Ban on women in Sabarimala temple not protected by Constitution, Kerala tells SC

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New Delhi : Kerala on Wednesday told the Supreme Court that Sabarimala temple does not belong to any religious denomination and it cannot invoke the protection of Article 26 of the Constitution to save the practice of prohibiting women from entering the temple having the deity of Lord Ayyappa in celibate state.

Asserting that women in the age group of 10 to 50 years cannot be barred from entering the temple, Kerala told the five-judge constitution bench headed by Chief Justice Dipak Misra that Sabarimala temple does not belong to any religious denomination and cannot be counted under Article 26 of the Constitution.

The court was told that Lord Jagannath's temple, Kashi Vishwnath temple and other similar religious places are not denominational temples but the Ramakrishna Mission is one.

With the Kerala government throwing its weight behind the petitioners who have challenged the practice, the constitution bench on Wednesday reserved its verdict after holding the hearing spread over eight days.

The hearing had commenced on July 17 and concluded on Wednesday.

On the conclusion of arguments, the court made it clear that it will decide the issue based on constitutional provision and not by the statues enacted by the state -- Travancore-Cochin Hindu Religious Institution Act, 1950 and Kerala Hindu Places of Worship (Authorization of Entry) Act, 1965.

The court gave both the petitioners India Young Lawyers Association (IYLA) and the respondents -- The Travancore Devaswom Board and Nair Service Society -- a week's time to file comprehensive written submissions.

Besides Chief Justice Misra, other judges on the bench are Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

Countering the arguments advanced by senior counsel K. Parasaran who had appeared for Kerala-based Nair Service Society, senior counsel Jaideep Gupta told the court that the constitutional provision under Article 25(2)(b) permitting the state to make laws for social welfare and reform is not limited to just social but also stretched to religious reforms.

Jaideep Gupta who appeared for Kerala government said that the Indian Constitution is reformist in approach and any interpretation has to be given a broad meaning.

Taking a dig at the arguments in defence of the practice on the grounds of its being in existence since time immemorial, Gupta said that no practice that does not conform to constitutional provisions and morality can be saved by citing its antiquity.

In rejoinder arguments, senior counsel Indira Jaising said that for a practice to be a custom, it has be from time immemorial and unbroken which was not the case with the practice of prohibiting the women in the age group of 10 to 50 years from entering Sabarmala temple.

Urging the court to rule against the practice, Jaising said that all Hindu laws be its on marriage, divorce or guardianship were based on reforming the Hindu practices.

"It is also a step in the direction of reforming a practice vis-a-vis womena, she told the court.

Amicus curiae Raju Ramachandran told the court that it is the constitutional morality that will prevail over the "sectional morality" -- morality of a section of people.

Even if, as argued the Travancore Devaswom Board and Nair Service Society, the deity of Lord Ayyappa had rights, then they too were subject to constitutional morality.

Senior counsel K. Ramamoorthy, who is other amicus curiae supporting the practice of prohibiting the women from entering the temple, told the bench: "It is a unique Ayyappa temple following a religious practice as protected by Article 25(1) on the strength of the religious practice based on the religious belief from time immemorial."

Referring to the antiquity of the practice, Ramamoorthy said that temple can invoke Article 25(1) to protect the practice and since its management is entrusted to a Board by a statute, it is duty bound to protect a practice based on religious belief.

The constitution bench was hearing an October 13, 2017 reference by a three-judge bench which had framed four questions to be addressed by it.

The four questions include whether excluding women (10-50 years) constitutes an essential religious practice 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.

Besides, the court will also decided whether the Ayyappa temple has a denominational character and if it is permissible for a religious denomination managed by a statutory board and funded by the Kerala and Tamil Nadu governments to indulge in practices violative of the constitutional principles.