Women In South Avoid Temples During Menstruation As Matter Of Belief : Lawyer Tells Supreme Court In Sabarimala Reference
He argued that secular regulations cannot invade core beliefs.
Senior Advocate MR Venkatesh, appearing for Atman Trust, on Thursday told the nine-judge Bench of the Supreme Court that the practice of women voluntarily refraining from entering temples or puja rooms during menstruation is rooted in discipline and belief, and not in notions of discrimination.
Addressing the Constitution Bench hearing the reference arising out of the Sabarimala judgment, Venkatesh submitted that across South India, women traditionally observe self-imposed restrictions during menstruation as part of religious discipline.
He stated:
"All temples in South India, primarily when women undergo a monthly biological process, voluntarily by their own discipline they do not enter temples. This is a non-written rule. Even in the house, they do not enter the puja room. This is my belief. I can't give a scientific explanation, but when science ends, belief begins. This is practised as a discipline by all ladies or most ladies in the South."
Ambedkar Distinguished Untouchability From Temporary Defilement
Reading from Dr. B.R. Ambedkar's speeches in the Constituent Assembly, Venkatesh submitted that the framers clearly distinguished between untouchability and temporary ritual impurity.
He argued that this distinction was overlooked in the Sabarimala judgment.
According to him, Ambedkar recognized that temporary defilement arising from biological processes was conceptually different from the social evil of untouchability, and that conflating the two would distort constitutional intent.
He also referred to Rule 6 of the Travancore-Cochin Temple Entry Rules which says that persons under pollution arising out of birth and death in their families are barred from temple entry. He stated that this was a ritualistic practice emanating from the denomination's right to manage its own affairs. It cannot be regarded as discriminatory.
Religious Practice And Denomination Cannot Be Precisely Defined
Venkatesh further argued that the expressions "religious practice" under Article 25(2) and "religious denomination" under Article 26(b) are inherently indeterminate and incapable of rigid definition.
Tracing the historical roots of the term "denomination," he submitted that the concept has foreign origins and limitations when applied to the Indian constitutional context.
According to him, the word can be traced to the Latin term "denominatious," which later evolved in Christian traditions and was adopted into constitutional frameworks such as that of Ireland. He contended that these foreign conceptual origins make the term ill-suited for India's diverse religious traditions.
The Senior Counsel emphasized that Articles 25(2)(a) and 25(2)(b) are sui generis provisions crafted specifically for the Indian constitutional scheme, without international precedent.
He cautioned that an overly expansive interpretation of these provisions could undermine religious autonomy. If only denominational temples are recognized as having rights, he argued, non-denominational temples risk being reduced to the status of purely public spaces.
He remarked:
"If there is a definition of denominational temples and a certain class falls within it, what happens to non-denominational temples? Do they have no right? All this becomes a sort of public place equated to a bus stand where anybody can enter and exit."
Secular Regulation Must Not Invade The Core Of Religion
Venkatesh submitted that the controlling inquiry under Article 25(2)(a) should be whether a law is predominantly secular in character, with only incidental application to religious settings. Any intervention that intrudes into the core of religious practice, he argued, would be unconstitutional.
He contended that Article 25(2)(a) permits regulation only of secular aspects such as political, economic, or financial matters, and does not authorize interference with core religious practices. Any law that abridges essential religious practices under the guise of regulation, he submitted, would violate Article 13(2) of the Constitution.
He further argued that courts have inverted the constitutional framework by bringing religious practices within the ambit of secular regulation through the doctrine of essential religious practices.
Temple Entry And Management Are Distinct Constitutional Domains
On the relationship between Articles 25 and 26, Venkatesh submitted that the Constitution draws a clear distinction between the right of entry into temples and the right to manage their affairs.
He argued that Article 25(2)(b) enables temples to be thrown open to all classes and sections of Hindus, ensuring access without discrimination. However, Article 26(b) protects the autonomy of religious denominations in managing their internal affairs.
Drawing an analogy, he stated that while members of the public may enter the Supreme Court premises, they cannot claim the right to administer the institution.
He explained:
"Several people come to watch Supreme Court proceedings. It is like a temple being thrown open. But the Registrar maintains and actually runs the affairs of the Supreme Court from the administrative side. Whoever enters cannot say, by virtue of Article 26(b), that I will manage the affairs of the Supreme Court."
"Section Of Hindus" Includes All Devotees In A Pilgrimage
Venkatesh also submitted that the phrase "section of Hindus" in Article 25(2)(b) should be understood broadly to include all devotees participating in a religious pilgrimage.
Referring to the Sabarimala pilgrimage, he argued that caste and class distinctions dissolve during the yatra, with all devotees united by devotion to Lord Ayyappa.
He stated:
"Typically in a Hindu pilgrimage, all caste and community dissolve. When we go to Sabarimala, there is no caste and class. There is only one thing that sustains us, that is Lord Ayyappa's section, which comprises all sorts of devotees."
"Sampradaya" Requires Constitutional Protection
On the concept of "sampradya," Venkatesh submitted that lineage and tradition themselves constitute a juridical person deserving constitutional protection.
He argued that the Constitution must recognize the continuity of religious lineage and ancestral tradition as integral to religious identity, and that safeguarding such traditions under Article 26(b) is essential.
The arguments are before a bench comprising CJI Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.
Today is the fifth day of the hearing.
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