New Delhi: The Supreme Court Thursday referred to a larger bench of seven judges a batch of review petitions seeking to review its 2018 verdict allowing entry of women of all age groups into Kerala’s Sabarimala Temple.
The 3:2 majority judgment does not stay the 2018 order.
The review petitions were being heard by a five-judge Constitution bench of the Supreme Court headed by Chief Justice of India Ranjan Gogoi and comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
CJI Gogoi and Justices Indu Malhotra and Khanwilkar ruled in favour of referring the matter to a larger bench, while Justice Nariman and Chandrachud dissented.
“We expect the Kerala govt to follow the rule of law,” Nariman said.
He said the original judgment in Sabarimala was based on a “bona fide PIL which raised the issue of women discriminated against for their entire period of puberty due to a physiological feature”.
“When the judgment is declared, it is final and binds all. Organised efforts to subvert the judgment should be put down determinedly. This is the judgment of the Supreme Court,” he added.
The majority judgment has tagged entry of Muslim women into mosques, Parsi women into Tower of Silence etc, with the Sabarimala matter.
“…the entry of women into places of worship is not limited to this temple, it is involved in the entry of women into mosques and Parsi temples,” the CJI said.
The majority verdict referred broader questions of law and religion to a larger bench to decide how does faith and law needs to be decided and especially its interplay with Article 14 (Right to Equality) and Article 25 (Right to practice one’s faith).
Differing with the majority verdict, Justices Nariman and Chandrachud said the issues of Muslim or Parsi women “aren’t even before this court in the present batch of petitions in Sabarimala case”.
On technical grounds, meanwhile, the review petitions will remain pending unless the larger bench decides the legal principles. It is after that verdict by a larger bench that Sabarimala review could be taken up again.
In its crisp 77-page verdict, the court has said the larger bench would also check to what extent can the court interfere in realms of faith.
What the review petitions said?
In February this year, the top court reserved its verdict after hearing 65 review petitions that challenged its September 2018 judgment allowing entry of all women, including those of menstruating age — 10-50 years — into Sabarimala temple.
The SC said banning entry of women of menstruating age in the temple was discriminatory and violated the right to equality.
The deity, Lord Ayyappa, at Sabarimala is believed to be ‘Naishtika Bramhachari’ — the argument made for the non-entry of women of menstrual age. The Supreme Court disregarded this argument.
The majority judgment of 4:1 concluded that the exclusion of menstruating women from Sabarimala temple was similar to treating them as the children of a “lesser God”. It also said that exclusion of any kind, especially based on a biological attribute, amounted to the practice of untouchability.
CJI Gogoi in the verdict had also said devotion could not be subjected to discrimination and patriarchal notion could not be allowed to trump equality in devotion.
Hearing the review petitions, CJI Gogoi had warned at the very outset that arguments should be restricted to review of the judgment only.
Advocate K. Parasaran, appearing for the Nair Service Society (NSS), had argued first. The NSS sought a review of the verdict on the ground that exclusion at Sabarimala temple was not based on gender or sex, but on religious faith in and character of the deity.
Parasaran argued that the customs of a temple cannot be struck down for violating Article 15, which states there shall be no discrimination against any citizen on grounds of race, religion, caste, sex and place of birth.
He also cited the 1986 Bijoe Emmanuel v/s State of Kerala judgment in which the Supreme Court had ruled that religious beliefs cannot be tested on grounds of rationality.
Sabarimala temple’s chief priest Rajeevaru Kandararu, who is the main review petitioner, argued: “Every devotee has a fundamental right to worship in a temple in a manner which is in sync with the character of the deity”.
“Thanthri [priest] is the father of the deity. Every deity has a character. The Sabarimala deity, unlike in other Ayyappa temples, has the peculiar character of a Naishtika Brahmachari. The essential religious nature of Sabarimala deity is affirmed and perpetuated everyday by the offerings/pujas conducted in the temple. All this rests on this unique character of the deity. Exclusion of women of a certain age is nothing on moral or immoral,” senior advocate V. Giri had argued for the priest.
Appearing for Prayar Gopalakrishnan, former chairman of Travancore Devaswom Board, which manages the temple, advocate A.M. Singhvi had stated that the judgment failed to address the essential character of the deity, which constitutes a ground for review.
The board, however, took everyone by surprise as at the end of all the arguments, it stated it had no objection to the entry of women inside the temple and urged people to “gracefully” abide by the apex court’s verdict.
Indira Jaisingh argued against reviewing the SC ruling
Senior advocate Jaideep Gupta, representing the Kerala government, opposed the review pleas and stated that Ayyappa devotees did not constitute a separate religious denomination and that restricting women from entering the temple was not a part of essential religious practice.
Senior lawyer Indira Jaisingh, appearing on behalf of two women Bindu and Kanakadurga who had entered the temple after the SC verdict, contested the petitions, seeking review of the SC judgment.
Jaising said the temple performed a purification ceremony after the two women entered the temple. She stated that this indicates the exclusion is rooted in notions of untouchability.