Petitioners seeking a continuation of the ban on entry of women into the Sabarimala temple on Thursday warned the Supreme Court of “another Ayodhya” if the shrine’s customs were tinkered with.
“I do not want another Ayodhya in Kerala. Your Lordships will have to be very circumspect when exercising judicial review in matters of faith,” senior advocate Kailasanatha Pillai, appearing for outfit Akhila Bharatha Ayyappa Seva Sangham, said and added that religious customs cannot be viewed in isolation.
The top court’s Constitution Bench is hearing petitions seeking revocation of the ban on entry of women of menstruating age into the Sabarimala temple. Those defending the prohibition argued that the women’s entry was restricted because of the celibate nature of the temple deity, Lord Ayappa. Arguing that the deity’s celibate character cannot be altered, the petitioners stated that the deity, being a living entity under the Constitution for the purpose of taxation, also had the fundamental right to preserve his “dharma”.
“The deity too has fundamental rights under the Constitution. The deity has the right to preserve his dharma and it’s the will of the deity that is expressed in the form of temple customs,” advocate Sai Deepak who appeared on behalf of People4Dharma, a trust floated by women devotees, said.
Justice DY Chandrachud, a judge on the bench led by Chief Justice Dipak Misra, remarked that due to essentiality doctrine under the Constitution the judges of the Supreme Court “are now assuming a theological mantle. “We are not expected to do this,” he said.
“There is a problem with our jurisprudence. The essentiality aspect has taken charge of Article 25 (of Constitution that gives the right to practise one’s religious faith if it’s essential to the belief) but it should not be so,” the judge went on to say. “The test should be whether a practise subscribes to the constitution irrespective of whether it is essential or not,” the judge said in his oral observations.
Responding to Justice Chandrachud’s comments, advocate Sai Deepak said: “Sometimes judges will have to play the role of theologians while deciding matters of religion.”
“Do we ascribe any role to the Constitution which overpowers all practises”, Justice Chandrachud asked, saying a class cannot be excluded on grounds of physiology”. “Every exclusion is not discrimination. Petitioners are confusing diversity of Hinduism with discrimination,” Sai Deepak responded.
Senior lawyer VV Giri, appearing for the temple priest, said the constitution gave right to citizens to profess, practise and propagate religion. “To say I believe in the deity is their belief and must in sync with what is the character of the deity, which is the core characteristic of the deity,” he said.
Source: Read Full Article