New Delhi: The Supreme Court on Thursday referred to a seven-member Constitution bench all petitions that had asked for a review of its majority decision last year that girls and women between 10 and 50 be allowed to enter the Sabarimala temple in Kerala.
The Supreme Court said the seven-judge bench would re-examine various religious issues, including the entry of women into the Sabarimala temple and mosques and the practice of female genital mutilation in the Dawoodi Bohra community.
The majority 3:2 verdict did not say anything adverse against the apex court's September 28, 2018 decision allowing women to enter the shrine nor did it stay the earlier judgement.
This means that the entry of women of all ages into the Sabarimala temple will continue while a larger bench hears objections to this decision.
While the five-judge bench unanimously agreed to refer the religious issues to a larger bench, it gave a 3:2 split decision on petitions seeking a review of the apex court's September 2018 decision allowing women of all ages to enter the Sabarimala shrine in Kerala.
The majority decision -- by Chief Justice Ranjan Gogoi, Justices A M Khanwilkar and Indu Malhotra -- decided to keep pending the pleas seeking a review of its decision regarding the entry of women into the shrine. It read: “Restriction on women in religious places is not restricted to Sabarimala alone, it is prevalent in other religions also.”
Stating that the endeavour of review petitioners was to “revive a debate on religion and faith”, Justice Gogoi said, “A larger bench will decide religious issues relating to Sabarimala, the entry of women into mosques and the practice of female genital mutilation.”
The top court should evolve a common policy on religious places like Sabarimala, the CJI said, while referring to restrictions on entry of women to mosques.
Justices R F Nariman and D Y Chandrachud, however, gave a dissenting verdict in the case. The minority verdict dismissed all review pleas and directed compliance of its September 28 decision.
The split decision came on 65 petitions -- 56 review petitions, four fresh writ petitions and five transfer pleas -- which were filed after the apex court verdict of September 28, 2018 sparked violent protests in Kerala.
On September 28, 2018, the Supreme Court, by a majority verdict of 4:1, had lifted the ban that prevented women and girls between the age of 10 and 50 from entering the famous Ayyappa shrine in Kerala and had held that this centuries-old Hindu religious practice was illegal and unconstitutional.
The five-judge Constitution bench had heard arguments in an open court and reserved its decision on in February 2019 after hearing the parties, including Nair Service Society, the thantry of the temple, The Travancore Devaswom Board (TDB) and the state government, in favour and against the review plea.
After the apex court verdict, Kerala witnessed massive protests by various Hindu outfits and the BJP workers after the Supreme Court's verdict lifted the restriction on the entry of women of menstruating age. The protests intensified after two women -- Bindu Ammini, a lecturer at Kerala’s Kannur University, and Kanakadurga, a civil servant, managed to enter the temple and offered prayers.
The TDB, which runs Sabarimala temple, had earlier opposed the entry of women but later supported the Supreme Court's order along with the Kerala government.
The Board asserted that its position was not due to any political pressure.
Some right-wing activists have alleged that the Board changed its stand before the court under pressure from the state's CPI(M)-led LDF government.
The Kerala government, which had taken conflicting stands on women's entry into the hilltop shrine, supported the verdict and urged the court to trash review pleas. Senior advocate Jaideep Gupta, appearing for the state government, had argued that exclusion of women from temples was not an essential practice of the Hindu religion.
Senior advocate K Parasaran, appearing for Nair Service Society, critiqued the majority verdict, saying Article 15 of the Constitution throws open for public the secular institutions of the country but doesn't deal with religious institutions. Seeking reconsideration, he said Article 17 which deals with abolition of untouchability in society was wrongly used by the court in its judgment as exclusion of certain age groups of women was not based on caste.
Parasaran also referred to the celibate or ‘Naishtika Brahmachari' character of the Sabarimala deity and said the exclusionary practice was based on the nature of the deity and the apex court should have considered this aspect.
He also referred to Article 25 (fundamental right to practice religion) and said unless a religious practice is ‘abhorrent’, a court usually does not interfere with the activities associated with religious institutions.
Senior advocate A M Singhvi, representing TDB's ex-chairperson, had argued in favour of a review of the judgment. “There is no exclusion of women. There is no exclusion of men. There is no exclusion of a class of men or women based on religion and caste. There is exclusion inside a class (women). Hence Article 17 (removal of untouchability) will not apply,” Singhvi had said.
Dealing with the aspect of constitutional morality, the lawyer had said that in a pluralistic Hindu society this concept could not be applied objectively by the court and it had to be subjective keeping in mind different essential religious practices.
Senior advocate V Giri, who represented the shrine thantry, said the temple allows entry of all persons inside and there is no exclusion of any class of citizen based on caste, gender and religion.
"The fundamental right to worship also includes the character of the deity and every devotee cannot question this character which also formed part of the essential religious practice there," he had said.
Senior lawyer Shekhar Naphade had said the court cannot direct a community to practice religion in a particular manner. "This is an internal affair of a religious community which worships a particular deity in a particular manner. This has never been in dispute that this practice is being followed for centuries.
"The court cannot issue a writ of mandamus against a community to practice its religion in a particular manner," Naphade had said, adding this was an essential religious practice which cannot be scrutinised. He had that any religious practice cannot be stopped unless it constituted a criminal offence.
This year, the temple is being opened for the three-month-long annual pilgrimage on November 16.