- Apprentice Lawyer
The Supreme Court today held that women, irrespective of their age, have the right to enter the Sabarimala Ayyappa temple in Kerala.
A Constitution Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra by a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which was the basis for barring entry of women between the ages of 10 and 50 years to the Sabarimala temple.
The Bench delivered four judgments – CJI Misra wrote one on behalf of himself and Justice Khanwilkar, Justices Chandrachud and Nariman wrote a concurring judgment each, while Justice Malhotra wrote a dissenting opinion.
“Devotees of Ayyappa do not constitute a separate relgious denomination”, CJI Misra held in his judgment.
Rule 3(b) of 1965 Rules is a clear violation of right of Hindu women to practice religion under Article 25, CJI Misra. Further, the bar on entry of women between age of 10 and 50 years is not an essential part of the religion. Therefore, CJI Misra held Rule 3(b) to be ultra vires the 1965 Act under which it was framed.
Justice Nariman concurred with Misra J, holding that the custom of barring entry of women into Sabarimala Temple is violative of Article 25(1) of the Constitution of India.
Justice Chandrachud also delivered a judgment concurring with the majority, stating,
“Religion cannot be cover to deny women right to worship. To treat women as children of lesser God is to blink at Constitutional morality.”
He further held that physiological features cannot be a ground for denial of a right. To suggest that women cannot keep Vratam is to stigmatize them.
Chandrachud J also gave a broad interpretation to Article 17 of the Constitution, which forbids untouchability. Significantly, he held that the Bombay High Court judgment of Narasu Appa Mali is not good in law.
Justice Malhotra began her dissenting judgment stating that the issues brought up during the Sabarimala case will have a bearing on other places of worship as well.
On the issue of religious practices, she held that they cannot be solely tested on the basis of Article 14 of the Constitution.
“What constitutes essential religious practice is for the religious community to decide, not for the Court”, Malhotra J held.
She went on to state that notions of rationality cannot be brought into religion and that a balance needs to be struck between religious beliefs on one hand, and the cherished principles of non-discrimination and equality laid down by Constitution on the other.
Disagreeing with her brother judges on the Bench, Malhotra J felt Ayyappa devotees indeed form a separate denomination.
Rule 3(b) states that women shall not be entitled to offer worship in any place of public worship at such time during which they are not by custom and usage allowed to enter a place of public worship.
Pursuant to the Rule, the Kerala government had issued notifications barring women between the age group of 10 to 50 years from entering Sabarimala. The Sabarimala temple, due to the nature of the deity and customs, disallow women in their menstruating years from entering the temple. However, the notifications barring women did not speak about menstruation as a reason for the ban. Instead, it barred all women in the age bracket of 10-50.
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 was assailed on the ground of violation of the Right to Equality and discrimination on the basis of gender. The petition also alleged violation of Article 25 – which provides the right to practice and propagate religion.
The Court had issued notice in the case on August 18, 2006. 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 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.
When the LDF government returned to power in 2016, it initially said that it will stand by the stance of the UDF government and support the ban on women. Later, it changed 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 of Chief Justice Dipak Misra and Justices R Banumathi and Ashok Bhushan referred the case to a Constitution Bench.
After hearing the case for eight days, the Constitution Bench had reserved its order on August 1.
Today’s judgment will be the last delivered by a Constitution Bench under CJI Dipak Misra before he retires.
A battery of lawyers and Senior Advocates appeared in the case for both sides:
Opposing the ban
Advocate Ravi Prakash Gupta – Petitioner Indian Young Lawyers Association
Senior Advocate Indira Jaising – Happy to Bleed
Senior Advocate PV Surendranath – All India Democratic Women’s Association
Senior Advocate Jaideep Gupta – State of Kerala
Senior Advocate Raju Ramachandran – Amicus Curiae
Supporting the ban
Senior Advocate Abhishek Manu Singhvi – Travancore Devaswom Board
Senior Advocate K Parasaran – Nair Service Society
Senior Advocate K Radhakrishnan – Pandalam Royal family
Senior Advocate V Giri – Tantri
Advocate J Sai Deepak – People for Dharma
Senior Advocate Kailasanatha Pillai – Ayyappa Seva Sangham
Advocate VK Biju
Advocate Gopal Sankaranarayanan – Usha Nandini
Senior Advocate K Ramamurthy – Amicus Curiae
Read the judgment below.