Supreme Court has said the traditional practice of keeping out women between the ages of 10 and 50 is a violation of a fundamental right.
New Delhi: The Supreme Court said Friday that women of all ages could enter the sanctum sanctorum of the Sabarimala Temple in Kerala. The verdict was issued with a 4:1 majority by a Constitution bench, with the lone woman member dissenting.
The court observed that barring the entry of women aged between 10 and 50 years, or when they are in the menstruation age, to the Sabarimala temple was not an essential part of the religion.
“The law and society are tasked with the task to act as levellers,” Chief Justice of India Dipak Misra said. “Devotees of Ayyappa do not constitute a separate religious denomination,” he added.
Denying Hindu women entry into the temple violated their fundamental right to practice religion, the bench added.
The verdict came more than 12 years after a plea was filed challenging the Kerala High Court’s 1991 order that upheld the practice of banning temple entry to women between the age of 10 and 50.
In her dissenting argument, Justice Indu Malhotra said religious practices couldn’t solely be tested on the basis of the right to equality. It’s up to worshippers, not the court, to decide what’s religion’s essential practice, she added.
Immediately after the verdict, media reports quoted activist Rahul Easwar — among those who supported the bar on women — as saying that they will file a review petition in the Supreme Court against the judgment.
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The temple is believed to be home to Swami Ayyappa, a Naishtika Brahmachari (celibate for life), who is said to be “disturbed” if women between these ages enter the threshold of the hilltop temple in Pathanamthitta district.
The batch of appeals, led by the Indian Young Lawyers Association, submitted that the ban was based on the “patriarchal” belief that a man’s dominant status in the society makes him capable of austerity, while a woman — who is simply “chattel” or property of a man — is unable to remain pure for the 41 days of penance required before the pilgrimage.
On 13 October 2017, a three-judge bench led by the Chief Justice of India Dipak Misra referred the matter to a Constitution bench that would consider five issues of law, including whether the practice — which is based upon a biological factor exclusive to the female gender — amounts to “discrimination”, and if it violates their fundamental rights.
What the court observed
On 1 August 2018, while reserving its verdict on the issue, the top court had observed that Lord Ayyappa, the presiding deity of the temple, is a perpetual minor and was entitled to his right to privacy with regard to rites being performed at his shrine.
“But whether the right of privacy is the same as reflected in the judgment that recognises privacy as a fundamental right will have to be examined,” CJI MIsra had said in response to the arguments that the deity had some fundamental rights.
What the state of Kerala submitted
Kerala, which has flip-flopped on the issue, finally submitted that it supported the entry of women in the temple. It argued that the state was empowered to make laws not only on secular issues like the administration of temples, but also on religious matters.
Advocate Jaideep Gupta, representing the state, told the Constitution bench that the temple could not claim to be a distinct “denominational unit” since it did not have identifiable features. “Moreover, the celibate status cannot be a ground to bar entry of women in the temple,” he added.
Amici curiae’s opinion
The court had appointed senior advocates K. Ramamoorthy and Raju Ramachandran as amici curiae (‘friends of the court’), who had differing views on this subject. “Temples in south India were taken over by state governments for political reasons as they bring money to the state. But the state can only interfere with secular affairs related to management,” Ramamoorthy said, supporting the restricted entry of women.
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However, Ramachandran sought to strike down this restriction and submitted: “Morality in its very nature includes constitutional morality. Validity of impugned rule needs to be tested on constitutional morality.”