SC refers ban on women’s entry at Sabarimala to constitution bench

CJI Dipak Mishra, “The Constitution Bench would now decide whether the practice...was gender discriminatory, violating their right to equality, religious freedom.”

The Supreme Court on Friday referred to a five-judge Constitution bench the petitions challenging the practice of not allowing women between the age group of 10 to 50 entry in Kerala’s famous Sabarimala temple.

In this Dec. 1, 2015 photo, worshippers queue during a pilgrimage at the Sabarimala temple. (AP File Photo)

Transferring the case to a larger bench, a three-judge bench, led by Chief Justice Dipak Mishra, said, “The Constitution Bench would now decide whether the practice of ban on women was gender discriminatory, violating their right to equality, religious freedom.”

Framing the questions for adjudication, the court said it need to be tested -- “if the exclusionary practice, which is based upon a biological factor exclusive to the female gender, amounts to discrimination and thereby violates the very core of the Constitution?”

“Whether the practice of excluding such women constitutes an ‘essential religious practice’ and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion” is another question that will be settled by the five-judge bench.

A petition was filed in SC by the Indian Young Lawyers Association challenging the custom, saying it was discriminatory. The Kerala high court had upheld the custom in 1991. In February this year, the Supreme Court reserved its order in the matter and asked the concerned parties to file a written submission, which should fall under the Constitutional framework.

In Kerala, the state’s LDF government had in 2007 favoured the entry of all age groups of women into the shrine but the UDF government later opposed this. The LDF, which came back to power in 2016, has returned to its old stand of favouring entry.

But the petitioners have disputed the position taken by the Kerala government . They assert there is no religious custom or usage in the Hindu religion, especially in the Pampa river region, to disallow women during menstrual period. They say banning women is against the basic tenets of Hindu religion. it is not a custom as is conceived of by the authorities and even if it is accepted as such, it is wholly unconstitutional as it creates an invidious discrimination perpetrating sexual differences.

(With inputs from HTC in Thiruvananthapuram)