The Supreme Court has possibly ushered in yet another turbulent and uncertain pilgrimage season at the Sabarimala temple in Kerala and in the State in general with its November 14 decision to keep pending over 55 review petitions and a handful of writ petitions filed against its previous judgment declaring the temple’s practice of barring the entry of women between the ages of 10 and 50 as illegal and unconstitutional.
The petitions will now be heard by a larger Bench of seven judges to be constituted by the next Chief Justice of India (CJI).
The Bench is expected to give an authoritative view of the constitutional principles that ought to guide the court while deciding on seminal issues such as the interpretation of Articles 25 and 26 of the Constitution regarding the fundamental right to freedom of religion and freedom to manage religious affairs and the powers of the court to decide on what practices are essential or are an integral part of a religion.
On September 28, 2018, a Constitution Bench of the Supreme Court upheld by a 4:1 majority the right of women of all ages to pray at the Sabarimala temple by overturning an age-old custom which it said violated their fundamental rights (“End of exclusion”, October 26, 2018).
The judgment was hailed as progressive and transformative by some and decried as one that trampled the faith of millions of devotees by others.
Within a month, from the day the temple opened for monthly rituals for the first time after the verdict, the hill shrine and its surroundings became a battleground, with violent protests by pro-Hindutva groups followed by a police crackdown, generally vitiating the social and political climate in the State (“Battleground Sabarimala” and “Faith and politics”, November 9, 2018).
A large number of review petitions and a handful of writ petitions were filed against the judgment, mainly by the temple’s chief priest, the Nair Service Society (NSS), the Pandalam royal family and some organisations representing believers as well as by some activists in favour of the judgment.
A five-judge bench led by Chief Justice Ranjan Gogoi heard these petitions in open court on February 6, and it was widely anticipated that the court would settle the contentious issue once and for all.
Open to interpretation
However, that was not to be. The court pronounced a 3:2 split verdict on November 14, two days before the start of the main pilgrimage season at Sabarimala, setting aside the hearing of the petitions until a seven-judge bench is formed to decide a range of issues relating to religious freedom.
The court’s decision has left the status of the previous judgment open to interpretation and created a sensitive situation in the State, almost similar to the one in Kerala when the court allowed women of all ages to enter the temple (“Pilgrimage politics”, December 7, 2018).
A handful of women activists, including Trupti Desai, president of the Bhumata Ranragini Brigade, whose group was blocked by pro-Hindutva organisations at the Kochi airport on the way to the temple, and Bindu Ammini and Kanakadurga, the two women who entered the temple, have already declared their intention to enter the shrine since there is no stay order (“Politics at play”, February 1, 2019).
Several pro-Hindutva groups and the Sabarimala Karma Samiti, which was at the forefront of the agitation last year, have announced that they will oppose any such attempt.
In a nine-page majority judgment, Chief Justice Gogoi, writing also on behalf of Justice A.M. Khanwilkar and Justice Indu Malhotra, said that the debate about the constitutional validity of practices restricting the entry of women to a place of worship was not limited to Sabarimala. Such practices have been challenged in other cases as well, such as the one regarding the entry of Muslim women to dargahs and mosques or the entry of Parsi women married to non-Parsi men to the community’s fire temple.
Similarly, questions have been raised as to whether a particular practice is essential to or an integral part of a religion, as in the practice of female genital mutilation in the Dawoodi Bohra Muslim community.
The judgment does not give a clear order of reference to a larger bench in those cases but only says “the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out”.
It then proposes what the questions that may be posed before the larger bench could be and provides a list of seven suggestions:
“(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14. (ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution. (iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it overarching morality in reference to preamble or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective. (iv) The extent to which the court can inquire into the issue of [whether] a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group. (v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution? (vi) Whether the “essential religious practices” of a religious denomination or even a section thereof are afforded constitutional protection under Article 26. (vii) What would be the permissible extent of judicial recognition to PILs [public interest litigation] in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
The majority order said that while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, mandating entry of all Hindus into all temples, was applicable in the case of Sabarimala at all, a contentious point raised in some of the petitions.
The order written by the Chief Justice also suggests that unlike the usual case where only a glaring omission or patent mistake in a judgment is allowed to be raised through a review petition, the seven questions that are put forth for consideration by the larger Bench may offer a fresh opportunity for all parties to raise the issues that agitate them once again, bypassing the limited opportunity that a mere review would have otherwise offered.
However, the order only says: “Whether the aforesaid consideration [the seven questions] will require grant of a fresh opportunity to all interested parties may also have to be considered [by the larger Bench].”
In their dissenting minority order, the two other judges of the Bench, Justice R.F. Nariman and Justice D.Y. Chandrachud, disagreed firmly with this order and said “it has spoken of various matters which are sub judice before this court, whether it be the case of entry of Muslim women to a dargah or mosque; or Parsi women married to non-Parsis into a fire temple; or issues relating to female genital mutilation in the Dawoodi Bohra community.” The case before them was only the review petitions relating to the court’s judgment of 2018 and “the narrow question” as to whether grounds for review and grounds for filing of the writ petitions had been established with regard to that particular case.
“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 order written by Justice Nariman said.
In the 58-page dissenting order, the two judges said that most of the arguments raised in the review petitions had already been argued during the hearing of the petitions and dealt with in the 2018 judgment.
They said that a reading of the four majority opinions of the 2018 judgment showed that there was a clear consensus among the majority of the judges on the following issues:
(i) The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 [“1965 Act”].
(ii) The majority judgment specifically grounded the right of women between the ages of 10 to 50, who are excluded from practising their religion, under Article 25(1) of the Constitution, emphasising the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
(iii) Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India and would apply notwithstanding any custom to the contrary to enable Hindu women the right of entry in all public temples open to Hindus, so that they may exercise the right of worship therein. As a result, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 [“1965 Rules”] is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.
Justices Nariman and Chandrachud said the present case raised grave issues relating to gender bias on account of a physiological or biological function common to all women and that it was for this reason that a bona fide PIL was entertained by the majority judgment “having regard to women’s rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in.”
It went on to dismiss all the review petitions explaining that no ground for review of the 2018 majority judgment had been made out. They also dismissed the writ petitions filed directly attacking the majority opinions of September 28, 2018, dismissing them as not maintainable.
The opinion of Chief Justice Gogoi and the two other judges was, however, that the Supreme Court first needed to evolve a “judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger Bench of not less than seven judges.” “The decision of a larger Bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, [a] decision by a larger bench will also pave way to instill public confidence and effectuate the principle underlying Article 145(3) of the Constitution…” it said.
State government’s position
Chief Minister Pinarayi Vijayan said the State government needed more clarity on whether the 2018 judgment remained valid. The general impression is that the order of 2018 remained operational. However, a government cannot proceed on the basis of assumptions, and “we are consulting eminent lawyers to get a legal opinion on how to go about it,” he said.
Many of the observations made by the judges in the split verdict have added to the confusion on what exactly the operative part of the judgment is.
On the one hand, the referring of seminal issues to a larger Bench is being interpreted by some to mean that the court has given a virtual stay on the entry of women in the 10-50 age group into the temple until the issues referred to the larger Bench are settled.
On the other, the minority judgment rejects the issues raised in the review and writ petitions outright and adds strength to the argument that the September 2018 order still remains in operation.
Significantly, the minority judgment of Justices Nariman and Chandrachud contains a detailed explanation of the law on the implementation of Supreme Court judgments. It warns all concerned and firmly states that the Supreme Court of India is the ultimate repository of interpretation of the Constitution and once a Constitution Bench of five learned judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals but also on the coordinate branches of government, namely the legislature and the executive.
“It is necessary for us to restate these constitutional fundamentals in the light of the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple,” they said.
The judges further said that if those whose duty it is to comply were to have discretion on whether or not to abide by a decision of the court, the rule of law would be set at naught.
Judicial remedies are provided to stakeholders before a judgment is pronounced and even thereafter. That, indeed, is how the proceedings in review in the present case have been initiated. When the process is complete and a decision is pronounced, it is the decision of the Supreme Court and binds everyone.
“Compliance is not a matter of option. If it were to be so, the authority of the court could be diluted at the option of those who are bound to comply with its verdicts,” they said.
They also directed the State of Kerala to take steps to secure the confidence of the community in order “to ensure the fulfilment of constitutional values”.
“The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the court meet the genuine concerns of all segments of the community. Organised acts of resistance to thwart the implementation of this judgment must be put down firmly.
Yet, in devising modalities for compliance, a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, should be adopted. Consistent with the duties inhering in it, we expect the State government to ensure that the rule of law is preserved,” they said.
Response to judgment
The chief priest of the temple ( tantri ), Kandararu Rajeevaru, the NSS, the Pandalam royal family and the Ayyappa Karma Samiti and other organisations that spearheaded the agitation against the entry of women between 10 and 50 last year have all welcomed the verdict and see the majority judgment as a turn in the right direction.
Congress party leaders, too, have welcomed the verdict and reiterated their resolve “to protect the interests of the faithful”. Opposition Leader Ramesh Chennithala said the United Democratic Front (UDF) was of the view that the 3:2 ruling indicated that the sentiments of the devotees had been taken into consideration. The Bharatiya Janata Party (BJP) has warned the government against taking a stand that encourages activist women to enter the temple.
Former BJP president Kummanam Rajasekharan welcomed the verdict claiming that “it showed there was something wrong with the September 2018 judgment”. He added that referring the issues to a larger Bench meant the 2018 judgment had been put on hold. BJP general secretary M.T. Ramesh said any attempt to allow women between 10 and 50 into the temple would have serious repercussions.
Last year, the Left Democratic Front (LDF) government had drawn much flak from these parties for what they described as “the way it set about hurriedly to implement the Supreme Court’s 2018 verdict”.
At the time of writing the report, it was not clear what the State government intended to do this time to handle the political and law and order situation that is as tricky as that of last year.
Law Minister A.K. Balan described the verdict as “very complex” and one that creates more trouble for the government. Devaswom Minister Kadakampally Surendran has categorically stated that Sabarimala was no place for vested interests to display their activism and that the government would not offer police protection to people like Trupti Desai, who were trying to grab attention for their private agendas.
He denied opposition claims that the government helped activists into the temple under cover of darkness last year and said the LDF government’s position had consistently been the same, which was that it was legally bound to obey any order of the Supreme Court.
He also said that the presence of activists and the coverage they received in the media in the past was used by communally divisive forces to their advantage and to encourage violent protests. “Such activists will not get support or protection from the government. If they need police protection or escort, they will have to come with a court order,” he said.