Sabari ‘ penance’ for women: CJI objects
Chief Justice of India Dipak Misra on Thursday orally disapproved of the Travancore Dewaswom Board’s imposition of a “41- day penance” on women to visit the Sabarimala Ayyappa temple. The CJI observed that a condition that is impossible to follow is untenable in law.
The CJI, who is heading a five- judge Constitution Bench of the Supreme Court, made these preliminary remarks as senior counsel Abhishek “Manu” Singhvi, appearing for the board, justified the imposition of a 41- day penance for both men and women to visit the temple.
The bench, which also included Justices Rohinton Nariman, A. M. Kanwilkar, D. Y. Chandrachud and Indu Malhotra, was hearing a petition filed by the Indian Young Lawyers Association and five women advocates challenging the ban in vogue for several years and seeking removal of restrictions in the entry of women.
The CJI told Mr Singhvi: “The board is actually doing something indirectly what it cannot do directly. Imposition of something which is
impossible to be done is an indirect way of debarring women in the age group of 10 to 50 as they cannot observe penance continuously for 41 days in view of the menstrual cycle.”
Earlier, senior counsel Jaideep Gupta, appearing for the Kerala government, in his brief submission, told the bench that women of all ages should be allowed entry and worship at Sabarimala Ayyappa temple without any restrictions. At present, female devotees between 10 and 50 are not allowed entry to the temple.
He said: “Nobody can guarantee that a person can live till 50 or 55 even with advancement of medical science. If a woman has crossed menopause at the age of 45 and is terminally ill, effectively she and a lot of similarly placed women will be barred from going to the temple, though they might have the desire to go.”
However, Mr Singhvi differed with the state government’s stand and said the Travancore Dewaswom Board was justified in regulating/ restricting women in the 10- 50 age group on the ground that the deity Lord Ayyapa was a “Naisthik Brahmachari” ( celibate). He said the 1,000- year- old custom and religious practice couldn’t be interfered with.
At the outset Mr Singhvi said that the entire religious practice of the temple had been distorted out of context to give the impression that the practice was barbaric and medieval. He said only this Ayyappa Temple observes this religious practice, based on a well- founded belief, that enjoys protection as an essential part of the temple under Article 26 of the Constitution.
He said this religious practice was not discrimination against women. Thousands of other Ayyappa temples in Kerala and the rest of the country allowed the entry of women without any discrimination. “When the Lord himself says don’t allow access to women in the age group of 10 and 50, how can the court go into that?” he asked. “Why do the petitioners insist on visiting this particular temple”, he further queried.
The CJI responded, saying: “Because they believe in the deity. It’s devotion which drives people to visit temples, and it is their choice and it is for you to justify why women be not allowed to enter.” Mr Singhvi said if they indeed believe in the deity, they must respect the temple traditions and observe its practices. Mr Singhvi said women of menstrual age, between 10 and 50, are not allowed to maintain the purity of the temple. He noted that concepts of purity and impurity differ across cultures. Hindus leave footwear outside temples while Christians enter churches with their shoes on. The CJI said leaving footwear outside a temple was a regulation, and couldn’t be likened to imposing a condition to debar women in a particular age group. Justice Indu Malhotra said restrictions based on menstruation were in other religions too, drawing attention to the Old Testament.
Justice Nariman said the notification imposing age curbs could have been worded better to restrict the entry of women who are of reproductive age, instead of laying down a 10- 50 age bracket. Justice Nariman asked the counsel: “What happens to a woman who stops menstruating at the age of 45?”