The Supreme Court on Tuesday set a tough condition for the Travancore Devaswom Board to defend its age-old practice of banning the entry of menstruating women at the Sabarimala temple in Kerala. The five-judge Constitution Bench hearing the issue said that the Board must first prove that it is a religious denomination and that this ban is intrinsic to their belief and part of custom practiced over a period of time. Once this threshold is crossed, only then can the Board claim protection of such a ban under the scheme of the Constitution.
To add to the woes of the Board, the Bench read out the Board’s stand before the Kerala High Court in 1991 where the Board stated that it allowed entry of all women for five days in a month. “Does the deity disappear for these five days,” wondered the bench of Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Appearing for the Board, senior advocate Abhishek Manu Singhvi conceded that the Board has changed its stand few times in the past but pointed out that it cannot be faulted on this ground alone as even the Kerala Government did a complete somersault by taking a diametrically opposite stand of allowing woman as compared to its earlier stand supporting the ban.
Stating that the changing stands of the Board was proof of the fact that the decision to permit women was taken by the Tanthri and where he is unable to decide, reliance is placed on astrology, the Bench was critical of the decision having anything to do with maintaining purity of the deity and the temple precincts. The Bench said, “The idea behind the ban seems to be that when women menstruate they get weak and they cannot undertake the arduous journey after keeping a 41-day fast.
This ban has nothing to do with their purity.” The ban operates against women of 10-50 years.
Singhvi said that keeping fast is essential as it is intended to purify both the mind and soul. He maintained that exceptions are sometimes made even to the observance of 41-day fast. The Bench noted that such exemptions are prevalent in all religions as its human tendency to have shortcuts. Singhvi also pointed out practices prevailing among other religions of the world where discriminatory practices against women persist. He said that the court cannot rely on its “willy-nilly notions” on such subjects as the antiquity of a religious belief or custom has to be decided in a trial before a court gives a finding after examining evidence, counter-evidence, and cross-examination of witnesses.
The court noted that several affected women may not come forward as they have been subjugated by men in the society over the years. On that count, Singhvi argued that several religious practices of other religions and sects within Hindu religion will fail as most practices are born out of male chauvinistic traditions. The Bench said, “God does not make a cult or denomination. You have to show that you are a denomination. People across the country visit this temple. All Hindus also visit this temple. This protection that you claim can only be attached to a religious denomination.” The hearing of the case will resume on Wednesday.