#SabarimalaCase: SC Interfering Due To Its Constitutional Duty, Says Justice D Y Chandrachud

Update: 26 July, 4.00 pm

The Supreme Court continued to hear the submissions today (26 July).

During the arguments today (26 July), Justice D Y Chandrachud observed that court is interfering in the issue of women between ages of 10 and 50 being denied entry to the Sabarimala Ayyappa temple due to its constitutional duty and not to assume control over religion. “The test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not,” he observed.

Earlier, appearing for the Royal Family of Pandalam, senior advocate K Radhakrishnan told the apex court that the freedom to practice religion is restricted and has to be harmonised with the restrictions without destroying the protective nature of Article 25. Radhakrishnan explained the significance of the "Irumudi" which Ayyappa devotees carry on their heads to the Sabarimala Temple.

Radhakrishnan pleaded the court to not interfere with religious practices which have been practiced for generations together. He said that the writ petitioners have no faith or belief in Lord Ayyappa and are not devotees of Lord Ayyappa. It is a publicity-oriented petition filed with the object of ensuring that the temple loses its glory.

Senior Advocate V Giri, making submissions on behalf of the Thanthri (Chief priest) of the temple, said that the Deity should be worshiped in accordance with the Shastras. He also said- “For a person to assert right under Article 25(1) is to say 'I believe in the deity'. If so, his belief must be in sync with what is an essential and core characteristic of the deity and the temple and not in conflict with it.” He argued that the petition is not for any social reform and it has to be left to the legislature to decide what a social reform is.

Sai Deepak J, appearing for People For Dharma, said that if deity is a juristic person and can be taxed, he equally has rights under Article 21, 25 and 26. His right to remain a "naishtika Brahmachari" (eternal celibate) part of right to privacy falls under Article 25, he said.

Religious denominatiom in Hindu faith is not comparable to similar ones in say Christianity, Deepak said, adding that the status of denomination is not bestowed by the court.

Public character of an institution does not take away the identity of the institution, said Deepak, who Chief Justice Dipak Misra remarked was making impressive agruments.

Deepak said “Naishitka Brahmacharya” is not with respect to men alone, there are instance of women also and pointed out at the case of Kamakhya temple.

Staing that not every exclusion is discrimination, Deepak said that notifications are codification of existing practice or custom. “By striking down the same we are not merely quashing the notification but also going against the custom,” he said.

Appearing for the Ayyappa Seva Sangham, senior counsel Kailasanatha Pillai asked the judges to find a way to uphold this custom of barring women between ages of 10 and 50 so that other similar customs are not disturbed.

“This matter should not be viewed from strict legal sense. Kelsen's theory should not be applied here. Rather than Kelsen's Pure Law theory, it is Indian realism that should be applied. Indian realism means Constitution cannot be interpreted without taking into account social realities,” Pillai argued.

The hearings will continue 31 July.

Update: 26 July, 11.00 am

The Supreme Court will continue its hearing on a petition questioning the ban on women from entering the Sabarimala Ayyappa Temple. The apex court is hearing the petition on a daily basis and this week the arguments have centred around the facts that the practice is not misogyny or discrimination of women.

On Tuesday, senior counsel and Congress leader Abhishek Manu Singhvi, arguing for the autonomous Travancore Devaswom Board, told the judges if the ban on women's entry comes under the constitutional scrutiny, then the ban on women entering mosques will also have to be dealt with. He argued that religious beliefs cannot be questioned by court and pointed out that some temples like the Thiruvananthapuram Aatukaal Bhavathy Temple bar men.

On Wednesday, 90-year-old senior counsel K Parasaran, appearing from the Nair Service Society, told the court that the ban on women can't be treated as caste-discrimination. In particular, he said Article 17 and Article 25 (2)(b) cannot be applied to this ban since they deal with caste-based discrimination.

The senior counsel told the judges that the bar is in view of the celibate nature of the Deity Ayyappa.

Watch out for further developments and arguments in this case here.

Read: Why Sabarimala Case Is Different From Triple Talaq Or Haji Ali Dargah

Updated: 25 July 4.15 pm

Reading portions of the debates relating to Article 17, Parasaran says it clearly shows that the Article deals only with caste-based untouchability.

He specifically shows the rejection of the amendment of Article 15 by the Constituent Assembly with respect to inclusion of religious places.

Even if Article 25(2) applies to women, it is only with respect to social issues and not religious issues, he says. Article 25(2)(b) is at best an enabling provision for the legislature, it doesn't enable the judiciary.

Parasaran says that there are several other famous Ayyappa Temples in Kerala which allow entry of women without age restrictions. Therefore, the Sabarimala Temple is not a case of discrimination. Parasaran concludes his submissions.

The Bench will hear the Counsels for the remaining respondents and intervenors on Thursday (26 July).

Updated: 25 July 3.15 pm

Justice Nariman asks: "Assume that we agree with your submissions, then please explain to us why can't the state fall back on 25(2) citing religious reform? Also what about the rights of women under Article 25(1)?“

Parasaran says that the case that is being argued does not involve a social issue but a religious issue. By using 25(2), you will reform a religion out of its identity.

Justice Nariman agrees with the submission of Parasaran on the inapplicability of Article 25(2) to the issue at hand.

Parasaran walks the Court through judgements on rights of religious denominations and submits that by abolishing the practice, the very character of the religious institution will be irreparably altered affecting the rights of devotees under Article 25(1).

Parasaran says that Constitutional law is his first love and that it is his privilege to argue in this matter when he has otherwise stopped taking up matters.

Updated: 25 July 2.45 pm

Parasaran resumes submissions post lunch. He says that women do not fall under the protection of Article 25(2).

Justice Nariman wonders if scheduled caste women will be protected by Article 25(2). Parasaran disagrees and says 25(2) treats the community as a class, not on the basis of gender. He submits that even Article 15 does not apply to religious institutions which is evident from the language of the Article itself.

Parasaran says that Article 25(2) deals only with secular aspects and right of entry of classes or sections. It does not, therefore, apply to religious aspects or right of entry based on gender.

Parasaran says that if the intention of the Constituent Assembly was to include religion in Article 15, the makers would have.

Justice Rohinton Nariman agrees with Parasaran's interpretation of Articles 15(2) and 25(2). Justice Nariman agrees that the object of Article 25(2) and Article 17 are the same i.e. to address caste-based untouchability and not gender.

Updated: 25 July, 1.15 pm

Parasaran says that misogyny is not supported by Hindu Shastras nor is chastity the sole obligation of the woman. In fact, chastity is a greater obligation on the man and he is duty bound under the Shastras to give a pride of place to the woman.

He submits that the practice in Sabarimala by no stretch of imagination is informed by misogyny. The only consideration is the nature of the Deity.

Referring to Article 25(2)(b), he says it applies only to social reform and does not apply to matters of religion covered by Article 26 (b).

Justice D Y Chandrachud wonders if Article 25(2)(b) applies to only Hindu institutions. To this, Parasaran responds by saying that the practice sought to be addressed by the said Article is peculiar only to Hindu institutions.

Hearings will continue post-lunch.

Updated: 25 July, 12.45 pm

Parasaran points out that thousands register for Padi Pooja at Sabarimala Ayyappa temple, the consequence being that the pooja will be conducted in their name long after their death.

Parasaran, therefore, says that using death as an argument to upset the tradition is neither here nor there. He argues that the basis of the practice is the celibate nature of the Deity, not misogyny. Devotees who visit the Temple too are expected to observe celibacy in letter and spirit. Hence, during the journey, company of women must be avoided.

Parasaran reads out portions from the Sundarakanda of the Ramayana to explain the concept of Naishtika Brahmacharya.

Update: 25 July, 12.00 pm

Senior advocate K Parasaran has begun making his submissions on behalf of the Nair Service Society. He says that communities in Kerala are largely matriarch in nature and it is fundamentally incorrect to assume that the practices are patriarchal.

Parasaran argues that Lord Ayyappa's character as a Naishtika Brahmachari is protected by the Constitution. He also says that the Sabarimala issue should not be approached with the notion of patriarchy.

Parasaran submits that if a person asks "can I smoke when I pray?" he will get a slap. But if he asks "can I pray as I smoke?" he will be appreciated, adding that a right question will get a right answer.

Parasaran further submits that in this case he has to be even more careful and prepared because he is answerable not just to the Lordships but also the Lord above.

He says that even democracies, especially democracies, must protect religion and tradition.

Parasaran refutes the argument of the petitioner that some women may die before they reach the age of 50, adding that a person carries her or his fate with him. “That's not a legal consideration to reverse the tradition,” he says.

Update: July 24, 4.25 pm

Singhvi concludes his argument opposing the petition to allow women’s entry into the Sabarimala Ayyappa temple.

Parasaran will begin his arguments on behalf of the Nair Service Society.

Update: July 24, 4.00 pm

Senior advocate K Parasaran, who appears for the Nair Service Society opposing the entry of women into the temple, points out that the petitioner is not claiming a right of worship. They have filed the petition as a social issue. They can't even assert Article 25(1).

Dr Singhvi says that the issue of evidence of tradition only after a trial is conducted before the Court exercises powers under Article 32. He submits that Moharram processions too could be objected to on grounds of notions of savagery or barbarism prevalent in 2018.

Singhvi cites the practice of Aghoris to point to the diversity of Hindu practices and draws attention to Judaism's approach to menstruation. Justice Indu Malhotra acknowledges the example.

Singhvi argues that if at all reform is called for, it has to come from within the community and says that several Hindu women understand and respect the tradition. It is not a practice imposed on women by patriarchal men.

Justice Chandrachud observes that the acceptance by women could be the result of social conditioning. Singhvi responds that it is not true in this day and age and begins arguing on the Petitioner's contention on Article 14. He submits that the classification is intelligible and is intra-women, not men versus women.

Justice Chandrachud asks why there is no puberty or andropause related restriction on men. Singhvi says that the comparison doesn't hold water since the condition is based on the celibate nature of the Deity.

Justice Nariman asks if women can visit other Ayyappa Temples on menstratuating days, perhaps the restriction can be traced to patriarchy. Singhvi disagrees and says there is no evidence for this assumption.

Singhvi submits that the Court cannot project notions of male chauvinism from other cases to Sabarimala case without examining the evidence. He proceeds to address the Article 17 argument of the petitioner, to which the CJI says that the Article may not apply to this case

Update: 24 July, 3.30 pm

Singhvi places reliance on the Ratilal Panachand judgement of the Supreme Court and quotes examples of temples that place restrictions on the entry of men.

He cites the Brahma Temple in Pushkar, a Parvathy Temple in Tamil Nadu, Attukal Bhagavathy Temple in Kerala, a Bhagavathy Temple in Kerala and a Temple in Bihar.

Singhvi reiterates that all Mosques in India, except the Fatimid Bohri mosque, bar women from entering. He says that if the position of the petitioner were to accepted, it would affect practices at these temples also. Not all practices are based on misogyny.

Update: 24 July, 2:15 pm

Singhvi refers to Venkataramana Devaru judgment and submits that if the law protects even dietary prescriptions based on religion, it certainly protects practices relating to entry into temple and worship of the Deity

Singhvi reads out extracts from judgements which emphasise the importance of Agamas.

He submits that it is not for the Court to comment on the rationality of religious beliefs. That the belief exists and traditions based on the belief have been practiced for centuries is sufficient to merit protection under Article 26.

Update: 24 July, 2.50 pm

Singhvi resumes and submits that the Court cannot be invited without evidence to rule on facts that the practice in question is not longstanding. He takes the Court through judgements on what constitutes as essential religious practice and what constitutes a religious denomination.

Reading out extracts from the Shirur Mutt decision, then reads out extracts from the 2014 Chidambaram temple judgement. Justice Nariman remarks: "What an outstanding judgement! Outstanding!"

Justice Chandrachud asks if all classes of Hindus can worship at the Sabarimala Ayyappa Temple and would the Temple still constitute a religious denomination.

Singhvi submits that even if Ayyappa Devotees don't constitute a religious denomination, they have rights under Article 25 (freedom to practice religion).

Update: 24 July, 1.15 pm

Justice Nariman acknowledges that neither the state nor the temple board have said in their affidavits that the restriction is based on any notions of impurity associated with menstruation.

Singhvi says that the Thanthri of the Ayyappa Temple is the last word on the religious practices observed by the Temple and where he is unsure, he has recourse to the practice of Devaprashnam.

He reads out extracts from the judgement of the Kerala High Court. Justice Nariman points out that the High Court has held that Ayyappa devotees constitute a religious denomination under Article 26.

The Chief Justice questions the assumption that Ayyappa devotees constitute a religious denomination, whereas Justice Nariman seems to agree that they indeed constitute a religious denomination.

After reading out the evidence, Singhvi says that the documentary suggests that there is a practice on the basis of belief. For the judges to disagree with it, a trial must be conducted before the Court can set aside a long standing essential religious practice.

Singhvi says that the burden is on the petitioner to show evidence to dispel the practice which they have not placed so far. He submits that a time-bound six month trial should be conducted so that all parties can lead evidence with respect to the practice, before a decision is taken.

Justice Nariman points out that the one who asserts the custom must prove it. Singhvi says that he has already placed the evidence on record

The Chief Justices says that Singhvi has to prove that Ayyappa devotees constitute a religious denomination.

Arguments will continue post-lunch.

Update: 24 July, 12:45 pm

Justice Chandrachud wonders how could the court start with the unconstitutional assumption that women with reproductive capabilities are not capable of observing the 41-day penance.

Singhvi says that the test under the law is not whether you can exclude women. The test is what does the practice prescribe. He points out that no woman is allowed to enter a Mosque in India, regardless of whether she is menstratuating or not. He says that the test is whether the practice is long established and if it is bonafide. The test is not whether the Court agrees the practice or not if it is established that Ayyappa devotees constitute a religious denomination and whether the practice is essential to the belief.

Justice Chandrachud observes that after 1950 everything is subject to Constitutional ethos. Singhvi says that Constitutional ethos requires the court to apply the essentiality test.

Justice Nariman observed that Constitutional morality is the compass which applies to all faiths and agrees with Singhvi that the bar of entry of women into Mosques too would fall "within this enquiry".

Chief Justice Deepak Misra weighs in and observed that Article 26 protects only the essential religious practices of religious denominations. Singhi argues that if the restriction on entry has a nexus to the essential religious practice, it is also protected by Article 26.

The Chief Justice observes that the first thing that needs to be looked into is whether the restriction on entry of women with reproductive capabilities constitutes an essential part of the religious practice of the Ayyappa Temple in Sabarimala. Singhi then comes up with documents showing various aspects of the vow undertaken by the devotees before they start the journey to the temple.

Update: 24 July, 12.30 p

Abhishek Manu Singhvi resumed his argument on the bar for women to enter Sabarimala Ayyappa temple. Arguing on behalf of the autonomous Travancore Devaswom Board (TDB), he says very Ayyappa devotee who observes the vow is himself treated as a Swami, which epifies the line Tat Tvam Asi.

Intervening, Justice Rohington Nariman points out that the TDB had earlier submitted before the Kerala High Court that even menstruating women were permitted on the first five days of the relevant month (of the Malayalam calendar). He wonders what happens to the celibate nature of the deity when women are allowed during specified days of the year and asks if the practices is a recent one or an “immemorial one”.

Placing the history of the temple before the apex court, Singhvi says the vow has to be observed for 41 days prior to visiting the shrine. Pointing out that the court, at this stage, is looking at all aspects afresh, he says is no basis for the assumption that the practice at Sabarimala is related to menstruation. He says that the language of the impugned notification of the age bar can be reworded to one which is based on women with reproductive capabilities as opposed to age.

Singhvi also read out extracts from the history of the Temple and the celibate nature of the deity.

A five-judge constitution bench comprising of Chief Justice Dipak Misra, Justices D Y Chandrachud, Rohinton F Nariman, A M Khanwilkar and Indu Malhotra is hearing the petition demanding the entry of women into Sabarimala temple.

Sabarimala temple prohibits women aged between 10 to 50 years from entering. The matter is scheduled to be heard 11:30 am.

Earlier, the apex court had observed that women have a constitutional right to enter temples. “The right to enter a temple is not dependent on a legislation. It is a constitutional right,” the bench had observed.

Kerala government had informed the court that it supports entry of women into the temple, after opposing it in an affidavit filed in 2017.

The court has appointed senior advocate Raju Ramachandran as amicus curiae for the case. Ramachandran has spoken against prohibiting entry of women into temples, saying is violative of fundamental rights.

Appearing for the Travancore Devaswom Board, Congress leader and senior advocate Abhishek Manu Singhvi had told the court that there were thousands of other Ayyappa temples across the country where there were no such restrictions. However, the Chief Justice intervened to say people flocked to Sabarimala because they believed in the deity. “If they (people, especially women) believe in the deity at Sabarimala, they must respect the traditions of the temple and observe its practices,” he had said.