The Supreme Court passes the decision to a larger bench and clubs it with similar matters involving other religions
From 10:30 am, a scary silence had gripped Kerala as Chief Justice of India Ranjan Gogoi had started to read out an order considering review petitions on allowing women to enter Sabarimala in Supreme Court (SC) today.
And by 10:35 am, when a five-member bench of the SC referred the case to a larger bench for an authoritative pronouncement, many in Kerala heaved a sigh of relief even though the order lacks clarity on whether women can enter Sabarimala or not.
Last year on September 28, the SC had ordered that women of all ages must be allowed into Sabarimala Ayyappa shrine in Kerala, ending a centuries-old ban on women and girls between 10 and 50 years.
Women and girls aged between 10 and 50 were denied entry into Sabarimala, to protect the deity Ayyappan’s celibacy.
And that 75-page verdict issued in 2018, read that biological or physiological reasons cannot be accepted in freedom of faith.
Even though the state government decided to go ahead and implement the Supreme Court’s order, the verdict was not welcomed by many Hindu right-wing political parties, religious heads, and Hindu caste groups in Kerala.
Protests had spilled over to the streets resulting in at least half a dozen local and state-wide shutdowns.
And the women who tried to trek Sabarimala were heckled and stopped. The state was pushed into chaos and normal life was hit for many weeks. At least 50,000 protestors were booked during the protests.
When the Indian National Congress (INC) took a ‘neutral’ stand on Sabarimala’s women entry then, rival Bharatiya Janata Party (BJP) saw it as a ‘golden opportunity’ to grow their presence in the state.
And the Communist Party of India-Marxist (CPM), the main political party – which heads the ruling coalition in the state – landed in a ‘fix’ by standing up for gender equality and by ‘trying’ to send women to Sabarimala then.
On January 02, Kanaka Durga and Bindhu Ammini, two women, managed to trek Sabarimala hoodwinking the right-wing members who were camping in Sabarimala.
The state government had to face the music for ‘allowing’ women into Sabarimala and CPM, the party heading the state government, also faced a backlash in many constituencies in the 2019 parliament elections.
Now, after a whole year, the Supreme Court has referred the Sabarimala women entry issue to a larger bench for an authoritative pronouncement. The majority judges observed that the matters involving the interpretation of the provisions of the Constitution touching upon the right to profess, practice and propagate its own religion, should be heard by a larger bench, for an authoritative pronouncement in these matters.
The court said that the issues arising in the pending cases regarding the entry of Muslim women in dargahs/mosques; of Parsi women married to non-Parsis in the Agyari; and including the practice of female genital mutilation in the Dawoodi Bohra community may be overlapping and covered by the Sabarimala judgement.
“There is yet another seminal issue pending for consideration in this Court regarding the powers of the Constitutional courts to tread on the question as to whether a particular practice is essential to religion or is an integral part of the religion, in respect of female genital mutilation in Dawoodi Bohra community,” the court said adding that the prospect of the issues arising in those cases being referred to a larger bench cannot be ruled out.
In a nutshell, the court has neither stayed its 28 September 2018 verdict nor upheld the same.
It has only referred the case to a larger bench, leading to confusion among political parties, religious heads, Hindu caste communities, legal experts and activists on what is next.
While the Keralite politicians and Hindu caste community leaders have welcomed the order claiming that the Supreme Court has respected believers’ faith over the entry of women, activists say that they are hopeful that the court will not derail the basic tenets of the Constitution, which guarantees gender equality.
Addressing the media, Kerala Congress leader Oommen Chandy said that as long as the government does not take a favourable stance for women’s entry in Sabarimala, a peaceful atmosphere will prevail.
"It has been proved that the United Democratic Front (UDF) position of standing by devotees within the democratic limits was right. We hope that this decision of the Supreme Court will help in protecting the sentiments of the faithful,” he said.
Hailing the verdict, Kerala’s Opposition leader Ramesh Chennithala asked the CPM-led state government "not to create issues" by providing security and taking women in the banned age group to offer worship at the Ayyappa temple.
"Just because there is no stay of the September 28 verdict, the CPM-led government must not try to create issues by allowing women to enter Sabarimala," he said.
Meanwhile, Mizoram Governor PS Sreedharan Pillai, who was the BJP Kerala chief when the SC had issued the women entry order in September 2018, said that the decision taken by the Supreme Court should be seen as a deviation.
And Kummanam Rajasekharan, Kerala BJP leader, advised the state government to exercise restraint.
“It should not use the lack of clarity regarding stay in the case to facilitate women’s entry into the shrine," Kummanam said.
While welcoming the SC order, Hindu activist Rahul Easwar, who spearheads the protests against Sabarimala women entry in the state and at national-level said that there is no clarity regarding the stay by the Supreme Court on its earlier order.
"The court should look into all of this. We are yet to know whether there is a stay on it. Please don't interfere in any faith beyond a point. India is a land of great pluralism and faith freedom. I think that is a positive step in the right direction. We should welcome this," Easwar added.
Kandararu Rajeevaru, the head priest of Sabarimala, said he respected the SC decision to refer last September’s verdict to a seven-judge bench.
“This gives us hope. This will strengthen the belief of devotees,” he told PTI.
Even though the Congress and BJP leaders have come forward with statements, CPM leaders have chosen not to engage in debate.
A state-level CPM leader who spoke to The Lede on condition of anonymity said there is a lack of clarity in the judgement.
“We cannot comment in detail now,” he said.
However, late in the evening, Kerala Chief Minister Pinarayi Vijayan held a press conference and told media that more clarity is needed in the latest judgement.
“The five-member bench has pronounced a majority decision with two dissenting. Whatever is the court verdict, the state government will abide by it. But what we see now is that the 28 September 2018 verdict still remains valid. But we need more clarity on that,” Pinarayi said.
“Earlier the SC had taken a stand. When some review petitions had asked for a stay, the court had denied it. Now also, the SC has not revised anything. Now, we want to look into all legal matters. However, we repeat that the state government will implement whatever the verdict may be,” Pinarayi said adding that implications of implementation of the verdict will be analysed in detail.
Meanwhile, Kerala Temple Affairs Minister and CPM leader Kadakampally Surendran ducked questions from media when they asked what the next step was.
"These are not questions, which are to be asked now. I request everybody, including the opposition, to not seek political mileage from the verdict,” he said.
While the Nair Service Society which was opposing entry of women welcomed the SC order in a statement expressing its hopes on protection of faith, Vellapally Natesan, the head of SNDP (Sree Narayana Dharma Paripalana Yogam), an organisation representing the large Ezhava community, welcomed the SC order.
Interestingly, Natesan is the chairman of a Renaissance Committee formed with the blessings of chief minister Pinarayi Vijayan to stand up for gender equality and the right to pray for women in Sabarimala.
“When the SC has referred the case to a larger bench, it means that the earlier verdict has stayed. I believe that the state government won’t try to send women to Sabarimala this time,” he added.
Meanwhile, Bindhu Ammini, one of the first women who had trekked Sabarimala, said the SC move reveals that, it has not stayed its 28 September 2018 verdict.
“So if someone wants to trek Sabarimala, then the state should give protection,” she added.
Sreejith Perumana, a Supreme Court lawyer, told The Lede that the 28 September 2018 verdict on women entry remains valid.
“Mainly, what the five-member bench has done is that they have referred the case to a seven-member bench to study the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14,” Sreejith said.
According to Sreejith, the seven-member bench would examine the review petitions in detail, may go for a re-hearing, or may not. And it can also send its readings back to a five-member bench to pronounce the verdict.
“Basically, by referring the case to the seven-member bench, the court wants to set a guideline to handle such cases arising from different religions in the future. Maybe the final verdict may a common one for all the cases from a different religion or it can also be individual ones too,” he said.
He added that the decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India.
Sreejith said that 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.
“Decision by a larger bench will pave the way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution - which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court,” Sreejith added.
According to Sreejith, it may take at least one year for the final decision.
Sreejith also added that courts cannot stay an order which is connected with fundamental rights.
“Court cannot stay a ruling which is connected to fundamental rights. So it has not mentioned about the stay this nine-page judgment,” Sreejith added.
Meanwhile, Sunny M Kapikkadu, a Dalit thinker who has been at the forefront of the Renaissance Movement initiated last year by the Kerala government, said that with such judgments we are going back to an era where we did not have a Constitution.
“We have a Constitution. But it seems that the central government and the SC is trying to take us back to the days when there wasn’t a Constitution, so that each and every person and religion can practice their own laws,” Sunny said.
“Just think of gender equality. Did men and women have equal rights, before the Constitution was there? No, isn’t it? It is our Constitution, which provided gender equality. It is the Constitution, which removed the ill practices, which was considered sacred then. So I am afraid that, through such judgements, which mix up faith and fundamental rights, the SC and the central government are trying to push us back to that dark era,” Sunny said.
Sunny also said that he finds it amusing when a court values its verdict based on numbers.
“Should courts value their verdicts based on majority numbers. Is it a Parliament?” Sunny asked.
In a majority verdict of 3:2, Justices RF Nariman and DY Chandrachud gave dissenting views by dismissing all the review pleas and directing compliance of the court’s 2018 order.
“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,” they said. They wrote – “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.”
They rejected "extreme arguments" that were made that "belief and faith are not judicially reviewable by courts, and that “this court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto.”
They also dismissed the argument - that this judgement would be used to undermine the religious rights of others, including religious minorities - as wholly without basis.
Meanwhile, talking to news agency ANI, Trupti Desai, women rights activist, said that she welcomes the decision given by the court today.
“I feel that the festival is just around the corner so the judicature must have felt that any new decision may instigate violence. But I also believe the court must make the decision in the matter at the earliest so that the women can offer prayers at the shrine during the festive season," she said.
Trupti heads Young India Lawyers Association, the organisation which is fighting the case in Supreme Court for allowing entry for women.
Trupti had made an unsuccessful attempt to enter the temple in November last year, weeks after the Supreme Court lifted the women entry ban. She was stopped at the Kerala airport by right-wing groups and sent back.
Meanwhile, a highly placed source in the police department revealed that so far 36 women have registered to visit the Sabarimala Ayyappa shrine this year.
According to the source, they are collecting the addresses of the women who have registered to visit the Sabarimala Ayyappa shrine.
Last year, some 700 women had registered to visit Sabarimala.
On Saturday, the temple will open for this year’s festive season.
Last year, the protests had led to a decrease in the number of pilgrims and revenue.
The Travancore Devaswom Board which runs the temple had said that there was a 50% dip in 2018 with 1.2 crore pilgrims visiting the temple against 2.2 crore pilgrims in 2017.