The Supreme Court Wednesday reserved its decision on petitions seeking review of its September 28, 2018 order lifting age restrictions on the entry of women to the Sabarimala temple even as the Travancore Devaswom Board, which runs the hill shrine, changed its stand on the ruling.
Giving up its opposition, the Board said it was now backing the judgment because “religious practices have to be consistent with the dominant theme… that all are equal and entitled to equal rights”.
Appearing for the Board, senior advocate Rakesh Dwivedi told the five-judge Constitution Bench of Chief Justice of India Ranjan Gogoi and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra: “Now Board has taken a decision to respect the judgment.”
The September 2018 judgment was delivered by a bench headed by then CJI Dipak Misra and included the other four judges. CJI Misra has since retired. Justice Malhotra was the sole dissenting judge in the 4-1 majority verdict that sparked protests across Kerala and led to the filing of review petitions.
Dwivedi was responding to a specific query from Justice Malhotra who pointed out that he was arguing contrary to what the Board had said when the writ petitions were heard last year. She sought to know if it had changed its stand.
In the past, the Board had favoured continuation of Sabarimala’s unique custom according to which only women below 10 and above 50 could undertake the pilgrimage to the shrine. Reversing this stand, Dwivedi said women’s equality was what the verdict sought to achieve and people “should accept the change that this important judgment seeks to bring about in the country”.
Senior advocate K Parasaran, appearing for the Nair Service Society (NSS), commenced the arguments seeking review by stating that there was error apparent on the face of the judgment. Article 15 of the Constitution, he said, threw open all public institutions of secular character and not those of religious character.
During the drafting of the Constitution, amendments to Article 15 were moved to extend it to temples and were put to vote only to be rejected, he said.
Senior advocate V Giri, representing the temple Thanthri (chief priest), reiterated that the restrictions were not account of the physiological characteristics of women but the unique nature of the deity at Sabarimala which was in a state of Naishtika Brahmacharya (eternal celibacy).
He delved on the question of Constitutional morality — it had been invoked by both the majority and dissenting versions in the September 2018 judgment — and said the rule was not to be found in the Constitution but was developed by the courts. Challenging the finding in the judgment that the custom amounted to untouchability, he said it was not an exclusionary practice.
Senior advocate A M Singhvi, who appeared for former Board president Prayar Gopalakrishnan, said the judgment had not considered the Naishtika Brahmacharya argument. Gods in Hinduism, he said, are worshipped in various manifestations.
While applying Constitutional morality in cases where Article 25 (freedom of religion) rights are involved, the subjective morality of devotees too have to be considered, he said. Submitting that several aspects of faith are irrational, Singhvi said courts should be careful in applying Constitutional morality to matters of religion.
Senior advocate Shekhar Naphade, who also appeared for a review petitioner, said: “Some say God exists, some say no. Religion is essentially a matter of faith. Can courts say thou shall not hold such a belief? No, unless a practice is barred by criminal law.”
The Kerala government opposed the petitions, saying “no ground for review had been made out”. Senior advocate Jaideep Gupta, representing the state, said review petitioners have analysed the judgment in detail which cannot be done in a review.
On the argument that “social peace” has been destroyed in Kerala following the judgment, Gupta said that cannot be a ground to seek review and “we contemplate that social peace will prevail ultimately”.
Senior advocate Indira Jaising, appearing for women that included Bindu and Kanakadurga who had entered the shrine after the judgment, said “purification rituals” carried out in the temple following their entry was proof that their entry was considered “polluting”.
She said it “hurts a woman very, very deeply.., it’s a hurt which goes to the heart of the Constitution”. Opposing the plea to review the verdict, Jaising also urged the court to issue directions to the protesters not to oppose women’s entry to the shrine when it reopens on February 12. The bench did not say anything on the plea.