Your Lordship Shree Ayyappa Swamy!

Man-made law is law that is made by humans, usually considered in opposition to concepts like natural or divine law. Man-made law was the lowest form of law, and man-made law ranked as fundamental because it is man-made. Its characteristics are that it is “not absolute”, and is created by human beings “above all “for the regulation of their actions and behavior(but also for the ordering of things). It “has to be generally known” and has to take into account [both] its anthropological determination and its chronological determination”. Man–made law is fluid, changing over time in order to adapt to changing real-world circumstances. In the Hegelian view, according to Professor Heinz Mohnhaupt.

According to Article 15 of the Constitution of India, 1950, the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Yup.

No citizen shall, on grounds only of religion, race, caste, sex, and place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to, what?

Access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public and including admission to educational institutions.

How far the above article shall be applicable to religious worship places? Pilgrim and tourist are not same and their entities are also entirely different. The former is governed by the natural rights and the latter is dealt with the legal rights.  

Natural Rights and Legal Rights

Natural rights and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable (they cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws.

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable rights, there must arise either a perfect, or external Right to Resistance. Unalienable Rights are essential Limitations in all Government.” Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g. about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is “unalienable.”    Hutcheson wrote: “Thus no man can really change his sentiments, judgments, and inward affection, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgments is therefore unalienable.

Public Order and Social Order

According to Article 25 of the Constitution of India, 1950, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, (1) Subject to public order, morality and health (i.e. Social order) and to the other provisions of this Part, such as, (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
2. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

A straitjacket formula in religious ceremonies and practices are unconstitutional indeed, but at the same time applying a blanket rule on customs and traditions of religious affairs are also against the established social order and its contrast leads to public order crimes at large.

Therefore, certain reasonable restrictions on the part of courts can be imposed in the interest of public order, security of State, decency or morality and above all social order are concerned, since man and woman are not equal in the eyes of law of nature. Of course, equality before the law or the equal protection of the laws shall not deny to any person under the Constitution of India, 1950, because it is fundamental. But, at the same time, courts are to be more vigilant for public disorder and social disorder which may happen in the wake of judicial activism on sentimental matters, particularly on religious affairs. Otherwise judiciary is dwarfed by legislature or executive.

Customs and Traditions

Custom is an established practice having the force of a law. Tradition, on the other hand, is something, such as a doctrine, belief, custom, story, etc., that is passed on from generation to generation, especially orally or by example.

A custom (also called a tradition) is a common way of doing things. It is something that many people do, and have done for a long time. Usually, the people come from the same country, culture, or religion. Many customs are things that people do that are handed down from the past.

Though both are not same. The explanation of the meaning of custom and tradition looks similar. A custom can be a practice or belief that has been practiced an individual or a group for a long time. … When a custom is transferred from generations to generation, it takes the form of tradition.

Suppose, if a High Court prohibited the entry of women above the age of 10 and below the age of 50(menstruating period) to a temple, but the Supreme Court overturned the ban on the entry of women, declaring that the selective ban on women was unconstitutional and discriminatory, who is right and who is wrong, whether the former is wrong or the latter is right? 

Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practice, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property. Wrote Price.

Menstruation and Nightfall

Menstruation and nightfall occur due to the rise and fall of hormones and hormone changes in a girl and in a boy respectively. The first menstrual circle usually begins between twelve and fifteen years of age in a girl, however, a period may occasionally start as young as eight years old and still be considered normal. Menstruation stops accruing after menopause, which usually occurs between 45 and 55 years of age in a woman. Menstruation and nightfall are body mechanism, which are controlled by biological clock. 

Some women use hormonal contraception in this way to eliminate their periods for months or years at a time, a practice called menstrual suppression. Using synthetic hormones, it is possible for women to completely eliminate menstrual periods. When using progestogen implants, menstruation may be reduced to 3 or 4 menstrual periods per year. By taking progestogen-only contraceptive pills continuously without a 7-day span of using placebo pills, menstruation periods do not occur. Some women do this simply for convenience in the short-term while others prefer to eliminate altogether when possible

Howsoever the argument seems watertight banning the entry of menstruating women from offering worship at Sabarimala shrine during any period of the year stating that such restriction was in accordance with the usage prevalent from time immemorial. Menstruation is a body clock. It can be eliminated in the shot-term or for a long term. So, what is the real riddle, menstruation or age? 

Pilgrimage and Women

The devotees are expected to follow a 41-days austerity period prior to the pilgrimage. This begin with wearing of a special chain made of Rudraksha or Tulasi beads is commonly used. During the 41 days of austerity, the devotee who has taken the vow, is required to strictly follow the rules that include follow only a lacto-vegetarian diet, follow celibacy, follow teetotalism, not to use any profanity and have to control the anger, allow the hair and nails to grow without cutting. They must try their maximum to help others, and see everything around them as lord Ayyappa. They are expected to bath twice in a day and visit the local temples regularly and only wear plain black or blue coloured traditional clothing.

Before the High Court 1991 verdict, women visited the Sabarimala temple even though in small numbers. Women pilgrims below the age of 50 would visit the temple to conduct the first rice-feeding ceremony of their children in the temple premises. The temple is situated on a hilltop amidst eighteen hills at an altitude of 480m (1,575 ft) above sea level, and surrounded by mountains and dense forests at the Periyar Tiger Reserve in Kerala,India. It is the largest annual pilgrimage in the world with an estimated 17-30 million devotees visiting every year. Some estimates put the number of annual visitors as high as 50 million. The temple is dedicated to the god Shri Ayyappan.

Hundreds of devotees still follow the traditional mountainous forest path (approximately 61 km), believed to be taken by Shri.Ayyappa himself. These days people use vehicles to reach the Pamba River by an alternate route. From Pamba, all the pilgrims begin trekking the steep mountain path of Neeli Mala till Sabari Mala. This route is now highly developed, with emergency shops and medical aid by the sides, and supporting aid is provided to the pilgrims while climbing the steep slope, which used to be mere trail through dense jungle. The elderly pilgrims are lifted by men on bamboo chairs till the top, on being paid.

As Martin Luther wrote: every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then belief or unbelief is a matter of every one’s conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one force.

HC vs. SC

In 1991, justice K Paripoornan and justice K Balanarayana Marar of the Kerala High Court in their ruling against the Travancore Devaswom Board, banned entry of women between ages above 10 and below 50, from offering worship at Sabarimala Shrine, on the ground of usage prevalent from time immemorial, directing the Government of Kerala to use police force to implement and comply with the said order. But, on 28th September 2018 the Supreme Court, in a 4-1 majority decision, overturned the ban on women between the ages 10 and 50 entering the temple. Challenge was on the grounds of Article 15 & 25 of the Constitution of India, 1950, which are prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and freedom of conscience and free profession, practice and propagation of religion respectively.

Whatever reasons put forth by the majority bench of the Supreme Court, while striking down the Kerala High Court 1991 ruling, which was constitutional so far as the special facts and circumstances of the Sabarimala Temple were concerned at that point in time.