A five-judge Constitution Bench led by Chief Justice of India Dipak Misra is set to deliver its verdict on Friday on a batch of petitions challenging restrictions on the entry of women between the ages of 10 and 50 inside Kerala’s Sabarimala temple. Following an eight-day hearing in July, the Supreme Court initially reserved its verdict on August 1.
The top court is hearing a PIL filed by the non-profit body Indian Lawyers Association seeking the entry of all women and girls to the temple dedicated to Lord Ayyappan. The temple bars girls and women of menstruating age – 10 to 50 – from entering its premises.
While it first came up for hearing in August 2006, over the years it has seen a number of judges in various combinations taking up the matter. With 24 respondents in the case, the issue of allowing women entry to the temple is one of religious freedom, gender equality and female autonomy.
To decide the merits of the case, the Constitution Bench will consider five questions framed by the top court. This includes whether the restrictions on women based on biological factors is discriminatory and as a result violates Articles 14 (right to equality), 15 (prohibition of discrimination), 17 (untouchability), and cannot be protected by “morality” based on Articles 25 (freedom to practice and propagation of religion), 26 (Freedom to manage religious affairs).
It will also look into whether the practice of excluding women constitutes an “essential religious practice” under Article 25; whether the devotees of the Ayyappa temple form a separate religious denomination, thereby being allowed to preserve its own practices and rituals among other questions.
TNM summarises the main arguments put forth by some of the key parties in the case.
Indian Young Lawyers Association
Represented by advocate Ravi Prakash Gupta, the non-profit body argued that the bar on entry of women in Sabarimala temple is not the essence of their religious affairs, observing that it is “neither a ritual nor a ceremony associated with Hindu religion”.
He also argued that the Sabarimala temple cannot claim the character of an independent religious denomination, pointing to the fact that it is managed by the Travancore Devaswom Board, which receives public funds. As a result, the temple cannot practice gender-based discrimination, as it violates Articles 14 and 15 of the Constitution.
Referring to the Shiroor Mutt case, Ravi points out that attributes of a “religious denomination” are five-fold: 1) Having its own property, 2) District Identity, 3) Having its own set of followers, 4) Distinct set of practises and beliefs, and 5) Its own hierarchy of administration without external control and interference.
Ravi also told the court that the Sabarimala temple could not claim that the restrictions on women is a customary tradition as there are records of women entering the temple during the control of the Travancore King, tweeted LiveLaw. He also submitted that the ban on entry was based on practical considerations rather than on tradition, noting that earlier women were reluctant to visit Sabarimala due to the physical hardship of climbing the hill and other risk factors. Gupta added that the oath of 41-day celibacy taken by Ayyappa devotees did not constitute an essential practice of Hinduism.
Happy to Bleed
Appearing for Happy to Bleed, senior advocate Indira Jaising equated the ban on entry of women to Sabarimala temple with the practice of untouchability. “Prohibition of women entry is a form of untouchability. The sole basis of restriction is menstruation of women. To keep away menstruating women is a form of untouchability. Menstruating women are seen as polluted,” she argued before the Constitution Bench.
She also submitted before the Bench that the Constitution guaranteed the freedom to practice religion (Article 25), noting, “There is nothing in health, morality or public order to prevent a woman from offering worship in a public temple”.
Concluding her arguments on day 8, Indira Jaising told the court that restraining women from entering Sabarimala on the grounds that the deity is celibate was equivalent to stereotyping women as seductresses. She also argued that the deity as a legal person had limited rights, and could not claim the protection of life and personal liberty under Article 21 and freedom of conscience under Article 25.
People for Dharma and Chetana
Two women’s groups, People for Dharma and Chetana, have moved the court demanding women not be allowed into Sabarimala temple. Representing them, J Sai Deepak, a Delhi-based advocate, argued that Ayyappa in Sabarimala is a celibate and his individual rights should be protected under Article 25 of the Constitution. He argued the rule is not discriminatory for it is neither based on misogyny nor menstrual impurity, rather Ayyappa’s celibacy here is a fundamental character of the temple.
Kerala Government
The Kerala Government’s stance, which has flip-flopped over the years, declared its support for women entering the temple. Representing the LDF Government, senior advocate Jaideep Gupta submitted that constitutional provisions have to be broadly interpreted. He argued that the State’s right to make laws under Article 25 (2) (b) applies to religious aspects and not just social aspects, reported Bar and Bench. He added that the Sabarimala temple could not be considered a separate religious denomination and therefore could not claim rights as per Article 26.
Furthermore, he argued that Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules could be read down to no longer exclude women. Submitting that the Constitution is reformist, Jaideep Gupta told the apex court, “If we go back to holy antiquity every time then there won’t be reform.”
Travancore Devaswom Board
Advocate Abhishek Manu Singhvi appeared for the Travancore Devaswom Board, which manages the affairs of the Sabarimala Temple. Pointing to the historical origin of the ban, he argued that the entry of women of menstruating age was antithetical to the celibate nature of the deity, reports Live Law.
Abhishek Manu Singhvi centred his argument on observance of the 41-day penance, which he said, was essential for the pilgrimage to Sabarimala. Dismissing the idea that that the ban on entry of women is discriminatory, he said it was not physiologically feasible for women to observe the 41-day penance.
Further justifying that “every religion is based on male chauvinism”, the counsel for the Board stated, “Prohibition is not because of male chauvinism. It is linked to the penance and character of the deity. Women accept the prohibition. It is not imposed on them,” reports The Hindu.
When CJI Dipak Misra questioned whether the ban is an essential part of religion, Abhishek defended the restrictions observing that it is the crux of Sabarimala. He went on to submit, “If a person has a belief, it is not for a secular judge to sit in judgment of that belief", adding, “It is not for me or you to say the practice is irrational. That is a belief held by all Ayyappa Swamis”.
Head Priest of Temple
The main argument of advocate V Giri, who represented the Thantri of Sabarimala temple, revolved around the ‘Naishthik Brahmacharya’ or the celibate nature of the deity.
“I don’t go to a temple to question the faith but to assert my faith. If I say I believe in the deity, then my belief will be in sync and not antagonistic to what is held as an essential religious practice,” Giri told the court, reported G Ananthakrishnan. The counsel for the Thantri added that celibate character of the deity cannot be wished away by devotees.
Pandalam Royal Family
The Pandalam Royal family, which managed the affairs of the Sabarimala temple before the Travancore Devaswom Board was constituted, also challenged the petitioner’s claim to remove the ban on women’s entry to the temple. K Radhakrishnan, the counsel for the family, raised doubts over the petitioner’s intentions. Suggesting that removal of the ban on women’s entry attacks Hindu beliefs and practices and attempts to demolish the temple’s glory, Radhakrishnan argued that the petitioner does not represent the ardent faith of the Ayyappa devotees, reports Live Law.
Radhakrishnan also argued that girls and women of menstruating age abstained from undertaking a pilgrimage to Sabarimala in reverence for the celibate nature of the deity. He further submitted that constitutional morality cannot trump morality of society and of religious institution. Furthermore, the family’s counsel the rights of the State as per Article 25(2) does not apply to religious institutions.
Respondents like the Nair Service Society, Ayyappan Seva Sangham, People for Dharma, NGO Chetna among others have also batted for the ban on the entry of women, urging the court to respect tradition.
All eyes will now be on the Constitution Bench on whether it will order the 1500-year-old Sabarimala temple to open its doors to women.