41-day penance indirect way to debar women from visiting Sabarimala: SC

New Delhi: The Chief Justice of India Dipak Misra on Thursday orally disapproved the Travancore Dewaswom Board’s imposition of 41-day penance on women to visit the Sabarimala Ayyappa temple. The CJI observed that a condition, which is impossible to follow, is untenable in law.

The CJI heading a five-judge Constitution bench in the Supreme Court made these preliminary remarks when senior counsel Abhishek Manu Singhvi, appearing for the board, justified the imposition of 41-day penance for both men and women to visit the temple. 

The bench, which also included Justices Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was hearing a petition filed by Indian Young Lawyers Association and five other women advocates challenging the ban in vogue for several years and seeking removal of the restrictions in the entry.

The CJI told Singhvi, “The board is actually doing something indirectly what it cannot do directly. Imposition of something which is impossible to be done is an indirect way of debarring women in the age group of 10 to 50 as they cannot observe penance continuously for 41 days in view of the menstrual cycle.”

Earlier, senior counsel Jaideep Gupta, appearing for the Kerala government, in his brief submissions informed the bench that women of all ages should be allowed to enter and worship at Sabarimala Ayyappa temple without any restriction. At present, female devotees between the age group of 10 to 50 are not allowed entry to the temple.

He said, "Nobody can guarantee that a person can live till 50 or 55 even with the advancement of medical science. If a woman has crossed menopause at the age of 45 and is terminally ill, effectively she and a lot of similarly placed women will be barred from going to temple, though they might have the desire to go.

However, Singhvi differed with the government’s stand and said that the Travancore Dewaswom Board was justified in regulation/restriction on entry of women in the age group of 10 and 50 years on the ground that the deity Lord Ayyapa is a 'Naisthik Brahmachari’ (celibate). He said the 1,000-year-old custom and religious practice couldn’t be interfered with.

At the outset, Singhvi submitted that the entire religious practice of the Temple has been distorted out of context to give the impression that the practice is barbaric and medieval. He said that only this Ayyappa Temple observes this religious practice and this is based on a well-founded belief, which enjoys protection an essential part of the temple under Article 26 of the Constitution.

He said that this religious practice is not a discrimination against women. In thousands of other Ayyappa temples in Kerala and rest of the country, women are allowed entry without any discrimination. When the Lord himself says don’t allow access to women in the age of 10 and 50 how can the court go into that question, he said.

“Why do the petitioners insist on visiting this particular temple”, he asked.

The CJI responded by saying "because they believe in the deity. It's the devotion which drives people to visit the temple and it is their choice and it is for you to justify why women be not allowed to enter. Singhvi said that if they indeed believe in the deity, they must respect the traditions of the temple and observe its practices.

Singhvi said women of menstrual age between 10-50 years are not allowed to maintain the purity of the temple.

Singhvi pointed out to the concepts of purity and impurity across cultures.

Hindus leave footwear outside the temple whereas Christians enter the church with the footwear on.

The CJI said that leaving footwear outside the temple is a regulation, but imposing a condition is to debar women in a particular age group.

Justice Indu Malhotra pointed out that restrictions based on menstruation are present in other religions as well. She also drew attention to the Old Testament.

Justice Nariman noted that the notification imposing age restriction could have been worded better to restrict entry of women who are of reproductive age instead of specifying an age bracket of 10 to 50 years.

Justice Nariman asked the counsel, “What happens to a woman who stops menstruating at the age of 45.” Singhvi submitted that age is not the issue; the principle behind the age restriction is the issue. He, however, agreed that the notification could have been worded better.

Senior counsel K Parasaran submitted that the devotees don't have the right to change the character of the deity according to their convenience. He said the object of worship deity in a particular form is to obtain salvation.

The entire argument so far has been from the point of view of a worshipper, he said and added that what deity is being worshipped and in what form is also important, which has not been argued so far.

Arguments will continue on July 24.