New Delhi: The Supreme Court on Friday referred to a Constitution Bench the petitions challenging the ban on entry of women in the age group of 10 to 50 in Sabarimala temple in Kerala as violative of right to equality, on the ground that important constitutional and legal principles are to be adjudicated in these petitions.
The Indian Young Lawyers Association and others filed the petition in 2006 opposing the ban on entry of women who are in the age group of 10 to 50 citing “menstruation” as the reason for such prohibition.
It was submitted by them that there is no religious custom or usage in the Hindu religion, especially in Pampa river region, to disallow women during menstrual period. According to them banning entry of women would be against the basic tenets of Hindu religion. Notifications which stipulate a ban of women from the age of 10 to 50 from entering the temple is contrary to the 1965 Kerala Temple Entry Act as well as the Constitution. It was argued that such restriction is contrary to the letter and spirit of the Constitution as enshrined under Articles 25 and 26. Further Sabarimala is not a denominational temple but a temple for all Hindus and, therefore, Article 26(b) is not attracted. The said temple permits all categories of Hindus to enter the temple regardless of the denomination.
Those who supported the ban submitted that the concept “essential part of religious practice” has to be decided by the Court with reference to the practices, which are regarded, by the large sections of the community for several centuries. It is propounded by him that a religious practice based on religious faith adhered to and followed by millions of Hindus for over a millennium in consonance with natural rights of men and women is not violative of Fundamental Rights without appreciating the scope of these rights.
Taking note of these submissions which included the plea for reference to a larger Bench, a three-judge Bench of Chief justice Dipak Misra and Justices Ms. R. Banumathi and Ashok Bhushan framed the following questions for determination by the larger Bench, viz. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an “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?
3. 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 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
4. Whether Rule 3 of 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 entry of women on the ground of sex? 31
5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization 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 III of the Constitution?
