To perpetuate an error is no virtue; to correct it is a compulsion of judicial conscience. Litigants unhappy with the main judgment in decided cases frequently invoke the Supreme Court’s review jurisdiction, under Article 137 of the Constitution. In most cases the petitions get dismissed in the chambers of judges who decided them, if they find that the judgment concerned does not show “any error apparent on the face of the record”, a key criterion for hearing the cases in open court. In rare cases, the court decides to hear the petitions at length in open court if it is prima facie satisfied that the issues raised by a review petitioner need to be heard. But the court is never inclined to reopen concluded cases and hear the arguments on merit in the garb of hearing review petitions.
Review petitions seeking reconsideration of the September 28, 2018, judgment of the five-judge Constitution bench upholding the right of women of all ages to worship at the Sabarimala temple in Kerala are scheduled to be heard on January 22. The four majority judges on the bench—Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Khanwilkar and D.Y. Chandrachud—quashed Rule 3(b) of Kerala Hindu Places of Public Worship, 1965, prohibiting the entry of women between ages 10 and 50 into the temple on the grounds that it was not consistent with constitutional morality. The court held that Rule 3(b) was a clear violation of the right of Hindu women to practise religion under Article 25 of the Constitution. Further, it stated that the bar on the entry of women between ages 10 and 50 was not an essential part of the religion, and therefore, could not claim the protection of the Constitution. Justice Indu Malhotra was the lone judge who dissented as she found the Rule in consonance with an essential religious practice.
As many as 49 review petitions have been filed in the Supreme Court. The litigants have cited several grounds, including those invoked by Justice Indu Malhotra in her judgment. Some of them are already in the public domain. The review petitions filed by the Nair Service Society (Respondent No. 6 in the original matter); Shylaja Vijayan, president of the National Ayyappa Devotees Association; People for Dharma; and Chetana Conscience of Women, a Delhi-based non-governmental organisation, deserve close scrutiny.
The Nair Service Society’s petition states:
“In the present case, the subsequent events that transpired after the judgment of which judicial notice may be taken, clearly demonstrate that an overwhelmingly large section of women worshippers are supporting the custom of prohibiting entry of females between the age of 10 and 50 years at Sabarimala temple.”
According to it, the court’s grant of relief at the instance of third parties, in spite of opposition by a large section of women worshippers, is anomalous. The Nair Service Society assumes that this could help persuade the majority judges to change their view. Obviously, the judges did not think that opposition to the custom by women devotees was a relevant factor. The court’s jurisprudence can be invoked even if the rights of a minuscule population of women devotees are at stake.
Question of law
The petitioner argues that the bench went into questions of fact (whether there was a custom of restricting women of a certain age group from worshipping at the temple) while arriving at its verdict. This, it claims, showed that the court exceeded its brief as it was supposed to address the question of law that formed part of the reference.
Under Article 145(3), the minimum number of judges to hear a case involving a substantial question of law, whether by way of interpretation of the Constitution or for the purpose of hearing any reference from another bench shall be five. Drawing attention to the proviso in the Article, the Nair Service Society argues that as it was a case of appeal against the High Court verdict, and a reference from a three-judge bench of the Supreme Court, which had earlier heard the matter, the five-judge bench ought to have confined itself to questions of law. Besides, the petition faults the majority judges for ignoring the principle of res judicata as the Kerala High Court’s judgment on the facts of the case should be deemed as final. It avers that the court wrongly held the practice of not allowing women between the ages of 10 and 50 as “exclusionary”, as women as a gender have not been barred from entering the temple. The “delay” or “wait” for 40 years to worship cannot be termed as exclusionary, it argues. The restriction based on the age of a female is not discrimination on the grounds of “sex”, which is barred under Article 15(1), it claims.
The petition holds that the practice is not linked to physiological conditions but to the character of the deity. The restriction is on the deity itself since Ayappa is in “naishtika” penance and “is not to be found in the company of young females”. The petition considers the majority judges’ conclusion that Article 17 prohibiting untouchability stood violated as an error apparent on the face of the record. It is critical of Justice Chandrachud’s observation that a man’s celibacy cannot be imposed on women because it ignores the distinction between the deity and a male devotee and the underlying faith in favour of the former. The petition wonders if the question whether women in the procreative age can affect the character of the deity is judicially manageable at all.
Moreover, it questions the locus standi of the original petitioners as they were not devotees, having intervened on behalf of other women who might have been aggrieved because of the denial of the right to enter the temple. But this is unlikely to be taken seriously, as in a public interest litigation petition, the court does not insist on locus standi .
The Nair Service Society also points out that its submissions supporting the temple’s customs, made in the course of the hearing, find no mention in the judgment. It draws attention to the texts of Valmiki Ramayana in the context of the visit of Hanuman to Lanka in search of Sita with regard to the requirement of Naishtika Brahmachari to avoid seeing females, and questions the bench’s conclusion that there is no spiritual or textual evidence to support the exclusionary practice. Further, it claims that the deity is both a Naishtika Brahmachari and a yogi, whose characteristics, as described in Adi Sankara’s Sivananda Lahiri , militate against being in the company of young women.
The Chetana Conscience of Women, New Delhi, in its review petition, claims that the bar on women of a certain age group is not based on the notions of menstrual impurity but is a part of a set of practices of Tantra philosophy. It claims that the Sabarimala temple is based on Tantra philosophy, whose tenets are different from those of core Hindu philosophy. The court’s reasoning that such a practice is not the essential part of the religion is challenged on the grounds that it considered Hindu religion broadly while coming to the conclusion instead of looking at a particular sect or the Tantra school of thought. Additionally, the fact that in some temples men are not allowed in view of the presence of a celibate female deity breaks the argument of unequal treatment of women, the petition argues.
Justice Chandrachud observed in his judgment: “The Constitution as a fundamental document of governance has sought to achieve a transformation of society. Every individual in society without distinction of any kind whatsoever is entitled to the right. By speaking of an equal entitlement, the Constitution places every individual on an even platform. The right under Article 25(1), that concerns with the right to profess, practise and propagate religion is evidently an individual right, for it is in the individual that a conscience inheres.”
The petitioner describes his view as promotion of blind homogeneity, which promotes individual freedom and rights over collective rights of the public at large.
The majority opinion in the judgment was firm on uplifting gender parity, curbing discrimination, and preserving the dignity of women. It is based on the premise of constitutional morality, which upholds the equality doctrine as its core. According to the review petitioners, the eternally celibate nature of the Sabarimala deity prohibits even the slightest deviation from customs. The practice of worship in the Ayyappa temple requires that devotees follow certain practices during the 41 “mandalam” days, during which period the temple is kept open. These practices are followed ostensibly to ensure the physical and mental purity of an individual. But the majority judges maintained that considering menstruation as a part of physical impurity and putting a blanket ban on the entry of women into the temple were against the equality principle.
According to the review peititoners, the doctrine of intelligible differentia, which is an exception to the right to equality, must certainly be applied wherein menstruating woman should be treated differently within the age bracket of 10-50 years so that the celibate deity is not polluted. Although such a view fulfils the twin tests of classification, and a nexus with the object sought to be achieved, the review petitioners do not answer the question whether it suffers from the vice of irrationality and unreasonableness.
For them, treatment of women as a separate class on the basis of menstruation does not alienate them from social life and hence does not result in untouchability because women can worship Ayyappa in other temples. The sheer uniqueness of the temple and its practices therein makes it an important religious denomination, they say. One of the review petitions argued: “To hold that the devotees of Sabarimala temple do not constitute a religious denomination merely because they do not fit in with the Western notions of religious denomination would be self-defeating”.
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