The Supreme Court on Friday referred to a five-judge Constitution Bench the question whether the fundamental right of women to pray at the place of their choice can be discriminated against solely based “on a biological factor exclusive to the female gender.”
With this, a Constitution Bench of the Supreme Court will scrutinise the age-old practice in Kerala’s famed Sabarimala temple of restricting entry for women aged between 10 and 50 — that is, those who are in the menstruating age.
The court questioned how a temple managed by a statutory board — the Travancore Devaswom Board — and financed out of the Consolidated Fund of Kerala and Tamil Nadu “can indulge in practices violating constitutional principles/ morality.”
The temple authorities have justified the restriction, saying it is a practice founded in tradition.
The questions for the Constitution Bench to decide were framed by a three-judge Bench of Chief Justice of India Dipak Misra and Justices R. Banumathi and Ashok Bhushan.
The Bench asked whether the practice of excluding such women constitutes an “essential religious practice.”
It asked whether a religious institution can exclude women as part of its right to manage its own affairs in matters of religion.
The larger Bench will decide whether the ban qualifies as an “essential religious practice” of the Hindu faith, over which the court has no jurisdiction.
The Constitution Bench will decide whether Ayyappa devotees form a separate religious denomination by themselves.
Most importantly the larger Bench will decide if a temple managed by a statutory board can ‘indulge’ in the practice of banning women from entry on moral grounds.
The Constitution Bench will decide whether Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 allows a ‘religious denomination’ to ban entry of women between the age of 10 to 50 years. If so, does this amount to discrimination and violation of the fundamental rights to equality and gender justice.
Finally, the Constitution Bench has been asked to decide whether Rule 3(b) is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and violative of the fundamental rights.
The Sabarimala 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 was in place since time immemorial and not discriminatory to the Constitution.
Met with objections from the Pandala royal family and several Ayyappa groups that the deity was not “interested” in women devotees of the restricted age bracket visiting him, Justice Misra had reacted 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 had once remarked.