Supreme Court to examine Sabarimala women ban

The Supreme Court on Monday indicated that it will examine whether the ban on entry of women between the ages of 10 and 50 years based on custom and tradition clashed with constitutional provisions.

Making this observation, a three-judge bench of Justices Dipak Misra, V. Gopala Gowda and Kurian Joseph, hearing a petition filed by Indian Young Lawyers Association challenging the practice denying women entry, told senior counsel Indira Jaising that it will not go into the values of the custom or tradition that women are not allowed as the deity is a “Naisthik Brahmachari”. Justice Misra told the counsel “they (temple) rely on custom and tradition. We will see whether they clash with constitutional provisions.”

Ms Jaising submitted that the denial of entry to women between the ages of 10 and 50 years is based on the fact of menstruation during that period of 41 days — vritham — and is therefore based on biological factors of womanhood. It is therefore discrimination based on sex and not protected by Article 26 of the Constitution, which gives only a right to manage religious affairs and not a right to deny women right of entry.

She argued that women constituted a class of Hindus and they cannot be therefore classified based on sex alone and treated differently from other Hindus and excluded from places of public worship.

The custom that restricts entry of women violates the right of women to equality and non-discrimination guaranteed under Article 14 and Articles 15 and 25 of the Constitution and is not protected by Article 26. Article 14 of the Constitution mandates the state shall not deny to any person equality before the law or equalprotection of laws. She said India is party to the Convention on Elimination of All Forms of Discrimination Against Women.

CEDAW mandates all state parties to overcome, dismantle and refrain from promoting gender stereotypes. Creating a stigma around menstruation and failure to prevent as well as prohibit any discrimination or stigmatisation based on menstruation is in direct contrast with the CEDAW mandate of achieving substantive equality by dismantling gender stereotypes. Senior counsel Ravi Prakash Gupta, in his submissions, said Sabarimala temple is not a religious denomination as its rituals/rites or ceremonies do not bind its followers. Even if it is a religious denomination, after the temple was taken over in 1922 by the Maharaja of Travancore it did not retain the character of religious denomination and hence women of a particular class cannot be denied entry, he said. Arguments will continue on April 22.