The CJI reiterated that the 41-day penance condition could not be imposed on women to visit the temple, as it is impossible to be followed.
New Delhi: The Travancore Devaswom Board on Tuesday asserted that the practice of permitting women below age 10 and above 50 to Sabarimala temple has been in place since ages. It made clear that the Supreme Court should not venture to disturb that based on empty material or notions.
Senior counsel Abhishek Manu Singhvi, appearing for the Board made this submission before a five-judge Constitution bench.
Chief Justice of India Dipak Misra and Justices Rohinton Nariman, A M Kanwilkar, D Y Chandrachud and Indu Malhotra have been hearing a batch of petitions challenging the ban on entry of women, between the age group of 10 to 50, inside Ayyappa temple.
The CJI reiterated that the Board could not impose the 41-day penance condition on women to visit the Sabarimala Ayyappa temple, as it is impossible to be followed.
However, Dr Singhvi justified the imposition of 41-day penance, for both men and women to visit the temple, on grounds of the traditions that have been followed since time immemorial.
Dr Singhvi told the court, “Either you look at the entire issue freshly 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," Singhvi said.
He also 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, Singhvi submitted that the documents suggest that there is a practice on the basis of belief. He added that if the court disagrees with it, a trial must be conducted before the court sets aside a long-standing essential religious practice.
Dr Singhvi, while defending the custom, said there are many peculiar aspects to rituals and practices followed by other Hindu sects as well as non-Hindu communities.
He added that there are several mosques which bar entry of women. In some Kali temple rituals, devotees hang with hooks pierced into their skins. Shias self-lash till they bleed.
He asked, "Will the SC ban these religious practices just because of its progressive thought?"
Dr Singhvi submitted that several Hindu women understand and respect the tradition of 41-day penance and it is not a practice imposed on women by patriarchal men.
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.
When Justice Chandrachud observed that after 1950 everything is subject to Constitutional ethos, Dr Singhvi submitted that Constitutional ethos requires the court to apply the essentiality test.
He said that the test is not whether the Court agrees with the practice or not; if it is established that Ayyappa devotees constitute a religious denomination and this practice is essential to the belief.
Justice Nariman said that Constitutional morality is the compass, which applies to all faiths. But he agreed with Dr Singhvi that the bar of entry of women into mosques too would fall within this enquiry.
The CJI told Dr Singhvi that Article 26 of the Constitution protects only the essential religious practices of religious denominations and the practice followed by this temple should come within this ambit.
Justice Chandrachud asked the counsel how can we start with the unconstitutional assumption that women with reproductive capabilities are not capable of observing the 41 day penance.
Dr Singhvi submitted that there is no basis for the assumption that the practice at Sabarimala is related to menstruation.
To some extent it is related to vritham and allowing women would change the character of the temple, where the deity is a brahamachari, he said the object is not to exclude women but due to physiological reasons they get excluded. Anybody with same physiological reasons will be excluded," Dr Singhvi said.
The CJI 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.
Dr Singhvi said Sabarimala temple clearly satisfied the test of religious denomination and is protected under Article 26 of the Constitution and court cannot interfere with such religious practice of a denomination. Arguments will continue on Wednesday.