New Delhi: The Supreme Court on Monday observed that it will examine the bar on the entry of women between the ages of ten and 50 in the Sabarimala Ayyappa temple on constitutional principles. A three-judge bench comprising Justices Dipak Misra, V. Gopala Gowda and Kurian Joseph found that in the Hindu religion, the sanatana dharma, Vedas, Upanishads and the Bhagavad Gita do not discriminate between man and woman. The bench observed that it will examine whether total prohibition on the entry of women is permissible and whether such discrimination is violative of the right to equality under Article 14 of the Constitution.
The bench said it will strike a balance between the right to equality, and the right to religious practices and freedom, guaranteed under Articles 25 and 26 of the Constitution.
Senior counsel K. K. Venugopal appearing for the Devaswom Board said it has been a practice in the temple, located in a forest notified area, for several centuries to restrict the entry of women who are in the age group of 10-50 years as the deity Lord Ayyappa is a “Naishtika brahmachari” celibate. He also said male devotees take a vow of celibacy for 42 days.
Justice Misra made the court’s intent clear. “Our attempt is not to rationalise religion or the prevailing religious practice. What we are looking at is the religious dimension vis-à-vis the Constitutional principles. We also want to know whether tradition and faith can override the provisions of the Constitution. What is the basis on which you (temple) deny the entry of a class of women. They have a right to worship. You have structured God into an idol and when I believe in that structure, what is the difficulty in allowing my (women) entry. Can you so don’t go there because you are a woman.”
Senior counsel K. Parasaran, appearing for Nair Society, one of the intervenors, said Sabaraimala was a unique temple where even Christians, Muslims and foreigners are allowed to enter. He reiterated that women in the 10-50 year age group were barred from entering the temple because the deity is a celibate. Parasaran also said the perception of what is being worshipped is important; if a devotee feels that he is not worshipping the idol of a Brahmachari, he may not go to that temple. He also said that women were allowed to enter all other Ayyappa temples in Kerala.
At this juncture Justice Misra told the counsel “to accept your argument we must constitutionally reconcile that such a prohibition is permissible. What we are saying is can you deny a class of people within a class on biological reasons and thereby infringe my (women’s) right to practice religion, which includes right to enter temple.”
Senior counsel Ravi Prfakash Gupta, appearing for Indian Young Lawyers Association, recalled a recent order passed by the Bombay high court permitting the entry of women in the Sani temple and said judicial intervention is required in the Sabarimala matter also. He said discrimination in matters of entry to temples is neither a ritual nor a ceremony associated with Hindu religion. The Hindu religion does not discriminate against women, “on the other hand, as per Hindu religion women are at higher pedestal in comparison to men. Such discrimination is totally anti-Hindu. The religious denomination can only regulate the entry in the temples or restrict the entryin garb grahwithout any discrimination where only priests could enter but cannot ban entry making discrimination on the basis of sex.”
In the present case of the Sabarimala temple, the petitioner argued that even if it is taken as a religious denomination without admitting the same, the restrictions on the entry of women therein is not the essence of their religious affairs. He also said, the basic religious tenets are confined to taking an oath of celibacy for the period of the pilgrimage, which isn’t unique to this case, as in case of any pilgrimage in any religion, physical relations are prohibited. He added that the mere sight of a woman does not affect one’s celibacy if an oath has been taken, and that the devotees worshipping Lord Ayyappa do not go to the temple for the purpose of celibacy but to seek the deity’s blessings for their prosperity and well-being.
The petitioner also argued that the temple administration had not given any such justification for the bar on the entry of women. According to them, menstruating women cannot trek very difficult mountainous terrain for several weeks and hence the practice of not permitting them in the temple began. The petitioner said restrictions on entry of women in Sabarimala temple is not connected in any way with the religious practices performed there. The question of it being an essence of religious denomination does not arise at all, but even if it is then the same is challengeable by Article 25 of the Constitution.
Kerala justified the restriction on the entry of women in the 10-50 year age group to the Sabarimala Ayyappa temple and said this restriction has been prevailing from time immemorial. The state also pointed out that lakhs of women below the age of ten and above the age of 50 visit the temple, which is in keeping with the unique pratishta sangalp or idol concept of the temple. This is an essential and integral part of the right to practice a religion and comes under protective guarantee of the Constitution under Articles 25 and 26. On the petitioner’s contention that women are allowed in other Ayyappa temples like Achankoil, Aryankavu and Kulathupuzha, Kerala said the deities there are in different form than the one in Sabarimala.
Arguments will continue on Wednesday.