Discrimination on basis of gender, sex & menstrual age at temples is against constitution: SC

Questioning the legality of Travancore Devaswom Board's decision to ban entry of women between 10 and 50 years into Lord Ayyappa Temple at Sabarimala in Kerala, the Supreme Court on Wednesday said that temples are public place and there could not be any discrimination on the basis of gender, sex and age at places of worship and women should be given access as it is their fundamental right. 

Giving a boost to the cause of women rights activists fighting legal battle for entry into the temple, a five-judge constitution bench of Chief Justice Dipak Misra, justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said right to worship is a constitutional right and women’s right to enter any temple does not dependent on any 

law. The bench noted that all persons were equally entitled to freedom of conscience and the right to profess, practice and propagate religion. 

“If a man can go then female can also go. Both male and female can be denied access on the ground of health, morality and public order. What applies to male is also applicable to female. Discrimination on the ground of gender is absolutely against the constitutional mandate. Public place is different from private place but there is no concept of private temple. Once it is a temple then everyone can go,” the CJI observed during the hearing of the case. 

Senior advocate Indira Jaising, appearing for an NGO ‘Right to Bleed’, raised a question on how healthy biological process of menstruation was being used in the name of religion to discriminate against women and contended that a woman of menstrual age cannot be treated as “polluted and untouchable”. She said that the practice of the Sabarimala temple of denying entry to women and girls between 10-50 years into the temple led to social stigma and shame based on gender and how can a modern society continue with “menstrual discrimination” when the Constitution mandates right to equality and health of women to achieve gender justice. 

“The classification is itself illegal and unconstitutional. It fails the test of constitutional morality. It is discrimination of the ground of sex that cannot be allowed at religious places. It has not been a custom for the time immemorial. Even if it is a custom, it has to be over-ruled,” she contended. 

Justices Nariman and Chandrachud, however, said that there was no need to invoke Article 17(which talks about the abolition of unaccountability) to examine the validity of the practice as Article 25 was broad enough to allow women of all ages to enter the temple. 

“Every woman is also a creation of God, if you do not believe in God then of nature. Then why should there be discrimination on the basis of gender in employment or at places of worship,” Justice Chandrachud said. 

Justice Nariman said that the classification barring woman of 10-50 age group seemed “on the face” of it unconstitutional as a person can be in menstruation stage below 10 years and above 50 years also. “On that ground itself it would be violative as it leaves out other persons who are similarly situated and they can be allowed entry into the temple,” he said. 

Senior advocate Raju Ramachandran, who is assisting the court as amicus curiae, also submitted that the restriction had the effect of invading the privacy of a woman, as a woman making a pilgrimage to the temple was making an involuntary disclosure that she was not menstruating. But the court said that it would not go into privacy aspect.