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Sabarimala: A summary of the 8-day long hearing in the Supreme Court
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Sabarimala: A summary of the 8-day long hearing in the Supreme Court

Bar & Bench

The Sabarimala Temple case hearing in the Supreme Court concluded on Wednesday, August 1.

In the PIL filed by the Indian Young Lawyers Association, the practice of disallowing women between ages 10 and 50 from entering the Sabarimala Temple was challenged.

The temple prohibits entry of women who are in their menstruating years. The said ban has statutory backing in the form of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

A Constitution Bench comprising Chief Justice of India Dipak Misra, Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra heard the case for over eight days.

This case has been before the Supreme Court since 2006, but the arguments before the Constitution Bench commenced only on July 17 this year.

Below is a summary of the arguments advanced by various parties.

Ravi Prakash Gupta for the Indian Young Lawyers Association

– Due to State funding, no religious institution can claim to be an independent ‘religious denomination’ claiming rights under Article 26.

– Reliance placed on Shirur Mutt case. For a religious denomination to exist, the following attributes are necessary:

• It should have its own property & establishment capable of succession by its followers.

• A distinct identity clearly distinguishable from the any established religion.

• It should have its own set of followers who are bound by a distinct set of beliefs, practices and rituals

• It should have a hierarchy of its own administration, not controlled by any outside agency

– After Devaswoms were taken over by Devaswom Board through Royal Proclamation in 1922 and subsequently Travancore-Cochin Hindu Religious Institutions Act, 1950, no individual Devaswom can act differently in both matters of religious practices and administration.

– Since all Devaswoms are Hindu Temples and are bound to follow basic tenets of Hindu religion, any individual ill practice in any temple contrary to the basic tenets of Hindu religion is impermissible

– Temple is not a separate religious denomination.

– Hindu religion does not discriminate against women. Rather, as per Hindu religion, women are at a higher pedestal compared to men. Such discrimination is totally anti-Hindu. Restriction on the entry of women is not the essence of Hindu religion

– Even if it is assumed to be a religious denomination, the restrictions on the entry of women are not the essence of its religious affairs nor connected to practices performed there

– Even if it is the essence of said religious denomination, then the same is hit by Article 25.

Indira Jaising for Happy to Bleed

– Article 17 is the solitary fundamental right which applies laterally to private parties. It is in pursuance of Article 17 that states have enacted Temple Entry Acts

– The case of petitioners is restricted to entry to temple to offer prayers and the petitioners are not dealing with the right to conduct rituals etc in sanctum sanctorum

– The judgments of the Supreme Court indicate that these statutes, read with Article 17, give an unrestricted right to all Hindus to enter places of public worship

– The law was intended to allow Harijans to enter temples, such laws apply to women as well

– The restriction is not based on sex alone, since only women between age 10 to 50 are prohibited. It is a discrimination based on menarche.

– Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 re-introduces what is banned by Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965

– The classification of women based on whether they are in the period of menarche lacks Constitutional legitimacy and does not satisfy the test for classification under Article 14

– Even if I forget untouchability, the issue is whether these women are Hindus. Can women be excluded from the definition of Hindus?

– Even if there were customs preventing women, the same now stands overruled by Section 3

– The word ‘worship’ is used in the Preamble of the Constitution. That ‘worship’ could be more than religious worship. But that right is given clarity by Article 25

– Cited Charu Khurana case regarding whether a Trade Union can be registered with a discriminatory clause. The SC held that it cannot be done on the ground that it was arbitrary and discriminatory

– There is a judgment which has been a stumbling block in the realm of personal laws – the Narasu Appa Mali judgment. Constitutional supremacy supersedes any religious belief

Raju Ramachandran, Amicus Curiae

– Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act is a mirror image of what Articles 25(2)(b) and 26 provide

– The proviso to Section 4 also provides for non-discrimination on the basis of any class

– This exclusion results in involuntary disclosure by a woman of her menstrual status. In other words, a woman who makes a pilgrimage to Sabarimala is making a forced disclosure that she is not a menstruating person

– On Protection of Civil Rights Act, 1955: the protection against untouchability should be interpreted to include any exclusion based on impurity/ pollution. If excluding women is based on menarche, its basis is impurity. Then the effect is the same as in the case of Dalits

– Men who visit the temple have to perform a 41-day penance. As per the judgment, women cannot perform the same due to certain reasons. That reason is impurity arising out of menstrual period

– Article 17 has to be looked at as including all impurity and pollution-based exclusions

PV Surendranath for the All India Democratic Women’s Association

– Even without the aid of Article 25, discrimination against women with respect to the right to worship is hit by Article 19(1) and Article 21

– Article 26 does not enable any discriminatory practice and it is subject to morality – Constitutional morality

– Discrimination based on sex alleging impurity is against dignity

Jaideep Gupta for the State of Kerala

– We support the contention that women should be allowed entry into the Temple

– Nobody can guarantee that a person can live till 50 or 55 even with the advancement of medical age. So effectively a lot of women will be barred from going to the Temple

– Rule 3(b) does not impose any specific prohibition but only exempts “customs”. Whether this impugned custom will stand the test of the Constitution is what needs to be considered

– The “custom” of excluding women is itself covered by Article 13 and violates Part III rights

Dr. Abhishek Manu Singhvi for the Travancore Devaswom Board

– Otherwise, temples across the country do not allow women who are in their menstruating days

– The temple permits from inception men from all castes and religions; Muslims, Christians are all allowed

– On Naishtika Brahmacharya: It is the underlying rationale for excluding women between the age of 10 to 50

– It is physiologically impossible for women to observe 41-day penance

– The test is not how and why women are excluded. It is whether those who believe in the Ayyappa denomination have practised this for a considerable time in history. This is subject to whether it is barbaric and illegal

– Tantri has the power to decide matters relating to the Temple.

– Can Supreme Court give a finding that a belief is not of antiquity? It cannot disturb a Hindu practice of a particular denomination without factual trial. Article 32 proceedings would be the wrongest way to do it because, where is the evidence?

– Shirur Matt case and various other cases cited on the scope of “denomination” asserting Sabarimala is a denominational temple

– Cited the case of Attukal Temple in Kerala which does not allow women during the time of Pongal

K Parasaran for Nair Service Society

– Most women in Kerala are educated. The state had matriarchal communities. Hindu religion is a very tolerant religion. By and large, Hindu laws do not discriminate.

– On the ‘character’ of the deity in Sabarimala: Ayyappa is a Naishtika Brahmachari

– On Article 25(2)(b): right of state to make laws to throw open Hindu Temples to all classes and sections of Hindus does not include women within its scope. Article 25(2)(b) has to be interpreted as a special provision for backward classes who were discriminated against and not allowed entry into temples

– Article 25(2)(b) is to address caste discrimination because the Article applies only to Hindus. If it was to apply to women also then it should have been applicable to all religions since discrimination against women is there in other religions

K Radhakrishnan for Pandalam Royal family

– Freedom of religion is subject to public order, health and morality. “Morality” should be prefixed with “public”. Morality includes institutional morality, which could arise from religion

– The freedom to practice religion is restricted and has to be harmonised with the restrictions without destroying the protective nature of Article 25

– Restrictions under Article 25 (2) can only be with respect to secular aspects and not religious aspects. Constitutional morality cannot be interpreted in a manner so as to nullify public morality

– The writ petitioners are not devotees of and have no faith in Lord Ayyappa. It is a publicity-oriented petition filed with the object of ensuring that the Temple loses its glory. The petition raises questions on origins of the Temple

V Giri for the Tantri

– Each deity has its characteristics. Customs and practices carried out in each temple are unique. Such customs are an essential and integral part of the religion.

– For a person to assert right under A. 25(1) is to say ‘I believe in the deity’. If so, his belief must be in sync with what is an essential and characteristic of the deity and the Temple, and not in conflict with it.

– It is not open for petitioners to say this is for social reform, that is up to the Legislature.

J Sai Deepak for People for Dharma

– Rights under A.25 are subject to A.26. A deity has rights under A.21, 25(1) and 26 (b). While I have rights under A.26, I am sticking to A.25 and this case can be disposed of under A. 25

– If a deity is a juristic person and can be taxed, he equally has rights under Article 21, 25 and 26. His right to remain a Naishtika Brahmachari is part of the Right to Privacy under Article 25

– This is not a case of Temple v. Women or Man v. Women but is Man v. Man and Women v. Women. Tomorrow men might seek exception from taking 41-day penance

– The denominational character of a temple as per Article 26 is independent of the right of the temple to allow entry to the public. Ayyapa devotees are the denomination here

– In this case, the denomination is devotees who subscribe to the belief of that particular temple irrespective of Muslim, Hindu or Christian. A denomination is decided on whether the devotee believes in what is an essential characteristic of the temple/deity

– The public character of an institution does not take away the identity of the institution. Articles 25 and 26 represent a social contract between nation-state and faith with respect to boundaries of encroachment

– Naishitka Brahmacharya is not with respect to men alone, there are instances of women also, cites the case of Kamakhya temple

– Rights of individuals under A.25(1) subject to Article 26 but if Article 26 does not apply, then my deity has rights under Article 21 and 25(1).

– There is no doubt that individualism should be respected, but when you go to a public place of worship you have to subject to yourselves to that right

– Not every exclusion is discrimination. Essentiality test equally applies to Article 25(1) as it does to A. 25(2) and 26. Exclusion does not mean discrimination

– Notifications are a codification of existing practice/custom. By striking down the same, we are not merely quashing the notification but also going against the custom

Kailasanatha Pillai for Ayyappa Seva Sangham

– This is a pre-constitutional custom and it cannot be seen in isolation. It has to be viewed along with other customs associated with Sabarimala Temple

– The Court has to find a way to uphold this custom so that other similar customs are not disturbed

– This matter should not be viewed in a strict legal sense. Kelsen’s theory should not be applied here

– To fill an empirical vacuum, there should be evidence. Rather than Kelsen’s Pure Law theory, Indian realism should be applied, which means the Constitution cannot be interpreted without taking into account social realities

VK Biju 

– The Courts should go beyond the four walls of law and ascertain what are the ecclesiastical foundations of the particular community and religion; otherwise, there will be serious repercussions

– This is a Tantric temple and not a Vedic temple. Hence it has many peculiarities on how to offer puja etc.

– The word “maintain” in Article 26(a) means to continue and not to manage and administer.

Gopal Sankaranarayanan for Usha Nandini

– We have reduced this argument to women between age 10 and 50; that is not a class but a restriction

– Ayyappa devotees form a denomination and irrespective of background faith can come together and worship Ayyappa

K Ramamurthy, Amicus Curiae

– This is a matter of religious faith which cannot be decided by any test. There should be a harmonious construction of the Constitutional provisions. The state can interfere with the secular affairs of the temple, not into religious aspects

REJOINDER SUBMISSIONS

Indira Jaising

– There has not been much jurisprudence from this Court on Article 15.

– Based on the ground that discrimination is not based “only” on sex, but on sex and religion or custom, this Court has upheld many discriminations.

– The doctrine of harmonious construction should apply from first to the last Article of the Constitution, not just Articles 14, 19 and 21 or Articles 25 and 26

– Article 13 includes not only law in force but also those having force of law

– They cannot claim to be a denomination of devotees; a group of devotees is different from a denomination

– Custom has to be unbroken from time immemorial, they have not been able to prove that. If it is broken, it is not a custom

– There is a distinction between being a juristic personality and citizen insofar as claiming fundamental rights is concerned

– Deity being a juristic personality has the right to sue and be sued in its own name; it does not have rights under Article 21

Raju Ramachandran

– The emphasis is on the equal entitlement under Article 25(1). It is a horizontal right and the state does not come into the picture. So no need to go into Article 14, etc.

– For the purpose of Article 25(1), “morality” can only be Constitutional morality and not sectional morality. It cannot be the morality of women devotees who want entry or morality of Ayyappa devotees

The language of Article 25 makes it clear that it is available to human beings (not juristic persons)

– ‘Profess’, ‘propagate’ etc can be done only by persons, not deities. Assuming deity has right under A. 25, the deity will be subject to same Constitutional morality.

– People getting together for an arduous pilgrimage will not make them a denomination unless they satisfy the well laid down test

Jaideep Gupta

– Constitutional provisions have to be interpreted broadly. The right of State to make laws under Article 25(2)(b) applies to religious aspects and not just social aspects

– There is no denomination here, so no right under Article 26

– This Constitution is reformist. If we go back to holy antiquity every time, then there won’t be reform

Read the written submissions of Ravi Prakash Gupta

Written-Submissions-Indian-Young-Lawyers-Association.pdf
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Read the written submissions of Raju Ramachandran

Sabarimala-Written-submissions-Raju-Ramachandran.pdf
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Read the written submissions of Indira Jaising

Indira-Jaising-written-submissions.pdf
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Read the written submissions of Dr. AM Singhvi

AM-Singhvi-written-submissions-Sabarimala.pdf
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Read the written submissions of V Giri

V-Giri-written-submissions.pdf
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Read the written submissions of J Sai Deepak

Sai-Deepak-written-submissions.pdf
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Read the written submissions of Gopal Sankaranarayanan

Gopal-Sankaranarayanan-written-submissions.pdf
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