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The Supreme Court constitution bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra on Wednesday (July 18) started hearing the PIL against the ban of entry of women aged 10 to 50 into the Sabarimala Ayyappa temple in Kerala.

The bench of Justices Misra (not CJI then), J V Gopala Gowda and Kurian Joseph was hearing the matter during April-May 2016 and the case has now been referred to the current constitution bench.

Senior advocate Indira Jaising referred to this case and equated this to untouchability, which is banned by law and punishable.

Today counsel for the petitioners (Indian Young Lawyers’ Association) began by referring to a judgment. Vide the judgment, he said, banning women would be against the Hindu religion. He referred to the 1965 Act and stated that no one will be discriminated on the basis of gender. He also refers to the case of Kashi Vishwanath temple vs State of UP.

He said that in the opinion of the high court, preventing the entry of women is violative of Article 15. He reiterated that no discrimination can be made on the basis of gender in the light of 1965 Act.

He quoted senior counsel Raju Ramachandran’s submissions from the previous case where he was appointed as the amicus. He said that Sabarimala is not an independent issue. Sabarimala cannot claim to be a different religious denomination, he said.

Justice Chandrachud pointed out that those were not legal submissions, but merely factual averments.

At that lead counsel RK Gupta said that since it is not mentioned in the constitution, no one can have a fundamental right over a specific religion. Every individual has the right to choose and profess his own religion, he said. Hence, claiming a right over a particular religious denomination is not correct.

He said that for the mere existence of a religious denomination, the following must exist:

  1. It should have its own property and establishment, capable of succession by its followers.
  1. A distinct identity clearly distinguishable from the any established religion.

He further referred to the Aurobindo sect for better clarification. He read paragraph 45 of the judgment.

He said that since all Devaswoms are Hindu temples and are bound to follow basic tenets of Hindu religion, any individual’s ill practice in any temple contrary to basic tenets of Hindu religion is not permitted after it being taken over by the statutory Board.

He said that the temple is not a separate religious denomination. He referred to a constitutional bench judgment on article 25 and 26: 25(2)(b) & 26(b) and referred to section 31 of the Act.

Counsel Ravi Gupta wanted to read high court judgment, but Chief Justice Misra disallowed it.

Thereafter senior advocate Indira Jaising started arguing. she said untouchability is punishable under the law. The temple act which debars women from entering the temple is violating the fundamental rights,

She read the definition of Hindu and said the action is arbitrary on the basis sex. The discrimination not done if the girl is below the age of 10, but adult women were discriminated. Why? Puberty being the sole reason. The act is in violation of fundamental rights.

She asked, whether women below that age are pure and above that pollute? She equated that act with untouchability.

—India Legal Bureau

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