Ban stems from patriarchy: Supreme Court

New Delhi: The Travancore Devaswom Board on Tuesday asserted that the practice of permitting only very young and old women to Sabarimala temple is there since antiquity and the Supreme Court should not venture to disturb it.

Senior counsel Abhishek Manu Singhvi, appearing for the Board made this submission before a five Judge Constitution Bench comprising the Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chadnrachud and Ms. Indu Malhotra hearing a batch of petitions challenging the ban on entry of women between 10 and 50 in the Ayyappa temple.

Even as the CJI reiterated that Board could not impose the 41-day penance condition on women to visit the Sabarimala Ayyappa temple, as it is impossible to be followed, Dr. Singhvi justified the imposition of 41-day penance for both men and women to visit the temple on the ground of custom from time immemorial.  Dr. Singhvi told the court "Either you go for a de novo look into the entire issue or accept the practice with all its variations.

They cannot unsettle this practice in a writ petition and that too when no one has complained that they were prevented entry into the temple, he said and argued that the SC couldn't decide what is essential religious practice? "Can you unsettle the faith and practice of a core part of a Hindu religious sect?" he asked.

After reading out the historical evidence through texts, he submitted that the documents suggest that there is a practice on the basis of belief. For the Court to disagree with it, a trial must be conducted before the Court can set aside a long-standing essential religious practice, he added. Justice Chandrachud intervened and said it is because of male chauvinism. "You say, man by virtue of his dominant position is able to perform austerity and a woman is a chattel of a man... subject to the will of a man, so she can't perform austerity. How can we accept that?

Dr. Singhvi replied that such male chauvinism is prevalent in societies and religions all over the world, AM Singhvi. "We will obliterate them wherever we can," retorted Justice Chandrachud.  "Right from the day they are born women have to go through social conditioning - 'this is what you are supposed to follow, this is your role'", Justice Chandrachud added.

Dr. Singhvi replied that the Court couldn't project notions of male chauvinism from other cases to Sabarimala case without examining the evidence. Then a six-month trial is required and evidence has to be adduced.

Justice Nariman told the counsel if women can visit other Ayyappa temples on non-menstruating days, perhaps the restriction could be traced to patriarchy. Dr. Singhvi disagreed and says there is no evidence for this assumption. He said that if at all reform is called for, it has to come from within the community and not from the court, however, progressive one's views may be.