Sabarimala Temple verdict Highlights: Review petitions transferred to larger bench

The decision of the five-judge constitution bench of the Supreme Court on Thursday to refer the subject of women’s entry at Sabarimala temple to a larger 7-judge bench for re-examination has been welcomed by the Congress and the BJP in the state. The top court decision has also given hope to the temple’s chief priest and the Pandalam royal family, who have been petitioners in the case, who argued for the September 28, 2018 ruling of the apex court allowing women of all ages to offer prayers at the hilltop shrine to be reversed.

Senior Congress leader Shashi Tharoor on Thursday welcomed the Supreme Court's decision to refer the "vexed" Sabarimala issue to a larger bench and said issues involved have implications for the practice of all faiths.

The Supreme Court said a seven-judge bench will 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.

"I welcome the SC's decision to refer the vexed #Sabarimala issue to a larger bench…The issues involved have implications for the practice of all faiths," said Tharoor, who is an MP from Thiruvananthapuram.

Women's rights activist Trupti Desai said on Thursday that women should be allowed entry into the Sabarimala temple till a seven-judge Supreme Court bench delivers verdict on the issue, and vowed to offer prayers at the shrine when it is opened for worship.

"What I understand is that till the court order comes, entry is open for women and no one should protest against it. People who say that there is no discrimination at all are wrong, because women of specific ages are not allowed there. I am going to offer prayers on November 16," the Pune-based Desai told reporters after the SC verdict.

Desai had made an unsuccessful attempt to enter the temple in November last year, weeks after the Supreme Court lifted the ban that prevented women and girls between the age of 10 and 50 from entering the famous Ayyappa shrine in Kerala and held that the centuries-old Hindu religious practice was illegal and unconstitutional.

The Supreme Court’s decision to refer the Sabarimala temple case to a larger 7-judge Bench reopens not only the debate on allowing women of menstruating age into the Ayyappa temple but the larger issue of whether any religion can bar women from entering places of worship.

The larger Bench reference will also re-evaluate the “essential religious practice test”, a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion, The Indian Express explains 

The apex court, by a majority verdict of 4:1, on September 28, 2018, 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 held that the centuries-old Hindu religious practice was illegal and unconstitutional. Temple custodians argue that women of menstrual age are prohibited from offering prayers as the deity there, Ayyappa, is a celibate.

Social activist Rahul Easwaran described it as "pro-faith judgment". Nobody should interfere in matters of faith, he added.

Ramesh Chennithala, Leader of Opposition, told reporters: "This is a victory of the believers' community. Congress was the only political party that had filed a review petition through Prayar Gopalakrishnan. Advocate A M Singhvi had appeared as counsel for us. We see this verdict as a vindication of the stand of the Congress and the UDF. Through this decision, the SC has upheld the sentiments of Ayyappa devotees. During this mandalam-makaravilakku season, the government must not forcefully send young women to enter the temple with police protection and create problems there. The government must not convert the Sabarimala temple into a site of violence." 

Rajasekharan added, "The government must express its opinion on these issues as well. The Devaswom Board must also express its opinion. Instead of sticking to the 'we'll follow the Supreme Court orders', it must state clearly whether it wants young women to enter the temple or not. Why did the Devaswom Board not become a party to the review petitions? Why didn't it demand so? The government must not attempt to hurt the sentiments of the faithful. This mandalam season at Sabarimala must pass off peacefully." 

Former state BJP president Kummanam Rajasekharan said: "All customs and practices existing at the Sabarimala temple should be continued. In the shadow of this verdict, if the government tries to get young women to enter the temple and create problems, the repercussions will be severe. I also want to ask the chief minister what he has to say about the entry of women at other religious places. Will such issues crop up on his renaissance agenda?" 

Former Kerala chief minister Oomen Chandy told reporters, "It has been proved that the UDF position of standing along with the faithful within the democratic limits was right. We hope that this decision of the Supreme Court will help in protecting the sentiments of the faithful."

Addressing the media on the Supreme Court verdict, advocate A M Singhvi said, "It is the victory of the law." 

However, the majority 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.

Senior BJP leader Ram Madhav tweeted, "The Supreme Court's decisions today are important. On Sabarimala, it didn't uphold the smaller bench order of last year. Hence, the Kerala government shouldn't precipitate the matter." 

Sasikumara Varma, a representative of the Pandalam royal family, said: "It gives us great happiness to see this verdict. Acknowledging the sentiments of millions of Ayyappa devotees across the world, the five-judge bench has referred the case to a larger seven-judge bench. The top court has decided to re-examine its earlier 2018 verdict. It raises the doubt that the top court thinks its earlier ruling may have been wrong. The Supreme Court has noted that it is not limited to entry of women to Hindu temples, but also the entry of women into mosques. It is a matter of great happiness for Ayyappa devotees." 

Senior BJP leader B L Santhosh said the Supreme Court verdict is in the direction of protecting rights of devotees and upholding their faith. Santhosh, BJP's general secretary (organisation), tweeted, "Sabarimala issue referred to 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."

Senior Congress leader and Thiruvananthapuram MP Shashi Tharoor also welcomed the top court's order. "I welcome the Supreme Court's decision to refer the vexed Sabarimala issue to a larger bench," he tweeted.

Welcoming the apex court's verdict, Kandararu Rajeevaru, chief priest of the Sabarimala temple, told reporters, "We accept it. Referring the decision to a larger bench gives us more hope. It will extend greater strength to the faithful. It's a good thing that the verdict considers Ayyappa devotees as a separate community. Religion and law must not be mixed." 

The Supreme Court should evolve a common policy on religious places like Sabarimala, Chief Justice Gogoi said, while referring to restrictions on the entry of women into mosques.

Justices R F Nariman, D Y Chandrachud gave dissenting verdict in the Sabarimala case. Compliance with Supreme Court judgments is not optional, the two judges said.

During the hearing today, Chief Justice Gogoi said that the endeavour of petitioners was to revive debate on religion and faith. Restrictions on women in religious places is not restricted to Sabarimala alone and are prevalent in other religions also, it added.

The Sabarimala review petitions have been forwarded to a larger bench by 3:2.

Entry of Muslim women in the mosque, Parsi women case and Dawoodi Bohra case are also similar to issues in the Sabarimala case, the Supreme Court said. The case has been transferred to a larger bench.

According to Bar & Bench, the top court said the entry of women into places of worship is not limited to this temple. It is involved in the entry of women into mosques. 

The verdict will be pronounced shortly. Chief Justice Gogoi said he will take five minutes to read out the verdict.

Kerala Chief Minister Pinarayi Vijayan last week said the state was bound to implement the Supreme Court’s verdict in the Sabarimala temple case and it was not possible to bring in any legislation to prevent the entry of women of menstrual age from visiting the shrine. Responding to a question by the opposition UDF in the state assembly, Vijayan said, “The Supreme Court verdict regarding the Sabarimala women entry is the one related to that of the fundamental rights. The state government is bound to implement the apex court order.” As per legal opinion received by the state government, it was not possible to bring in any legislation to circumvent the Sabarimala verdict, PTI quoted Vijayan as saying.

In the court's earlier verdict, Justice Indu Malhotra said that it is not for the court to determine which religious practices are to be struck down.

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.

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.

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.

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.

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 court cannot issue a writ of mandamus against a community to practice its religion in a particular manner," Naphade 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.

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.

Ahead of the verdict which is expected to be announced at around 10.30 am, police in Kerala are keeping a strict vigil. Social media is being continuously monitored for inflammatory posts. Police said strict action will be initiated against those who are found causing trouble.

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 advocate A M Singhvi, representing TDB's ex-chairperson, 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 an 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 said that in a pluralistic Hindu society this concept cannot be applied objectively by the court and it has to be subjective keeping in mind different essential religious practices.

Senior advocate Parasaran also referred to the celibate or 'Naishtika Brahmachari' character of the Sabarimala deity and said the exclusionary practise was based on 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 K Parasaran, appearing for Nair Service Society, criticised 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 a reconsideration, he said the 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.

Senior advocate Jaideep Gupta, appearing for the state government, had said a constitutional court should not worry about law and order problem and "social disturbances". Exclusion of women from temples is not an essential practice of Hindu religion, he had argued.

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.

The TDB, which runs Sabarimala temple, had made a U-turn to support the Supreme Court's order allowing women of all ages to enter the shrine. The TDB had joined the Kerala government to oppose a batch of pleas seeking review of the historic verdict. The Board later asserted that its latest position was not due to any political pressure.

The five-judge constitution had heard the pleas in an open court and reserved its decision after hearing the parties, including Nair Service Society, Thantry of the temple, the Travancore Devaswom Board (TDB) and the state government, in favour and against the review plea.

The apex court, by a majority verdict of 4:1, on September 28, 2018, 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.

A five-judge constitution bench headed by Chief Justice Ranjan Gogoi had reserved its decision on February 6 after hearing various parties including those seeking re-consideration of the September 28, 2018 judgement. Other members of the bench are justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra.

The apex court will deliver its judgement on as many as 65 petitions -- including 56 review petitions and four fresh writ petitions and five transfer pleas -- which were filed after its verdict sparked violent protests in Kerala.