Starting Wednesday, a Constitution bench of the Supreme Court will take up eight crucial matters for discussion, including a clutch of petitions pertaining to India’s unique identity project Aadhaar and a review of an earlier judgment upholding the Indian Penal Code section that criminalises homosexuality.
While much of the attention will be on the Aadhaar and Section 377 discussions, India’s top court will also examine a topic that has been the subject of heated debates and prolonged litigation: restrictions on the entry of women in Kerala’s Sabarimala temple.
At the core of this debate is the question of whether the practice qualifies as discriminatory or comes under the purview of religious freedom, both of which are guaranteed by the Indian Constitution.
Long legal journey
The Sabarimala complex, at the Periyar Tiger Reserve in Kerala is one of India’s biggest pilgrimage centres. Home to many hill-top temples, its star attraction is the Sree Dharmasastha Temple, dedicated to Lord Ayyappa.
Women aged between 10 and 50 are barred from entering Ayappa’s hill-top shrine, but it is unclear when or why this restriction came into effect. Those who oppose the ban have argued that this is prejudiced against women and is linked to orthodox notions of menstruating women being impure. However, temple authorities and supporters of the restriction contend that Ayappa was believed to have taken a vow of celibacy and the ban was a measure to respect his mission and keep the deity away from distraction. They say this practice has been followed down the ages, because worshippers were required to fast for 41 days before undertaking the pilgrimage to Sabarimala, something that menstruating women could not undergo for physiological regions.
This unwritten rule was codified in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 when a clause was introduced to it stating that “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship.” It got further legal backing after 1991, when the Kerala High Court took up a petition by one S Mahendran who had complained that in recent years, young women had been offering prayers at the Sabarimala shrine. The court ruled in favour of a ban on women at the temple, contending that such a practice had existed “since time immemorial” and was not in violation of the law. The court also directed the Kerala government to take all measures necessary, including the use of police, to ensure the ban is upheld.
The practice continued since, but reached the doors of the Supreme Court in 2006, when the Indian Young Lawyers Association sought a reversal of the ban. Over the next couple of years, there were occassional hearings on the case by various judges before it was referred to a three-judge bench in March 2008, according to a report by The Hindu which tracked the progress of the case over the decade since it was filed. The case lay in cold storage till it was finally taken up for hearing in January 2016.
The Supreme Court has said the case will be examined on a few paradigms. The court will, foremost, consider if the practice is discriminatory and therefore violates the right to equality before law, protection from religious discrimination and the fundamental rights enshrined in the Constitution, or whether it qualifies as an “essential religious practice” under the purview of Article 25, which allows the freedom to follow religion in a manner one chooses.
On October 13 last year, the Supreme Court referred the matter to a five-judge Constitution bench, which is now set to take up the case.
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