Denying right to enter temple against Constitution: SC in Sabarimala case

New Delhi: The Supreme Court on Wednesday said women have the constitutional right to enter Sabarimala temple in Kerala and pray like men without being discriminated against.

A five-judge Constitution bench headed by chief justice Dipak Misra, which is hearing a petition challenging the decision of the Devaswom board banning entry of women of age group 10-50 years, said that even if there was no law, the women cannot be discriminated against with regard to offering prayer in a temple.

"When a man can enter, a woman can also go. What applies to a man, applies to a woman also," the bench also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra observed.

"When a man can enter, a woman can also go. What applies to a man, applies to a woman also," the bench observed.

"The right to enter a temple is not dependent on a legislation. It is the constitutional right," the bench said, adding that this right is enshrined under Article 25 and 26 of the Constitution.

The bench said that the statutory and the untouchability arguments on the ban on entry of women were not so material in view of the fact that Article 25 provided the fundamental right to "freedom of conscience and free profession, practice and propagation of religion" to "all persons".

The top court was informed by the Kerala government that it also supported the entry of women of all age groups in the temple.

The bench then referred to the contrary affidavits of the Kerala government which had in 2015 had supported the entry of women but made a U-turn in 2017 and opposed the entry.

"Your right as a woman to pray is not dependent on a legislation. It is your constitutional right," Justice Chandrachud said.

The counsel for the Kerala government said that it would go by its first affidavit and support the cause of women.

"You are changing with the changing times," the bench remarked

Senior advocate Indira Jaising, appearing for one of the intervenors, assailed the practice and said that the ban on the entry of women of certain age groups was violative of various fundamental rights including Article 17 which deals with untouchability.

All persons are equally entitled to freedom of religion, the bench said, adding that the right to enter a temple was not dependent on any law.

She also referred to the definition of term Hindu under various statutes and said that the women were discriminated against not on the ground of sex but because of menstruation.

The bench termed as "absurd" the notification of Devaswom board, which runs the temple, banning entry of women of a particular age group.

Senior advocate Raju Ramchandran, who is assisting the court as amicus curiae, supported the entry of women into the temple and said that denial of the right to entry of women was violative of fundamental rights.

The bench made clear that it would not get into the running of the temple by the Devaswom board and would confine itself to the question of entry of women into the temple at par with men.

The hearing on the plea filed by petitioners Indian Young Lawyers Association and others, remained inconclusive and would continue tomorrow.

The court also referred to the preamble of the Constitution and said that words such as "dignity" and "worship" were not there in the body of the document but it read "dignity" as part of the fundamental rights.

The apex court had on October 13 last year referred the issue to a Constitution bench after framing five "significant" questions including whether the practice of banning entry of women into the temple amounted to discrimination and violated their fundamental rights under the Constitution.

Kerala chief minister Pinarayi Vijayan at Sabarimala Temple | File Photo

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