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Sabarimala: Larger bench out to open a larger Pandora’s box
Kerala

Sabarimala: Larger bench out to open a larger Pandora’s box

Ajayan

The Supreme Court's recent decision to leave the around 65 review petitions against its September 28, 2018, judgment, once termed historic by even its present critics, to a larger bench has opened what once one of the judges said "opening Pandora's box".

It was a split 3-2 verdict by a Constitution Bench in favour of sending the review petitions to a larger seven-judge bench of the same kind.

Incidentally, the marginal majority that the present verdict got was owing to one of the judges in the earlier Bench, Justice AM Khanwilkar going back on his earlier pronouncement. While Justice Indu Malhotra was a dissenter in the September 28 verdict, she had the support this time of Chief Justice of India Ranjan Gogoi. Justices DY Chandrachud and Nariman Rohington stood their ground and favoured dismissal of the review petitions.

The Pandora's box reference becomes all the more relevant as the reason cited by the thin or narrow majority is because of claiming to have a clarity on religious beliefs and customs.

What has now been thrown up is the issue, once resolved by a broad majority of 4-1 on religious rights against fundamental ones, especially the right to equality.

Inviting further complications, the present ruling has dragged in issues concerning other religions. In this case the majority view was that the Sabarimala issue of allowing women in the menstrual age of 10 to 50 should be viewed along with petitions on the issue of Muslim women entry to Darghas,  entry of Parsi women married to non-Parsis to the Fire Temple and alarmingly the practice of female genital mutilation among Dawoodi Boharas.

Religious beliefs and customs by themselves are irrational. Through these verdicts there has been an attempt to single out a part of this irrationality which by itself appears to be quite irrational.

In the dissent verdict, jointly put out by the two judges, Justice Nariman pointed out:  "The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive."

It was argued in the review petitions that there were violent protests against implementing the verdict of allowing young women to come and worship at the hill shrine.

The dissenting judgment noting the relevance and importance of Supreme orders noted: “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 instead.”

This explains the unprecedented comment made by Justice Nariman on Friday to the solicitor general while hearing case that the government must read the "extremely important dissent" order in the Sabarimala case.

"Please tell your government to read the dissent judgment delivered in the Sabarimala case yesterday, which is extremely important. Our judgments are not to be played with.... Inform your authority and the government to read it," he told Solicitor General Tushar Mehta.

In his earlier verdict in the Sabarimala young women entry case, Justice Chandrachud had said that in determining the essentiality of a practice, it was crucial to consider whether the practice was prescribed to be of an obligatory nature within that religion. "If a practice is optional, it has been held that it cannot be said to be ‘essential’ to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an ‘essential’ part of that religion.

There was the submission that the deity at Sabarimala was in the form of a 'Naishtika Brahmacharya' (celibate) and so it was the foremost requirement for all the followers, women between the ages of 10 and 50 must not be allowed in Sabarimala.

"There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatise them and stereotype them as being weak and lesser human beings," he had ruled then.

"A constitutional court such as this one, must refuse to recognise such claims," Justice Chandrachud had pointed out.

In the dissent verdict, the judges had pointed out against bringing practices of other religions under the purview of the Sabarimala case.

With the matter taking up larger concerns in front of a larger Bench, the time taken to resolve a matter of faith in a country burdened with graver issues affecting all, including the faithful, the time taken will be equally larger.

But with political hawks on both the sides out to draw mileage, a point in the dissent note becomes all the more relevant.

"It is necessary for us to restate these constitutional fundamentals in the light of the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple.”