Questioning age restrictions on the entry of women at the Sabarimala Temple in Kerala, the Supreme Court Wednesday observed that “what applies to a man applies to a woman” as well and said that a “woman’s right to pray was not dependent on any law but it is a Constitutional right”.
The observations were made by a five-judge Constitution Bench while hearing a petition challenging Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 under which the restrictions have been put in place on entry to the famous hill If a man can enter, then so can a woman, says SC bench shrine dedicated to Lord Ayyappa.
Chief Justice Dipak Misra heads the bench which also includes Justices A M Khanwilkar, R F Nariman, D Y Chandrachud and Indu Malhotra.
CJI Misra said: “If a man who is not a trustee or poojari can enter, then a woman can also.” He added that the only grounds on which entry can be prohibited are health, morality and public order.
The CJI also pointed out that customs which are integral to a religion are protected. “If it’s a place of public worship, you can go…she can go,” he said pointing to some lawyers.
Justice Chandrachud remarked that “your right to pray as a woman…is not dependent on any law, it is a Constitutional right” and that “one section of Hindus cannot say that their right to worship will be taken away if right is given to another”.
Advocate Jaideep Gupta appearing for the Kerala government told the bench that it was supporting the entry of women of all ages to the temple.
Senior advocate Indira Jaising, appearing for an intervenor in the matter, said the provision was discriminatory of Articles 14, 15 and 17 of the Constitution. “They argue it is not based on sex, They say it is based on menarche, the age when women menstruate”, she said. “The discrimination based on physiology applies only to women and hence it is a discrimination based on sex.”
She also pointed out that the court ruled earlier that the object of classification must also be “legitimate and Constitutional”. “Classification” in the Sabarimala instance “fails all tests of Constitutional legitimacy”, Jaising said and added that it fails Constitutional morality.
Jaising said that the states had enacted temple entry laws based on Article 17 of the Constitution abolishing untouchability. The law was intended to allow untouchables to enter temples, she said, adding that such laws apply to women as well and women cannot be discriminated against. Jaising contended that “customs must agree to Constitutional legitimacy” and said that “Constitutional legitimacy supersedes any religious belief”.
Justice Nariman also referred to the notification issued under the rules prescribing the age restrictions on women entry as “arbitrary on the face of it” as it presumes that women below the age of 10 or above 50 do not menstruate.
The bench then noted that the notification does not say anything about menstruation, but only speaks of age. “Is that fact that a woman is in her menarche have an implication on her right to worship. The answer is no,” said Justice Chandrachud.
He added if women were also a creation of God and if people don’t believe in God but at least nature, then “why should this be a basis for anything – service or worship”.
Justice Chandrachud said that if the age restriction is based on menstruation, then it is arbitrary. “If it’s linked to age, it’s per se arbitrary…if the age is linked to menarche, then also arbitrary”.
The arguments remained incomplete and will continue Thursday.