According to custom at this temple, where the deity is believed to be celibate, girls and women between the ages of 10 and 50 are not allowed inside the temple.

SC sends Sabarimala case to Constitutional Bench Is prayer a fundamental right
news Religion Friday, October 13, 2017 - 10:41

Should women in the menstruating age be allowed to visit Sabarimala? That’s the question on which the Supreme Court has been listening to various sides for many years. However, the court has now referred the case to a Constitutional bench of the SC, to decide whether temple entry is a fundamental right. 

According to custom at this temple, where the deity is believed to be celibate, girls and women between the ages of 10 and 50 are not allowed inside the temple. This customary ban had been codified in Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The Kerala High Court had upheld the Rules and allowed the Devaswom Board to enforce the ban.

The court of Chief Justice of India Dipak Misra and Justices R Banumathi and Ashok Bhushan has made this decision. 

In effect, the Constitutional Bench will now have to decide whether the ban on women and girls to enter Sabarimala is violative of fundamental rights - particularly, right to equality and right to religious freedom. It will have to decide whether the restriction on women's entry is an 'essential religious practice'. The bench will also rule on whether Sabarimala devotees form a separate religious denomination, and whether the temple, managed by the Travancore Devoswom Board, can 'indulge' in a ban on women and girls inside the temple, in the name of 'morality.'

Backgrounder 

The case of entry of women of menstruating age to the Sabarimala shrine has seen a prolonged legal journey of over a decade.

The case was filed by Indian Young Lawyers Association in 2006.

In January 2016, the Supreme Court had questioned the age-old tradition saying it cannot be done under the Constitution.

"The temple cannot prohibit entry (women), except on the basis of religion. Unless you have a constitutional right, you cannot prohibit entry. Anyway, we will examine it on February 8," a bench of Justices Dipak Misra and N V Ramana had said.

While hearing the case in February, the SC had reserved its verdict and said that it may refer the case to a constitutional bench at a later date. Meanwhile, the apex court had asked all the parties to submit their submissions.

Senior counsel KK Venugopal appearing for the Travancore Devaswom Board that manages the temple had suggested that the case be referred to a constitutional bench.

KK Venugopal had told the apex court that the rule needs to be relooked as per Article 145(3) of the Constitution. Devaswom Board also wanted the court to interpret Article 26 and Article 25 of the Constitution that guarantees freedom of conscience and free profession, practice and propagation of religion. The discrimination, if any, in the shrine was not between men and women but between women and women. He argued that the matter had already been settled by the HC and so the principle of res judicata would apply.

The government's stand

In November last year, the LDF government in Kerala submitted an affidavit in the court, saying that it supported the entry of women of all ages to the Ayyappa temple. The LDF government's pro-women's entry stand was condemned by many Hindu activists in the state. The Pinarayi Vijayan government's stance on the matter was a deviation from the previous UDF government's stand on the matter. 

Meanwhile, a counter campaign called 'Ready to Wait' was generated on social media, with several Hindu women coming out saying that they were ready to wait until the permissible age to enter the temple. 

Under the banner of 'People for Dharma', the group of women submitted a petition to implead in the case in October. 

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