BY : APARNA RAJESH
The Sabarimala Temple complex, located in the Pathanamthitta district of Kerala, has a huge annual pilgrimage, making it one of the most popular places of worship. The principal deity there is Swami Ayyappa, the celibate God, also known as Dharma Sastha. The entry of women of particular age group has been restricted for years and several pleas have been raised to allow female entry into the temple. Hence,in Sabarimala this tradition followed by the temple is open to various controversies.
Menstruating women of the age group 10-50 are not allowed to enter the temple since the deity is considered to be celibate. There are two sides of arguments. One, allow entry of women. The other one, maintain the status quo and following the tradition as it is. There have been various debates regarding the issue and mixed views have made the issue more complicated. Earlier in 1991, a PIL was filed in the High Court of Kerala and it ruled that the tradition was being followed for time immemorial and ordered the Devaswom Board to uphold the tradition. Later on 28th September 2019, the Supreme Court ruled in a case regarding women entry, lifting the ban on women into the temple. This had triggered more debates.
On 28th September, 2018 a five member bench headed by the then Chief Justice, DipakMisra has lifted the ban on women entry with a majority of 4-1 in Sabarimala Case. The bench constituted Chief Justice DipakMisra, Justices D.Y. Chandrachud, Indu Malhotra, RF Nariman and AM Khanwilkar. The only one who was against the plea was the lone woman judge Justice Indu Malhotra who chose to uphold traditions. As a result of this landmark review, protests were held around the temple complex raising the need for protection of tradition. A number of pleas seeking the review of the judgement was also moved.
Later when it decided to consider the review petitions, the Supreme Court decided that they would be referred by a broader bench in Sabarimala Case. Now, the Court has notified a nine member bench to consider these review petitions. The nine members are:
- Chief Justice S.A. Bobde
- Justice Ashok Bhushan
- Justice Mohan M. Shatanagoudar
- Justice R. Banumati
- Justice L Nageswara Rao
- Justice S Abdul Nazeer
- Justice R. Subhash Reddy
- Justice Surya Kant
- Justice B.R. Gavai
This bench notified by the Supreme Court to consider the review petitions doesn’t include any of the judges in the bench that made the judgement on 28th September, 2019.
QUESTION OF LAW:
On November 14th, 2019 the Chief Justice of India Ranjan Gogoi had passed an order of reference with regard to the review petitions on Sabarimala issue.
The important issues pointed out in the order are:
- Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14
- What is the sweep of expression ‘public order, mortality and health’ occurring in Article 25(1) of the Constitution.
- The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it overarching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective
- The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
- What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
- Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 226.
- What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?
It was a five judge bench that decided for the consideration of the case by a broader seven membered bench with a majority of 3:2. The Supreme Court has also decided to club the pleas related to allowing women to the Muslim and Parsi places of worship.
In Sabarimala Case the debate over whether the constitutional bodies in our country can intervene in religion to uphold the principles of the supreme law of the land is one among the things that the judgement on this case would clarify. The court, in the judgement wants to ensure substantial and complete justice. Therefore the judgement will be highly valuable as it would be the standard for such cases to follow. But the fact that the judges who constituted the bench that made the landmark judgement were avoided is to be noted. The judgement must be delivered keeping a balance on religious sentiments as well as the constitutional values of our nation. The country is indeed looking forward to the decision as it unties the confusion revolving around the complications of religion and politics.