Almost four months since the SC allowed women of menstrual age into the Sabarimala temple, the court today began hearing the review petitions challenging its September verdict.
The five-judge bench of Supreme court, comprising of CJI Ranjan Gogoi, Justice Rohinton Nariman, AM Khanwikar, DY Chandrachud and Indu Malhotra are hearing 65 petitions that urge a review of the previous verdict.
The total 65 petitions include 56 review petitions and 4 fresh writ petitions.
The Sabarimala case was earlier scheduled for January 22 but had to be postponed as Justice Indu Malhotra, one of the judges on the panel, was on medical leave. Justice Malhotra, the only woman judge on the bench, had dissented with the verdict in September, saying courts must not interfere with issues concerning “deep religious sentiments”.
As reported by Bar And Bench, Senior advocate K Prasaran, appearing for Nair Service Society, opened the arguments before a five-judge bench and sought setting aside of the verdict:
He argued that the case primarily involves enforcement of fundamental rights under Article 25 which both the petitioner and the respondents, in this case, are relying on.
Prasaran, citing the Jehovah witnesses case to buttress his point, argued that unless the practice in very abhorrent, the court normally does not interfere in activities like these.
“Sabarimala custom cannot be equated to untouchability, It is only a religious custom,” K. Parasaran argued making submissions to Article 17. He furthered that this is not a bilateral dispute and said while concluding that the exclusionary practice of Sabarimala is based on the character of the deity, which is that of the ‘Naishtika Brahmachari’.
The key points covered by Senior Counsel V Giri, appearing for Chief Priest (Thanthri) as he began his argument, were as follows:
- Lord Ayyappa has a special character – permanent Celibacy
- The character of the Deity has to be protected
- Devotees who go to Sabarimala can’t question the customs and have to accept it
- The Thanthri is regarded as the father of the deity and has special rights to preserve the essential character of the deity
- None of the petitioners who moved Supreme Court did say they are devotees
- Exclusionary practice is in consonance with the character of the Deity
- Untouchability has nothing to do with custom
Abhishek Manu Singhvi arguing for EX Chairman Of the Devaswom Board stated:
- The practice is based on the character of the deity
- In Hinduism, gods are worshipped in various forms. In Sabarimala, the deity is worshipped in this form
- Exclusions not based on caste, so Article 17 has no application
- Civil Rights Act has to be read along with Article 25 and 26
- Justice Indu Malhotra was the only one who took into consideration the ‘Naisthika Brahmachari’ character of the deity, others merely made a passing reference to it
- In a diverse religion like Hinduism, one cannot look for universality
Sekhar Naphade, Senior Advocate began his argument saying:
- The effort of the judgement is a direction given to a religious community that they should not hold a belief
- Unless there is a criminal law that forbids a practice, a court cannot interfere.
- As long as the community decides not to change the practice SC can’t intervene
- Only a community can decide the custom and not the court
While Senior Advocate Venkatramani argued that “faith is a faith, it cannot be split into permissible and impermissible faith.” Gopal Sankaranarayanan said that similar rules apply in all temple in Kerela and the all would be affected by the judgement.
Lastly, J Sai Deepak made his submissions saying that when it comes to essential religious practice, the court should accept the word of community.
With review petitioners concluding their arguments, the CJI asked the respondents to conclude within 90 minutes. The Kerala state, while arguing in court, said there is no need to review the verdict.
Jaideep Gupta concluded for the State of Kerala, saying that, “we are opposing the review as no grounds have been made out for review”, asserting that the earlier judgement had majority consensus on three key points:
- Ayyappa devotees is not a religious denomination
- When a person’s right to worship gets violated, Article 25 gets violated
- Rule 3(b) is violative of the parent act itself
He argued that the essential practice of religion and that of the temple cannot be confused, saying that the court had found that the essential practice of the temple was not the essential practice of Hinduism.
Non Discrimination and non-exclusions are two values which are found throughout the Constitution and he furthered that the Constitutional invalidity cannot be permitted to go on.
In a shocking turn of events, as the bench reassembled post lunch, Justice Indu Malhotra observed that the Travancore Devaswom Board who had argued against the entry of woman in the original case had now taken a reverse stance. Senior Counsel Rakesh Dwivedi, appearing for TDB said that the board has taken a decision to respect the judgment and not seek review.
#Sabarimalatemple: Justice Indu Malhotra observes that Travancore Devaswom Board (TDB) had argued against the entry of women in the main case.
— Bar & Bench (@barandbench) February 6, 2019
Senior Counsel Rakesh Dwivedi began arguments for Travancore Devaswom Board saying that any practice which denies an equal right to practice or propagate the religion falls foul of Article 25. He furthered that, if “we have to transform society and include women in all walks of life, we should not point out biological attributes to exclude women from any walk of life.”
As Dwivedi concluded, Indira JaiSing, argued that all the petitioners were violators as they had taken the streets to revolt against the original SC order. She furthered that the purification ceremony being held by the temple affirmed that menstruating women are considered polluted.
Adding that “Social boycott going on against the women who entered the temple,” advocate Indira Jaising told Supreme Court, “The next date of Sabarimala Temple opening is February 12. We should be allowed to enter the temple.”
The Supreme Court, after hearing arguments of both petitioners and respondents, reserved its judgment in all the 65 petitions including 56 review petitions and 4 fresh writ petitions.
Supreme Court reserves the judgement on a batch of review petitions over the entry of women of all age groups in Sabarimala temple. pic.twitter.com/jluRxPm8fH
— ANI (@ANI) February 6, 2019
In September, the court had opened the temple doors to women between the ages of 10 and 50, ending the traditional ban saying that the ban amounted to gender discrimination.
But only two women have managed to enter the temple since. The rest had been forced to turn back following huge protests.
The Kerala police under orders from the communist government had sneaked two CPIM activists named Bindu and Kanakadurga inside the shrine through the VIP and staff entry gate in the early hours of January 2. A massive protest had followed in the state against the government’s attempts to desecrate the traditions of the shrine.
As per the latest reports, Kanakadurga, one of the two women who had entered the Sabarimala shrine on 2nd January obtained a court order to enter her in-law’s house after she was not allowed for desecrating Sabarimala temple.
The Sabarimala row had also triggered a political slugfest between Kerala’s CPM and the opposition parties. The Kerala government, with the help of state police force, had turned the area near Sabarimala into a war zone.