Sabarimala and women – Can courts interfere and issue orders for ladies entry in Ayyappa Temple of Sabarimala?
Justice Dipak Mishra of the Supreme Court asked: “Why can you not let a woman enter Sabarimala?” Justice Mishra is heading a full bench hearing a petition filed by the Indian Young Lawyers Association and five women lawyers, praying for a direction to allow the entry of women into the Lord Ayyappa temple in Kerala without any age restriction.
Off-bench remarks or questions are not conclusions, but steps in the process. The final judgement of the apex court depends on proof of custom and usage among several other factors.
The Constitution rejects discrimination on the basis of age, gender and caste. Except in the case of a private temple, entry cannot be restricted.
This restriction was imposed under Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
The Kerala High Court had upheld the ban in 1991 and directed the Devaswom Board to implement it. Petitioners challenged this in the apex court which issued notices 10 years ago.
Access to public places cannot be denied to individuals on any ground including gender. Article 15 of the Constitution prohibits discrimination on grounds of sex. It says: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. The Devaswom Board has stated that the prohibition was based on customs followed for the past half a century. As per the jurisprudence, the custom is considered ‘law’ if its practice is proven.
Customary practices and established usage reflect the consolidated consent of people over a long period. They form exceptions to written text of law.
The factual matrix is it’s unique that the Ayyappa temple allows devotees into the most sacred Garbha Griha (sanctum sanctorum) with exceptions, while no other temple permits entry there; In Tirumala, all including VVIPs have to return from last threshold called Kulashekhar Padi before Lord Venkateshwara. No woman enters masjids even during Ramzan.
Purely religious matters are out of the jurisdiction of civil courts. Petitioners wanted the apex court to evolve guidelines in matters of gender inequality in religious practices at places of worship. Can courts issue such guidelines? Can the Executive or the Legislature interfere by framing “guidelines’ facilitating gender equality in masjids and Islamic religious or customary practices?
Madabhushi Sridhar, The writer is Central Information Comissioner, New Delhi.