Is restricting the entry of women on the ground of gender in accordance with constitutional rights?

The 5 questions SCs Constitutional Bench will consider in the Sabarimala womens entry issue
news Sabarimala Friday, October 13, 2017 - 15:40

On Friday, the Supreme Court referred the controversial case of allowing entry of women of menstruating age to the Sabarimala temple in Kerala, to a larger Constitutional Bench.

Considering the writ petition filed by Indian Young Lawyers Association, Chief Justice of India Dipak Misra, Justice R Banumati and Justice Ashok Bhushan, referred the case to a larger Constitutional Bench.

The Constitutional Bench will now have to decide whether the ban on entry of women between the age of 10 and 50, to the Lord Ayyappa shrine in Pathanamthitta, is in violation of fundamental rights - particularly, women’s right to equality and right to religious freedom.

Read: SC sends Sabarimala case to Constitutional Bench: ‘Is prayer a fundamental right?’

According to the temple authorities, the deity in Sabarimala temple is in the form of a Naishtik Brahmachari (a celibate) and this is said to be the reason for restricting the entry of women of menstruating age.

(Photo by Sreekesh Raveendran Nair)

The apex court raised questions of age-old religious customs versus gender discrimination, and heard the submissions of two of its amici curiae, who were appointed to assist the court.

Now, in its 31-page order, the SC has laid down certain questions, that it feels needs to be considered by the larger Constitutional Bench.

1) Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to "discrimination" and thereby 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?

The argument raised by the Travancore Devaswom Board (TDB) in restricting the entry of menstruating women is that the deity is a celibate and that women "are not in a position to observe penance for 41 days due to physiological reasons."

The Constitutional Bench therefore has to rule upon whether this amounts to discrimination, without bringing morality into question.

2) Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 (freedom to practice and propagation of religion) and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

In this case, it is the TDB - created by the Kerala State Legislature - is the governing body of the temple.

3) Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

RP Gupta, the counsel for the petitioners, submitted in court that there is no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. According to him, banning entry of women would be against the basic tenets of Hindu religion.

He asserted in court that Sabarimala was not a separate religious denomination because there were no distinct religious practices followed in the temple and that temple was performing all pujas akin  to any other practice performed in any Hindu Temple.

Another point of contention was that Sabarimala temple does not have its separate administration but is regulated by the statutory Board constituted under Travancore-Cochin Hindu Religious Institutions Act, 1950. The counsel further maintained that "mere attraction of some people for some temple does not make it a separate and distinct religious denomination."

4) Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits 'religious denomination' to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

That is, if the Sabarimala devotees are considered a separate denomination, then does this denomination have a right to ban the entry of women and girls?

5) Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

Basically, are the rules governing the temple entry Act, within or beyond the authority of the Act itself? And if they are within the authority of the Act, are they constitutional - particularly, Rule 3(b), which talks about the entry of women and girls.

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