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While hearing arguments on the PIL against the ban of entry of women aged 10 to 50 into the Sabarimala Ayyappa temple in Kerala, Chief Justice Dipak Misra made it clear on Thursday (July 19) that women “can go anywhere they want to.” He said women’s “choice can be unlimited. Once you say you cannot enter a particular place, you must justify the non entrance rationally.”

That would possibly form the plinth of the notion that the Supreme Court would hold on the subject while its constitution bench of CJI Misra and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra hears the case.

Today, senior counsel Raju Ramachandran continued with his submissions and said: “The duty is upon the prosecution to prove if a person belongs to a scheduled caste or not. In the absence of a straight jacket definition, it is the duty of this court to give an expansive definition and widen the scope of article 21 & 17.

“The basis of untouchability and excluding the same lies within the exclusion of a woman through menarche,” he said. “This menarche is constituting pollution and impurity, will signify exclusion of Dalits as well.”

Ramachandran said: “During the 41 days period, a woman becomes ‘impure’ for 3-4 days during her menarche. If this is not the basis, then what is it? This could be a sole reason of discrimination against women.”

Justice Nariman said that Dalit women are protected under article 17. “To put it in a better way,” he said, “problem arises when upper class women are considered untouchables and do not fall within the penumbra of article 17.”

He read the object of the Act, which stated that untouchability cannot be defined. It is not limited to Hindus only. He also talked about impurity, pollution based exclusion with respect to article 17 of the constitution.”

The senior counsel then argued on the violation of article 19(1),21, 25,  stating that every individual has the right to worship any religion he deems fit. Moving over to the funding issue, he said funding is not the sole criteria. The temple must be used by the general public.”

At that Justice Indu Malhotra questioned: “What about those temples not funded by the state, but by rich people? What about them? Worship is an expression of communication with God. If the preamble is being interpreted, no ground is established to create discrimination.”

The counsel for the respondent said that the bar on entry is not complete but between certain ages and refers to the high court judgment. He referred to the argument of the petitioner of expanding the scope of untouchability and submits that it will have a huge impact on society. It will affect the belief and faith of the people who have been following the same path for years.

Then senior counsel Singhvi began with his submissions. He said that Ayyappa temples don’t have this practice. It exists only because of the nature of the deity worshipped there.

He said: “The menstruating women or women, capable of reproducing, are banned from entering the temple because of the nature of the deity worshipped in the Ayyappa temple.”

Justice Nariman asked: “What about those women who stop menstruating at the age of 45? Why should they suffer? The age limit has no rationality. If there would have been no article 17, Sabarimala ban of women entering the temple would have been an offence.”

Singhvi asks why women would want to enter Sabarimala?

At that the CJI observed: “Because they can do so. They can go anywhere they want to. (Their) choice can be unlimited. Once you say you cannot enter a particular place, you must justify the non entrance rationally.”

Arguments will continue on Tuesday.

—India Legal Bureau

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