The Supreme Court constitution bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, hearing the petition against ban on entry of women of certain age groups into the Sabarimala temple, on Thursday (July 26) found land in the CJI’s strong observation, saying that banning such entry was violative of the fundamental right of the female strata of society.
Senior advocate Radhakrishnan said that women, if they want to pray, can worship from their homes. He put forward this argument to bolster his claim that, therefore, no violation of rights was being done.
The counsel then wanted to submit “essential documents” which would exhibit the effect of women’s entry in the Ayyappa temple during their menstrual cycle.
This CJI refused and directed him to “stick to the written note”.
Radhakrishnan said women don’t enter the temples during their menstrual cycles.
Justice Nariman asked: “If it is voluntary, then why object?”
The counsel requested non-interference into religious arena and said that the religious article maintains a fine balance.
Senior counsel Giri, representing the Tanthri, began by saying that whenever there is a constitutional breach in a religious matter, even the shastras are followed. He said each deity has its characteristics and customs.
Counsel Sai Deepak said that the practices carried out in each temple are unique. Such customs in each temple are essential and integral part of the religion. He said if there were three positions vacant and one person has to be selected then it has to be seen that for which post among the three vacancies that particular person is most suitable. He said that for a person to assert his right under A. 25(1) is to say that ‘I believe in the deity’. If so, his belief must be in sync with what is an essential and core characteristic of the deity and the temple and not in conflict with it constitutional bench re-assembles. He tried to establish how Ayyappa (the idol at the temple) is a juristic person and has rights under article 25(1).
Counsel referred to his written submissions, reading the paragraph which talks what constitutes the religious denomination. He said the state is a religious denomination; it depends upon the people of a particular community how they treat it as a religious denomination.
The CJI clarified that status of religious denomination cannot be bestowed upon by the court. Despite everything is fixed- who will offer prayer, on which date and time, etc. yet it is a religious temple. And then the CJI made it clear, when he said that the ban of women’s entry in the temple is absolutely violative of the fundamental right of the female strata of the society.
Justice Nariman said: “Constitutional norms are very clear that your religious rights exist subject to the rights of another.”
Senior advocate Kailasanatha Pillai, for Ayyappa Seva Sangham, said: “This is pre-constitutional custom and it cannot be seen in isolation. It has to be viewed along with other customs associated with Sabarimala temple. The state is constantly changing its stance.”
Pillai said the court has to be extra cautious to decipher when to use the power of judicial review in the matters of religion and faith.
The hearing of the case will continue on Tuesday.
—India Legal Bureau