‘How can a non-believer in North India claim right of entry?’: SC's question during Sabarimala hearing

The Supreme Court of India on 29 April questioned whether a non-believer or a person unconnected with a temple could claim the right to enter it, during hearings on issues relating to women’s entry into the Sabarimala Temple and the broader scope of religious freedoms under the Constitution.

A nine-judge Constitution bench observed that while deciding disputes relating to temple entry, the court would also have to examine whether the right was being claimed by a devotee or a non-devotee.

‘Who is claiming this right?’

The bench, headed by Chief Justice of India Surya Kant, was hearing petitions linked to alleged discrimination against women at religious places and questions concerning denominational rights under Articles 25 and 26 of the Constitution.

During the hearing, Justice B V Nagarathna remarked:

“Who is claiming this right? Is a devotee claiming the right or a non-devotee at whose instance? A person who has nothing to do with this temple is somewhere in North India. This temple is in South India. Is claiming a right of entry that also has to be addressed.”

The court’s observations came while senior advocate Indira Jaising argued in support of the 2018 judgment that allowed women of menstruating age to enter Sabarimala.

Challenge to women’s exclusion

Appearing for petitioners Bindu Ammini and Kanakadurga, Jaising argued that preventing women between the ages of 10 and 50 from entering the temple violated constitutional guarantees, including Article 17 abolishing untouchability.

“Today we are told that non-caste Hindus can enter Sabarimala, but not women,” she submitted.

The bench, however, observed that the restriction was based on age and gender, not caste identity.

‘You cannot tell me to live half a life’

Jaising argued that exclusion during the reproductive years of a woman amounted to substantial deprivation of dignity and rights.

“What is the status of a woman during this period? Is it not the period which is most creative and most fertile?...You cannot tell me to live half a life. Avoid living between 10 and 50, and then live before 10 and after 50. That will lead to substantial deprivation,” she said.

She contended that the right to enter a temple and worship is protected under Article 25(1) of the Constitution.

Reference to 2018 verdict

A five-judge Constitution bench of the Supreme Court had in September 2018, by a 4:1 majority, struck down the centuries-old practice barring women aged between 10 and 50 from entering the Sabarimala temple.

The court had then held the practice unconstitutional and discriminatory.

Jaising recalled that after the judgment, only Bindu Ammini and Kanakadurga managed to enter the temple.

“When they came out, certain Sangh leaders spoke of ‘shuddhi karan.’ I filed a petition in this court. This was when the judgment was in full force and effect. These were the only two women who succeeded in climbing up and performing ‘darshan’,” she said.

“No one else has succeeded since then. Why? Because the State has not cooperated. They refused to give protection for going up,” she added.

Court stresses religious diversity

Justice Nagarathna also highlighted the constitutional protection granted to religious denominations under Article 26(b).

“We are strong because we are diverse. Diversity is our strength. To bring about that diversity in denominations, Article 26(b) protects it. By giving that protection, there is unity in the country. That is how one should look at it. Therefore, respect diversity,” she observed.

Larger constitutional questions

The nine-judge bench is examining wider constitutional questions involving essential religious practices and the balance between equality rights and denominational freedoms across religions.

The court had earlier observed that it is “very difficult, if not impossible” for courts to define what constitutes an essential or non-essential religious practice.

The Sabarimala dispute remains one of India’s most significant constitutional and religious rights cases, involving questions of gender equality, freedom of religion and the autonomy of religious denominations under the Constitution.