While two cases of Parsi women petitioners fighting for equality with males pend hearings, a similar matter pertaining to the bar on entry of women between the ages of 10 to 50 to the Sabarimala Temple awaits judgment. The Temple dedicated to Lord Ayyappa is situated in the noted Periyar Tiger Reserve in south Kerala and predates the 12th century. According to the Temple website, sabarimala.kerala.gov.in, the Temple "is open to all irrespective of caste, creed or religion."
Arguing before a five-member Supreme Court constitutional bench comprising Justices Dipak Misra, Rohinton Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra, advocate Abhishek Manu Singhvi appearing for the Travancore Devaswom Board which runs the Temple stated, "If a person has a belief, it is not for a secular judge to sit in judgment on that belief."
He cited from a Supreme Court (SC) judgment in a case where a Parsi testator had bequeathed property for celebration of Zoroastrian religious festivals. "If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community — a secular judge is bound to accept that belief...He has no right to interfere with the conscience of a donor who makes a gift in favor of what he believes to be the advancement of his religion and the welfare of his community and mankind."
When the justices questioned the antiquity of the Temple practice, Singhvi argued that if such material was required a trial would would have to be held: "The Court can only do that based on evidence. If not, you will be disturbing a part of Hindu faith," reported tribuneindia.com on July 24, 2018.
Lawyer K. Parasaran arguing for the Nair Service Society (NSS) that opposes entry of menstruating women to the Temple stated, "Lord Ayyappa at Sabarimala is unique as he is a celibate and doesn’t want the presence of women aged between 10 and 50 as it would affect his penance. When the Lord Himself doesn’t want them, who are we to say that they should be allowed?" Parasaran’s quip was quoted in a report in The Free Press Journal of July 26. The NSS is an organization created for the benefit of the Nair community largely based in Kerala.
Parasaran argued that provisions of Article 25 of the Constitution could not be used to alter or do away with customs associated with the Hindu religion, The Times of India (ToI) of July 26, noted. The Article pertains to the freedom to practice one’s religion.
Nariman noted, if somebody’s fundamental rights are violated, "then the burden shifts to you (the Temple trust)," the tribuneindia.com noted.
Appearing for the Kerala government, advocate Jaideep Gupta claimed the customs of the Temple were subject to constitutional principles and the bar on entry was violative of their fundamental rights, noted The Hindu of August 2.
According to the ToI, Chandrachud observed, "Even if it is part of Hindu religious custom to exclude any particular category from entering the temple, the state has been empowered (by the Constitution) to enact a law to throw open temples to all categories of persons." Nariman said, "Since untouchability and discrimination on grounds of sex is prohibited under the Constitution, the Sabarimala Temple custom to bar entry of women in a certain age group could also fall foul of constitutional ethos."
The arguments are pertinent to the cases of Goolrookh Gupta vs Valsad Parsi Anjuman and Prochy Mehta and other vs The trustees of the Late Ervad Dhunjeebhoy Byramjee Mehta’s Zoroastrian Anjuman Atash Adaran as similar constitutional arguments will be put forward. Would the right to practice one’s faith prevail over other fundamental rights?
Gupta’s case pertains to a resolution passed around 2005 by the Valsad Parsi Anjuman (VPA) barring women married to non-Parsis entry to the local adarian and Doongerwadi, even if the woman had a civil marriage and continued to profess the Zoroastrian faith.
A Bombay resident, Gupta is originally from Valsad where her ageing parents reside. She and her two sisters feared they would not be permitted to attend their parents’ funeral ceremonies as and when they died. On compassionate grounds the SC bench comprising Misra and four others requested the VPA, pending the delivery of the judgment, to make an exception for the sisters in the event of their parents’ deaths. The Anjuman agreed. Since then the matter is on the Court’s back burner and no date has been announced for a final hearing.
In 2012 a three-member bench of the Gujarat High Court nixed Gupta’s writ petition, ruling that under the Special Marriage Act, 1954 a woman took on her husband’s religion.
Mehta’s case was initiated after 2015 when the new panthaky at the Adaran, Ervad Jimmy Taraporwalla barred her grandchildren entry following their navjote on the grounds that their father was a non Parsi. The two children used to visit the fire temple under the panthakyship of the earlier priest. Mehta filed an Originating Summons in the Calcutta High Court asking the judge to examine who has the right of entry. That matter is due for a hearing in September, said Mehta.
According to the Bombay High Court judgment of 1908 by Justices Dinshaw Davar and Frank Beaman, a Parsi is defined as the child of a Parsi father. The Parsi benefactors in the past who drew up the trust deeds intended to restrict trust benefits such as entry to a fire temple, etc to only Parsi Zoroastrians, the judges reasoned.
Parsi women, sadly, have not launched any agitation, public protest, online signature drive, letter writing campaigns to oppose the discrimination. They have, instead for the last 110 years surreptitiously or with a tacit understanding, taken their children to the fire temple, doongerwadi and even Parsi clubs, with a hope and a prayer that no one will object. That illusion was shattered in Calcutta.
In 1991, the Kerala High Court ruled menstruating women could not enter the Sabarimala Temple, claiming the custom was "in accordance with the usage prevalent from time immemorial;" that the restriction was "not violative of Articles 15, 25 and 26 of the Constitution of India" and that the Hindu Place of Worship Act, 1965 states, "‘There is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple.’... In the Sabarimala case the prohibition is only in respect of women of a particular age group and not women as a class."
Article 15 of the Constitution notes, "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." Article 25 confers "freedom of conscience and free profession, practice and propagation of religion," while Article 26 refers to the "freedom to manage religious affairs. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law."
The Sabarimala Temple judgment may well be a harbinger on how the Court decides Gupta’s and Mehta’s cases.