Men and women can pray at Sabarimala, rules SC

A Constitution bench of the apex court led by Chief Justice of India Dipak Misra, and also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, held that the exclusion of women aged between 10 and 50 from entering a temple because they are considered ‘impure’ would amount to 'untouchability’, a social evil abolished by law.

The CJI said Sabarimala cannot be a “private mandir (temple) as any temple once opened to the public, should be accessible to all. Also, according to the CJI, the Sabarimala temple drew funds from the Consolidated Fund of India and has people coming from all over the world, making it a “public place of worship.”

“In a public place of worship, a woman can enter, where a man can go. What applies to a man, applies to a woman,” Chief Justice Misra observed.

The SC ruling comes on a petition filed by the Indian Young Lawyers Association challenging the 800-year-old practice of prohibiting the entry of women of certain age into the famed Lord Ayyappan Temple.

The PIL has sought direction to the Kerala government, the Travancore Devaswom Board, chief thanthri (priest) of Sabarimala Temple and the district magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10-50.

A batch of petitions has challenged the prohibition on women of a certain age group from entering the Sabarimala temple.

Appearing for the petitioner, counsel Ravi Prakash Gupta told the court the restriction on the entry of women in Sabarimala temple is not the essence of their religious affairs as discrimination on the entry of women in the temple is “neither a ritual nor a ceremony associated with Hindu religion”.

The Pinarai Vijayan-led state government declared its support for allowing women into the temple. State minister K Surendran said women should be allowed to offer prayers at Sabarimala, voicing the stance of the CPM.

In 2016, however, the state had opposed it in the Supreme Court.

"You are changing your stand again. This is the fourth time," Chief Justice Dipak Misra said, referring to the stands taken by the earlier governments.

Senior advocate Indira Jaising, for the petitioners, argued that “religion is a relationship between you and your creator.”

“There is nothing in health, morality or public order that prevents a woman from entering and offering worship in a temple opened for the public… The prohibition in Sabarimala is discrimination not just on gender but sex. Menstruating women are viewed as polluted,” Jaising submitted.

Justice DY Chandrachud said women and their physiological phenomena are creations of God. If not God, of nature.

“A woman is a creation of God, if you don’t believe in God, then of nature. Why should this (menstruation) be a reason for exclusion for employment or worship or anything,” he said.

He quoted Article 25 (1) which mandates freedom of conscience and right to practise religion. “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion…”

“This means your right as a woman to pray is not even dependent on a legislation. It is your constitutional right. Nobody has an exclusionary right of entry to a temple,” Justice Chandrachud observed.

Chief Justice Misra pointed out that there were many temples which allowed visitors only up to a certain point, but there are none which ban entry to the temple in total.

Justice Rohinton Nariman, also on the Bench, observed that the Constitution upheld the ideals of liberty of thought, expression, belief and faith, be it for man or woman. Justice Nariman said the prohibition on women aged between 10 and 50 is “arbitrary”. He said menstruation can also happen as early as nine and extend to the late fifties.

Jaising submitted that Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 allows a “religious denomination” to ban entry of women between the age of 10 to 50 years. She said the discrimination was a violation of the fundamental rights to equality and gender justice.

She said the right to enter a temple extends to all Hindus, regardless of caste, sex or gender.

“What is good law for Harijans is good law for women,” she submitted.

When Justice Chandrachud initially told Jaising that the petitioners should focus on Article 25 (freedom of religion) rather than on Article 17 (abolition of untouchability) of the Constitution, Jaising responded that “menstruating women are not allowed even to intermingle within their own family. This is untouchability!”

On Rule 3 (b) and the right of a religious denomination to ban women from entering temples, Jaising said, “Freedom of conscience resides in humans. Institutions only have the right to manage their affairs. It is my right to worship. Denominations have no right under Article 25.”

Several women activists have opposed the ban on the entry of women inside the temple. Earlier in January this year, the Travancore Devaswom Board (TDB), which manages the Sabarimala Temple, had decided to make proof-of-age documents mandatory for female devotees at the shrine.