New Delhi: Even as the Pinarayi government in Kerala favoured entry of women of all ages for worship into the Sabarimala Ayyappa temple, the Supreme Court on Wednesday reserved verdict on a batch of petitions challenging the ban on entry of women between the age of 10 and 50.
A five-judge Constitution Bench comprising Chief Justice Dipak Misra and Justices Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra reserved verdict at the conclusion of marathon arguments on behalf of the petitioners and those who oppose such entry.
Senior counsel for Kerala Jaideep Gupta in his concluding arguments made it clear that the state government was in favour of allowing the entry of women of all ages to 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.
Jaideep Gupta said the government is not against any sort of discrimination towards women or any section of the public in any way. All persons are equally entitled to freedom of conscience and the Constitution gives right to worship to everyone equally. Hence, it is not fair to deny a section of women from entering the temple.
The counsel pointed out that religious practices and customs had changed during the last 50 years and the Constitution must also be a progressive document in favour of equal rights for men and women without any restriction.
It was argued on behalf of the petitioners that such restriction is contrary to the letter and spirit of the Constitution as enshrined under Articles 25 and 26 of the Constitution.
Further Sabarimala is not a denominational temple but a temple for all Hindus and, therefore, Article 26(b) (giving such protection) is not attracted.
At the outset, the CJI made it clear that the court will adjudicate on the issue purely as a constitutional question, viz such restriction violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution.
Earlier, senior counsel K Ramamoorthy, amicus curiae in the case submitted that it is a unique Ayyappa temple following a religious practice acted upon by devotees for a long term is protected under Article 25 (1) on the strength of the religious practice on the religious belief from time immemorial.
He said devotees from Tamil Nadu, Kerala, Andhra Pradesh, Telangana and Karnataka visit the temple in large numbers after following the religious practice and belief for several centuries. All men and women have accepted this position because of the characteristics of the deity, which are divine. This is the only temple in the world, which has this practice, and the ancient custom and practice should not be interfered with. .
When Justice Indu Malhotra sought for a clarification with respect to allowance of women between the ages of 10 and 50 through the northern gate on certain occasions, Ramamoorthy submitted that it was an aberration and not reflective of the actual practice of the Temple.
Ramamoorthy submitted that it was the state government which passed the rules (ban on such entry) under challenge and it is the state government, which has reversed its position due to political compulsions.
At one stage the CJI observed, “Article 14 does not apply since the practice is protected under Article 25(1). The deity is a celibate deity and it is the deity's will and right to protect his vow of Naishtika Brahmacharya. The deity has the right to restrict who can enter into the temple."
Justice Nariman observed that the restriction is not because women are kept out because of them being women but because of the character of the deity.
He wondered as to how Article 14 is even applicable in this case as this involves the rights of a denomination.
Senior counsel Indira Jaising reiterated that the central question is whether there is discrimination on the basis of gender or not in this case.
Justice Chandrachud observed that even if there are considerations other than sex, if the impact is felt by one gender, perhaps it could attract Article 15 (2). She said the discrimination by excluding one section of women merely because they are menstruating is hit by Article 14 and 15.
