A nine-judge Constitution Bench of the Supreme Court asked how the law should treat a non-believer seeking entry to a religious place, noting it must assess whether the claimant is a devotee or non-devotee while examining petitions on Sabarimala.
The Supreme Court, raised a key question about temple entry: how should the law treat a person who is not a believer but seeks access to a religious place.
The Court said that, while deciding questions about the right to enter temples, it must examine whether the person claiming that right is a devotee or a non-devotee.
The remarks came from a nine-judge Constitution bench while it heard petitions involving alleged discrimination against women at religious places, including the Sabarimala temple in Kerala. The bench was also considering the scope of religious freedom practiced by communities of multiple faiths.
The panel included Chief Justice of India (CJI) Surya Kant and Justices B V Nagarathna, M M 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 supported the 2018 ruling submitted that one petitioner was a scheduled caste woman and that denying her entry would violate Article 17 (Abolition of Untouchability) of the Constitution.
Jaising told the Court,
“Today we are told that non-caste Hindus can enter Sabarimala, but not women,”
She added,
“Because of Article 17, all men can enter, with no restriction of caste“
The bench responded to her submission by saying the woman was not stopped because she belonged to a scheduled caste; instead, she was stopped because she fell within the 10 to 50 age bracket.
During the proceedings, Jaising argued that exclusion from the temple affects women during a period of life described as the most productive and creative years between ages 10 and 50.
She said,
“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,”
Jaising further submitted that the right to enter a temple and worship is a fundamental right under Article 25(1) of the Constitution. She stated that after the 2018 judgment, the two women went to the temple.
Jaising Stated,
“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’.”
She added that no other women had been able to succeed since then, asserting that the State had not provided adequate cooperation.
She said,
“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,”
At this stage, Justice Nagarathna asked a direct question,
“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.”
Jaising argued that religion can renew and adapt itself, and she told the bench that for such practices there should be a doctrinal basis to classify something as part of a denomination.
Justice Nagarathna responded with broader observations about diversity,
“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.”
Earlier, the top court observed that it was extremely difficult, if not impossible, for a judicial forum to lay down the parameters to determine whether a particular practice of a religious denomination is essential or non-essential.
In September 2018, a five-judge Constitution bench, by a 4:1 majority decision, lifted the ban that had barred women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple. The bench held that the long-standing Hindu religious practice was unconstitutional.