Sabrimala #3: Devoswam Board Says Exclusion Is Not Discriminatory, Merely Matter of Faith

On July 24th 2018, a 5-Judge Bench led by Chief Justice Dipak Misra and comprising Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman and Indu Malhotra resumed hearing a set of petitions challenging the custom barring women’s entry in the Sabrimala temple.

Senior Advocate Dr. Abhishek Manu Singhvi, for the Kerala government, took up the mantle from where he left. In this session, he was primarily concerned with the definition of a religious denomination and the nature of religious belief. His manner of presentation was marked by scientific precision.

Dr. Singhvi Argues That Sabarimala Is a Religious Denomination

Dr. Singhvi’s first referred to S.P. Mittal v Union of India (1982) to lay down the characteristics of a religious denomination. He submitted that the Judgment sets three requirements: a collection of individuals who have a system of beliefs or doctrines which they consider conducive to their spiritual being, a common organization and a designation by a distinctive name. Flowing from the historical circumstances surrounding the Sabarimala temple, he argued that it satisfies the triple tests of a religious denomination.

He specifically referred to Subramanian Swamy v Union of India (2014) where it was held that Smarthi Brahmins administering a temple dedicated to Lord Nataraja in the state of Tamil Nadu are a religious denomination. In a previous hearing, the petitioners argued that the Sabrimala Temple was a part of the Hindu religion, not a denomination of its own.

Justice Nariman queried what would be Mr. Singhvi’s response if the bench does not agree that the Sabarimala is a religious denomination. Mr. Singhvi focused on Article 25. On the aspect of Article 25, Mr. Singhvi passionately argued that religion should be construed in a broad manner. He specifically stated that the right under Article 25 includes installation of the idols, conduct of the worship of the deities, place of standing of worshippers and the manner of their worship.

Dr. Singhvi: Exclusion is Not Anti-Women, Secular Court Should Not Decide Questions of Faith and Belief

Mr. Singhvi then put forth that a secular judge is bound to accept the belief and cannot question the same. To buttress his point further, he cited the illustration of Attukala Pongala where only women devotees are allowed during the period of festival. He further pointed out that all mosques prohibit the entry of women. Justice Nariman responded saying that it applies to only Sunni mosques and not Shias mosques. He strenuously put forth the point that exclusion is not anti-women and is a primarily a question of faith and belief. He queried how can the bench decide primarily a question of belief on the basis of a petition under Article 32 of the Constitution?

Justice Nariman made an insightful observation that recent religions like Buddhism, Sikhism and Bahaism don’t have restrictions unlike the older religions. Justice Chandrachud added that the restrictions reflect a patriarchal mindset. Justice Misra queried that the question is whether a public temple can enter into the concept of banning.

On the aspect of equality, Dr. Singhvi submitted that the discrimination is not against an entire class of women but only against a certain age group between 10 and 50. Therefore it is not primarily gender based. Mr. Singhvi argued that the question before the court was whether the classification between men and women in the age group of 10 to 50 has a reasonable basis.

The Bench will continue hearing arguments tomorrow, on July 25th.