New Delhi: A five-judge Constitution bench of the Supreme Court Thursday referred a batch of petitions seeking to review its 2018 verdict allowing entry of women of all age groups into Kerala’s Sabarimala temple to a larger bench of seven judges.
In a split verdict, the 3:2 majority judgment did not stay the 2018 order.
Chief Justice of India Ranjan Gogoi authored the majority judgment for himself and Justices A.M. Khanwilkar and Indu Malhotra, while Justice R.F. Nariman wrote the dissenting opinion for himself and Justice D.Y. Chandrachud.
The majority framed seven possible issues that the bench could take up, and also urged the larger bench to look into other pending issues regarding entry of Muslim women in mosques, Parsi women marrying non-Parsis in the Agyari, and the practice of female genital mutilation in the Dawoodi Bohra community.
However, the dissenting opinion pointed out that the additional matters referred to by the CJI can be taken up by future Constitution benches and asserted that the court only has a “narrow question” concerning the Sabarimala verdict before it — whether it should be reviewed or not.
Answering the question in the negative, Nariman stayed within the contours of review jurisdiction, refusing to allow re-arguing of issues already argued and accepted originally, and rejecting the new arguments on grounds of vagueness or extremity.
He also remarked that the Constitution of India is the “holy book”, when addressing the issue of people not following its judgment in the case.
“Let every person remember that the ‘holy book’ is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India,” he wrote.
The deity, Lord Ayyappa, at Sabarimala is believed to be ‘Naishtika Brahmachari’ — the argument made for the non-entry of women of menstrual age — which the court had declared discriminatory.
ThePrint takes a closer look at notable points from the judgment.
Also read: Next door to Sabarimala temple district, a menstruating goddess is worshipped
‘Courts should tread cautiously’
In a nine-paragraph opinion, CJI Gogoi asserted that given the plurality of faith in India, “what is perceived as faith and essential practices of the religion for a particular deity by a section of the religious group, may not be so perceived (as an integral part of the religion) by another section of the same religious group for the same deity in a temple at another location”.
It added that “courts should tread cautiously” while deciding issues pertaining to religion, and opined that referring certain issues to a larger bench would ensure an “authoritative pronouncement” and “consistency in approach”.
“In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges,” the court said.
It outlined seven possible issues that could be considered by the larger bench. Interplay between freedom of religion and fundamental rights, the contours of the expression ‘public order, morality and health’ used in Article 25 of the Indian Constitution — allowing freedom of religion — and interpretation of ‘morality’ or ‘constitutional morality’ are among the issues to be discussed.
The court will also look at the extent of its enquiry into a particular practice being integral to a religion, and whether such enquiry should be exclusively left to be decided by the religious group head, and the meaning of the expression ‘sections of Hindus’ used in Article 25(2)(b).
Finally, the court will also consider whether “essential religious practices of a religious denomination are protected under Article 26″, and the extent to which PILs can be entertained over religious practices by people not belonging to the faith.
‘Extreme arguments’ rejected
The minority opinion rejected what it called “extreme arguments” put forth by certain lawyers — that belief and faith are not judicially reviewable by courts. Such arguments need to be rejected out of hand in view of Article 25, it said.
“The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis,” asserted the court.
It also rejected the argument that other places of worship also had gender restrictions, opining that this argument was vague and not something which can be considered in a review petition.
“As and when such gender restrictions in other places of worship are tested, they will be decided on their own merits keeping in view the provisions of the Constitution,” it said.
Also read: Supreme Court cannot become the priest between Indians and their Gods
‘Wide publicity’ for implementation
Nariman also noted the submission that since there have been mass protests against the implementation of the judgment, the court should take a relook at the entire issue.
Senior advocate India Jaising had submitted that certain women from the Scheduled Castes she was representing were obstructed from entering the Sabarimala temple. She had demanded the implementation of the judgment in letter and spirit.
In the minority judgment, Nariman directed the Kerala government to give wide publicity to the 2018 judgment, asserting that the Constitution places a “non-negotiable obligation” on all authorities to enforce apex court judgments.
“Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive,” it said.
“In addition, Article 144 of the Constitution mandates that all persons who exercise powers over the citizenry of India are obliged to aid in enforcing orders and decrees of the Supreme Court,” it added.
Also read: How a photograph led to Kerala HC order banning entry of women into Sabarimala
Whatever individual or political parties opinions may be, the law as it stands right now is that women have every right to worship at Sabarimala. It is also presumably undisputed that Gods are eternal and immortal beings who can not be harmed or ‘contaminated’ by mere humans who are again presumed to be lesser beings and certainly inferior to the supreme Gods. Lord Ayyappa being a supreme God can never be contaminated by humans and certainly does not need human ‘protection’ or intervention. In fact Lord Ayyappa and all Gods would abhor the use of violence by one set of humans to prevent another set of humans from worship. Think about it.
Even otherwise, everyone including those opposed to female pilgrims at Sabarimala are obliged to follow the law and the authorities are obliged to maintain the rule of law. Whoever breaks the law and/or forcibly tries to prevent the female pilgrims from reaching Sabarimala deserve to be arrested and prosecuted to the fullest extent. Political parties and cadre who instigate unlawful acts should be immediately detained. Shame on violence in Gods name.
While Nariman had written eloquently about the evolution of rule of law based on French, British and American legal documents like Magna carta of England , to butters his verdict , his judgment is notably conspicuous by the absence of any reference to the Dharma Shasthras of Hindus, to judge a matter relating to the Celibacy of Lord Ayyppa.