‘Where a man can enter, a woman can go’, CJI observes in Sabarimala case

July 18, 2018

Tagging a woman’s right to enter the famous Sabarimala temple with her menstrual cycle is unreasonable, the Supreme Court’s Constitution Bench observed on Wednesday.

The Bench, led by Chief Justice of India Dipak Misra, asked whether the exclusion of women aged between 10 and 50 from entering a temple because they are considered ‘impure’ amounts to the practice of untouchability, a social evil abolished by law.

The CJI said there is no concept of “private mandirs (temples).” Once a temple is opened, everybody can go and offer prayers. Nobody can be excluded. The Chief Justice noted that the Sabarimala temple drew funds from the Consolidated Fund, had people coming from all over the world and thus, qualified to be called a “public place of worship.”

A batch of petitions has challenged the prohibition on women of a certain age group from entering the Sabarimala temple.

“In a public place of worship, a woman can enter, where a man can go. What applies to a man, applies to a woman,” Chief Justice Misra observed.

The Bench is hearing the question whether the fundamental right of women to pray at the place of their choice can be discriminated against solely based “on a biological factor (menstruation) exclusive to the female gender.”

A batch of petitions has challenged the centuries-old prohibition on women of a certain age from entering Sabarimala temple.

The Kerala government was quick to point out to the Bench that the State supported entry of women into the Sabarimala temple. In 2016, the State had opposed it in the Supreme Court.

Senior advocate Indira Jaising, for the petitioners, argued that “religion is a relationship between you and your creator.”

“There is nothing in health, morality or public order that prevents a woman from entering and offering worship in a temple opened for the public… The prohibition in Sabarimala is discrimination not just on gender but sex. Menstruating women are viewed as polluted,” Ms. Jaising submitted.

Justice D.Y. Chandrachud said women and their physiological phenomena are creations of God. If not God, of nature.

“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 for employment or worship or anything,” he said.

He quoted Article 25 (1) which mandates freedom of conscience and right to practise religion. “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion…”

“This means your right as a woman to pray is not even dependent on a legislation. It is your constitutional right. Nobody has an exclusionary right of entry to a temple,” Justice Chandrachud observed.

Chief Justice Misra pointed out that there were many temples which allowed visitors only up to a certain point, but there are none which ban entry to the temple in total.

Justice Rohinton Nariman, also on the Bench, observed that the Constitution upheld the ideals of liberty of thought, expression, belief and faith, be it for man or woman. Justice Nariman said the prohibition on women aged between 10 and 50 is “arbitrary”. He said menstruation can also happen as early as nine and extend to the late fifties.

Ms. Jaising submitted that Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 allows a “religious denomination” to ban entry of women between the age of 10 to 50 years. She said the discrimination was a violation of the fundamental rights to equality and gender justice.

She said the right to enter a temple extends to all Hindus, regardless of caste, sex or gender.

“What is good law for Harijans is good law for women,” she submitted.

When Justice Chandrachud initially told Ms. Jaising that the petitioners should focus on Article 25 (freedom of religion) rather than on Article 17 (abolition of untouchability) of the Constitution, Ms. Jaising responded that “menstruating women are not allowed even to intermingle within their own family. This is untouchability!”

On Rule 3 (b) and the right of a religious denomination to ban women from entering temples, Ms. Jaising said, “Freedom of conscience resides in humans. Institutions only have the right to manage their affairs. It is my right to worship. Denominations have no right under Article 25.”

Senior advocate Raju Ramachandran said the prohibition on menstruating women amounts to drawing out a “forced declaration” from women about their menstruation. “This is a violation of their dignity and privacy and amounts to involuntary disclosure,” Mr. Ramachandran submitted.

Source : The Hindu

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