Women have the constitutional right to enter the Sabarimala temple in Kerala and pray without facing any discrimination, the Supreme Court observed on Wednesday while hearing pleas challenging restrictions on the entry of women into the temple. What applies to a man applies to a woman too, Chief Justice of India Dipak Misra said.
Wednesday was the second day of the hearing by the Supreme Court’s Constitution bench, which also comprises Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Changing its stance for the fourth time, the Kerala government told the court that it was in favour of allowing women to enter the temple, LiveLaw reported. “You are changing with the changing times,” the judges told the Kerala government’s counsel, according to PTI.
Misra observed that denying women entry into the temple was against constitutional mandate. “Once you open it for public, anybody can go,” the chief justice said.
“Your right as a woman to pray is equal to that of a man and is not dependent on a law to enable you to do that,” said Chandrachud. “It is a constitutional right.”
When counsel for the petitioners, Indira Jaising, argued that the restrictions violate Article 17 of the Constitution, Chandrachud and Nariman urged her to argue on the basis of Article 25(2)(b). Jaising had said keeping menstruating women away is a form of untouchability, as they are seen as polluted, Live Law reported. Article 17 prohibits untouchability, while Article 25 deals with the freedom of religion.
The Sabarimala temple does not allow women between the ages of 10 and 50 to enter its inner sanctum, a practice defended by its managing authority, the Travancore Devaswom Board. On April 20, 2017, the board said women wishing to offer prayers in the temple’s inner sanctum must carry proof of age.
In 2006, the Indian Young Lawyers Association filed a writ petition contending that the restriction imposed on the entry of women at the temple is unconstitutional, according to Live Law. Over the next couple of years, there were occasional hearings on the case by various judges before it was referred to a three-judge bench in March 2008, according to The Hindu. It was finally taken up for hearing in January 2016.
In October 2017, a three-judge bench headed by Chief Justice Dipak Misra referred the matter to a five-judge Constitution bench. The judges framed six questions for the Constitution bench to consider and decide whether the practice is discriminatory based on gender.
The Constitution bench will 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.