Essential and integral religious practices can be overruled if they are biased: SC

• “Essential” religious practices will be termed as “unconstitutional” if they discriminate on grounds of caste or sex, the SC said.
  
• The apex court evoked the fundamental right to equality and Article 25(2) to give this verdict in the Sabarimala Ayyappa temple case.
  
• The temple did not let women between the age of 10 to 50 years, enter its premises. However, SC said that it was unconstitutional.
  

The Supreme Court has recently given the judgement that “essential and integral” religious practices can be struck down if they are biased. The apex court said that practices were “unconstitutional” if they discriminated on grounds of caste or sex and that the fundamental rights would be upheld against them.

Thus verdict was announced when the SC was hearing petitions challenging the Sabarimala Ayyappa temple’s custom of barring women, between the ages of 10 and 50, from entering the temple. A bench headed by Chief Justice Dipak Misra, called upon Article 15, which establishes the Fundamental right to equality, and Article 25 (2), which bestows a duty on constitutional courts and governments to act against any religious practice that is discriminatory towards women.

The senior advocate and former attorney general K Parasaran, who was the lawyer appearing in the court on behalf of the Nair Service Society, an organisation created for the upliftment and welfare of the Nair community, argued that the temple does not discriminate against women, entirely. It lets women below the age of 10 years and above the age of 50 years enter the temple. He further added that Lord Ayyappa, in whose honour the temple was built, is a celibate pristine God and therefore, fertile or menstruating women are not allowed to enter the premises.

The argument caused a halt in the bench’s desire to test the temple’ customs in terms of the constitutional provisions. However, the court soon decided to reply by quoting Article 25 (2) which says that legislature can enact a law to provide for "social welfare and reforms or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus". The judges also added that this article applies to all religious institutions and not just Hindus.

Though Parasaran acknowledged it, he also argued that the Constitution preserves the Fundamental Right that protects the practices and customs which are integral to a religious denomination.

In response, the judges pointed out that if the practice or custom is biased, like barring a certain group from entering the temple, the legislature is empowered by the Constitution, itself, to enact a law and throw open the temple to everyone.

And since, untouchability and discrimination on the ground of sex are prohibited under the Constitution, the Sabarimala Temple custom of barring the entry of women of a certain age group could also fall foul of constitutional ethos or could be termed unconstitutional, the jury declared.