[dropcap]A [/dropcap] Constitution Bench of the Supreme Court after hearing the Sabarimala review petitions today, February 6, 2019, reserved its order on whether to admit the review petitions or not. The Constitution Bench comprising CJI Gogoi and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra heard the petitions seeking review of its September 28, 2018 judgment in which the Court with a ratio of 4:1 held that women of all age groups have a right to enter the Sabarimala shrine.

The Apex Court's landmark verdict on the entry of women in Sabarimala temple triggered a wave of protests across Kerala, and as a result, many petitions were filed seeking review of the judgment. Along with the review petitions, a plea seeking contempt action against the head priest of the Sabarimala temple was also filed for his alleged role to order the cleaning of the premises after some women had visited the temple.

A total of 56 review petitions, 4 writ petitions, 2 Special Leave Petitions, along with 2 transfer petitions filed by Kerala Government, and a petition filed by Travancore Dewaswom Board, seeking time to implement the judgment, were listed before the five-judge Constitution Bench of the Supreme Court.

Submissions of review petitioners

Senior Advocate K Prasaran appearing for Nair Service Society, opened the arguments before the five-judge bench and contended that, "the interesting aspect of the case is that both petitioners and respondents are relying on Article 25, Constitution of India", and added that "Article 15 (of the Constitution), which threw open all public institutions of secular character to all classes of person, conspicuously omitted religious institutions". He added that "it is an error to strike down a temple custom under Article 15" after which he reads out Article 25 (2) (b). He submitted that "the judgment did not consider the crucial aspect that Article 15(2) does not cover religious places. The omission to consider this aspect constitutes an error apparent on record".

Mr Parasaran referred to Bijoe Emmanuel & Ors v. State of Kerala and Ors, 1987 AIR 748, a judgment of the Supreme Court, which held that Courts should not test the rationality of religious beliefs held by persons. He added that the "Supreme Court gave an expanded interpretation to untouchability under Article 17, in variation with historical context. As per Constitution, untouchability is an offence. (The) offence has to be defined clearly. This is not a bilateral dispute; its (Sabarimala judgment's) consequences will fall on other religions too. Untouchability will apply only if someone is treated less than a human being".

At this point, Justice Nariman asked "What if they keep out a Scheduled Caste woman? What happens to the feeling of that woman?" to which Mr Parasaran submitted that the "exclusionary practice in Sabarimala is based on the character of the deity, which is that of Naishtika Brahmachari and not because of her caste".

After Mr Parasaran, Senior Advocate V Giri, appearing for Chief Priest (Thanthri) of the Sabarimala temple began his arguments. He said "the restriction is based on the character of the deity. (It is the) permanent celibate character erodes in case women (between the age of group of 10 and 50) are permitted entry". He submitted that "religious right of a devotee under Article 25 has to be exercised in consonance with the character of the deity". He says that "every devotee who goes to temple cannot question the essential temple practices, and added that "Thanthri is regarded as the father of deity, and has special rights to preserve the essential character of the deity".

Mr V Giri also contended that "Constitutional morality does not have a textual backing. It (Constitutional Morality) is a recent concept which My Lords have evolved". He further submitted that "none of the petitioners claimed to be devotees of Lord Ayyappa at Sabarimala". He concluded by contending that "the practice has nothing to do with caste. Hence, the Sabarimala custom cannot be equated to untouchability".

Senior Advocate Abhishek Manu Singhvi appearing for Prayar Gopalakrishnan, the former Chairman of Travancore Devaswom Board contended that "the practice is based on the character of the deity manifested as a Naisthika Brahmachari". He added that "in Hinduism, gods are worshipped in various forms and manifestations. In Sabarimala, the deity is worshipped in this particular manner. Here, the exclusion is not based on caste but purely based on (the) nature of the deity. So Article 17 (untouchability) has no application".

Mr Abhisekh Manu Singhvi also highlighted that "only the judgment of Justice Indu Malhotra took into consideration the Naistika Brahmachari character of the deity; other judgments merely made a passing reference to it". Answering to the query posed by Justice Nariman regarding the feeling of schedule caste women, Mr Singhvi contended that "Civil Rights Act has to be read along with Articles 25 and 26".

Senior advocate Shekhar Naphade contended that "the effect of the judgment is a direction given to a religious community that they should not hold a belief. This is an internal affair of a religion. Unless there is a criminal law which forbids a practice, Courts cannot interfere". Mr Naphade further added that "the belief is part of the collective conscience of the community. The community has not accepted the Court's judgment and it alone can decide whether centuries' old belief should be changed or not. Few activists cannot get to decide that".

Mr N Venkataraman, Senior Advocate from Madras High Court argued that "the 1991 Kerala High Court judgment has considered evidence for treating the custom as an essential religious practice". He added that "the factual finding in that judgment has not been challenged, and has, therefore, become final. One's faith may be another's superstition. These aspects cannot be tested with rationality. Faith is faith; it cannot be split into permissible faith and impermissible faith".

Mr Venkataraman further contended that "the Hindi version of the Constitution uses the word 'sampradaya' in Article 26, and Sabarimala is a 'sampradaya'", and added "either you believe in a ritual or opt to not become part of it. You cannot seek to become a part of (the) ritual by questioning its basis".

Advocate Gopal Sankaranarayanan argued that "The Court struck down the Rule (women in the procreative age group) without hearing other Devaswom Boards. The Rule is applicable to all temples in Kerala. There are several other temples in India with gender-based restrictions. They will be affected by the judgment. But they were not heard".

Advocate Sai Deepak J submitted that "when it comes to essential religious practice, Court should accept the word of the community".

With this, petitioners concluded their arguments while CJI asked other petitioners to give written submissions. CJI also asked the respondents to conclude within 90 minutes.

Submissions of respondents opposing review

Senior Advocate Jaideep Gupta who was appearing for the State of Kerala started the arguments from respondent's side and submitted that "we are opposing the review as no grounds have been made out for review". Mr Jaideep submitted that "the majority judgment had consensus on three points: 1. Devotees of Lord Ayyappa are not a religious denomination by themselves, 2. When a person's right to worship is violated, Article 25 gets violated, and, 3. Rule 3(b) is violative of the parent Act itself".

He further submitted that "arguments on untouchability and Article 17 do not affect the basis of judgment. Non-consideration of arguments is not a ground for review. It is for the Court to decide which all aspects should be considered. Essential practice of religion and essential practice of a temple cannot be confused. The Court found that the practice was not an essential practice of Hinduism. Exclusion of women is not essential to (the) Hindu religion".

Mr Jaideep argued that "every temple may be having its own practice. (The) court cannot go into the essential practices of every temple. That would mean each temple is a denominational temple. That will lead to the destruction of essential religious practice test". He further added that "essential practice of an individual temple will not amount to essential practice of the religion for the purpose of (the) constitutional test. Non-discrimination and non-exclusion are two values found throughout the Constitution. Mr Jaideep submitted that "social peace has been destroyed is not a ground for reviewing the judgment. Constitutional invalidity cannot be permitted to go on", and concluded.

In a massive U-turn, Travancore Devaswom Board which manages Sabarimala shrine has changed its stand on the entry of women of menstrual age into Lord Ayyappa temple. Justice Indu Malhotra specially asked Senior Advocate Rakesh Dwivedi who argued for Travancore Devaswom Board that "you had argued against women entry" to which the senior counsel replied, "Yes, Board has now decided to respect the judgment and has also filed an application in this regard".

Mr Rakesh Dwivedi said that "I am reminded of the case where a bench was constituted to review Kesavananda Bharati case and was disbanded later. This looks like such a case". He submitted that "any practice that disentitles equality will fall foul of Article 25".

Mr Dwivedi concluded by saying that "texts and scriptures do not show anything regarding the practice & equality is the dominant theme of Constitution. Women cannot be excluded from any walk of life-based on biological attributes".

Senior Advocate Ms Indira Jaising, who appeared for Kanaka Durga and Bindu who entered the temple, and two other women, Reshma and Shanila who wish to enter the Sabarimala shrine, said that "the women who entered the temple had to face intense threats" and said, "This is no mere exclusion, there is a social boycott going on in addition to exclusion of women from temple in entry".

She further added that "(the) fact is menstruating women are considered impure in this country" and added that "the purification ceremony after women entry validates the finding of the Court that the practice is based on notions of untouchability". She said, "Untouchability is within quotes in Article 17 because the word did not exist in the English language before the early 20^th Century".

Ms Indira Jaising argued that "menstruating women are regarded as impure; this attracts the concept of untouchability". She further submitted that "Sabarimala is a public temple; not a family temple. So Article 15 (2) is applicable as the Article prohibits discrimination  on grounds of religion, race, caste, sex, place of birth, in access to "the use of places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public." She said, "My conscience tells me to visit Sabarimala temple, nobody can stop me from entering in law".

She further argued that "Preamble to be read with the title of Article 25, which emphasizes on freedom of conscience and free profession, practice and propagation of religion. Right to worship is my religion, and nobody else can decide what my religion is. Exclusion of women denigrates their dignity. Purification after women's entry hurts a lot".

She furthered contented that "Constitutional morality is a sum and substance of fundamental rights and directive principles. It is very much part of the basic structure of the Constitution", and added, "What is at stake is the issue of gender justice".

Ms Indira Jaising also seeks positive directions to assure protection to women who have made an online application for temple entry which is opening next on February 12, 2019. Ms Jaising argued that "Court should give a direction that mobs should not prevent women entry".

Advocate P V Dinesh argued for intervener and said: "When you say a 10-year-old girl affects celibacy, it is derogatory". He submitted that "most of the review petitioners are guilty of contempt of court. Most of them have rioted against the SC judgment".​

The Constitution Bench has provided the advocates time to file their submissions, and reserved the case for judgment.

Also read: Twin trailblazers of Sabarimala: Bindu Ammini and Kanaka Durga speak to The Leaflet