New Delhi: The right of a woman to pray is a fundamental right that does not depend on legislations, the Supreme Court observed on Wednesday while hearing a bunch of petitions challenging the traditional ban on the entry of women between 10 and 50 years of age in the famous Sabarimala temple in Kerala.
Women in their menstruating age are restricted from entering the 12th century temple as its presiding deity, Lord Ayyappa, is considered to be a “Naisthik brahmachari”, celibate.
The temple’s Devaswom board has even made it mandatory for women to provide age proof before they are allowed in.
In October last year, the top court had referred the issue to the Constitution bench after framing five “significant” questions that needed to be considered, including whether the ban amounts to discrimination against women and violates their their fundamental rights under the Constitution.
A Constitution bench, headed by Chief Justice of India Dipak Misra, and including Justices R.F. Nariman, A.M. Khan-wilkar, D.Y. Chandr-achud and Indu Malhotra is considering whether the ban, based on custom, faith or tradition, violates the constitutional principles of equality.
“Every woman is also the creation of God. Why should there be discrimination against them in employment or worship?,” Justice Chandra-chud said in his preliminary remarks while hearing the petitions challenging the ban.
“All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion... This means your right as a woman to pray is not dependent on a legislation. It is your constitutional right,” he added.
Adv. Indira Jaising, arguing against the ban, said that the ban violated women’s right to practise religion which includes right of entry and worshipping the Lord.
Assailing the practice, she also said that the ban on the entry of women of certain age groups was violative of various fundamental rights, including Article 17, which deals with untouchability.
She also referred to the definition of the term “Hindu” under various statutes and said that the women were discriminated against not on the ground of sex but because of menstruation.
“We will only examine whether the ban on entry of women in the age group of 10 and 50 based on custom and tradition clashed with the Constitutional provisions. We also want to know whether tradition and faith can override the provisions of the Constitution”, the CJI said.
Noting that the Sabarimala temple, which draws funds from the Consolidated Fund, and has devotees coming from all over the world, was a “public place of worship”, Justice Misra said once a temple is declared as a public temple there can be no discrimination.
“In a public place of worship a woman can enter, where a man can go. What applies to a man, applies to a woman,” the CJI observed.
The Kerala government submitted that that it was in favour of allowing women of all ages without any restriction, to which the CJI remarked, “This is the fourth time you (state) are changing your stand,” referring to the contrary affidavits of the Kerala government.
The Kerala government had in 2015 supported the entry of women, but made a U-turn in 2017 and opposed their entry.
The counsel for the Kerala government said that it would go by its first affidavit and support the cause of women.
Senior advocate Raju Ramchandran, who is assisting the court as amicus curiae, supported the entry of women into the temple and said that denial of the right to entry of women was violative of fundamental rights. Arguments will continue on Thursday.
