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The Kerala government on Wednesday told the Supreme Court that the custom of barring entry of women between the age group of 10 to 50 years into the Sabarimala temple in Kerala is not permissible under the Constitution.
It said that celibate status of deity cannot be a ground for barring entry of women as it is a Hindu temple and not a temple of a particular denomination.
A five-judge Constitution bench headed by Chief Justice Dipak Misra reserved its verdict on a batch of pleas challenging the ban on entry of females between the age group of 10 to 50 years into the 800-year-old shrine after hearing the matter for eight days.
"We will pass orders. Judgment reserved. Hearing concluded. Advocate on Record of both the sides will collect written submissions and compile it and submit before the court in seven days," the bench also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said.
Senior advocate Jaideep Gupta, appearing for Kerala government, said that the custom of barring women between the age group of 10 to 50 years is not permissible under the Constitution.
"Sabarimala temple cannot claim to be a distinct denomination to claim a custom which bars entry of women of 10-50 year age group to temple. It is not a temple of a particular denomination but a Hindu temple," he said.
Gupta, referring to the arguments of the petitioners who had challenge the ban on entry of women into the temple, said that they pointed out that Kerala high court had held that it is a denominational temple.
"It is my submissions, that it is not a denominational temple and the religious rights are not protected", he said.
Citing an example of Lord Jagannath Puri temple, Gupta said that it is also not a temple of particular denomination while on the other hand temple of Ramakrishna Paramhans is of a particular denomination as he is being worshipped by a particular sect.
He said that even Dakshineswar temple in Kolkata, where Shri Ramakrishna Paramhans himself worshipped, is not a temple of any particular denomination.
"Dakshineswar temple is a Hindu temple where goddess Kali is worshipped," he said and added that "the celibate status of deity cannot be a ground to bar women's entry into the Sabarimala temple".
"There were many devotees of Shankaracharya who were celibate," he said and added that the Constitutional provisions have to be interpreted broadly as the right of State to make laws under Article 25(2)(b) not just applies to social aspects but also religious aspects.
The senior lawyer told the bench, that there is no need to strike down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (which bars women from entering the temple).
"The rule can be read in such a manner to the effect that women cannot be excluded," he said.
To this, Justice Nariman remarked, "Very difficult. Very difficult".
He concluded his rejoinder saying "our Constitution is reformist and if we keep going back to the period of holy antiquity then there wont be any reforms".
Senior advocate Indira Jaising, appearing for petitioners challenging the ban, said the court had always struck down laws, customs, practices or tradition which prevented Harijans from going to temple.
"Similarly, now the court can struck down such laws, practies or customs which deny women the right to enter temple", she said and added that if court recognises a custom, then it will have force of law.
She said that this discrimination between men and women on allowing entry to temple is on the basis of sex and court cannot avoid this question and it has always struck down such discriminations.
"It is a case of discrimination on the basis of menstruation alone and is like creating sub-classification even among women. It is not only discrimination between men and women but also women and women," she said.
The bench, also heard the rejoinder arguments of two amicus curiae Raju Ramachandran, K Ramamurthy and counsel appearing for parties and reserved its verdict.
The court was hearing a batch of pleas filed by petitioners including Indian Young Lawyers Association and others challenging the ban on entry of women between 10-50 years of age group.
The apex court had on Tuesday said that the constitutional scheme prohibiting exclusion has "some value" in a "vibrant democracy".
The Kerala government, which has been changing its stand on the contentious issue of women of a particular age group entering the Sabarimala temple, had on July 18 told the apex court that it favours their entry.
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.