Constitutional challenge to Sabarimala Temple ban on women’s entry: Read Indira Jaising’s written submissions

[dropcap]A[/dropcap] five-judge Constitution Bench of the Supreme Court commenced hearing the case pertaining to women's entry inside the Sabarimala Temple on July 17, 2018.

Senior Advocate Indira Jaising filed her written submissions in the constitutional challenge to the Sabarimala Temple case, in which women between the age 10 and 50 are barred from entering the temple in Kerala as that supposedly offends the celibate Hindu god, Lord Ayappa. The case is known as Indian Young Lawyers' Association & Anr vs The State of Kerala and Ors.

Jaising's main contention is that freedom to manage religious affairs cannot override constitutional moraliy and gender justice. Jaising emphasised on harmonious interpretation of constitutional provisions, that is, Articles 14, 15, 25 and 26 of the Constitution and stated that the right to manage the affairs in the matter of religion does not encompass the right to ban entry inside a temple.

According to the written submissions, "The Intervenors in this case are Nikita Azad and Sukhjeet Singh, who are both gender rights activists working in and around the State of Punjab with a focus on issues such as gender equality and justice, sexuality, and menstrual discrimination. As a part of their efforts for the development of gender rights, the Intervenors protested against gender discriminatory social practices such as patriarchy, sexism and age-old taboos, which impose various restrictions on women, in particular. As a part of the same effort, they have also taken part in the #PinjraTod campaign, which seeks to fight against regressive rules restricting women in hostels and colleges."

The original writ petition in the Sabarimala case was filed in public interest by Indian Young Lawyers Association on July 28, 2006 in order to ensure entry of female devotees between the age group of 10 to 50 at the Sabarimala Temple in Kerala. The petition also sought to declare the Rule [Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which provides that women at such time during which they are not by custom and usage allowed to enter a place of public worship, shall be included in the class of persons who shall not be entitled to offer worship in any place of worship] which prevented women from entering the Temple to be violative of the Fundamental Rights ensured by the Indian Constitution and also beyond the scope of the very Act [Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965] under which the Rules were framed.

 Questions before Constitution Bench

• Whether the exclusionary practice — which is based upon a biological factor exclusive to the female gender — amounts to "discrimination" and thereby violates the very core of Articles 14, 15 and 17, and is not protected by "morality" as used in Articles 25 and 26 of the Constitution?
• Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
• Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a "religious denomination" managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
• Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits "religious denomination" to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
• Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

Read Indira Jaising's Written Submissions in Sabarimala case

Also read: Sabarimala Temple entry ban for women: What are the major questions before the Constitution Bench?