The Supreme Court on Thursday said restrictions on women in religious places were not limited to Sabarimala alone and was prevalent in other places of worship as well, as it referred the matter to a seven-judge bench.
The court, in a split 3:2 verdict, observed that the case did not only concern the entry of women to the Sabarimala shrine but will have larger ramification on all aspects where religious rights are pitted against principles of gender parity.
The apex court said the judgment by a larger seven-judge bench will re-examine various religious issues, including the entry of women into the Sabarimala temple and mosques and the practice of female genital mutilation in the Dawoodi Bohra community.
The court did not stay its 28 September, 2018 verdict, which had lifted the ban on women of all ages from entering the famous Ayyappa shrine in Kerala.
However, a lasting decision on this matter will be given when the seven-judge bench — which is to be decided by the new CJI SA Bobde — hears the matter afresh. The Sabrimala temple is slated to reopen on 16 November.
"The subject review petitions as well as the writ petitions may, accordingly, remain pending until determination of the questions indicated above by a Larger Bench as maybe constituted by the Hon’ble the Chief Justice of India," the judgment read.
Justices Rohinton Nariman and DY Chandrachud authored dissenting judgment in the case. "Compliance with the Supreme Court judgments is not optional, hold Justices Chandrachud and Rohinton Nariman." The apex court said the entry of women into places of worship is not limited to this temple. It is involved in the entry of women into mosques.
While the five-judge bench unanimously agreed to refer the religious issues to a larger bench, it gave a 3:2 split decision on petitions seeking a review of the apex court's September 2018 decision allowing women of all ages to enter the Sabarimala shrine in Kerala. The majority judgment was of the view that the review petitions should be kept pending till larger issues relating to Supreme Court's jurisdiction on religious practices etc are decided by a larger bench. However, two of the five judges were of the view that these review petitions should be dismissed immediately, as they failed to meet the criterion for subjecting a apex court judgment to further review, as laid down by various past judgments.
The minority verdict by Justices RF Nariman and DY Chandrachud dismissed all the review pleas and directed strict compliance of its 28 September decision.
The dissenting judges said that the issues of Muslim or Parsi women aren't even before this court in the present batch of petitions in Sabarimala case. These matters are to be decided by the future courts as and when they come up. As of now, the only matter under this court's purview is the validity of the review petition.
"What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018," Justices Nariman and Chandrachud said in their judgment.
Justice Nariman also discarded the petitioners' argument that their religious practice was entitled to protection under Article 25 of the constitution.
"Extreme arguments were made by some learned counsel stating that belief and faith are not judicially reviewable by courts, and that this Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto. Such arguments need to be rejected out of hand. Not only do they not constitute “errors apparent”, but are arguments that fly in the face of Article 25. Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. 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."
What did review petition say?
The review petitioners argued that the NGO Indian Young Lawyers’ Association — the original petitioner who filed the public interest petition challenging the ban on the entry of women — had no standing before the court since it did not profess belief in the deity.
It also sought to argue that the deity Lord Ayyappa's right to establish rituals also exists.
However, the Supreme Court held that the celibate nature of the deity Ayyappa and exclusion of women of menstruating age was not an essential religious practice. Previous Supreme Court rulings have held that a practice that is "essentially religious" is protected under law.
Reactions to verdict
The Sabarimala thantri or chief priest, Kandararu Mohanaru welcomed the verdict saying that it will lead to a right decision on the belief and customs of the Sabarimala temple. He said that it will strengthen the confidence of the devotees.
Travancore Devaswom Board chairman A Padmakumar said that the judgement had endorsed their stand for more time to implement the 28 September, 2018 verdict. He claimed that the majority verdict on the review petitions may allow status quo and it will help the smooth conduct of the annual pilgrimage season commencing on 16 November. When asked about lack of mention of stay in the verdict, he said that he will study the verdict and react.
Ayyappa Karma Samiti leader Rahul Easwar viewed the five-judge constitution bench verdict on the review petitions positive. However, he reiterated that the Hindu organisations will continue to protest if women between the ages of 10 and 50 try to enter the temple. He said that the Karma Samiti will peacefully resist such attempts.
Kerala's Left Democratic Front (LDF) convenor A Vijayaraghavan said that the state government was for maintaining peace in Sabarimala. The government wants to ensure peaceful conduct of the coming annual pilgrimage season. The government will take steps accordingly.
Communist Party of India (Marxist) general secretary Sitaram Yechury indicated that the government headed by the party in Kerala will continue with the implementation of the Supreme Court verdict. “Our government in Kerala had made it clear that it will do what the Supreme Court stats. From what I understand from the verdict is that the apex court has not stayed the original order allowing entry of women all ages in the Sabarimala temple. We will study the judgement and decide what to do next,” he added.
Kerala Congress legislator and opposition leader Ramesh Chennithala has welcomed the majority-judge bench decision on the Sabarimala issue. He asked the government to desist from its decision to implement the 28 September verdict taking advantage of lack of stay in the original order. Even if the court has not specified about the stay, the government should desist from facilitating the entry of women from the restricted age category in the light of the court decision to refer the issue to a larger bench.
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 ages 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.
Last year's verdict
The Supreme Court last year had ruled in favour for the way for the entry of women of all ages into the Ayyappa temple at Sabarimala in Kerala. The five-judge constitution bench headed by Chief Justice Dipak Misra, in its 4:1 verdict, said that banning the entry of women into the shrine is gender discrimination and the practise violates rights of Hindu women.
The CJI said religion is a way of life basically to link life with divinity, it cannot and should not be in opposition to principles of natural justice and equality.
The CJI said devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion. He said devotees of Lord Ayyappa do not constitute a separate denomination.
The CJI said the practice of exclusion of women of 10-50 age group cannot be regarded as an essential religious practice and Kerala law denies rights to women on the ground of physiological reasons.
While Justices RF Nariman and DY Chandrachud concurred with the CJI and Justice AM Khanwilkar, Justice Indu Malhotra gave a dissenting verdict.
Malhotra, the lone woman judge in the bench, passed a dissenting judgement and said that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere in the country. She was of the view that it is not for courts to determine which religious practices are to be struck down except in issues of social evils like Sati.
She added that the right to equality conflicts with the right to worship of devotees of Lord Ayyappa. She cautioned that the issue in this case not limited to Sabarimala only. It will have far-reaching implications for other places of worships.
Malhotra said notions of rationality cannot be brought into matters of religion and India has diverse religious practices and constitutional morality would allow anyone to profess a religion they believe. She said equality doctrine cannot override the fundamental right to worship under Article 25.
The court passed four sets of separate judgements on a clutch of pleas challenging the ban on the entry of women of menstrual age in Kerala's Sabrimala temple saying law and society are tasked with the task to act as levellers.
Nariman said the Sabarimala temple custom barring women of 10-50 age is not backed by Article 25 and 26 of the Constitution.
The custom of barring women is violative of Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Public Worship (authorisation of entry) Rules, 1965 is struck down by Justice Nariman.
Chandrachud said religion cannot be used as cover to deny rights of worship to women and it is also against human dignity. He said the prohibition on women is due to non-religious reasons and it is a grim shadow of discrimination going on for centuries.
Devotees of Lord Ayyappa do not form separate religious denominations, Justice Chandrachud said and added that any custom or religious practise if violates the dignity of women by denying them entry due to her physiology is unconstitutional. He said the popular notion about morality can be offensive to the dignity of others and the exclusion of women because she menstruates is utterly unconstitutional.
Chandrachud held that exclusion of women is violative of right to liberty, dignity and equality and said nanning women of a particular age group is not essential to the practice of religion.
With inputs from PTI and TK Devasia, a Kerala-based journalist
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Updated Date: Nov 14, 2019 14:06:38 IST