the temples or the religious places. Is it God, the creator of man or is it man, the builder of the temples?  In other words, does anybody have the ownership of temples in order to prevent anybody from entering it?  In India the fear of God is so strong that no man has the power to claim ownership over temples however there are some people who claim authority over the temples indirectly by being responsible for the management of those temples. For example, in Kerala all the Hindu temples are managed by Devaswom boards, including the Sabarimala temple. “The properties of each Temple are deemed to be the personal property of the presiding deity of the temple and is managed through body of trustees who bear allegiance to the presiding deity.”The point on temple authorities is that, their task is to manage the temple not to manage the worshippers. How can temple authorities, appointed by governments, allow the traditionalists to discriminate between human beings when one of the duties of the government is to ensure that people are able to enjoy their fundamental rights? It can thus be assumed that the women in India are simply being subjected to patriarchy and regressive beliefs of impurity.The denial of entry into places of worship is not only an issue affecting the Hindu religion but also many other communities, in various forms. It is also interesting to note that there are many temples in India which allow only women to enter, such as Attukal temple; Chakkulathukavu temple; Santoshi Ma Vrat; Lord Brahama temple; Bhagwati maa temple; Maat temple; Trimbakeshwar temple; and Kamrup Kamakhya temple. Though what needs to be noted is that men are not denied entry due to any sort of “impurity” and in some cases the deity has made it very clear in her legend that men shouldn’t be allowed. Very unlike the case of Sabarimala which has been discussed above, where patriarchy has banned women of certain age group calling them impure.The difference is noteworthy, one is a purely manmade rule based on a flawed assumption whereas the latter is based on a legend.When there are customs which harm a part of the society, they should be done away with. Unless a strong stand is not taken on such issues, progressive reforms will take a setback. Chief Justice Dipak Misra has very rightly pointed out that women may or may not want to enter a temple but at the same time no one should have the right to prevent them from doing so. We as a society should never forget the example of sati. When this inhuman practice had to be done away with, there were people including many women who yet again stood against its abolition. Fortunately, we have a law against that.   In a country where even an amendment cannot be made to the constitution if it is against the fundamental rights then how can such a custom be accepted? Keeping a separate provision for women is an absolute contravention of the rule of law which recognises that all are equal before the law. The rule of law should be apex, especially in a society where both men and women are given equal rights. We can’t have and should not have laws which contradict each other and if such an anomaly arises, the progressive one should prevail.For how long should women be subjected to patriarchy? This is patriarchy backed by politics. If the women formed a major portion of voters perhaps then, there would have been a strong opposition to this form of discrimination. Such issues which prevent progressive changes in society, should be fought for with zeal. Women too should learn to put their foot down and to not put up with false reasoning. If men have so much of a problem with menstruating women, then why is there no ban on marriage? The Sabarimala case is set to be heard by a constitution bench as the Supreme Court has already made it clear that women are being denied their fundamental rights. Customs are practiced with the hope that it would keep the society or the religion intact. But clearly, denying women their fundamental rights and imposing authority over them is a custom which men fear to give up, it’s patriarchy which they fear to give up. Such customs which without any religious scriptural reasons, distinguish between men and women should be considered as a violation to our constitution. Our country’s social development is doubtful, if even in the 21st century, progressive changes are resented. The same argument applies even in those temples which don’t allow men to enter, because this is question of our fundamental rights. This is not a feminist expectation but the expectation one should have, being an Indian citizen.