Disagreeing with the majority view which sought to club the Sabarimala matter with issues of Muslim, Parsi and Dawoodi Bohra women, Justices R F Nariman and D Y Chandrachud said the only “narrow question” before the bench was whether the Sabarimala ruling should be reviewed, and not the other issues which, they said, will be dealt with whenever the occasion arises.
Writing for both, Justice Nariman took a stern view of the protests that followed the September 28, 2018 judgment that lifted age restrictions on the entry of women into the hill shrine, saying compliance with its orders was not an option. The two judges told the Kerala government that “organised acts of resistance to thwart the implementation of this judgment must be put down firmly”.
While clarifying that they were not interfering with the freedom to criticise judgments, they said “bonafide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things. After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. 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, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this ‘Magna Carta’ or Great Charter of India”.
They denied there was any “error apparent” in the court’s previous judgement that would require it to be reviewed.
Appearing for one of the review petitioners, senior advocate K Parasaran had pointed to Justice Chandrachud’s observation in the ruling that the exclusion of women in the age group 10-50 from the temple would tantamount to untouchability under Article 17 of the Constitution.
Rejecting this, the minority decision said the other judges who delivered the 2018 judgment had not referred to Article 17 and that “the observations of Chandrachud, J. on Article 17 of the Constitution cannot be said to be a material error manifest on the face of the record which undermines the soundness of the three conclusions reached by all the majority judgments… Further, since the view of Chandrachud, J. on Article 17 of the Constitution is a possible view, it cannot be a subject matter of review”.
The review petitioners also contended that the judgments of then CJI Dipak Misra and Justice Chandrachud in relying upon “constitutional morality” suffered from an error apparent since constitutional morality is a vague concept which cannot be utilised to undermine belief and faith.
On this,the two judges said “here again, apart from the fact that ‘constitutional morality’ has now reached the level of stare decisis, and has been explained in several Constitution Bench judgments, reliance thereon cannot be said to suffer from any error apparent” — stare decis is the principle of determining points in litigation according to precedent.
The minority view opposed arguments that belief and faith are not judicially reviewable by courts, and that the Supreme Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto, saying it flies in the face of Article 25.
“Article 25… is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case-by-case basis,” the two judges said.
The review petitioners had claimed that there was a difference between the English version religious denomination as opposed to the Hindi text of Article 26 which refers to ‘sampradaya’. Describing this as an “argument made for the first time in review”, the judges said there were already a large number of Constitution Bench decisions on what constitutes a religious denomination.
On the argument that there were such practices in other religions too which had not been interfered with, they said it was not an argument which could be made in review and that when such gender restrictions in other places of worship are tested, they will be decided on their own merits,
The minority judgment said that Justice Indu Malhotra, in her September 2018 decision, had held that to entertain a PIL at the behest of persons who are not worshippers at Sabarimala temple would open a floodgate of petitions questioning the validity of religious beliefs and practices followed by other religious sects.
Calling it “unfounded fear”, the two judges said “we have pointed out in this judgment that the majority judgment cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busy bodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself…”.
They said it was a “bonafide PIL” which raised “grave issues which relate to gender bias on account of a physiological or biological function which is common to all women”. This was why it was entertained “having regard to women’s rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in”.
They said it was incumbent upon the executive branch of the government and all MPs and MLAs to faithfully aid in carrying out its decrees and orders. “Any deviation from this high constitutional principle is in derogation of the oath taken by every Minister and Legislator during his term of office. Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes, or instigating or tolerating mob violence, in defiance of decrees or orders passed by the Supreme Court of India does not reign..”
Terming instances of women being turned away from the shrine as a “sad spectacle”, the two judges said “let it be said that whoever does not act in aid of our judgment, does so at his peril”.