A Constitution Bench, led by Chief Justice of India (CJI) Dipak Misra, on Wednesday continued its hearing on the issue relating to the ban on entry of women between 10 and 50 years of age inside the Sabarimala temple in Kerala.
The Bench also comprised Justices R.F. Nariman, A.M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra.
Senior advocate Indira Jaising questioned whether Rule 3(b) is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and is violative of fundamental rights.
Justice Chandrachud said the problem of entry in Sabarimala may not be under Article 17 (untouchability) but can be resolved by expanding “all classes and sections” in Article 25(2)(b) to women.
Ms. Jaising said the Sabarimala prohibition is a discrimination not just on gender but sex. “Menstruating women are viewed as polluted. The prohibition, they say, is not based on religion but custom. Freedom of conscience resides in humans. Institutions only have the right to manage their affairs. It is my right to worship. Denominations have no right under Article. 25.”
The CJI said, “Where a man can enter, a woman can go. What applies to a man, applies to a woman. There is no concept of a ‘private mandir’. There is no concept of a temple for private use. Once you open a temple, you can go, Mr. Raju Ramachandran can go... everybody can.”
Ms. Jaising said, “Religion is a relationship between you and your creator. There is nothing in health, morality or public order that prevents a woman from entering and offering worship in a temple opened for the public.”
Justice Chandrachud, quoting Article 25(1), said:
“All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. This means your right as a woman to pray is not dependent on a legislation. It is your constitutional right.
''Article 25(2) merely says that nobody has an exclusionary right of entry to a temple. It compliments Article 25 (1) which says 'all are equally entitled'.
“If a woman is a creation of God, if you don't believe in God, then of nature. Why should this [menstruation] be a reason for exclusion? Tagging religious belief with menarche is absurd. Exclusion on the basis of age of a woman is irrelevant, tagging age with menarche is even more so.”