india

Updated: Nov 15, 2019 00:53 IST

The Supreme Court on Thursday referred pleas seeking a review of its September 28, 2018 order allowing the entry of women of all ages into the ancient Sabarimala temple to a larger seven-judge bench, saying in a majority 3-2 verdict that gender-based restrictions on the entry of women were not limited to the hilltop shrine in Kerala, but were also prevalent in places of worship belonging to other religions.

The larger bench will re-examine the Sabarimala issue as well as those related to the entry of women into mosques, and the denial of access to fire temples for Parsi women who marry outside the community. It will also rule on the practice of female genital mutilation among Dawoodi Bohras, ruled the Court in a verdict delivered days before the shrine reopens for a three-month pilgrimage and Chief Justice of India (CJI) Ranjan Gogoi retires.

Political parties welcomed and women’s activists questioned the decision, which came on 65 petitions -- 56 review petitions, four fresh writ petitions, and five transfer pleas -- filed after the apex court verdict last year sparked violent protests in Kerala. The Kerala government said it will consult legal experts on the ruling.

The five-judge Constitution bench headed by CJI Gogoi stopped short of staying the September 2018 judgment, meaning that women of all ages, including female devotees in the childbearing age group of 10-50 years, can still offer prayers at the temple.

“The decision of a larger bench would put at rest recurring issues touching the upon the rights flowing from Articles 25 and 26 of the Constitution of India,” which deal with religious matters, read the majority judgment by CJI Gogoi, who wrote it, and justices AM Khanwilkar and Indu Malhtora.

“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,” read the judgment.

The majority verdict listed seven issues that the larger bench could examine: the interplay between the freedom of religion and Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14 that provides for equality before the law; the sweep of expression “public order, morality and health”, occurring in Article 25 (I); the expression “morality” or “constitutional morality”: the extent to which a court can inquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination; the meaning of the expression “sections of Hindus” in Article 25 (2) (b); whether the “essential religious practices” of a religious denomination or even a section of it are afforded constitutional protection under Article 26; the permissible extent of judicial recognition to petitions in matters questioning religious practices of a denomination.

Justice RF Nariman, writing a dissenting judgment by himself and justice DY Chandrachud, regretted his “inability to agree with” the view of the CJI and said the scope of the review pleas was limited to the entry of menstruating women into the hilltop shrine.

“What a future constitution bench or larger bench, if constituted by the 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 only thing that is before this court is the review petitions and the writ petitions that have now been filed in relation to the judgment dated September 28, 2018,” the minority ruling said.

It said the Kerala government should ensure strict compliance with the 2018 verdict.

“The government should 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 of implementing the judgment of the Court meet the genuine concerns of all segments of the community. Organized acts of resistance to thwart the implementation of this judgment must be put down firmly,” he wrote.

Last year’s Supreme Court judgment, upholding the right to equality of worship, triggered protests by traditionalists in Kerala who contend that the entry of female worshippers of childbearing age into the sanctum sanctorum in Sabarimala is a sacrilege because Lord Ayyappa, the presiding deity, is celibate. That 4-1 decision had found the decades-old practice to be illegal and unconstitutional.

Shashi Tharoor, the Lok Sabha member from the Kerala capital Thiruvananthapuram, welcomed the Supreme Court’s decision to refer the issues to a larger bench. “The issues involved have implications for the practice of all faiths,” said Tharoor.

Kerala chief minister Pinarayi Vijayan said he will seek the advice of legal experts. “We need more clarity. The court did not stay its earlier verdict either,” he said. When asked whether the government will offer protection to women to enter the temple, he evaded a direct reply.

Communist Party of India (Marxist) general secretary Sitaram Yechury said in Kozhikkode, north Kerala, that some recent verdicts of the top court need to be examined “studiously”.

“If somebody says some verdicts are in favour of a particular ideology, he can’t be blamed either,” Yechury said, adding that the Left Front government was committed to implementing the apex court’s order.

State temple affairs minister Kadakampally Surendran was evasive when asked what the government will do if some women insist on visiting the temple. “These are not questions to be asked now,” Surendran said.

Before the verdict, both the Congress and the BJP said that if the ruling goes against traditionalists, they would explore other constitutional mechanisms to protect the temple’s age-old custom.

“We hope the government will stop harassing devotees,” said BJP leader Kummanam Rajasekharan.

His colleague BL Santhosh welcomed the SC’s decision to refer the case to a larger bench. “…Welcome decision of SC in the direction of protecting rights of devotees and upholding faith. It was never a matter of fundamental rights. It was a matter of age-old tradition accepted by society,” he tweeted.

“We expect the government honour the spirit of latest decision and not to provoke believers again,” said opposition leader Ramesh Chnenithala of the Congress. “Just because there is no stay on the September 28 [2018] verdict, the LDF [Left Democratic Front] government must try not to create issues by providing security and allowing women to enter Sabarimala. The state government must not implement its earlier agenda of taking women in the banned age group to the hill shrine.”

Women’s rights activist Kavita Krishnan questioned the need for the review petition to be referred to a larger bench.

“SC is giving us the distinct impression that verdicts, treatment of review petitions are influenced by what pleases/displeases those in power,” she tweeted.

Kerala was put on a high security alert ahead of the court verdict as police stepped up vigil in Pathanamthitta district, where the temple is located. The police department said on Wednesday that it would deploy 10,200 personnel during the three-month season. At least 50,000 protestors were booked at the height of the agitation against the September 2018 ruling. The protests led to a decline in the number of pilgrims who visited the temple during the three-month pilgrimage season from November to February.