Asserting that it would decide on the right of women to enter the historic Sabarimala shrine on the basis of constitutional principles and not by the prevalent customary practices, the Supreme Court on Monday said "gender justice is endangered".
"We will now only be guided by the rationale under the Constitution. The gravity of this petition is that gender justice is endangered," a three-judge bench headed by Justice Dipak Misra said.
"Can you deny a woman her right to climb the Mount Everest? The reasons banning anything must be common for all and on the bedrock of the Constitution," the bench, also comprising justices V Gopala Gowda and Kurian Joseph, said.
The court was hearing a PIL, filed by Indian Young Lawyers' Association, seeking entry of women in the Sabarimala temple.
At the outset of the two-hour-long hearing, it asked the counsel, supporting the ban, about constitutional principles which support the restraining order of the temple board.
"We will like to understand as to what right they have to forbid a woman from entering the temple, a public place," the bench said, visibly unimpressed with the arguments that the practice has been observed for centuries and much before the Constitution came into being.
The bench said it would examine the question as to whether a public religious place can pass such an order and "whether such a prohibition is permissible under the Constitution".
The customary practices cannot override constitutional values, it said.
"Anyone can worship the God or Goddess structured into idols. I believe in God and want to bow my head, can you say, don't come," it asked the counsel representing the Devaswom Board.
Referring to the prevalent Hindu protocol, the bench said the mother has to be greeted ahead of father, 'Kul Guru' (teacher of the clan) and 'Kul Purohit' (priest of the clan) and hence, women should not be prohibited from entering the temples.
The Travancore Devaswom Board, which runs the historic temple, as a practice, does not allow girls after attaining puberty to enter the premises. However, women who have crossed menopause are allowed.
The court did not agree with the submission that majority of women feel that the prevalent practice is "good" and said, "we are not going by the majoritarian view" and "we will go by the constitutional principle".
Senior advocate Indira Jaising said she opposed the discrimination on the ground of gender and the Board cannot prevent the entry of women.
The court would resume hearing on April 20 on the plea.
Earlier, the court had said if god does not discriminate between men and women, then why does discrimination exist in temples.
Senior advocate K K Venugopal, appearing for the temple Board, had said the practice of prohibiting women of menstrual age in Sabarimala was being followed for centuries, an aspect which should be kept in mind while deciding on the PIL.
The bench had also taken note of Kerala government's recent stand and termed it as a "somersault" saying, "You have filed an affidavit by taking an opposite stand. We will test it also as to whether anyone can take a somersault or u-turn".
Kerala government, in its recent affidavit, had said the prohibition of women was a "matter of religion" and it was duty-bound to "protect the right to practice the religion of these devotees".
The apex court on January 11 had questioned the age-old tradition of banning entry of women of menstrual age group in the Kerala temple, saying this cannot be done under the Constitution.
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