SC hints referring Sabarimala temple entry case to Constitution Bench


Indicating that it will refer the Sabarimala temple entry restriction on women of a certain age to a Constitution Bench, the Supreme Court on Monday said the main issue to be decided is whether the multitude of worshippers of Swami Ayyappa visiting the famous shrine located in Kerala form a separate “denomination”, and if so, should their privilege to manage their religious affairs yield to the fundamental rights of women to practice religion freely.
Temple restricts women aged between 10 and 50 from taking the pilgrimage to Sabarimala – which means women are banned from even making the arduous trek to the shrine.
The restriction finds its source in the legend that the Sabarimala temple deity – Swami Ayyappa – is a ‘Naishtika Brahmachari’ – and should not be disturbed. A 1991 Kerala High Court judgment supports the restriction imposed on women devotees. It had found that the restriction was in place since time immemorial and not discriminatory to the Constitution.
On Monday, a three-judge Bench of Justices Dipak Misra, R. Banumathi and Ashok Bhushan reserved its judgment on the question of referring a batch of petitions challenging the temple’s restriction to a Constitution Bench of five judges of the Supreme Court. The court asked all the parties in the case, from various petitioners, women’s organisations, Ayyappa groups, State of Kerala and Travancore Devaswom Board, which manages the shrine, to suggest legal questions which the three-judge Bench would formally refer to the Constitution Bench to answer.
The Bench said the 1991 judgment of the High Court upholding the restriction is no bar on a Constitution Bench of the Supreme Court from deciding the issue afresh. “We are not bothered by the principle of res judicata,”Justice Misra responded to senior advocate K.K. Venugopal, who represents the Devaswom Board. Met with objections from the Pandala royal family and several Ayyappa groups that the deity is not “interested” in women devotees of the restricted age bracket from visiting him, Justice Misra reacted that such arguments merely based on conjecture without any constitutional basis cannot be entertained in the Supreme Court.
“Deity’s interest is a hypothesis which we do not want to comment on now. It is not within our domain. God is everywhere, in every atom,” Justice Misra remarked.
“But the deity is a perpetual minor, the case cannot be decided without considering his interest,” advocate V.K. Biju, appearing for Rahul Easwar, president of Ayyappa Dharma Sena, argued.
Justice Misra orally observed that the primary questions which the larger Bench would have to answer is whether the restriction is a “permissible practice”, whether the Ayyappa devotees visiting Sabarimala form a religious denomination, thirdly, who is the competent authority to decide on whether the restriction comes within the ambit of ‘custom’ and, fourthly, whether such a ‘custom’ comes under the constitutional principles.


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