Review of Sabarimala verdict: Five-judge constitution bench of SC set to pronounce judgment on women's entry today; Kerala on edge

New Delhi: The Supreme Court is scheduled to pronounce on Thursday its verdict on a batch of petitions seeking re-examination of its decision to allow entry of women of all age groups in Kerala’s Sabarimala Temple. The apex court will deliver its judgment on as many as 65 petitions — including 56 review petitions and four fresh writ petitions and five transfer pleas — which were filed after its verdict sparked violent protests in Kerala. [caption id=“attachment_6288851” align=“alignleft” width=“380”]  File image of BJP supporters protesting against SC verdict on Sabarimala. Reuters[/caption] A five-judge constitution bench headed by Chief Justice Ranjan Gogoi had reserved its decision on 6 February after hearing various parties including those seeking reconsideration of the 28 September, 2018 judgement. Other members of the bench are justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. The apex court, by a majority verdict of 4:1, on 28 September, 2018, had lifted the ban that prevented women and girls between the age of 10 and 50 from entering the famous Ayyappa shrine in Kerala and had held that this centuries-old Hindu religious practice was illegal and unconstitutional. The five-judge constitution had heard the pleas in an open court and reserved its decision after hearing the parties, including Nair Service Society, thantry of the temple, Travancore Devaswom Board (TDB) and the state government, in favour and against the review plea. The TDB, which runs Sabarimala temple, had made a U-turn to support the Supreme Court’s order allowing women of all ages to enter the shrine. The TDB had joined the Kerala government to oppose a batch of pleas seeking review of the historic verdict. The Board later asserted that its latest position was not due to any political pressure. Some right-wing activists have alleged that the Board changed its stand before the court under pressure from the state’s CPM-led LDF government. The Kerala government, which had taken conflicting stands on women’s entry into the hilltop shrine, supported the verdict and urged the court to trash review pleas. Senior advocate Jaideep Gupta, appearing for the state government, had said a constitutional court should not worry about law and order problem and “social disturbances”. Exclusion of women from temples is not an essential practice of the Hindu religion, he had argued. At the outset, the bench told lawyers it would hear only those who are parties to review petitions and asked them to confine arguments on grounds for reconsideration of the judgment. Senior advocate K Parasaran, appearing for Nair Service Society, assailed the majority verdict, saying Article 15 of the Constitution throws open for public the secular institutions of the country but doesn’t deal with religious institutions. Seeking a reconsideration, he said the Article 17 which deals with the abolition of untouchability in society was wrongly used by the court in its judgment as the exclusion of certain age groups of women was not based on caste. Parasaran also referred to the celibate or ‘Naishtika Brahmachari’ character of the Sabarimala deity and said the exclusionary practice was based on nature of the deity and the apex court should have considered this aspect.

He also referred to Article 25 (fundamental right to practice religion) and said unless a religious practice is “abhorrent’, a court usually does not interfere with the activities associated with religious institutions. Senior advocate AM Singhvi, representing TDB’s ex-chairperson, argued in favour of a review of the judgment. “There is no exclusion of women. There is no exclusion of men. There is no exclusion of a class of men or women based on religion and caste. There is an exclusion inside a class (women). Hence Article 17 (removal of untouchability) will not apply,” Singhvi had said. Dealing with the aspect of constitutional morality, the lawyer said that in a pluralistic Hindu society this concept cannot be applied objectively by the court and it has to be subjective keeping in mind different essential religious practices. Senior advocate V Giri, who represented the shrine thantry, said the temple allows entry of all persons inside and there is no exclusion of any class of citizen based on caste, gender and religion. “The fundamental right to worship also includes the character of the deity and every devotee cannot question this character which also formed part of the essential religious practice there,” he had said. Senior lawyer Shekhar Naphade had said the court cannot direct a community to practice religion in a particular manner. “This is an internal affair of a religious community which worships a particular deity in a particular manner. This has never been in dispute that this practice is being followed for centuries. The court cannot issue a writ of mandamus against a community to practise its religion in a particular manner,” Naphade said, adding this was an essential religious practice which cannot be scrutinised. Naphade said that any religious practice cannot be stopped unless it constituted a criminal offence.