india

Updated: Nov 15, 2019 01:31 IST

Two judges on the five-judge Supreme Court reviewing the court’s 2018 Sabarimala judgment, Justices RF Nariman and DY Chandrachud, disagreed with the majority view in the Sabarimala case to not dismiss the review petition outright, and expand the scope to include other restrictive religious practices and refer it to a larger bench.

The 2018 verdict lifted restrictions on the entry of women between the ages of 10 and 50 years to the hill shrine. The majority 3-2 judgment also included the issues of the entry of women into mosques, the horrific practice of female genital mutilation, and the entry of women into Parsi fire temples among the questions that the larger bench needs to address.

The two judges said in their dissenting judgment — it spanned 68 pages, in contrast to the majority one, which was just nine pages long — that the bench was seized of a “narrow question” regarding only the Sabarimala case. The other issues carved out by the majority will be dealt by the court as and when the occasion demands, they added.

“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,” read the dissenting verdict.

Though the majority opinion referred the issues to a larger bench of seven judges, it did not put on the hold the 2018 judgement. Justices Nariman and Chandrachud took a stern view of the protests against the original judgment and ordered Kerala government to comply with the ruling. “Organised acts of resistance to thwart the implementation of this judgment must be put down firmly,” the two judges said.

“After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the ‘holy book’ is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this ‘Magna Carta’ or Great Charter of India,” the two judges said.

The two judges rejected the petitioner’s argument that justice Chandrachud’s observations in the 2018 judgement that exclusion of women on physiological grounds would be tantamount to untouchability under Article 17 of the Constitution was an “error apparent”.

The review petitioners contended that the 2018 bench relied upon a vague concept called “constitutional morality” to undermine belief and faith and the same suffered from an “error apparent”. This was also dismissed in the dissenting opinion. Commenting specifically on this, it said: “Here again, apart from the fact that ‘constitutional morality’ has now reached the level of stare decisis [doctrine that obligates courts to follow historical cases when making a ruling on a similar case] and has been explained in several Constitution bench judgments, reliance thereon cannot be said to suffer from any error apparent.”

Article 25 (freedom to freely profess, practice and propagate religion subject to public morality and health) does not give carte blanche to one particular section of persons to trample upon the right and belief and worship of another section of persons, the judges said, dismissing the stand of review petitioners that belief and faith are not judicially reviewable as it flies in the face of their constitutional right.

“The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case-by-case basis,” the two judges said.

The two judges refused to accept the argument that court had not interfered with similar practices in other religions and said gender restrictions in other places of worship will be tested on their own merits.

The judges also remarked on justice Indu Malhotra’s dissenting view in the 2018 verdict. The only woman judge on the bench was in minority when she held that to entertain a PIL at the behest of persons who are not worshippers at the Sabarimala temple would open a floodgate of petitions questioning validity of religious beliefs and practices.

Justices Nariman and Chandrachud termed this fear as “unfounded.”

The 2018 verdict, they said, was delivered on a bonafide plea, which raised grave issues related to gender bias on account of physiological and biological function.