The Supreme Court on Monday indicated that it will refer the Sabarimala temple entry restriction on women of a certain age to a Constitution Bench. It said the main issue to be decided is whether the multitude of worshippers of Swami Ayyappa visiting the famous shrine in Kerala form a separate “denomination”, and if so, should their privilege to manage their religious affairs yield to the fundamental rights of women to practise religion freely.
The temple restricts women aged between 10 and 50 from taking the pilgrimage to Sabarimala – which means women are banned from even making the arduous trek to the shrine.
The restriction finds its source in the legend that the Sabarimala temple deity – Swami Ayyappa – is a 'Naishtika Brahmachari' – and should not be disturbed. A 1991 Kerala High Court judgment supports the restriction imposed on women devotees. It had found that the restriction were in place since time immemorial and not discriminatory to the Constitution.
On Monday, a three-judge Bench of Justices Dipak Misra, R. Banumathi and Ashok Bhushan reserved its judgment on the question of referring a batch of petitions challenging the temple's restriction to a Constitution Bench. The court asked all the parties in the case, from various petitioners, women's organisations, Ayyappa groups, State of Kerala and the Travancore Devaswom Board that manages the shrine, to suggest legal questions which the three-judge Bench would formally refer to the Constitution Bench to answer.
The Bench said the 1991 High Court judgment upholding the restriction is no bar on a Constitution Bench of the Supreme Court from deciding the issue afresh. “We are not bothered by the principle of res judicata,” Justice Misra responded to senior advocate K.K. Venugopal, who represents the Devaswom Board .
Met with objections from the Pandala royal family and several Ayyappa groups that the deity is not “interested” in women devotees of the restricted age bracket from visiting him, Justice Misra said that such arguments, merely based on conjecture without any constitutional basis, cannot be entertained in the Supreme Court.
“Deity's interest is a hypothesis which we do not want to comment on now. It is not within our domain. God is everywhere, in every atom,” Justice Misra remarked.
“But the deity is a perpetual minor; the case cannot be decided without considering his interest,” advocate V.K. Biju, appearing for president of Ayyappa Dharma Sena Rahul Easwar argued.
Justice Misra orally observed that the primary questions which the larger Bench would have to answer is whether the restriction is a “permissible practice”; whether the devotees visiting Sabarimala form a religious denomination; thirdly, who is the competent authority to decide on whether the restriction comes within the ambit of 'custom'; and, fourthly, whether such a 'custom' comes under the constitutional principles.
Senior advocate Jaideep Gupta, appearing for the Kerala government, said the restriction on women was not “necessarily a custom”.
The court said that another aspect that may have to be decided was whether the freedom of a denomination to manage their religious affairs under Article 26 should yield to the freedom of conscience and religion under Article 25 of the Constitution.
Mr. Venugopal argued that the worshippers of Swami Ayyappa form a denomination and their “denominational rights should get primacy”. He pointed to the 1991 judgment of the High Court, which has not been challenged in the Supreme Court, and observed that the principle of res judiciata did indeed apply to the case.
Justice Kurian Joseph, who was formerly on the Sabarimala Bench, had asked the petitioners why they had not filed an appeal against the 1991 verdict of the High Court for all these years and instead chose to come to Supreme Court through the PIL route.
Mr. Venugopal further submitted that the restriction was enforced under Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
Justice Misra observed that “you cannot curtail a person from entering [a shrine] at all times”.
To this, Mr. Venugopal submitted that there was no question of “absolute prohibition” in the temple, only women of a certain age group were restricted.
“There are 1000s of other Ayyappa temples where women are allowed. There is no restriction on them. In Sabarimala, the men observe penance and perform sacrifices for 41 days,” Mr. Venugopal contended.
