SC on Sabarimala: Women have right to enter the shrine
AmitAnand.Choudhary@timesgroup.com
New Delhi:19.07.2018
Questioning the legality of the ban on the entry of women in the age of 10 to 50 years to the Lord Ayyappa temple at Sabarimala in Kerala, the Supreme Court on Wednesday said there was no concept of private temples and there could be no discrimination on basis of gender, sex and menstrual age.
The SC said women have a fundamental right to access places of worship and the decision of the Travancore Devaswom Board to restrict entry needs to be re-examined, signalling that it might look to strike another blow in favour of women’s rights by getting a religious institution to amend its rules.
Right to worship was a constitutional right and women’s right to enter a temple was not dependent on any law, a five-judge constitution bench of CJI Dipak Misra and Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra held.
Giving a boost to the battle of women’s rights activists who are fighting for temple entry, the bench said all people were equally entitled to freedom of conscience and the right to profess, practise and propagate religion.
Can’t discriminate on ground of gender: CJI
‘Classification Is Itself Illegal And Against Constitution’
The CJI said, “If a man can go then a woman can also go. Both male and female can be denied access on the ground of health, morality and public order. What applies to the male is also applicable to female. Discrimination on the ground of gender is absolutely against the constitutional mandate. Public place is different from private place but there is no concept of a private temple. Once it is a temple, then everyone can go.”
Senior advocate Indira Jaising, appearing for NGO ‘Right to Bleed’, said the healthy biological process of menstruation is being used in the name of religion to discriminate against women and contended that a woman of menstrual age could not be treated as “polluted and untouchable”. She said the practice in Sabarimala temple of denying entry to women and girls aged 10 to 50 years led to social stigma and shame, and a modern society could not continue with “menstrual discrimination” when the Constitution mandated right to equality and health of women to achieve gender justice.
“The classification is itself illegal and unconstitutional. It fails the test of constitutional morality. It is discrimination on the ground of sex that cannot be allowed at religious places. It has not been a custom from time immemorial. Even if it is a custom, it has to be overruled,” Jaising said.
Justices Nariman and Chandrachud, however, said there was no need to invoke Article 17 (abolition of unaccountability) to examine the validity of the practice as Article 25 (right to profess, practice and propagate religion) is broad enough to allow women of all ages to enter the temple.
“Every woman is also a creation of god; if you do not believe in god, then of nature. Then why should there be discrimination on the basis of gender in employment or at places of worship?” Justice Chandrachud asked.
Justice Nariman said the classification barring women of 10-50 age group seemed unconstitutional “on the face of it” as a person could be in a stage of menstruation below 10 years or above 50 too. “On that ground itself it would be violative as it leaves out other persons who are similarly situated but can be allowed entry into the temple,” he said.
Senior advocate Raju Ramachandran, who is assisting the court as amicus curiae, said the restriction had the effect of invading the privacy of a woman. A female pilgrim making a pilgrimage to the temple was making an involuntary disclosure about her age and menstrual status. But the court said it would not go into the privacy aspect.
GENDER JUSTICE
AmitAnand.Choudhary@timesgroup.com
New Delhi:19.07.2018
Questioning the legality of the ban on the entry of women in the age of 10 to 50 years to the Lord Ayyappa temple at Sabarimala in Kerala, the Supreme Court on Wednesday said there was no concept of private temples and there could be no discrimination on basis of gender, sex and menstrual age.
The SC said women have a fundamental right to access places of worship and the decision of the Travancore Devaswom Board to restrict entry needs to be re-examined, signalling that it might look to strike another blow in favour of women’s rights by getting a religious institution to amend its rules.
Right to worship was a constitutional right and women’s right to enter a temple was not dependent on any law, a five-judge constitution bench of CJI Dipak Misra and Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra held.
Giving a boost to the battle of women’s rights activists who are fighting for temple entry, the bench said all people were equally entitled to freedom of conscience and the right to profess, practise and propagate religion.
Can’t discriminate on ground of gender: CJI
‘Classification Is Itself Illegal And Against Constitution’
The CJI said, “If a man can go then a woman can also go. Both male and female can be denied access on the ground of health, morality and public order. What applies to the male is also applicable to female. Discrimination on the ground of gender is absolutely against the constitutional mandate. Public place is different from private place but there is no concept of a private temple. Once it is a temple, then everyone can go.”
Senior advocate Indira Jaising, appearing for NGO ‘Right to Bleed’, said the healthy biological process of menstruation is being used in the name of religion to discriminate against women and contended that a woman of menstrual age could not be treated as “polluted and untouchable”. She said the practice in Sabarimala temple of denying entry to women and girls aged 10 to 50 years led to social stigma and shame, and a modern society could not continue with “menstrual discrimination” when the Constitution mandated right to equality and health of women to achieve gender justice.
“The classification is itself illegal and unconstitutional. It fails the test of constitutional morality. It is discrimination on the ground of sex that cannot be allowed at religious places. It has not been a custom from time immemorial. Even if it is a custom, it has to be overruled,” Jaising said.
Justices Nariman and Chandrachud, however, said there was no need to invoke Article 17 (abolition of unaccountability) to examine the validity of the practice as Article 25 (right to profess, practice and propagate religion) is broad enough to allow women of all ages to enter the temple.
“Every woman is also a creation of god; if you do not believe in god, then of nature. Then why should there be discrimination on the basis of gender in employment or at places of worship?” Justice Chandrachud asked.
Justice Nariman said the classification barring women of 10-50 age group seemed unconstitutional “on the face of it” as a person could be in a stage of menstruation below 10 years or above 50 too. “On that ground itself it would be violative as it leaves out other persons who are similarly situated but can be allowed entry into the temple,” he said.
Senior advocate Raju Ramachandran, who is assisting the court as amicus curiae, said the restriction had the effect of invading the privacy of a woman. A female pilgrim making a pilgrimage to the temple was making an involuntary disclosure about her age and menstrual status. But the court said it would not go into the privacy aspect.
GENDER JUSTICE
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