Sabarimala case: Justice Chandrachud says assuming women cannot perform 41-day penance is unconstitutional

[dropcap]T[/dropcap]he hearings for the Sabarimala Temple matter resumed before the five-judge Constitution Bench at the Supreme Court today, with Senior counsel Abhishek Manu Singhvi arguing on behalf of the Devaswom Board. He started off with elucidating upon the temple’s history and stating the importance of the 41-day penance associated with it. He then talked about the ingredients of a valid custom, such as rationale, it being followed since time immemorial etc. This was countered by Justice Rohinton Fali Nariman who remarked that the Devaswom Board did allow women at some point in time. Singhvi referred to his written submissions while talking about the penance’s importance and the celibacy attached to Lord Ayyapa.

His advancements elicited a response from Justice Chandrachud who stated that the assumption that women cannot observe the requisite 41 days of penance and hence were excluded from worship is impermissible under the Constitution. Singhvi responded to this by stating that it was a belief of Ayyapa devotees that women cannot observe 41 days of penance. To this Justice Chandrachud responded by stating that post 1950, everything is subject to the Constitution.

This was followed by Justice Nariman invoking constitutional morality, to which Singhvi responded by stating that the application of the aforementioned principle to religious cases would open Pandora’s box. This exchange was followed by additional comments from the Bench, with Justice Nariman stating that one of the witnesses named Ravi Kumar claimed the penance was of 55 days, and Justice Chandrachud stating that the custom was not immemorial at all.

Before the bench rose for lunch, Singhvi argued that Ayyapa devotees constituted a separate religious denomination within Hindu religion, which the CJI asked him to show on behalf of the Board.

Post lunch, Singhvi cited the Shirur Mutt verdict to explain the terms “religious denominations” and “essential practices”. He then proceeded to refer to the Subramanian Swamy vs State of Tamil Nadu verdict. This led Justice Chandrachud to draw the distinction between the current case and the one cited, as Sabarimala temple is open to all and not something only Dikshitars could do.

Singhvi then proceeded to enlist where only men or only women are allowed. Justice Nariman commented that none of temples enlisted by him have complete exclusion. To this Singhvi responded that even Sabarimala does not have complete exclusion.

Singhvi further argued that there was no trial to establish custom, practice or belief. Stating that the case has larger repercussions, he questioned the Court arriving upon findings to that effect under an Article 32 petition. He further contended that the Court cannot impose “change”.

He then proceeded to argue in the context of Article 14. He claimed that the classification was not gender based, but intra women, which the CJI held to within a realm of speculations and possibilities.

Justice Nariman stated that menstruating women are allowed in other temples. Justice Chandrachud too offered comments stating that the assumption that men can perform the 41-day penance but not women is contrary to the Constitution.

This was followed by Singhvi contending that the question of untouchability does not arise, to which CJI Dipak Misra responded that the Court may not do so. To this, Senior Advocate Indira Jaising raised a contention citing the dissenting opinion of former CJI Sinha in the Bohra community case (excommunication case). This led to an exchange in the views of the CJI, who held the line of argumentation along untouchability to remain open. The CJI further asked Jaising whether she was suggesting that the matter be forwarded to a seven-judge bench, to which she responded by stating that it was up to the Court’s decision.

With this exchange, the Bench rose for the day.