New Delhi, Sep 28: The Supreme Court has lifted the ban on the entry of women into the Sabarimala Temple in the age group of 10 and 50.
The Supreme Court has said that devotion cannot be subjected to gender discrimination. The court also said that a patriachal notion cannot be allowed to trump equality in devotion.
Chief Justice of India Dipak Misra and Justice A M Khanwilkar said that religion is a way of life basically to link life with diversity. They also said that devotees of Ayappa do not constitute a separate denomination.
It is a 4:1 verdict and Justice Indu Malhotra has penned a dissenting opinion. Justice R Nariman and D Chandrachud have concurred with the findings of the CJI and Justice Khanwilkar.
The CJI said that women cannot be treated as lesser or weak. He said that in this country women as worshipped like Goddesses. Any physiological or biological factor cannot be given legitimacy if they don't pass the muster of credibility, the CJI further observed. Exclusion on the grounds of biological, physiological features like menstruation is unconstitutional and discriminatory, the Bench also said.
The CHI further observed that exclusion of women of a certain age into the temple is not an essential part of religion. It is not integral either, the court said. 3(b) of the Kerala Temple Entry Act which excludes women between the age of 10 and 50 violates freedom of The Hindu religion to worship. The right to worship equally belongs to both men and women, the Bench said while adding that the ban is religious patriarchy.
Justice Nariman in his judgment said that Ayyappa devotees do not form a denomination, but they are only a part of Hindu worship. In his separate but concurring judgment, he said that women of all ages are equal worshipers of Lord Ayyappa and hence gender cannot be a ground to prevent the entry of some into the temple on the ground that they were of a menstruating age. He further said that the Sabarimala Temple custom of barring women in the age of 10 and 50 years is not backed by Article 26 of the Indian Constitution. Moreover a woman has an equal right to worship, he also added.
Justice Chandrachud in his judgment said that to treat women as the children of a lesser God is to blink at the Constitution. He also said that popular notions about morality can be offensive to dignity of others. He also added that any custom or religious practise if it violates dignity of women by denying them entry because of her physiology is unconstitutional. To treat women as children of a lesser God is unconstitutional, he further added.
Justice Chandrachud added that exclusion of a woman because she menstruates is utterly unconstitutional. The court must not grant legitimacy to religious practices which derogate women, he also said.
Under challenge was the practise at the temple that bars women of the age group of 10 to 50 years.
The court had on October 13 last year referred the issue to a Constitution bench after framing five "significant" questions including whether the practice of banning entry of women in the temple amounted to discrimination and violated their fundamental rights under the Constitution.
One of the questions referred to the larger bench was, "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."
The management of the Sabarimala temple, located on a hilltop in the Western Ghats of Pathanamthitta district, had earlier told the apex court that the ban on entry of women aged between 10 and 50 years was because they cannot maintain "purity" on account of menstruation.
The second issue referred to the constitution bench is whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 of the Constitution and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion.
The constitution bench would also deal with whether the 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 out of Consolidated Fund of Kerala and Tamil Nadu to indulge in such practice violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)".
The court had framed another question as to 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," it had said.
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 says that "women at such time during which they are not by custom and usage allowed to enter a place of public worship shall be included in the class of persons who shall not be entitled to offer worship in any place of worship."
It had also raised the question whether this rule 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."
Petitioner Indian Young Lawyers Association and others have sought directions from the court to ensure entry of female devotees between the age group of 10 and 50 at the Lord Ayappa temple at Sabarimala.
On November 7, 2016, the Kerala government had informed the court that it favoured the entry of women of all age groups in the historic Sabarimala temple.