Women Entry Ban In Sabarimala, Matter Referred To Constitutional Bench

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WRIT PETITION (C) NO. 373 OF 2006

INDIAN YOUNG LAWYERS ASSOCIATION AND OTHER              ..  PETITIONERS

                                                                              VERSUS

STATE OF KERALA AND OTHERS  ..  RESPONDENTS

BENCH

DIPAK MISRA (CJI)

  1. BANUMATHI (SCJ)

ASHOK BHUSHAN (SCJ)

FACTS OF THE CASE

This is a Public Interest Litigation preferred under article 32 of the constitution of India. This case involves the prohibition of females, above the age of 10 years and below the age of 50 years, to enter the Lord Ayappa Temple at Sabarimala (Kerala). The petitioners prayed to issue appropriate writ or discretion commanding the government of Kerala, Dewaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Panthanamthitta and their officers to ensure the entry of female devotees between the age group of 10 to 50 years at Lord Ayappa Temple in Sabarimala. This prohibition of female devotees between the age group of 10 to 50 years has been established on the grounds of certain customs and usage prevalent from time immemorial. The petitioners has argued that the Rule 3(b) of the Kerala Hindu Places of Public Worship Act, 1965 ( for short “the 1965 rules”)  framed in exercise of powers conferred by Section 4 of the Kerala Hindu Places of Public Worship Act, 1965(for brevity ) is unconstitutional to the articles 14, 15, 25 and 51 – A(e) of the Constitution of India. They also prayed to pass further directions for safety of women pilgrims.

Rule 3 Framed by Section 4 of the Kerala Hindu Places of Public Worship Act, 1965

“3. The classes of persons mentioned hereunder shall not be entitled to enter or offer worship in any place of public worship or bathe in or use the waters of any sacred tank, well, spring or watercourse appurtenant to a place of public worship whether situate within or outside the precincts thereof, or any sacred place including a hill or hillock, or a road, street, or pathway which is requisite for obtaining access to the place of public worship –

  • Persons who are not Hindus.
  • Women at such time during which they are not by the custom and usage allowed to enter a place of public worship.
  • Persons under pollution arising out of birth or death in their families.
  • Drunken or disorderly persons.
  • Persons suffering from any loathsomeor contagious disease.
  • Persons of unsound mind except when taken for worship under proper control and with the Permission of the executive authority of the place of public worship concerned.
  • Professional beggars when their entry is solely for the purpose begging.”

Arguments

The Kerala High Court has upheld the practise of banning the entry of female devotees above the age of 10 years and below the age of 50 years to trek the holy hills of Sabarimala and from offering prayers at the Sabarimala Shrine during any period of the year. The High Court posed the following questions[1]:

“ (1) Whether woman of the age group 10 to 50 can be permitted to enter the Sabarimala Temple at any period of the year or during any of the festivals or poojas conducted in the temple?

(2) Whether the denial of entry of that class of woman amounts to discrimination and violative of  Articles 15, 25 and 26 of the constitution of India? And

(3) Whether directions can be issued by this court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman to the temple?”

According to the Thanthri  of the temple, the Deity of the Sabarimala temple is in the form of yogi or a bramchari. Puthumana Narayanan Namboodri, a Thanthrimukhya recognised by the Devaswom Board, examined as CW! Stated that God in Sabarimala Temple is in the form of a Naisthik Bramchari. According to him that is the reason why young women are not permitted to offer prayers in the temple.

It was contended by the learned counsel that in the manners of religious affairs not every practice is sacrosanct, for there may be many ill practices like superstitions. It is urged by him that clauses (c) and (d) of Article 26 do not create any new right in favour of religious denominations but only safeguards their rights[2].

Ms Indra Jaising the learned senior counsel submits that entry into the temple is a matter of religion as has been spelt out in Sri Venkataramana Devaru case. The learned senior counsel urge that the Section 4 of 1965 Act provides, no regulation has to be made to discriminate in any manner. She has also contended that Rule 3(b) cannot withstand the Section 4 of 1965 as it states that no regulation can bemade to discriminate in and manner whatsoever against any Hindu on the ground that he belongs to a particular section or class.

It is the contention of Ms Jaising that the temple permits all categories of Hindus to enter the temple regardless of the denomination. She states that according to the Section 4 of 1965 no regulation under this sub-section shall discriminate in any manner on the ground of section or class. But the Rule 3 framed under Section 4 of 1965 is contrary to it as the rule coupled with notifications singles out woman as a separate class of Hindus on the basis of their age i.e., between 10 to 50 years and on the based customs and usages, whose entry is prohibited onto the places of public worship.

According to Ms Jaising, if one has the right to manage the affairs of religion does not amount to have the right to ban the entry of persons inside the temple[3].

The constitutional legitimacy supersedes all religious beliefs and therefore, prohibition on entry of woman between the age of 10 to 50 years is foul on constitutional principle. She said that it is wholly unconstitutional as it creates an iniquitous discrimination perpetrating sexual differences.

The learned senior counsel have commended on the decision of  S.P. Mittal v. Union of India. It is contended that whether any practice is an integral part of the religion or not has to be decided on the basis of evidence and the question will always have to be decided by the Court and in doing so the Court may have to enquire whether the practice in question is religious in character and if it is whether it can be regarded as an integral part of the religion.

HELD

After hearing the submissions of both the learned counsel and of the State, certain significant issues have raised which needs consideration. The following are the questions that has been raised–

  • “Whether the exclusionary practice which is based upon biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15, and 17 and not the protected by “morality” as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes “ essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a “religious denomination” managed by a statutory board and financed under Article 290A of the constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/morality embed in Articles 14, 15(3), 39(a) and 51A(e)?
  • Whether Rule 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Rules permits “religious denomination” to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting the entry of women on the ground of sex?
  • Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part 3 of the Constitution?”[4]

 

By – Rustam Singh Chauhan, Student Reporter

[1]S. Mahendran v. Travancore Devaswom Board, 1991 SCC OnLine Ker 43 : AIR 1993 Ker 42

[2]Durgah Committee v. Syed Hussain Ali (1962) 1SCR 383 :AIR 1961 SC 1402

[3]Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P.

[4]Indian Young Lawyers Ass. and Ors v. State of Kerala writ petition(s) 373/2006