New Delhi, 29 April

How can a non-believer in North India claim the right of entry to the temple in Sabarimala? The Supreme Court questioned on Wednesday and said that while deciding the issue regarding the right to enter temples, it has to examine whether a devotee or a non-devotee is claiming that right.

The observation of a nine-judge Constitution bench came while hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths.

The bench comprised Chief Justice of India (CJI) Surya Kant and Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Senior advocate Indira Jaising, appearing for two women named Bindu Ammini and Kanakadurga, who are supporting the 2018 judgement, submitted that one of the petitioners is a scheduled caste woman and stopping her from visiting the temple would be a violation of Article 17 (Abolition of Untouchability) of the Constitution.

A five-judge Constitution bench, by a 4:1 majority verdict in September 2018, lifted a ban that prevented women between the ages of 10 and 50 years from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

"Today we are told that non-caste Hindus can enter Sabarimala, but not women," she said. But, because of Article 17, all men can enter, with no restriction of caste, she added.

The bench responded to the submission that the woman was not prevented because she belongs to the scheduled caste, but she was stopped as the female belonged to the 10 to 50 age group.

During the hearing, Jaising submitted that exclusion of women in the Sabarimala temple operates during the most productive and creative period of her life, that is, between 10 and 50.

"What is the status of a woman during this period? Is it not the period which is most creative and most fertile?...You cannot tell me to live half a life. Avoid living between 10 and 50, and then live before 10 and after 50. That will lead to substantial deprivation," she said.

Jaising said the right to enter a temple and worship is a fundamental right under Article 25(1) of the Constitution.

She argued that after the 2018 judgment was declared, the two women went to the temple.

"When they came out, certain Sangh leaders spoke of 'shuddhi karan.' I filed a petition in this court. This was when the judgment was in full force and effect. These were the only two women who succeeded in climbing up and performing 'darshan'.

"No one else has succeeded since then. Why? Because the State has not cooperated. They refused to give protection for going up. I filed a petition in this court in which I placed all the facts on record, including who they are, whether they are devotees, and which State they are from," she said.

At this juncture, Justice Nagarathna said, "Who is claiming this right? Is a devotee claiming the right or a non-devotee at whose instance? A person who has nothing to do with this temple is somewhere in North India. This temple is in South India. Is claiming a right of entry that also has to be addressed."

Contending that religion has the capacity to regenerate itself, Jaising told the bench that there has to be something doctrinal to be called a denomination.

Justice Nagarathna then said, "We are strong because we are diverse. Diversity is our strength. To bring about that diversity in denominations, Article 26 (b) protects it. By giving that protection, there is unity in the country. That is how one should look at it. Therefore, respect diversity."

The hearing was underway.

The top court earlier said it was very difficult, if not impossible, for a judicial forum to define parameters to declare a particular practice of a religious denomination as essential and non-essential.