Sabarimala women entry: ‘Patriarchy alien to India’, Centre tells SC

New Delhi/Pathanamthitta: The nine-judge Constitution Bench of the Supreme Court on Tuesday began hearing the matter concerning the entry of menstruating women into the Sabarimala temple. Appearing before the Bench, Solicitor General Tushar Mehta argued that Indian society has historically accorded women a position of respect and equality. Mehta questioned the use of “patriarchy” in arguments favouring women’s entry.

“India has not only treated ladies equally, but they have always been treated at a higher pedestal. There are several judgments of the recent past where there is a concept of ‘patriarchal society’ or there is some ‘gender stereotypes’ etc. They were never there. In Indian society, we worship ladies… So let us not introduce those concepts of ‘patriarchy’ and ‘gender stereotypes’. There has never been (such notions in India),” he said.

Mehta also argued that earlier legal interventions on temple entry were aimed at addressing caste-based exclusion and not gender.

“(In the past) we unfortunately were living in a society where one particular part of Hindus was not permitted to be part of the broader Hindu denomination by denying them the right to worship. This had nothing to do with gender… There is no discrimination. (Under) Article 14 — all genders are equal. Article 15 — irrespective of sex, all fundamental rights are given,” he said.

He took exception to the Supreme Court’s 2018 Sabarimala judgment equating the restriction on women’s entry with untouchability. “India is not that patriarchal or a gender-stereotyped society as the West understands. Sometimes, that is the problem,” he added.

Justice B V Nagarathna, the only woman judge on the Bench, responded to this line of argument, questioning the application of the concept of untouchability to menstruation.

“Speaking as a woman, I can say — there can’t be three days of untouchability (for a menstruating woman) every month and then on the fourth day, there is no untouchability… Article 17 cannot apply for three days and on the fourth day, there is no untouchability,” she observed.

In response, Mehta maintained that the issue was less about individual dignity and more about respecting denominational beliefs. “I have no dispute with that. Sabarimala, I will defend in my own different way… Lord Ayyappan temples are open throughout the world for all sections of ladies, except one temple, which is a sui generis (of its own kind) case… There can be denominational practices we have to respect. Everything is not related to human dignity or individual body freedom,” he said.

Drawing parallels with other religious practices, he added: “If I have to go to a gurudwara, I have to cover my head… When we go to Ajmer Sharif, we do cover our heads… It is not taking away autonomy; it is respecting the tenets, the faith and belief of that religion.”

The 9-judge Bench is now examining the following larger legal questions:

• Ambit and scope of religious freedom;
  Interplay between the rights of people under Article 25 and the rights of religious denominations under Article 26 of the Constitution of India;
• Whether the rights of religious denomination are subject to other provisions of Part III of the Constitution;
• Scope and extent of morality under Articles 25 and 26 and whether it includes Constitutional morality;
• Whether religious denominations enjoy fundamental rights;
• Meaning of expression "section of Hindus" under Article 25(2)(b);
• Whether a person not belonging to a religious group can question the practice of that religious group by filing a PIL.

The outcome of the case is expected to have a bearing on the entry of women of menstruating age into the Sabarimala temple, where a customary restriction has been in place.
(With inputs from Bar and Bench)