Sabarimala hearing: SC asks if Constitution protects devotees barred from touching the deity

The Supreme Court on Tuesday (April 21) sought to know from the chief priest of the Sabarimala Ayyappa Temple whether the Constitution will come to the aid of a believer who is being stopped from touching the deity.

Court flags access vs belief

The question came in response to the chief priest’s comments that when a devotee goes to a temple for worship, it can't be in antagonism to the characteristics of a deity.

Also Read: Sabarimala case: To declare belief of millions as wrong is tough, says SC

The development took place during the hearing of petitions related to discrimination against women at religious places, including the Sabarimala Temple in Kerala, and on the ambit and scope of the religious freedom practised by multiple faiths by a nine-judge Constitution bench.

The bench comprises Chief Justice Surya Kant and justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi.

‘Essential practice’ argument

During the hearing, senior advocate V Giri, appearing for the ‘thantri’, submitted that the nature of ceremonies and rituals followed in any temple forms an integral part of the religion and therefore is a religious practice.

Also Read: SC: Hinduism will be adversely impacted if temples restrict entry on ground of denominations

He said the continuance of such practice, which is an essential religious practice, would be a part of the right to worship that is for every member who believes in the religion or religious denomination.

"When a devotee goes to a temple for worship, it can't be in antagonism to the characteristics of a deity because it's for the purpose of worshipping the deity. The devotee surrenders to the divine spirit contained in the deity. He/she has to accept the essential characteristics of the deity," Giri said.

Bench questions exclusion

Posing a question, Justice Amanullah asked, "When I go to a temple, my fundamental belief is that he is the Lord, he is my creator, he has created me, right? "I go there with one hundred per cent belief. I am totally devoted, absolutely nothing impure in my heart. And there, I am told that because of a birth, a lineage, a certain situation, permanently you are not allowed to touch the deity. Now, will the Constitution not come to the rescue? Justice Amanullah remarked, adding that there cannot be a difference between the creator and creation.

Also Read: SC to Centre: Can non-devotees of Lord Ayyappa challenge Sabarimala temple customs?

Giri replied that if there is a complete ban on anybody becoming a priest, then that will be taken care of either by Article 25(2)(b) legislation or it will be taken care of by the State itself.

"If priest means the person who is instructed in the 'Shastras' as to how to conduct worship and how to worship the deity, if there is a complete ban on any person becoming a priest and then doing the 'seva', as we call it, only by reason of birth, that will be taken care of either by a Article 25(2)(b) legislation or it will be taken care of by the State itself," he said.

Celibacy claim at centre

The senior lawyer said, "Naishtika Brahmachari" (perennial celibate) can be considered as an essential characteristic of the deity, and the ceremonies and rituals performed in Sabarimala are in synchronisation with the concept.

Also Read: Why Article 17 matters in the Sabarimala reference

"I have a right to practice my religion under Article 25 of the Constitution...If the characteristics of the deity are such that it's not possible for me to go there, if I am a woman, it has to be in sync with the characteristics of the religion. The characteristic of the deity, insofar as Sabarimala is concerned, contemplates that the deity is a permanent celibate," Giri said.

He contended there is a total lack of material on the part of the writ petitioners to show that the concept of "Naishtika Brahmachari" pleaded by the petitioner is either ill-founded, misconceived, or doesn't form the essential form of the religion.

The hearing is underway.

Earlier rulings, wider questions

Observing that denominational practices can be subject matter of judicial scrutiny, the top court on April 17 had said that judges must rise above personal religious beliefs and be guided by freedom of conscience and the broader constitutional framework while adjudicating matters of faith.

In September 2018, a five-judge Constitution bench, by a 4:1 majority verdict, lifted the ban that prevented women between the ages of 10 and 50 from entering the Sabarimala Ayyappa Temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

Later, on November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.

(With agency inputs)