SC to decide whether to refer Sabarimala issue to larger bench

The Supreme Court today reserved its verdict on whether to refer the matters pertaining to the ban on entry of women aged between 10 to 50 years at Kerala’s Sabrimala temple to its constitution bench.

Supreme Court, D Y Chandrachud, S K Kaul, Directorate General of Defence Estates , NGO, Public Accounts Committee, J S Khehar
A bench headed by Chief Justice J S Khehar issued notice to the government on the plea which has also sought creation of a 'unified authority' to take steps to free the encroached defence land.(ANI)

The Supreme Court today reserved its verdict on whether to refer the matters pertaining to the ban on entry of women aged between 10 to 50 years at Kerala’s Sabrimala temple to its constitution bench.

A three-judge bench headed by Justice Dipak Misra said it would deliver a judgement regarding the “complexities of the issue” and may refer the matter to a larger bench for its consideration.

“We have heard the counsel appearing for the parties. Judgement reserved on the question whether the matter should go to a larger bench or not,” the bench, also comprising Justices R Banumathi and Ashok Bhushan, said.

The bench asked the parties, including the petitioners, respondents and the amicus curiae, to furnish within a week their written submissions and questions which may be referred to a five-judge constitution bench.

“Counsel for the parties shall file written submissions/ questions, which should fall under the constitutional framework, that is likely to be referred to the larger bench,” the apex court said.

The management of the Sabarimala temple, located on a hilltop in the Western Ghats of Pathanamthitta district, had earlier told the apex court that the ban on entry of women aged between 10 and 50 years was because they cannot maintain “purity” on account of menstruation.

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The court is hearing a plea challenging the practice of banning entry of such women in the temple.

During the hearing today, the bench observed: “Regarding the complexity of the issue, we will deliver a judgement. We can refer the matter to a constitution bench. It (judgement) will create a background for the constitution bench. You can give us the issue which are to be dwelt upon”.

Senior advocate K K Venugopal, representing the Travancore Devaswom Board which manages the hill-top shrine, argued that the alleged discrimination was not between men and women but between women and women.

He said the matter involves interpretation of Articles of the Constitution and argued that, in this matter, Article 26 of the Constitution would prevail over Article 25.

Article 26 relates to the freedom to manage religious affairs subject to public order, morality and health and states that every religious denomination or any section shall have the right to manage its own affairs in matters of religion, while Article 25 speaks of freedom of conscience and free profession, practice and propagation of religion.

Venugopal told the apex court that there was no question of “absolute prohibition” as women below the age of 10 years and above 50 years were permitted to enter the temple.

He said that according to customs, Lord Ayyappa, being a bachelor, had said that women would not enter the temple and it was an “age-old” practice that was being followed.

However, the counsel, who is opposing the ban on entry of women, said that fundamental rights of a person, irrespective of the gender, cannot be violated.

Some counsel, supporting the ban on entry of women, said that deity has its own right and this practice has been followed at Sabrimala temple since long.

To this, the bench observed that “the theories you are propagating and the hypothesis on the basis of which you are arguing, we do not intend to comment because it is not in our domain”.

“There is no doubt that apart from being omnipresent, the God, whether he or she, is present everywhere in every item. We are not going to discuss about that. There is distinction between religion and spirituality, spirituality and philosophy and philosophy and religion,” the bench observed.

“We are too small to understand the ways of god. Let us not go into that,” the bench said.

Some of the advocates argued that it was important to ascertain what were the customs and the age old practice which was followed there.

“It has to be determined whether this place of public worship belongs to a particular denomination,” the court said.

The bench also allowed various applications, filed in support and against the ban on women’s entry, seeking impleadment in the matter.

It, however, clarified that in due course of the hearing, these applicants will be permitted to file their written submissions.

The bench declined the request of some of the applicants that they should also be allowed to file written submissions for the issues which may be dwelt upon by the larger bench.

The counsel representing one of the applicants told the bench that there was no issue of gender discrimination in the matter as, “if the customs are violated, it will amount to violation of fundamental rights”.

“The entire world is watching the result of this litigation as it will have a far-reaching consequences,” the counsel said.

On November 7 last year, the Kerala government had informed the apex court that it favoured the entry of women of all age groups in the historic Sabarimala temple.

Initially, the LDF government had taken a progressive stand in 2007 by favouring women’s entry in the temple, which was over-turned by the Congress-led United Democratic Front (UDF) dispensation later.

The UDF government had taken a view that it was against the entry of women of the age group of 10-to-50 years as such a practice was being followed since time immemorial.

The apex court had observed that women are conferred with constitutional rights and it would pass a detailed order in case the matter is referred to such a constitution bench.

It had questioned the practice of barring entry of women to Sabarimala temple, saying it would test whether “faith and belief” can differentiate among persons of the same denomination.

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