New Delhi: The Chief Justice of India Dipak Misra on Tuesday made it clear that the Sabarimala temple in Kerala cannot exclude a section of women in the age group of 10 to 50 from entering the temple by imposing discriminatory conditions.
The CJI heading a five-judge Constitution Bench told counsel V K Biju appearing on behalf of devotees that the temple can have rituals but by prescribing an impossible condition of 41-day ritual, a section of women are being discriminated and this amounts to exclusion.
The bench, which also included Justices Rohinton Nariman, A M Kanwilkar, D Y Chandrachud and Indu Malhotra, observed that the court couldn’t be oblivious of the fact that one class of women is excluded on physiological grounds.
Justice Chandrachud endorsed CJI’s observation and said, “If Constitution is supreme then there cannot be any exclusion of a section of women as it is violative of Article 14. Ours is a progressive Constitution and if necessary we have to deal with such issues head-on. If it is an abhorrent practice, why should we not interfere with it?”
Biju argued that the policy not to allow women between the age of 10 and 50 is reflected in the rituals and practices of the temple. If these things were changed, that would amount to changing the whole nature of the temple itself, which will be violative of Article 25.
He said Sabarimala is also unique as it upholds India's pluralistic culture too. An Islamic mosque is the part of the pilgrimage called Erumeli Mosque for Vabar and pilgrims first visit this mosque before they reach Sabarimala to see the deity. Sabarimala never had casteism or communalism or religious chauvinism and it had a great role in upholding spiritual pluralism in our nation.
Rejecting the charge that women are not allowed entry, he said that from 2010-2017, about 15 lakh women in the age group of 10 to 50 visited Sabarimala. It is a fact that women from all fields and from all over the country and from the outside the country visit Sabarimala every year. It is a fact that there is only age regulation and there are regulations for men’s entry too in temples like Attukal Bhagavathi temple.
He argued that since the deity is in the form of a Naishthik Brahmachari, it is believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.
Biju urged the court to appoint an appropriate commission to analyze the truth of the custom and practice. It is also appropriate to take the opinion of the Sabarimala Tantri, whose word is final as far as rituals are concerned, he added.
Counsel Gopal Sankaranarayanan submitted that Rule, which imposes the regulation, encompasses a host of practices not only to Sabarimala but also to other temples of Kerala. Therefore, striking down the Rule would affect other sub-rules and other temples in Kerala.
Sankaranarayanan submitted that devotees who put faith in the Sabarimala temple and observe its practices would qualify as a religious denomination for the purposes of Article 26 of the Constitution. He said that a narrow definition of religious denomination might not do justice to the unique nature and history of the Sabarimala temple.
Arguments will conclude on Wednesday....