Senior counsel Kailasanatha Pillay said though Samiti members are peace loving, yet 'I don’t want another Ayodhya in Kerala'.
New Delhi: The Kshetra Samrakshana Samiti on Thursday urged the Supreme Court not to tinker with the age-old custom and religious practice and said allowing women in the age group of 10 to 50 to enter the Ayyappa temple “will lead to social tensions in Kerala.”
Senior counsel Kailasanatha Pillay, appearing for the Samiti made this submission before a five-judge Constitution Bench comprising the Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Kanwilkar, DY Chandrachud and Indu Malhotra hearing a batch of petitions challenging the ban on entry of women between the age of 10 and 50 into the temple. He said though members of the Samiti are peace loving people, yet “I don’t want another Ayodhya in Kerala”.
Earlier the CJI told the counsel “if you say it is a public temple, then the custom and essential and practice must be integral to the religion; the question is how far the practice of exclusion of a certain category of women is valid. Your custom must stand the test of constitutional provisions.”
The CJI said, “one can have rights to regulate rituals, but you cannot impose discriminatory conditions. The court cannot be oblivious to the fact that one class of women is excluded on physiological grounds. Can there be a custom and integral religious practice, which excludes women, if so it is extremely arbitrary? You cannot exclude a class of citizens. The right of a devotee to have a glimpse of the deity cannot be curtailed.”
Pillay argued that this is pre-constitutional custom and it cannot be seen in isolation. It has to be viewed along with other customs associated with Sabarimala temple. “Your Lordships have to find a way to uphold this custom so that other similar customs are not disturbed. Your Lordships have to be very circumspect when exercising judicial review in matters of faith. Any decision from the Supreme Court to do away with this custom will lead to social tensions in Kerala”, counsel added.
Young lawyer Sai Deepak appearing for People of Dharma argued that the public character of an institution does not take away the identity of the institution. Ayyappa devotees themselves form a `religious denomination’ and their rights must be protected. He said the exclusion of a certain category of women does not mean discrimination.
Sai said the deity as a juristic person has certain rights under Article 21 and 25 (1), which must be respected. There is no doubt that individualism should be respected but when you go to a public place of worship you have to subject to yourselves to that right.
He said there is no connection whatsoever to the impurity of menstruation forming the basis of the religious practice. He said menstruation per se is not regarded as impure. He cited the example of Kamakhya temple. The celibate nature of the Deity is also evidenced from the Tamil translation, Sri Bhoothanathan, of Sri Bhoothanatha Upakhyanam, which is the Sthalapuranam of the Sabarimala Temple. This book sets out the celibate nature of Lord Ayyappa.
Justice Chandrachud intervened and observed, “It is constitutionally impermissible to exclude a section of women on the basis of their physiological conditions. However essential that practice is, it cannot alter basic constitutional principles. If our Constitution overrides all other aspects, there cannot be an exclusion of women from temples.”
Justice Nariman observed that our Constitutional goal is to balance rights. "You have a right subject to other persons right, subject to other fundamental rights and subject to laws made. There is a problem with our jurisprudence.”
Justice Chandrachud observed, “If something is essential it becomes inviolable. The test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not. Due to this essentiality doctrine, Judges including Supreme Court judges are now assuming a theological mantle, which we are not expected to do. The court is interfering in the matter due to its constitutional duty and not to assume control over religion.”
Senior counsel V Giri appearing for the Thantri of Sabarimala Ayyappa temple submitted that the Deity should be worshipped in accordance with the Shastras.
Giri submitted that life is infused in the sculpture by prana pratishtana. That life is kept alive by the preserving the unique character of the Deity.
Giri argued that only those who have faith in the practices and rituals of the temple deity could claim the right to worship under Article 25(1) of the Constitution. One cannot use social justice argument to change essential characteristics of a temple. Further, the characteristic of the deity cannot be changed on the plea of people who are not even asking for the right to worship.
Senior counsel K Radhakrishnan, appearing for the Pandalam King, the founder of the temple said the impugned practice is a non-secular essential religious practice. The essential religious practice of the 41-day penance is executed with self-restraint by the devotees in obedience to the will of the Lord and in accordance with the Institutional morality.
The impugned practice gets constitutional protection through the freedom of conscience. They cannot be constitutionally persuaded to go to the temple against the freedom of their conscience. That is against the concept of constitutional justness. The women in this age group have got a clear perception of worship of Lord Ayyappa. Greatest caution is necessary when one seeks to produce equality since a single error can overturn the social order, he said. Arguments will continue on July 31.