'High time all women are allowed into Sabarimala Temple'

There was a dose of suspense and surprise on the day when a five-judge Constitution Bench of Supreme Court reserved its orders on multiple petitions that questioned the historic decision which made it possible for women of all ages to enter the centuries-old Sabarimala temple in Kerala.

Chief Justice of India (CJI) Ranjan Gogoi, who presided over the matter for the first time since the judgment was pronounced on September 28, 2018, kept the suspense alive by refusing to make any observation during the hearing that lasted over three hours. The other judges who gave the majority view in September, namely Justices RF Nariman, AM Khanwilkar, and DY Chandrachud, maintained a studied silence with Justice Nariman being the only judge to make certain comments. However, the lone judge who dissented then – Justice Indu Malhotra was the one to spot the surprise element of the day – Travancore Devaswom Board, which changed its stand to favour with the judgment shedding its earlier objection to entry of women.

Board's counsel senior advocate Rakesh Dwivedi told the court, "We have been excluding women for a long time. But times have changed and we have to move forward by making the inclusion of women a reality in all walks of life." Before the verdict, the Board had taken a contrary stand. Back then, it had argued that excluding entry of women of menstrual age (10 to 50 years) was not gender-based discrimination but a decision taken in the interest of preserving the character of the deity Lord Ayyappa, who resides in the temple taking the form of a permanent celibate.

Justice Malhotra told Dwivedi, "You had argued just the opposite in the earlier round." The Board counsel accepted the same, saying, "After the decision of the court, the Board has taken the decision to respect the judgment." He said that the dominant theme in the Constitution is one of equality and non-exclusion. "Nobody should stand and exclude women based on their biological attributes."

Twists and turns are not new to the Sabarimala case. The current dispensation in Kerala made a U-turn during the hearing of the case on February 5, 2016, by filing an affidavit supporting exclusion. By doing so, it abandoned an earlier affidavit of the state government filed on November 13, 2007, when it had argued against any form of discrimination meted out to women from entering the temple. Later on November 7, 2016, the state government did a volte-face by adopting the 2007 affidavit.

The Nair Service Society, which has attacked the September 28 decision, was led by senior advocate K Parasaran who faulted the decision on two counts - Article 15 which prevents discrimination does not apply to religious institutions and untouchability applies to caste-based discrimination only. According to him, rationality has no place while deciding a religious practice as it requires examination of facts.

The Kerala government, represented by senior lawyer Jaideep Gupta, argued that rituals practiced at Sabarimala may be unique just as in the case of Jagannath temple, Kashi Vishwanath temple, and Tirupathi temple but not essential as these have not been declared denominational temples by the apex court. In support of the state, Indira Jaising, appearing for the women desiring to enter temple said that if a woman's conscience tells her to enter a temple, Article 25 protects every citizen's right to conscience along with religious belief.

Change Of Heart

• The Travancore Devaswom Board said it is high time that a particular class not be discriminated on the ground of ‘biological attributes’. It said, “After the decision of the court, the Board has taken the decision to respect the judgment.”
• Earlier, the Board had taken a contrary stand. It had argued that excluding entry of women of menstrual age (10 to 50 years) was not a gender-based discrimination but a decision taken in the interest of preserving the character of the deity Lord Ayyappa, who resides in the temple taking the form of a permanent celibate.