New Delhi, Jul 19: The Supreme Court questioned the rationale behind banning the entry of women in the 10-50 age group into the famous Sabarimala temple in Kerala, saying menstruation may begin before the age of 10 and menopause may hit women much earlier.
A five-judge Constitution bench headed by Chief Justice Dipak Misra was apparently not in agreement with the plea of the Travancore Devaswom Board, which runs the over 800-year-old Lord Ayyappa temple, that women of that age group were barred as they cannot observe purity and "penance" for a period of 41 days, a condition for undertaking the pilgrimage.
"This is the imposition of an impossible condition that one has to observe a 41-day penance period. What you cannot do in law is being done by imposing this condition (through a notification of the board)," the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.
Senior advocate A M Singhvi, appearing for the board, said that the temple has the bona fide custom and it was "physiologically impossible for women to observe 41 days of penance". He justified the notification of the board which barred women in the age group of 10 to 50 years from entering the temple.
The bench, however, said, "Somebody may stop menstruating at the age of 45. A girl of 9 years of age can have the menstruation. Therefore, there is no rationale at all in this notification." Singhvi, at the outset, said that Sabarimala is a temple with "unique and strange" Hindu customs and the court should not venture into these areas.
He said the custom of banning women of a particular age group was based on "well-founded reasonable belief" that a woman cannot maintain purity for a period of 41 days. Moreover, there were hundreds of Lord Ayappa temples where they can go, he said.
"It is the devotion that makes a devotee to visit a temple and the onus is on those to justify who have restricted entry of women," the bench said. Singhvi then dealt with the customs and gave an illustration by saying that one has to take out shoes before entering a temple and a person can go inside a church with shoes on.
He also said that women themselves do not want to go to the temple as they consider that the abstinence period of 41 days cannot be observed. Much before the abolition of untouchability, Sabarimala temple has been allowing entry of persons of all castes and religions, he said, adding, "Muslims and Christians can also go inside." The ban was not even gender-specific as girls, below 10 years of age and the women, who have crossed 50, can go to the temple, he said, adding that nobody checked the women and a ban, if any, was being observed voluntarily.
Senior advocate Raju Ramachandran, who is assisting the court as an amicus curiae, said that the exclusion of women of that particular age group was akin to untouchability which was prohibited under Article 17 of the Constitution. "We are talking about the exclusion on the basis that menstruating women are impure. I seek expansion of Article 17 of the Constitution," he said. The bench, however, was not in agreement with the plea and said that Article 17 (abolition of untouchability) of the Constitution may not be applicable as the women, who are barred from entering, can also belong to upper castes and the provision relates to Scheduled Castes only. "The untouchability has its own connotations. The arguments should be that disallowing women in the temple was not protected under Article 21 (right to life and liberty), 25 and 26 (freedom of religion)," the bench said. Ramachandran, however, said that it was a kind of untouchability based on a physiological reason and this was the exclusion on the basis of the notion of "purity".
"Restriction on women's entry is akin to exclusion of Dalits from entering a temple and hence Article 17 was attracted," he said. The Kerala government, meanwhile, told the court that it supported the entry of women of all age groups into the shrine. The arguments in the matter remained inconclusive and would resume on July 24.
The apex court had yesterday observed that the fundamental right of freedom to practice religion is provided to "all persons" by the Constitution and women have the right to enter and pray like men at the shrine. The bench had also termed as "absurd" the notification of the board banning entry of women in the 10-50 age group.
The plea challenging the ban has been filed by petitioners Indian Young Lawyers Association and others. The apex 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 of that particular age group into the temple amounted to discrimination and violated their fundamental rights under the Constitution.