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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: Coming back to the journey on this case to Supreme Court you were telling about the first that petition was filed sometime in 1995-96 before the Kerala High Court, then what happened?

Prashant Padmanabhan: The Kerala High Court held that women between the age of 10 and 50 should be strictly prohibited from entering Sabarimala.

Charu Mathur: Right.

Prashant Padmanabhan: Our argument is that it is actually from that period that otherwise was a complete prohibition. Women used to go very rarely but they used to go. There are proofs. Like even there are some Boards that were issued receipts for doing some rituals—rice-feeding ceremony and all that. The women used to go but there were not many, the number was less because it is a hilly area and earlier the transport was also not there that much. So trekking was difficult and women never used to like it.

Charu Mathur: Sir you were saying, it is because it was a very difficult track so women did not used to visit?

Prashant Padmanabhan: That is the practical thing but nowadays after like the transport has become very good. Now you can go to a nearby place like Pamban like and all, where vehicles can go and from there it is only three hours’ walk. So now everybody can go. If somebody wants to go there, it is not difficult for them to visit and that physical or geographical problems are over as of now.

Charu Mathur: Right.

Prashant Padmanabhan: This Kerala High Court judgment, it used to be followed after 1992 or less like very firmly. And in 2006 there were three Articles—one by Barkha Dutta and somebody else, Vir Sanghvi. They have written about this custom which is now followed in Sabarimalai.e.preventing women of that menstruating age. And articles were very critical of that taboo associated with menstruation. So by seeing those articles, some public spirited citizens, they were lawyers in the Supreme Court mainly (mostly ladies), they had an association Indian Young Lawyers Association. They filed a writ petition in the Supreme Court. The Supreme Court took cognizance and initially it was before three-judge Bench Chief Justice Dipak Misra, Justice Banumathi and Justice Ashok Bhushan. They framed this question whether this is prohibited or is it violative of Article 14, 15 and all that, and then they referred it to the larger Bench. And then it came before the five-judge Bench. That is how the case came up before the five-judge Bench. As you know Article 145(3) says that if there is interpretation of any constitutional portion, the number of judges should be minimum five. This was mainly statutory interpretation but the court thought it fit that since it involves religious rights and so many issues concerning that custom associated with the religion, it is better it should go before the five-judges Bench.

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