No end in sight for Sabarimala row, Supreme Court refers review plea to larger bench

Two days before Kerala’s Sabarimala temple opens its doors to devotees for worship, the Supreme Court said it was necessary to define what “essential religious practices” are before it decides on petitions seeking a review of its judgement allowing women to pray inside the shrine.

Continuing the debate on the issue of faith versus fundamental rights, a five-judge constitution bench, by a majority of three to two, held that larger issues pertaining to the Essential Religious Practices Test, the interplay between Article 25 (right to practice religion) and Article 26 (freedom to manage religious affairs) and provisions such as Article 14 (fundamental right to equality) need to be considered by a larger bench of not less than seven judges. A larger bench would also look at conflicting views on what constitutes essential practices between the judgements in the Shirur Mutt case and the Durgah committee case.

The majority opinion observed that certain other issues seeking refuge under the category of essential practices of religion overlapped and could be considered by the larger bench. These issues pertain to the entry of women into some dargahs and mosques, Parsi women married to non-Parsis into the Fire Temple, and the practice of female genital mutilation in the Dawoodi Bohra community.

Until then, the 65 review petitions — 56 review pleas and four writ petitions — filed in the aftermath of the court’s September 2018 Sabarimala judgement will remain pending. 

Dissenting opinion 

In their dissenting opinion, Justices Rohinton Nariman and DY Chandrachud ruled that there were no grounds for reviewing the 2018 ruling. Nariman, who authored the dissenting note, spoke out against the violent backlash to the verdict.

“Organised acts of resistance to thwart the implementation of this judgement 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,” Nariman observed. “The constitution places a non-negotiable obligation on all authorities to enforce the judgements of this court. The duty to do so arises because it is necessary to preserve the rule of law. If those whose duty it is to comply were to have a discretion on whether or not to abide by a decision of the court, the rule of law would be set at naught.”

“Today, it is no longer open to any person or authority to openly flout a Supreme Court judgement 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.”

Hinting at attempts by some political parties to whip up a communal frenzy in the aftermath of last year’s judgement, Nariman reminded politicians that it was their duty to accept the decision of the apex court. 

“It is, therefore, incumbent upon the executive branch of the government and all MPs and MLAs to faithfully aid in carrying out decrees and orders passed by the Supreme Court of India when such decrees and orders command a particular form of obedience, even where they are not parties to the litigation before the Supreme Court,” he said. “Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes, or instigating or tolerating mob violence, in defiance of decrees or orders passed by the Supreme Court of India does not reign instead.”

Referring to the civil rights movement in the US and the desegregation that followed, Nariman said, “Constitutional morality did ultimately triumph over racial discrimination…Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”

The dissenting opinion concluded: “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.”

Faith versus fundamental rights

The September 2018 judgement, by a four to one majority, lifted the prohibition on women of menstruating age entering the sanctum sanctorum of the Sabarimala shrine. “The law and society are tasked with the task to act as levellers,” then Chief Justice of India Dipak Misra, who led the bench that delivered the verdict, said. On the argument by some devotees that barring menstruating women from entering the temple was an essential practice of their religion, Misra said, “Devotees of Ayyappa do not constitute a separate religious denomination.”

Justice Indu Malhotra was the lone woman and dissenter on the bench. “It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil like sati,” she argued.

She then cautioned, “The issues raised in the present writ petition have far-reaching ramifications and implications, not only for the Sabarimala temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practises, customs and usages, which may be considered to be exclusionary in nature. In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts.”

She also found grounds in the fact that the main petitioners were not devotees themselves. Her dissenting opinion read, “The right to move the Supreme Court under Article 32 for violation of fundamental rights must be based on a pleading that the petitioners’ personal rights to worship in this temple have been violated. The petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’… The right to equality could not be the sole test for religious practices. It’s up to worshippers, not the court, to decide what’s religion’s essential practice.”

The 2018 verdict came over 12 years after the first appeal was filed challenging a 1991 Kerala High Court order upholding the ban on the entry into the shrine of women aged 10 to 50.

The temple and its devotees

The Sabarimala shrine is believed to be the home of Lord Ayyappa, a celibate god who allegedly gets “disturbed” if women of menstruating age cross the threshold of the temple.

Kerala witnessed widespread violence during protests against last year’s verdict. The protests had violent when the state’s governing party chose to immediately implement the ruling. After the temple’s gates were thrown open to the devotees for the first time after the verdict, Bindu Ammini, 40, and Kanakadurga, 39, became the first women of menstruating age to enter the shrine in January 2019.

The temple is located in a forest in Kerala’s Pathanamthitta district. The shrine is situated atop a hill, at an altitude of 468 metres above sea level. It is surrounded by mountains, dense forests and is difficult to reach. Devotees going in vehicles must alight at Pamba, five km from the shrine. From there, the visitors have to proceed on foot.

The temple is thrown open during pilgrim seasons known as Mandala Kalam, which runs from mid-November to December-end, and Makaravilakku in mid-January. An estimated 45-50 million devotees visit the temple annually.