Ban on entry for women of a certain age at Sabarimala temple is based on the "patriarchal" belief that the dominant status of a man in society makes him capable of performing austerity while a woman, who is only a "chattel of man", is incapable of remaining pure for the 41 days of penance prior to the pilgrimage, the Supreme Court observed on Wednesday.
The Constitution Bench led by Chief Justice Dipak Misra said the court cannot accept a practice mired in patriarchy and chauvinism.
Travancore Devaswom Board, which objects to opening up of Sabarimala temple to women aged between 10 and 51, responded that "then every religion is based on male chauvinism".
“Prohibition is not because of male chauvinism. It is linked to the penance and character of the deity. Women accept the prohibition. It is not imposed on them,” senior advocate A.M. Singhvi, for the Board, defended the ban.
But Justice D.Y. Chandrachud said a woman's acceptance of the ban could be traced to a certain social conditioning she was made to suffer from her birth in a patriarchal society. She must have unquestioningly accepted the ban, considering that "she has always been told what to say, what to do or not do...”
Justice Rohinton Nariman said the ban seems to have emanated from the "paternalistic notion" that women cannot perform the penance of 41 days.
“How can you assume here that women cannot lead an austere life for 41 days' vratham (penance)? Women before puberty and after menopause are allowed into Sabarimala. But men, regardless of puberty or andropause, can enter... what can be more unreasonable?” Justice Chandrachud asked.
‘Don’t search for logic’
“My beliefs may be fickle, irrational. But do not search for logic here... These are sensitive matters of religion,” Mr. Singhvi said.
Mr. Singhvi pointed to how self-flagellation is practised among some Shias. “You can say the practice is ‘barbaric’ or you can say it is ‘religious’. But the truth is people believe in it even though it may not be in consonance with the modern notions of 2018,” he submitted.
He said women do not even enter mosques in India, leave alone questions of menstruation and age.
Justice Chandrachud responded that the court does not depend on modern ethos to examine the question of rights.
“Modern notions keep changing. After 1950 (the year the Indian Constitution came into existence), everything should conform to constitutional principles, ethos,” Justice Chandrachud observed.
At this point, Chief Justice Misra intervened to ask “whether a public temple can even enter into the concept of banning. Is such a ban on women an essential and integral part of religion?”
Mr. Singhvi answered the question with a counter-question. He asked whether the Supreme Court can take upon itself to decide what is ‘essential’ to a religious denomination on the basis of an Article 32 petition.
But the Chief Justice said the Board was merely assuming that Ayyappa devotees formed a separate religious denomination.
Undeterred, Mr. Singhvi said the ban was the crux of Sabarimala itself. He argued that the court cannot unsettle the "continuous and uninterrupted" core belief of a Hindu sect on the basis of an Article 32 petition. He submitted that “if a person has a belief, it is not for a secular judge to sit in judgment of that belief".
"Can somebody swoop down on the Supreme Court and question the bedrock of my belief? If so, let there be a six-month trial on this issue. Let them also place the contrary evidence to show they candisplace my practice? Let there be a de novo trial,” Mr. Singhvi contended.
He submitted to the Bench that it is “not for me or you to say the practice (of prohibition of women to enter Sabarimala) is irrational. That is a belief held by all Ayyappa Swamis (pilgrims to Sabarimala temple)”.
