Sabarimala row: Customary, religious practices should conform to constitutional principles, says Supreme Court

A five-judge Constitution bench headed by Chief Justice Dipak Misra referred to articles 25 and 26 (Freedom to practice religion) of the Constitution and said that a person can only be restrained on the grounds of "public health, public order and morality".

"After 1950 (when the Constitution came into being) everything is subject to Constitution," said the bench, also comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The observation came when senior advocate AM Singhvi, appearing for Travancore Devaswom Board which runs the over 800-year-old Lord Ayyappa temple, said that the court has to test as to whether the practice is based on "bona fide belief" which is being practised for centuries by a community.

He then said that women are not allowed in mosques across the country and testing these practices based on belief would open "pandora's box".

The bench told Singhvi that it was the duty of the Devaswom Board to establish that the practice of banning women of a certain age group was the essential and integral part of the religious practice.

The bench also pointed out the contradictions in the submissions made by the Board before the Kerala High Court and said that it was the accepted position that women of all age group had been allowed to enter the Sabarimala temple during the first five days of the pilgrimage and after that there entry were barred only on the ground that the crowd used to swell.

In the earlier hearing of July 19, the apex court had questioned the rationale behind banning the entry of women in the 10-50 age group into the temple in Kerala, saying menstruation may begin before the age of 10 and menopause may hit women much earlier.

The court was was apparently not in agreement with the plea of the Devaswom Board that women of that age group were barred as they cannot observe purity and "penance" for a period of 41 days, a condition for undertaking the pilgrimage.

Senior advocate Raju Ramachandran, who is assisting the court as an amicus curiae, had said that the exclusion of women of that particular age group was akin to untouchability which was prohibited under Article 17 of the Constitution.

The bench, however, was not in agreement with the plea and said that Article 17 (abolition of untouchability) of the Constitution may not be applicable as the women, who are barred from entering, can also belong to upper castes and the provision relates to Scheduled Castes only.

The Kerala government had earlier told the court that it supported the entry of women of all age groups into the shrine.

The apex court had observed that the fundamental right of freedom to practice religion is provided to "all persons" by the Constitution and women have the right to enter and pray like men at the shrine.

The bench had also termed as "absurd" the notification of the board banning entry of women in the 10-50 age group.

The plea challenging the ban has been filed by petitioners Indian Young Lawyers Association and others.

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 of that particular age group into the temple amounted to discrimination and violated their fundamental rights under the Constitution.