Arguments Summary: July 31, 2018.
Mr. K.V. Biju, representing himself, asserted that the deity in Sabarimala is a “Naishtik Brahmachari” whose celibate status needs to be given due deference. He also pointed out that the Supreme Court is not an ecclesiastical court and the thantri (chief priest) should have the final word in matters of religion.
Furthermore, he submitted that it is not a cruel practice and only acts of cruelty should be declared unconstitutional. Mr. Biju forcefully argued that if faith and beliefs are reasonable, it should be allowed to stay.
Mr. Biju, then questioned the basis of the writ petition. He argued that it has not been filed by women aggrieved by the practice and the petitioner has in their public utterances accepted that they were ignorant of the practices in Sabarimala temple.
Mr. Biju then referred to the statements by three people associated with the temple who claimed that the restriction has been a “custom and usage” since time immemorial. He alluded to the specific character of the temple where devotees first visit a mosque before entering a temple. He argued that the Sabarimala temple is a tantric temple and not a vedic temple.
In a dramatic flourish, he produced photographic evidence of women entering the temple, claiming that they were between the age of 10 and 50. He asserted that the vital reason for the restriction on entery into the temple is the celibate status of the deity.
Mr. Biju’s final argument was that the word ‘maintain’ in Article 26(b) implied continuity and not management. Therefore, this practice should not be declared unconstitutional by the court.
Gopal Sankarnarayan, representing an intervenor – Usha Nandini, began his submissions by asserting that the fundamental basis of treating Sabarimala as a Hindu temple is flawed because it allows people from all religions to enter the temple. The only condition imposed is the willingness to undertake the 41 day vratham.
On the aspect of Article 25(2)(b), he submitted that it refers to “all sections and classes of Hindus”. He argued that the practice is a restriction and the age group of 10-50 cannot be construed as a class. He also asserted that the constitution does not speak in such absolutist terms. Justice Chandrachud observed that the constitution is a dynamic document and expansion of the Article 25(2) from its original reference to caste is permissible.
Mr. Sankarnarayan further submitted that Article 25(2) is an enabling provision requiring the state to make a law to permit entry. He argued that in this instance, the Kerala Act restricted entry and did not permit entry. Therefore Article 25(2)(b) is not applicable.
Justice Nariman observed that one cannot mix worshipper with the question of temple entry to argue that Sabarimala is not a Hindu temple. He drew an analogy with Ajmer Dargah which is a Sufi shrine open to followers of all religions to assert that Sabarimala is definitely a Hindu temple. Mr. Sankarnarayan countered that if Article 25(2)(b) applies, then it can have the effect of excluding Muslim and Christian women while permitting all Hindu women to enter. This was owing to the phrase “all sections and classes of Hindus” mentioned in Article 25(2)(b).
On the aspect of religious denomination, he argued that Ayyappa devotees are a religious denomination since they adhere to the 41 days penance and have faith in Lord Ayyappa. Chief Justice Misra observed that reliance on penance would imply that Sabarimala is a religious denomination only for 41 days and not for the rest of the year. Justice Chandrachud observed that following a ritual does not make one a part of a religious denomination. Justice Nariman queried as to how it can be called a religious denomination with reference to Chishti Sufis in Ajmer Durgah.
Mr. Sankarnarayan then moved to the provisions of the Kerala Hindu Places of Worship Act, 1965. He argued that Section 2 of the Kerala Hindu Places of Public Worship Act, 1965 implies that a temple open to non-hindus would not qualify to be a Hindu place of public worship. Justice Chandrachud observed that the Section 2 uses the phrase “generally visited by Hindus”. Accordingly, exclusion is not necessary to consider it a Hindu place. Mr. Sankarnarayan added that Rule 3(a) of the Kerala Act does not permit entry of Non-Hindus.
Justice Chandrachud also observed that Rule 3 postulates women as a class. Mr. Sankaranarayan countered that class is an inclusive definition and restriction on a certain age group of women is not a class.
The hearings will resume tomorrow at 11.30 a.m.
(This report has been prepared by Mr. Samya Chatterjee.)