New Delhi, April 7 The Centre told the Supreme Court on Tuesday that the 2018 Sabarimala judgment, which lifted the ban on women aged 10-50 entering the Sabarimala temple in Kerala, was wrongly decided and requires reconsideration.
Appearing before a nine-judge bench headed by Chief Justice of India Surya Kant, Solicitor General Tushar Mehta submitted that he has strong objections to an observation in the 2018 Sabarimala judgment that excluding women in the age group of 10-50 from the temple was a form of "untouchability," violating Article 17 of the Constitution.
In the Sabarimala case, Justice DY Chandrachud held that excluding women, based on age or menstrual status, from entering the Sabarimala temple is a form of "untouchability" which places them in a "subordinate" position, perpetuates "patriarchy," and is "degrading to their dignity."
Mehta said, "India is not that patriarchal or gender stereotyped in the way that the West understands."
Initially, Mehta submitted that the unnecessary doctrine of essential religious practices was introduced, but the question is, how do you decide what is essential.
"It is a matter of faith. It is a matter of belief. To determine whether something is essential or not, one would first have to undertake a judicial review of religious scripture. One would have to understand the scripture in the manner in which it is meant to be understood. That, in my respectful submission, is not possible unless one attains that level of spiritual understanding," he said.
Mehta submitted that India has always treated women equally, and often at a higher pedestal.
"We are, arguably, the only society which worships women. From the President of India to the Prime Minister, to judges of the Supreme Court, we bow before our female deities. Therefore, my Lords, let us not import concepts of patriarchy and gender stereotypes into this discourse. These, I submit, were never inherent," Mehta told the court.
The law officer said the Centre's submissions should not be viewed solely through the lens of the Sabarimala case, as the court is dealing with issues related to discrimination against women at religious places, which may have wider ramifications.
"I am not touching the Sabarimala part, I will deal with it in a different manner. It is a sui generis case. Right now, my lords are examining the questions of law and the judicial policy which my lords will apply. Henceforth, it may be advisable for me not to be coloured by one particular sui generis case, though it is in my case that it is wrongly decided and deserves to be declared a wrong law, for more than one reason," Mehta said.
The bench, also comprising Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, said that it will not go into the merits of the Sabarimala judgment, and will confine itself to the seven questions framed in the matter.
In September 2018, a five-judge Constitution bench, by a 4:1 majority verdict, had 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.
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.
The bench had then framed broad issues on freedom across religions, saying they cannot be decided without any facts of the particular case.
