As the hearing on the contentious issue of entry of menstruating women to Sabarimala in the Supreme Court enters the sixth day, advocate Sai Deepak, appearing for ‘People for Dharma’, asserted that a deity, having a distinct legal personality, was entitled to the rights under Articles 21, 25, and 26 of the Constitution. According to Sai Deepak, the presiding deity Lord Ayyappa’s right to maintain his ‘perpetual celibate’ status was covered under the right to privacy under Article 21.
The counsel contested the theory that the entry of women is restricted owing to the notion that mensuration is impure. He cited the example of Kamakhya temple of Assam, where the deity goes through mensuration and it is celebrated by the devotees. The deity is revered as ‘Bleeding Goddess’. He also submitted that a worshipper cannot claim rights conflicting with the customs and ritualistic practices of a temple.
The Bench contested Deepak’s argument with Justice Chandrachud noting that regardless of the ‘essentiality’ of a practice to the religion, discrimination cannot be allowed in violation of the basic structure of the Constitution. Justice Nariman said such a right would have to be conditioned on the Fundamental Rights of the public. Chief Justice Dipak Misra observed that the right to regulate religious affairs could not scale to the height of discriminating on account of the biological attributes of women belonging to a particular age group.
When the advocate argued that the temple has the right to exclude a section by indicating that the Sabarimala temple does not procure any state funding, Chief Justice Misra remarked that the only question was if the temple is a public place, in which case no one could be prohibited from offering prayers to the deity.
Senior Advocate Kailashnath Pillai urged that the issue at hand involving a pre-constitutional custom, the court appreciate the evidence of its origin, existence and its interrelationship with other customs. He requested the Bench not allow itself to be guided exclusively by Kelsen’s Pure Law Theory in interpreting the Constitution and exercising judicial review in religious affairs. According to him, ignorance of the realities of societal or popular morality in the Indian scenario could give rise to disputes in Kerala similar to the Ram Janmabhumi-Babri Masjid row.
Discussion about this post