'Custom Inconsistent With Constitution Must Be Quashed' : Brahmin Scholar Seeks Intervention In Supreme Court Sabarimala Reference

A 94-year-old Brahmin scholar and author from Kerala has moved the Supreme Court seeking to intervene in the pending Sabarimala reference proceedings, contending that customs inconsistent with constitutional principles must be struck down.

S. Parameswaran Nampoothiri, a freedom fighter, traveller and author belonging to the Kerala Namboothiri Brahmin community, filed the intervention application in the proceedings arising out of the Sabarimala temple entry dispute. He argued that there is “nothing in Articles 25 and 26” of the Constitution that justifies banning the entry of women of any age into the Sabarimala temple.

“Religion, customs, usage and spirituality are not free from the test of constitutional validity. If any custom or religious practice is a violation of constitutional or statutory provisions, the same needs to be tested and quashed to the extent of illegality inconsistency with the provisions of the constitution,” the application states.

The applicant stated that he has studied Sanskrit and Ayurveda in traditional way, and has authored more than 15 books, including one book about Temples namely “Maha Kshetrangaliloode” (Through Great Temples) in which one chapter is about Sabarimala Temple. The intervener submitted that constitutional morality, founded on fundamental rights and directive principles, must prevail over discriminatory customs and practices. According to him, if practices followed for centuries are found to be “illogical, unreasonable or unjust”, they must be declared illegal.

Nampoothiri stated that discrimination against women based on menstruation violates dignity under Article 21 of the Constitution. He argued that treating women as impure during menstruation has no logic or reason and that such practices undermine gender equality, which he described as part of the Constitution's basic structure.

It is respectfully submitted that, there is no logic or reason in considering women as impure or inferior on the ground of menstruation. In many religions women are not permitted to participate in religious rituals for the reason of alleged impurity of women during the time of menstruation. It is high time to remove such discrimination of women in this respect, especially when the Constitution of India believes in gender equality which is a basic structure of the constitution. These discriminations starting from the house to polity in the social, economic, political and spiritual areas, without doubts shake the confidence of women as a class. Meaning thereby violates “dignity” enshrined in Article 21 of the Constitution.

The applicant also stated that "diluting the practices followed in Sabarimala Temple in isolation, without touching other religions and their practices is illegal, discriminatory, unjust, unfair and unreasonable and will result in serious injustice."

The intervener further argued that customs cannot override constitutional guarantees merely because they have been followed for centuries. “For the citizens of India, the Constitution of India is supreme,” the plea states.

Nampoothiri had earlier filed intervention applications in the Sabarimala matter in 2016 and 2017. One of those applications had sought constitution of a bench with at least 50% women judges to hear the issue, contending that the dispute directly concerns women's rights.

A 9-judge bench of the Supreme Court has been hearing the reference relating to the interpretation of Articles 25 and 26, which arose from the 2018 Constitution Bench judgment which had, by a 4:1 majority, allowed entry of women of all age groups into the temple dedicated to Lord Ayyappa.

The application of Parameswaran Nampoothiri has been drafted by Adv. Shivangi Ranjan and filed through Adv. Wills Mathews.