Women devotees and others defending age restrictions on entry of women to Sabarimala shrine in Kerala told the Supreme Court Thursday that the Ayyappa deity was a juristic person with fundamental right to privacy and the celibate nature which was its integral feature and should not be disturbed.
“For anyone to assert their right under Article 25(1) — freedom of conscience and right freely to profess, practise and propagate religion — is to say ‘I believe in the deity’. If that is so, their belief must be in sync with what is the character of the deity which is an essential and core characteristic of the deity and therefore the religious denomination. The character of the deity cannot be wished away,” senior advocate V Giri, appearing for the temple ‘tantri’ (priest) told the bench headed by Chief Justice of India Dipak Misra. The other judges on the bench were Justices A M Khanwilkar, R F Nariman, D Y Chandrachud and Indu Malhotra.
Intervening later, Justice Chandrachud said as a result of the essential practice doctrine, judges, including those of the Supreme Court, were being called upon to play the role of theologians. “The question is do we ascribe any role to the Constitution which overpowers all other practices,” Justice Chandrachud asked. He said the real test was not whether it was essential practice but whether it subscribes to the Constitution, and added, “in that case, a class cannot be excluded on grounds of physiology.”
Only women below 10 years and above 50 are allowed entry to the temple.
Advocate J Sai Deepak, appearing for People4Dharma, a trust floated by women devotees who ran a campaign ‘Ready to Wait’, said the essential practice test was necessary.
Sometimes judges will have to play role of theologians while deciding matters of religion, he said, and referred to the case of the entry of women into Haji Ali Dargah. The Bombay High Court had gone into Hadith and other Islamic scriptures while arriving at a decision, he said.
Deepak said every exclusion was not discrimination and that the petitioners were confusing diversity of Hinduism with discrimination.
He said the deity has been held to be a living juristic person for the purpose of tax and had fundamental rights under Article 21 and Article 25(1), including right to privacy. The deity, therefore, has the right to preserve his dharma and it is the will of the deity that it is expressed in the form of temple customs, he said.
CJI Misra asked if the Constitution makers had envisaged any Article 21 rights for the deity. The counsel said Articles 25 and 26 (freedom to manage religions affairs subject to public order, morality and health) was a social contract between the state and faith regarding the jurisdiction of each.
Justice Nariman pointed out that the priest’s affidavit had said women are not allowed because they cannot complete the 41-day vratham (penance). Deepak replied that the exclusion was on account of the deity’s celibacy and not menstrual practices. “Menstruation is not impure.”
Giri also asked the petitioners to make a declaration that they believe in the temple, Ayyappa and idol worship if they wanted to enforce their rights under Article 25(1). The petitioners, he said, had contended that they were helping a social cause. That doesn’t come under Article 25(1) but in the realm of legislature, he said.
Advocate Kailasanatha Pillai, appearing for one of the respondents, said the court has to be circumspect while exercising judicial review in matters of faith and added that if it is not, this will lead to social tension in Kerala. Pillai added that he did not want “another Ayodhya”.