New Delhi: The celibate nature of Sabarimala temple’s presiding deity Lord Ayyappa is protected by the Constitution, the Supreme Court was today told by a society which opposed a plea seeking entry of women of all age groups into the shrine.
A five-judge Constitution bench headed by Chief Justice Dipak Misra was told by former Attorney General and senior advocate K Parasaran, appearing for the Nair Service Society, that the only consideration was the “celibate nature of deity” and which has to be preserved.
“Lord Ayyappa’s character as a ‘Naishtika Brahmachari’ (eternal celibate) is protected by the Constitution,” he told the bench which also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
“Those coming to the Sabarimala temple should not come in the company of young women. Children, mother, sisters are exceptions. The reason is that those coming to the temple must not follow the ‘brahmcharya’ (celibacy) but also they must appear to follow it,” the senior lawyer said.
Parasaran said Article 25 (2) which “throws open public Hindu religious institutions for all classes and sections of society” can be applied only to social reforms and would not apply to matters of religion covered under Article 26 (b) of the Constitution.
Article 26 (b) provides right to every religious denominations to “manage its own affairs in matter of religion”.
“Article 25(2) reiterates the object of Article 17 (abolition of touchability) in the specific context of temples and Hindus to send a loud and clear message,” he said.
“You (Parasaran) say that throwing open public temples for all sections has no religious connotations. What will happen, if the state comes out with a law to bring social reforms and allow women in the temple,” the bench asked.
The senior lawyer said that the unique nature of the deity has to be kept in mind while dealing with the constitutional validity of the age-old practice.
He then referred to Article 15 (2) of the Constitution, which provided the right to access to all citizens to places like shops, hotels and other places, and said it did not mention public temples.
“The present case does not involve a social issue but a religious issue. By using 25(2), you (court) will reform a religion out of its identity,” he said responding to the query that the state may enact law to allow women inside the temple.
At the outset, he said that Kerala is an educated society and 96 per cent of its women are educated and independent.
“It is a matrilineal society. Therefore to assume that the practice of the Sabarimala Temple is based on patriarchy is fundamentally incorrect,” he said.
Earlier, the bench had observed that in a patriarchal society women are treated as chattels and trained since birth to conduct themselves in a particular manner.
“The practice of Sabarimala Temple is not comparable to Sati and in fact, Sati itself has not connection to the Hindu faith,” he said, adding the wives of Dasaratha did not commit ‘Sati’ after their husbands’ death.
The court should not approach the issue of Sabarimala with the notions of “patriarchy”, he said, adding that Hinduism has been a tolerant religion.
The court “must listen to activist voices”, but it also it “must equally listen to voices which seek to protect traditions”, he said.
The Hindu faith has been following the right to equality since time immemorial and Lord Shiva has ‘ardhanarishwara’ (half male and half female) form as well.
“Legislature is Brahma, executive is Vishnu and Shiva is judiciary because only Shiva has the ‘ardhanarishwara’ form” which can be equated to Article 14, right to equality, he said.
We must not proceed with the presumption that the people in ancient times knew nothing and that we know better in all aspects of life, he said.
By abolishing the practice, the “very character of the religious institution” will be irreparably altered which affects the rights of devotees under Article 25(1) (freedom of religion), he said.
The hearing on the pleas filed by Indian Young Lawyers Association and others, challenging the ban, would resume tomorrow.
Earlier, the apex court had made it clear that the ban on entry of women in the age group of 10-50 years into the Sabarimala temple would be tested on “constitutional ethos” and had asked the temple board to establish that the restriction was an “essential and integral” part of religious faith.
It was apparently not in agreement with the argument of the Travancore Devaswom Board running the over 800-year-old temple that the “practice and belief” that have continued uninterrupted cannot be tested on the ground of “modern ethos”.
The Kerala government had supported the entry of women of all age groups into the temple.
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 of that particular age group into the temple amounted to discrimination and violated their fundamental rights under the Constitution.