Lord Ayyappa at Sabarimala too has rights under Article 21, SC told

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New Delhi : The Supreme Court was told on Thursday that it could not interfere with the practice of prohibiting women in the age group of 10 to 50 years from entering in the Sabarimala temple where the idol of Lord Ayyappa is in a state of "Naishtika Brahmacharya" as it was an essential part of temple customs.

Naishtika Brahmacharya, the five judge constitution bench headed by Chief Justice Dipak Misra, was told requires the Brahmachari to observe the vow of celibacy without any room for departure and deity too has rights under Article 21 of the Constitution.

Asserting the rights of the deity, advocate J. Sai Deepak, appearing for group "People for Dharma", told the constitution bench to balance the rights of one set of people who are advocating the entry of women of all age in the temple with that of others who want custom and tradition to be preserved.

Deepak told the court that barring women from entering Sabarimala temple is an essential part of customary practices of the temple and thus is protected by the Constitution.

Besides CJI Misra, other judges of the constitution bench are Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

He said that there was no complete ban on the entry of women but only a restriction on women in the age group of 10 to 50 years from entering the temple and it could not be construed as discriminatory.

As Justice Chandrachud said that every custom and practice will have to be examined within the constitutional framework and constitutional morality, Deepak said in that case court will have to examine the evidence on theological grounds - a view the court did not share.

Apparently not persuaded about extending the Article 21 to the deity at Sabarimala temple, Chief Justice Misra said: "The framers of the Constitution envisioned that right under Article 21 for living human beings and not for a deity."

In an argument coupled with rhetoric, the court was told that the "political correctness or the claimed popularity or otherwise of a view cannot be the touchstones for testing the validity of the impugned religious practice".

"...if that were to be the case, the constitutionality of every religious practice would need to be determined by a public poll," Deepak said, adding that "clearly, that would be untenable, unreasonable and impermissible".

Tracing the roots of practice in religious, ritualistic, puranic and tantric aspects of Sabarimala temple, senior counsel K. P. Kylasanatha Pillay said that any encroachment would trample on the rights of the Sabarimala temple and that of the devotees.

Urging the court to hold its hand, he said that any interference by the top court or judicial review of the existing custom would lead to social tensions in Kerala.

"I don't want another Ayodhya (like situation) in Kerala," he told the constitution bench cautioning against the repercussion of interfering with practice.

Pillay had appeared for the Ayyappa devotees organizations - 'Kshetra Samrakshna Samiti', 'Mathru Samiti' and 'Ayyappa Seva Samajam'.

The constitution bench is hearing an October 13, 2017 reference by a three-judge bench which had framed four questions to be addressed by it, including 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 is examining whether the Ayyappa temple has a denominational character and if it was 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.

The hearing will continue on July 31.