Sabarimala row in focus: Centre backs restriction on women's entry in temple in Supreme Court

The Centre on Tuesday vehemently contended before the Supreme Court that the issue of restriction on the entry of women aged between 10 and 50 years at the Sabarimala temple falls within the domain of religious faith as well as denominational autonomy and is beyond the scope of judicial review.

A nine-judge Constitution bench headed by Chief Justice Surya Kant commenced hearing on petitions related to discrimination against women at religious places in various religions and the proceedings assumed significance as they started ahead of crucial assembly polls in Kerala, where the Sabarimala temple is located.

‘Courts can intervene if…’

Referring to the right of religious freedom under Article 25 of the Constitution, Solicitor General Tushar Mehta appearing for the Centre, however, said courts can always intervene if religious practices violate 'public order', 'morality' and ‘health,’ reported PTI.

The top court observed that if there is a social ill which is branded as a religious practice then the court can examine whether it is an essential religious practice or a social evil.

The bench also comprising Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi was told by Mehta that if there is something unscientific, the remedy is with the legislature.

Justice Bagchi told Mehta that courts are not experts in science but the Evidence Act empowers the court to examine the opinions of experts and become an expert of experts.

‘Cannot be treated as untouchable'

Mehta submitted that he had strong objection to an observation in the 2018 Sabarimala judgment that the exclusion of women in the age group of 10-50 years from the temple was a form of 'untouchability', violating Article 17 of the Constitution.

Justice Nagarathna said a woman cannot be treated as "untouchable" for three days in a month and then cease to be considered untouchable on the fourth day.

"Article 17 in the context of Sabarimala, I don't know how it can be argued. Speaking as a woman, there can't be a three-day untouchability every month, and on the fourth day, there is no untouchability," she observed.

Mehta said that he was not on the issue of menstruation.

He said the bar on women's entry to the Sabarimala temple was not related to menstruation, and said the restriction was only on the basis of age group.

"Let us be clear. Sabarimala concerns only a particular age group. There should be no confusion. Lord Ayyappa temples across the country and the world are open to women of all ages. It is only one temple which has this restriction. It is a sui generis case," he said.

In the Sabarimala case, Justice DY Chandrachud was of the opinion that exclusion of women, based on age or menstrual status, from entering the temple was a form of "untouchability" which placed them in a "subordinate" position, perpetuated "patriarchy" and was "derogatory to their dignity".

At the outset, Mehta submitted that the "unnecessary doctrine" of essential religious practices was introduced, "but how do you decide what is essential is the question".

"It is a matter of faith. It is a matter of belief. To determine whether something is essential or not, one would first have to undertake a judicial review of religious scripture. One would have to understand the scripture in the manner in which it is meant to be understood. That, in my respectful submission, is not possible unless one attains that level of spiritual understanding," he said.

Mehta submitted that India has always not only treated women equally, but often at a higher pedestal.

"We are, arguably, the only society which worships women. From the President of India to the Prime Minister, to judges of the Supreme Court, we bow before our female deities. Therefore, my lords, let us not import concepts of patriarchy and gender stereotypes into this discourse. These, I submit, were never inherent," Mehta told the court.

The law officer said the Centre's submissions should not be viewed solely through the lens of the Sabarimala case as the court is dealing with issues related to discrimination against women at religious places which may have wider ramifications.

"I am not touching the Sabarimala part, I will deal with it in a different manner. It is a sui generis case. Right now, my lords are examining the questions of law and the judicial policy which my lords will apply. Henceforth, it may be advisable for me not to be coloured by one particular sui generis case, though it is in my case that it is wrongly decided and deserves to be declared a wrong law, for more than one reason," Mehta said.

At the outset, the top court made it clear that it would not go into the merits of the Sabarimala judgment, and would confine itself to the seven questions framed in the matter.

In September 2018, a five-judge Constitution bench, by a 4:1 majority verdict, lifted the ban that prevented women between the ages of 10 and 50 years from entering the Sabarimala temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

On November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.

The bench had then framed broad issues on freedom across religions, saying they could not be decided without any facts of the particular case.