Sabarimala Temple Entry for Women: A Brief History of the case in SC
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Sabarimala Temple Entry for Women: A Brief History of the case in SC

Murali Krishnan

A Constitution Bench of the Supreme Court is set to commence hearing in the case relating to the ban on entry of women in Sabarimala temple.

The case will be heard by a Bench presided by Chief Justice Dipak Misra and comprising Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

But how did the case reach the Supreme Court and came to be listed before a Constitution Bench? What are the issues that the Supreme Court will decide?

Sabarimala, the abode of Lord Ayyappa, is set in the hilly forests of Western Ghats in the State of Kerala.

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.

The petition assailing the above Rule and seeking the lifting of the ban on entry of women was filed by Indian Young Lawyers Association in Supreme Court more than a decade ago – in 2006.

The Rule has been assailed on the ground of violation of Right to equality and discrimination on the basis of gender. The petition also alleges violation of Article 25 – which provides the right to practice and propagate religion.

The court had issued notice in the case the same year on August 18. The matter was referred to a 3-judge Bench on March 7, 2008.

Subsequently, it went into cold storage before it came up for hearing seven years later, on January 11, 2016.

On February 20, 2017, the Court expressed its inclination to refer the case to a Constitution Bench.

The Bench told the parties “we will deliver a judgment and refer the matter to a Constitution Bench” and reserved its judgment on the issue of whether the matter should be referred to Constitution Bench or not.

Interestingly, the Kerala government has changed its stance on the issue three times.

The LDF government, which was in power in Kerala when the petition was filed in 2006, had chosen not to oppose the petition and had filed an affidavit supporting the entry of women into the temple.

Subsequently, when the case had come up for hearing in January 2016, the UDF government, which was in power re-considered the earlier stance and filed an affidavit changing its position on the issue and supporting the ban.

There was a change in power in May 2016 and the LDF government returned to power. The LDF government initially said that it will stand by the stance of the UDF government and support the ban on women. Subsequently, ichanged its stand again and told the Court that it is ready to allow women, irrespective of their age, inside the temple.

On October 13, 2017, a 3-judge Bench comprising Chief Justice Dipak Misra and Justices R Banumathi and Ashok Bhushan referred the case to a Constitution Bench.

The following are the questions framed by the Bench for consideration by the Constitution Bench:

  1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can 30 assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

The case will be heard today after the hearing in the challenge to Section 377 concludes.

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