New Delhi: After delivering the big-ticket Ayodhya verdict Saturday, the Supreme Court will weigh in on another issue of faith this week — whether women aged 10-50 should be allowed into the sanctum sanctorum of Kerala’s Sabarimala temple.
The court had last year allowed women inside the temple, triggering widespread protests in Kerala. The upcoming verdict deals with around 65 review petitions filed against the 2018 order, including by the National Ayyappa Devotees (Women) Association, the Nair Service Society, and the All Kerala Brahmins Association.
However, a lot seems to have changed in the observations of the court between 2018 and 9 November 2019, when the disputed site of Ram Janmabhoomi in Ayodhya was set aside for a temple. Notably, the court stated last year that faith and belief could not be grounds to deprive someone of their Right to Equality. Last week, however, the court said it was “beyond the ken of judicial inquiry” to determine “whether a belief is justified”.
The question of worship also elicited a different reading from the two benches.
Given that precedent plays a big role in the Indian judicial system, the differences in observations between 2018 and 2019 may hold clues to how the Sabarimala verdict could play out this week.
The question of faith
The Ayodhya title suit sought to decide who among Hindus and Muslims owns the Ram Janmabhoomi.
The Sabarimala case, meanwhile, pertains to the faith of Lord Ayyappa devotees, who believe the deity was celibate and hence had to be away from women of the menstruating age group.
Ruling on the matter by a 4:1 majority, a Constitution bench of the Supreme Court allowed women of all ages inside the sanctum sanctorum. Prohibition of their entry, the majority verdict ruled, was a violation of the Right to Equality and not part of Article 25, which guarantees the Right to Practice one’s religion.
Justice Indu Malhotra, the lone woman on the bench and the sole dissenter, observed that it was not for courts to interfere in matters of religion. It must be left to those practising the religion, she said.
A similar refrain animated the Ayodhya verdict delivered by another Constitution bench Saturday — the bench ruled that “matters of faith and belief lie in the personal realm of the believer”. “Whether a belief is justified lies beyond ken of judicial inquiry,” it added.
“That which sustains solace to the soul is inscrutable. Whether a belief is justified lies beyond the ken of judicial inquiry,” it said. “Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief,” the court added.
“Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or belief is genuine and not a pretence, it must defer to the belief of the worshipper.”
Also read: In echo of Sabarimala dissent, SC junks plea seeking entry of Muslim women in mosques
The question of worship
Hindus believe the disputed site in Ayodhya is the birthplace of deity Ram. Devotees of Ayyappa believe he was celibate.
While the belief of Ayyappa devotees was dismissed as the court opened the sanctum’s doors to all women, that of Ram worshippers was upheld in the Ayodhya judgment.
Even though Hindus were not in exclusive possession of the inner courtyard (site where the mosque was), the court said, they continued prayers at the contested site, convinced that Ram was born there.
It was this faith that led to a judgment in favour of a temple.
The Ayodhya and Sabarimala cases both involve the consideration of the deity — Ram and Ayyappa, respectively — as a separate legal person. However, in the Ayodhya case, the act of worship itself was considered a legal entity.
The bench, led by CJI Ranjan Gogoi, said the Muslim side presented no evidence to prove continued worship at the mosque between its construction in 1528 and 1856-7, when the British built a brick wall around it to prevent communal tensions.
However, the Hindus, the court said, continued to pray at the area, even after the wall was built, thus proving “exclusive possession”.
The court noted that juristic rights are not conferred on an idol but on devotees’ worship to the deity concerned for a continued period of time.
“In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol,” it said. “Where the legal personality is conferred on the purpose of a deity’s continued worship, moving or destroying the idol does not affect its legal personality,” the verdict added.
In the Sabarimala case, heard by a Constitution bench led by former CJI Dipak Misra, ‘worship’ was not given juristic status, with the bench ruling that religious practice (worship) could not be exclusionary in nature.
Petitioners who wanted the bar on women to continue argued that the deity was a legal person and could excercise his fundamental rights, which meant his celibate character ought to be respected.
However, Justice D.Y. Chandrachud — who concurred with the majority but penned a separate verdict — noted that a deity can only be a juristic person for the purposes of religious law and not to claim fundamental rights allowed for ‘persons’ under the Constitution.
Also read: Two readings of Ayodhya verdict: legalising Hindutva or separating site from structure
Some of the lawyers who appeared for the petitioners seeking women’s entry into the Sabarimala sanctum do not see the Ayodhya verdict having a bearing on the case.
Senior lawyer Shekhar Naphade said the Ayodhya verdict was driven by evidence, not faith.
“In Ayodhya, it was a title suit… nothing to do with religion. Faith was not the basis but it was the evidence that was the crux of the Ayodhya verdict,” the lawyer added.
Senior lawyer V. Giri said the Ayodhya case was “somewhere about faith” but added that the facts of both cases were “completely different”.
On 6 February, a five-judge Constitution Bench led by CJI Ranjan Gogoi and comprising Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra, had reserved the verdict on the Sabarimala verdict. It is supposed to be decided this week, before Gogoi retires 17 November.
Also read: Next door to Sabarimala temple district, a menstruating goddess is worshipped
Justice Katju has compared the Ayodhya verdict to ADM Jabalpur, without a single note of dissent. If a mosque has stood undisturbed for 460 years, what further documentary proof is required to establish title over the land underneath and appurtenant to it ? Should the issue of Tejo Mahalaya be taken up next, are there title deeds to the land on which the Taj Mahal and its extensive gardens are located ?
I agree with the views expressed by the lawyer Shekhar Naphade. Ayodhya and Sabarimala are two dissimilar cases. The Ayodhya verdict didn’t deal with the issue of respecting the faith of the Hindus, but the fact that the faith was practiced on a long and continued basis over the centuries in spite of the site being in possession and occupation of Non-Hindu rulers, whereas the Muslim litigants could produce no evidence of Namaz being offered at the site from 1527 to 1856-57. Add to this the fact established by archaeological report that the controversial Masjid was built on an old non-Islamic structure, possibly a Hindu Temple. This created a peculiar situation that the Muslims had no title over the land but only on the construction built on the land. They have been adequately compensated for illegal and despicable act of demolition of that structure, but this demolition doesn’t provide them the right to claim that the structure be reconstructed on the same land forcibly occupied centuries ago.
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