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Tuesday, December 10, 2019

Sabarimala review petition: Challenge to order that opened temple to all women

Basis of the ban: The petitioners have argued that the court erroneously concluded that the ban is based on the age of women; in fact,it is based on the celibate nature of Ayyappa, which is distinct to Sabarimala.

Written by Apurva Vishwanath | New Delhi | Updated: November 14, 2019 9:34:32 am
Following protests against the verdict, over 50 review petitions and fresh writ petitions were filed before the Supreme Court.

What was the original verdict?

The Supreme Court had, in a 4-1 majority judgment delivered on September 28, 2018, thrown open the doors of the Sabarimala temple in Kerala to women of all ages, ruling that the practice of banning women of menstrual age from the temple was unconstitutional. Former Chief Justice of India Dipak Misra, and Justices A M Khanwilkar, Rohinton Nariman, and D Y Chandrachud wrote the majority opinion; Justice Indu Malhotra wrote the lone dissent.

The court ruled there was no “custom” that allowed the ban on menstruating women — and declared a Rule under The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, that allowed banning women when custom dictates it, as unconstitutional and in violation of the parent legislation.

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The court said that the right to religion was guaranteed equally to all genders. Justice Chandrachud in his opinion radically held that barring women from the temple can be equated with untouchability, which is specifically outlawed by the Constitution.

Justice Malhotra, in her dissent, said that the temple enjoys a denominational status, and is entitled to form its own customs and practices. She also said that the ban on women of menstruating age did not amount to discrimination on the basis of sex.

On what grounds has the review been sought?

Following protests against the verdict, over 50 review petitions and fresh writ petitions were filed before the Supreme Court. The National Ayyappa Devotees (Women’s) Association, the chief Tantri (priest) of the Sabarimala temple, the Nair Service Society, the All Kerala Brahmins’ Association, and several women devotees were among those who sought a review. The Kerala Devaswom Board and Kerala government had opposed the review.

The grounds for review hinged essentially on two aspects — that the court did not capture correctly the arguments made by the parties and made an incorrect recording of facts, and that the devotees of Lord Ayyappa were not heard.

The review petitioners argued that the NGO Indian Young Lawyers’ Association — the original petitioner who filed the public interest petition challenging the ban on the entry of women — had no standing before the court since it did not profess belief in the deity.

Essential religious practice test: The Supreme Court held that the celibate nature of the deity Ayyappa and exclusion of women of menstruating age was not an essential religious practice. Previous Supreme Court rulings have held that a practice that is “essentially religious” is protected under law.

The review petitioners have argued that the court erred in holding that the custom is a “mere practice with some aberrations” and not an “essential religious practice”, a position advanced by the Travancore Devaswom Board. The Tantri argued that the Board has no say in religious practices of the temple, and has been set up only to ensure its secular administration. According to the plea, the chief Tantri is the sole authority in the temple.

Devaswom Board as state: The court held that the Board is considered state under Article 12 of the Constitution, and therefore the fundamental right to practice religion under Article 25(1) can be asserted against it.

The petitioners argue that this is an erroneous interpretation since the Board, if it is State, cannot interfere with the religious practices of the temple. “The court has not balanced the rights of the chief Tantri and devotees under Article 25 to preserve the traditions of the temple vis-à-vis the rights of the petitioners who have not professed faith in the deity,” the plea argued.

Basis of the ban: The petitioners have argued that the court erroneously concluded that the ban is based on the age of women; in fact,it is based on the celibate nature of Ayyappa, which is distinct to Sabarimala.

“The reliance… that the restriction is based on menstruation is from an affidavit filed by the Tantri before the Kerala High Court that “spilling of blood” is prohibited inside the temple under tantric tradition,” the petitioner said, arguing that the “spilling of blood” actually refers to any spilling of blood.

Locus of the NGO: The petitioners also argued that the devotees of Ayyappa were not heard by the court; rather, the verdict was delivered in a plea filed by an NGO that has not “professed belief in the deity”.

The majority opinion of the court did not go into the standing of the original petitioner (the NGO) since the litigation had progressed significantly. However, Justice Malhotra, in her dissent, questioned the court’s reluctance in dismissing the plea on the ground that the NGO had no standing before the court.

religious denomination: The court had held that the devotees of Ayyappa did not constitute a distinct religious denomination that is entitled to practise its unique customs.

The petitioners argued that the uniqueness of the Sabarimala temple and its history is enough to grant denominational status to Ayyappa devotees. “Spiritual organisation, a common bond and the existence of unique practices which flow from its beliefs, are the three conditions to grant denominational status to a group and devotees of Ayyappa fulfil all three,” the petitioners argued.

In her dissent, Justice Malhotra had said that the Ayyapans constituted a separate religious denomination, and were entitled to follow their unique practices.

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