Allowing women into Sabarimala temple will alter its basic character, SC told

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New Delhi, July 25 : The Supreme Court was told on Wednesday that restriction on the entry of women in the reproductive age group of 10 to 50 years in Sabarimala temple is justified as Lord Ayyappa as “Naishtika Brahmachari” (perennial celibate) does not welcome their presence as it may disturb his penance.

Senior counsel K. Parasaran told the five-judge constitution bench headed by Chief Justice Dipak Misra that Lord Ayyappa, who is in penance, does not want the character of the temple having his deity in “Naishtika Brahmacharya” to be altered, and allowing women of all ages would result in altering the basic feature of the temple.

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

The distinction between the argument advanced by the petitioner seeking the entry of women of all age groups in the Sabarimala temple and the one advanced by Parasaran is that while the petitioner invoked the right of devotees, Parasaran pitched his argument on the rights of the deity of Lord Ayyappan.

The right of deity has been recognised by the Supreme Court in a catana of judgments in the past.

Parasaran appeared for the Kerala-based Nair Service Society.

Contending that a custom which is being followed since centuries has to be preserved and protected, senior counsel Parasaran urged the court not to interfere with the custom of the Sabarimala temple which is protected by the Constitution.

Urging the court not to interfere with the religious practice which is based on customs, Parasaran said that they are protected by the Article 25 and 26 of the Constitution.

Article 25 of the Constitution guarantees freedom of conscience and free profession, practice and propagation of religion and Article 26 guarantees freedom to manage religious affairs.

However, differing with Parasaran, the court said that the rule prohibiting the entry of women is violative of the constitutional provision undfer Article 25(2)(b) of the Constitution.

Article 25(2)(b) says that guarantee of the freedom of religion under Article 25 would not prevent the operation of existing laws or prevent the state from making any law for providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

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.

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 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.