Breach of rights' at Sabarimala temple under court lens

New Delhi: The Supreme Court on Monday indicated that it will examine whether the ban on entry of women in the age group of 10-50 into the Sabarimala temple based on custom and tradition clashed with the Constitutional provisions.

A three-judge bench of Justices Dipak Misra, V. Gopala Gowda and Kurian Joseph hearing a petition filed by Indian Young Lawyers Association challenging the ban told senior counsel Indira Jaising that it would not go into the values of the custom or tradition that women are not allowed as the deity is a ‘Naisthik Brahmachari’.

Justice Misra told the counsel, “They (temple) rely on custom and tradition. We see whether they clash with Constitutional provisions.”  Ms Jaising submitted that the denial of entry between the ages of 10 to 50 is based on the fact of menstruation during that period of 41-day vritham and is therefore based on biological factors of womanhood. It is, therefore, discrimination based on sex and not protected by Article 26 of the Constitution, which gives only a right to manage religious affairs and not a right to deny women's right of entry.

She argued that women constituted a class of Hindus, and they cannot be therefore be classified based on sex alone and treated differently from other Hindus and excluded from a place of public worship. The custom that restricts entry of women violates the right of women to equality and non-discrimination guaranteed under Article 14, 15 and 25 of the Constitution and is not protected by Article 26.

Article 14 of the Constitution mandates that the State shall not deny any person equality before the law or equal protection of the law. She pointed out that India is party to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW mandates all State parties to overcome, dismantle and refrain from promoting gender stereotypes. Creating a stigma around menstruation and failure to prevent as well as prohibit any discrimination or stigmatisation based on menstruation is in direct contrast with the CEDAW mandate of achieving substantive equality by dismantling gender stereotypes. Senior counsel Ravi Prakash Gupta, in his submission, said Sabarimala temple is not a religious denomination as its rituals/rites or ceremonies do not bind its followers. Even if it is a religious denomination, after the temple was taken over in 1922 by Maharaja of Travancore, it did not retain the character of religious denomination, and hence women of a particular class cannot be denied entry, he said.