Right to keep women away from Sabarimala temple is a form of untouchability: Indira Jaising to Supreme Court

[dropcap]E[/dropcap]quating the restrictions upon menstruating women from entering the Sabarimala temple to untouchability, Senior Advocate Indira Jaising commenced arguments on behalf of intervenor Nikita Azad. Stating across the board applicability of Article 17, she drew the distinction between the right to enter and the right to carry out a ritual. She submitted that the ban on women’s entry inside the temple is based upon sex alone, and the discrimination is solely based off physiological factors. She further argued that menstruating women being categorised as a different class is unconstitutional as it lacks constitutional morality.

Jaising contended that women claim their rights under Article 25, and cited various judgments to buttress her arguments against the impugned section 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, such as Devaru, Charu Khurrana, Shayara Bano and Adi Saiva Sivacharigal Nala v Govt of Tamil Nadu.

Her arguments were met with remarks from the Bench, with the CJI stating that “what applies to men also applies to women”, and noting the difference between a public place of worship and one at home. Justice Chandrachud stressed upon the importance of Article 25(2)(b)’s language, and stated that discrimination may occur in absence of the impugned Rule. Justice Nariman highlighted the holding of the Devaru judgment that Article 25 and Article 26(b) need to be harmonised.

While concluding, Jaising stated that constitutional legitimacy overrides all customs.