Constitution prohibiting exclusion has some value: SC on Sabarimala case

By PTI Published on Aug 01, 2018 02:40 PM IST

New Delhi: The Supreme Court, hearing a plea seeking the entry of women in the age group of 10-50 into the Sabarimala temple in Kerala, today said the constitutional scheme prohibiting exclusion has "some value" in a "vibrant democracy."

A five-judge Constitution bench headed by Chief Justice Dipak Misra also said that it will have to examine the submission that the believers of Lord Ayyappa of Sabarimala constituted a "separate religious denomination" whose practice of not allowing women of a particular age group inside the temple was protected under the Constitution.

"First of all, we have to determine whether the devotees of Lord Ayappa constituted a separate Ayyappan religious denomination," the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

Terming the ban of entry of women of a particular age group as "partial exclusion," it said, "The Constitution has to have some value if it prevents exclusion. If Constitution permits equal rights to citizens then so be it."

It said that India is a vibrant democracy having a Constitution and, moreover, the State is empowered under Article 25 (2) (b) to make laws for providing social welfare and reform or throwing open the Hindu religious institutions of public character to all classes and sections of Hindu.

Lawyer Gopal Sankaranarayanan, appearing for intervenor Usha Nandini, said that besides Hindus, people of all faith, including Muslims and Christians, are allowed to go and pray inside the Sabarimala temple, and "we have reduced this argument to women between age 10 and 50, and this is not a class but a restriction."

He said the Ayyappa devotees, who can observe 41 days period of penance, formed a separate religious denomination, and they can come together to worship. "You can't be a separate religious denomination only for the month when you visit Sabarimala. Denomination is not a flexible concept," the bench said.

The bench termed the pre-condition of observing the 41 days of penance for visiting the temple as "ritual" and said that this may not constitute a separate religious denomination. It gave the example of Sufi dargah at Ajmer and said that people of all faiths visit it, but they all cannot be said to be constituting a separate religious denomination for seeking protection under the Constitution.

The bench then referred to Article 17 (abolition of touchability) and said that can the women of Scheduled caste be allowed entry inside the Sabarimala temple. "The temple is not excluding the women on the ground of touchability," the lawyer responded. "Who are Hindus, does it not include women," the bench asked.

The actual reason is the nature of deity which is 'Naisthik Brahmachari' (celibate) and the gender has not been the reason for the exclusion, Sankaranarayanan said. Any temple, which is open to Hindus will be open to all Hindus and the issue here is of a separate religious denomination, he said.

Prior to Sankaranarayanan, lawyer V K Biju argued and said that Sabarimala temple has a secular character and devotees of all faiths visit Lord Ayyappa. "Lord Ayyappa is a juristic person who decides who can and cannot come to him," he said.

The advancing of arguments remained inconclusive and would resume tomorrow. Earlier, the apex court had said irrespective of the submissions that Lord Ayyappa has "celibate character," it cannot remain "oblivious" of the fact that the entry of women in the age group of 10-50 was barred on "physiological ground" of menstruation.