The Supreme Court today said that the fundamental right of freedom to practice religion is provided to "all persons" by the Constitution and the women have the right to enter and pray like men at the famous Sabrimala temple in Kerala.
"Can a religious practice run contrary to the constitutional mandate?"asked a five-judge Constitution bench headed by Chief Justice Dipak Misra during the hearing on the contentious issue relating to women in the menstruating age of 10 to 50 years being barred from entering the over 800-year-old shrine.
"When a man can enter, a woman can also go. What applies to a man, applies to a woman also," the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.
The observations came when senior advocate Indira Jaising, appearing for intervenor Nikita Azad, referred to a provision of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and said that all Hindus have the right to enter the temple and denying them the right was a kind of "untouchability" which was abolished by Article 17 of the Constitution.
The bench said that the statutory and the untouchability arguments on the ban on entry of women were not so material in view of the fact that Article 25 provided the fundamental right to "freedom of conscience and free profession, practice and propagation of religion" to "all persons".
It said that there was a "collateral constitutional" argument based on Articles 25 and 26 which gave the right to practice religion to all and they automatically applied to women also.
"All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. This means your right as a woman to pray is not dependent on a legislation. It is your constitutional right," Justice Chandrachud said.
The bench said the issue on ban on entry may not be dealt with under Article 17 (untouchability) but can be resolved by expanding "all classes and sections" as provided under Article 25 , which deals with the freedom to practice religion.
Jaising said the bar on the entry of women into the popular temple was a kind of discrimination on the ground of sex and based on the assumption that menstruating women are "polluted".
The bench termed as "absurd" the notification of Devaswom board, which runs the temple, banning entry of women of a particular age group.
"Exclusion of particular age group of women forces women to disclose their menstruation stage and it violates their privacy," it said.
Referring to the statute, Jaising said the law provided for the entry of all women into temples and the customary practice banning it cannot override the legal framework.
The discrimination was based on physiological reason as women between the age group of 10-50 undergo menstruation, she said.
"A woman is a creation of God, if you don't believe in God then of nature. Why should this menstruation be a reason for exclusion?" the bench asked.
"Tagging religious belief with menarche is absurd. Exclusion on the basis of age of a woman is irrelevant and tagging the age with menarche is even more absurd," it said.
At the outset, the bench made clear that it would not get into the running of the temple by the Devaswom board and would confine itself to the question of entry of women into the temple at par with men.
"Every temple has a particular kind of practice and in some cases, trustees and 'pujaris' or certain categories of persons can go up to a particular place inside the temple. We will not get into that aspect. We will deal with the entry of women at par with men," it said, adding that the denial of entry to woman only was not justified.
The court also referred to the preamble of the Constitution and said that words such as "dignity" and "worship" were not there in the body of the document but it read "dignity" as part of the fundamental rights.
"Just like the term 'dignity' has been read into by us in the Constitution, the court can do the same in the case of the term 'worship' also," it said.
All persons are equally entitled to freedom of religion, it said, adding that the right to enter a temple was not dependent on any law.
Senior advocate Raju Ramchandran, who is assisting the court as amicus curiae, supported the entry of women into the shrine and said that the denial was violative of the fundamental rights.
The hearing on the plea filed by petitioners Indian Young Lawyers Association and others, remained inconclusive and would continue tomorrow.
The apex court had on October 13 last year referred the issue to a Constitution bench after framing five "significant" questions including whether the practice of banning entry of women into the temple amounted to discrimination and violated their fundamental rights under the Constitution.
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