Sabarimala #4: Respondents Argue Exclusion of Women Essential to Maintain Pure Character of Deity

On July 25th 2018, Senior Advocate Mr. Parasaran, on behalf of Nair Society, began his arguments before the five Judge Constitution Bench comprising Justices Dipak Misra, D.Y. Chandrachud, Ajay Manikrao Khanwilkar, Rohinton Nariman and Indu Malhotra. Previously, on July 18th, Dr. Abhishek Manu Singhvi had argued that the Sabarimala temple is a religious denomination.

Today’s arguments largely revolved around the link between Article 25(2)(b) and Article 17 of the Indian Constitution with respect to prohibition on caste based discrimination. Mr. Parasaran also expounded upon the nature of the deity in Sabarimala temple to persuade the Bench on the essentiality of celibacy to enter the temple.

Mr. Parasaran: Pure character of deity essential and integral part of the Sabarimala temple

Mr. Parasaran began his arguments by focusing on the nature of Hindu religion. He submitted that the Hindu religion is tolerant and does not discriminate. Significantly, he argued that Lord Ayyappa is considered to be celibate and hence the practice of excluding women is to ensure an “appearance of celibacy”. He argued that this “appearance of celibacy” can be ensured by not allowing young women to enter the temple in the company of men. He added that there are certain exceptions specifically for a mother, sister and children.

Mr. Parasaran argued that the pure character of the deity is essential and integral part of the Sabarimala temple. Accordingly, he submitted that the purity can only be ensured by excluding women from entering the temple for a certain period. This restriction on entry is of a different character from the complete prohibition forbidden by Article 25(2)(b)—if the state decides to make a law allowing entry of “all sections and classes” of Hindus inside a temple.

Mr. Parasaran: Article 25(2)(b) meant to tackle caste based discrimination, gender not principal the concern

On the aspect of Article 25(2)(b), which uses the phrase “all sections and classes of Hindus”, he argued that it does not specifically mention “all classes and sections of women”. Justice Nariman specifically asked as to how does it exclude women from Article 25(2)(b)? Mr. Parasaran replied that all classes and sections of Hindus should be understood contextually.

To buttress his point about context, he referred to statutory principles about the importance of context. He submitted that though text is important, it is the context which gives colour to the statute. He argued that a statute is best interpreted keeping in consideration the time when it was enacted.

Mr. Parasaran argued that Article 25(2)(b) can be appreciated from the perspective of Constituent Assembly Debates. Reading portions from the debates, he argued that Article 25(2)(b) is linked to Article 17. Hence, the phrase was essentially meant to tackle caste based discrimination and gender was not the principal concern of the framers of the constitution.

On being queried by Justice Nariman if the core of Article 25(2)(b) is linked to Article 17 of the Constitution, Mr. Parasaran answered in the affirmative. Justice Nariman observed that in that case, every practice is barred. Mr. Parasaran persisted by arguing that it is necessary to understand the reason for the reference to only Hindus in Article 25(2)(b). The reason was caste based discrimination.

Justice Chandrachud observed that social reform in Article 25(2)(b) can extend to all religions. Justice Nariman added that Article 25(1) includes equal entitlement which Mr. Parasaran had himself conceded. Mr. Parasaran argued that essential and integral part of a religion cannot be understood by reference to Article 25(1). Justice Nariman nodded in approval to this point. Mr. Parasaran ended his arguments by referring to the constituent assembly debates on Article 25(2)(b).

(This report has been prepared by Mr. Samya Chatterjee.)