[Sabarimala] [Day 7] : The Parameter For Attracting Article 17 (Untouchability) Is Caste-based Not One Based On Sex: Gopal Sankaranarayanan [Read Written Submissions]

Day 7 of the Sabarimala Temple entry case witnessed submissions by Advocate V. K. Biju and Gopal Sankaranarayanan, appearing on behalf of two intervenors.

Mr. Biju, countered the challenge to the ban on the entry to the Temple of menstruating women between the ages of 10 and 50 years, praying that the court may not interfere in the customary practice that has prevailed in a family for generations.

Reiterating the argument that the impugned Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules is not “cruel” in as much as it is not connected with the notion of impurity attached to menstruation but with the ‘Naishtika Brahmacharya’ character of the deity, he advanced that the same qualified as a ‘reasonable restriction’ for the purpose of the Constitution.

It was his case that the petitioners lack any first-hand Information about the origin, existence and objective of the ritualistic practice, the petition being based solely on newspaper reports. He submitted that the state of Kerala itself has admitted to being ignorant of the age-old customs and traditions of the Temple. He questioned the wavering stand of the state government, which has not opposed the lifting of the ban before the apex court.

Mr. Biju, on Tuesday, threw light on the uniqueness of the Temple, on how the majority worshippers visiting it first pay homage at the mosque of Vavar. He contended that Temple, having its roots not in the Vedas but the Tanthric traditions, has the right to exist as it has so far.

Next, Mr. Sankaranarayanan stated that declaring the impugned practice unconstitutional would have far-reaching consequences, disturbing the status of essential practices in other religions that have survived the test of time and stability.

He argued that the impugned practice does not exclude all women absolutely but only those belonging to a particular age bracket. Justice D. Y. Chandrachud reflected that the right under Article 25(2)(b) could be construed as applying across all class-based restrictions and not merely those based on caste.
Justice Rohinton Nariman seemed unconvinced that the restriction imposed on such a class would be conducive to the Constitution. The judge wondered if it could be compared to ‘untouchability’ that is prohibited under Article 17. Mr. Sankaranarayanan responded that the parameter for attracting Article 17 is caste-based disability and not one based on sex.

The hearing, which also saw a discussion into the denominational status of Lord Ayyappa devotees and the devotees of the Sabarimala Temple, shall resume on Wednesday.