Sabarimala: Devaswom Board U-turn may dash hopes of review petitioners

Published : Feb 06, 2019 17:30 IST

With the Travancore Devaswom Board, which administers the Sabarimala temple, making a U-turn before the Supreme Court’s Constitution Bench today on the issue of women in the 10 to 50 age group being allowed to enter the temple, the outcome of the review petitions before the court appears to be a foregone conclusion. The board, through senior counsel Rakesh Dwivedi told the bench that it respected the judgment, and opposed the review petitions seeking reconsideration of the judgment delivered last year lifting the bar on women in the specified age-group entering the temple.

The bench comprising Chief Justice of India Ranjan Gogoi, and Justices A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud and Indu Malhotra heard the arguments of the review petitioners and the respondents from 10.30 a.m. to 3 p.m. today. 

The review petitioners were represented by senior advocates K. Parasaran, V. Giri, Abhishek Manu Singhvi, Shekhar Naphade and R. Venkatramani, each making brief oral submissions before the bench on what according to them is error apparent on the face of the record of the main judgment. The bench cautioned the petitioners to confine themselves to the review grounds, and not to advance arguments on merits. 

One of the grounds which they touched was that the main judgment erroneously applied the test of “untouchability” under Article 17 of the Constitution, which, according to them, has a distinct caste dimension. As entry is sought to be restricted due to the nature of the deity, it is not an exclusionary practice, they argued.

 The other criticism of the review petitioners centred around the doctrine of “constitutional morality” used by the majority judges, which they said had no place in the Constitution. The doctrine of essential religious practice, which enabled the majority judges to declare that the restriction on women’s entry into the temple was not essential to Hinduism, was also questioned by petitioners’ counsel, saying the court cannot decide what was essential to a religion.

Denial of denomination status to the temple and the failure to hear devotees of other places of worship with similar restrictions were cited as other grounds by the petitioners.

The State of Kerala, through senior counsel Jaideep Gupta, opposed the review petitions, saying no new ground had been advanced by them. Essential practice of individual temple will not amount to essential religious practice of religion for the purpose of constitutional test, he submitted. He also contended that the bench should not worry about threats to social peace as a result of its judgment.

Senior counsel Indira Jaising argued that the word “untouchability” must be understood as treating the menstruating women as polluted.   “This hurts women,” she said. As Sabarimala is a public temple, it cannot discriminate on the basis of gender, she submitted.  She sought a direction to the mobs not to issue death threats to women who dare to enter the temple.

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