SC Refers Sabarimala Review Petitions to 7-Judge Bench; No Clarity on Whether Women's Entry Can Continue
Days before the gates of the Ayyappa temple at Sabarimala are scheduled to open for the annual Mandala pilgrimage, the Supreme Court of India(SCI) has decided to leave the issue of access of women to the Temple open.
The 5-judge bench of the apex court, led by CJI Ranjan Gogoi, has now referred issues to a larger bench, to consider the limits of the powers of the SCI in deciding conflicts between religion and other rights.
"The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a durgah/mosque as also in relation to Parsi women married to a non-Parsi into the holy fireplace of an Agyari" observed the bench in a 3:2 majority decision.
The majority verdict, penned by CJI Gogoi, Justice AM Khanwilkar and Indu Malhotra, has observed that the SCI should "tread cautiously" on issues of religion, including religious practices.
"It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles.." the majority verdict has said.
Question of court's reach in religious matters
The SCI has raised seven issues for consideration by a 7-judge bench - including the balance between the right to faith under Article 25 and other fundamental rights such as the right to equality under Article 14. The court has also suggested that the defining aspects of the expression 'morality' or 'constitutional morality’ could be considered by the larger bench.
A question that would have serious ramifications for all pending issues of gender/rights in conflict with religion, the bench has suggested that the larger bench could consider setting principles regarding, "The extent to which the court can enquire into the issue of 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.
This becomes especially important because the Sabarimala case, as well as other issues, including entry of women into mosques, entry of Parsi women into Agyaris, and female genital mutilation, are currently pending before the Supreme Court. The apex court has also been gearing up for cases relating to the management of temples and the extent of monitoring and control of religious institutions.
The court also suggested that the bench could also consider the "permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination when the plea is filed by persons who do not belong to the religious denomination.
The majority verdict has directed that the Sabarimala review pleas will "remain pending till the larger bench sets out the legal principles
Both sides welcome verdict
Activists on both sides of the debate over the entry of women into the temple welcomed the verdict, with the Ayyappa devotees claiming that the verdict has "recognised the issues raised by them. They also argued that protests against entry of women between ages 10-55 will continue, as the belief in the nature of deity would be paramount.
Women’s rights activists, on the other hand, said that since the court had not issued any stay on the entry of women, the 2018 verdict which allowed entry of women to the temple would continue to hold sway.
Dissenting judgment slams review petition
Justice RF Nariman and Justice DY Chandrachud, in their pointed dissenting judgment, however, dismissed the review petitions, on grounds that the case "raises grave issues which relate to gender bias on account of a physiological or biological function which is common to all women. The dissenting judges have held that there is no "error in the September 2018 judgment, which could have led to a review.
Criticising the protests that broke out in Kerala and other parts of the country last year following the original verdict, the dissenting judges have also made it clear that "organised acts of resistance to thwart the implementation of this judgment must be put down firmly.
"Today, it is no longer open to any person or authority to openly flout a Supreme Court judgment or order, given the constitutional scheme as stated by us hereinabove. 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..." noted the dissent opinion, adding that ministers, MLAs and other functionaries would "be violating their oath of office if they failed to implement the Constitution-bench's verdict.
"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" observed Justice Nariman.
Kerala govt seeking legal opinion on verdict
With the majority verdict, however, not giving any clear directions on whether entry of women is permitted for the upcoming Madala puja, the Kerala government has said that it was "seeking an opinion from experts"
"As of now, we are given to understand that the first verdict is still in place. We need to understand the impact of this verdict and will seek legal opinions," said Kerala CM Pinarayi Vijayan.
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