Nishant Sirohi

| @nishantssirohi | February 6,2019

[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 clearlyThis is not a bilateral dispute; its (Sabarimala judgment’s) consequences will fall on other religions tooUntouchability 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 20th 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.

 

 

2 Comments

  • Avatar damodardas subodhdas deshaabhimaani says:

    it is a great shame that eminent men of law have stooped down to defend the indefensible practice of preventing women of menstrual age from entering the sabarimala temple and worshiping or praying before the god there.

    while an advocate must plead for a client the case of the client, advocates are also officers of court and when asked about the legal position they must give a reasoning that is sustainable in law and jurisprudence.

    discrimination against women on a hundred grounds and fallacies exists in most religions.

    all common law countries practicing civilized human conduct have prohibited any kind of gender discrimination.

    India is a signatory to the universal declaration of human rights by the UNO.

    IN ADDITION OUR CONSTITUTION PROHIBITS ANY AND EVERY KIND OF DISCRIMINATION BASED ON GENDER.

    the concept of impurity and adverse affect on celibacy due to the very presence of a woman of menstrual age, which is akin to ovulating age, an age that has no certainty, is abominable, in-human, and somewhere close to the rationale of cannibalism.

    homosapiens, male or female or any other accidental or incidental biological forms assumed by them accidentally or incidentally within this species due to the union of two beings of generally opposite sex constitute an integral part of this species.

    no force on earth can exclude any entity of this species from living a normal life to which any other entity of the species is entitled!

    that is a universal human right established by our species for our species.

    in a country where rogue manuwadis and degenerate mad caps have began killing human being on the ground that some people eat meat of a particular species or a particular gender of a particular species, the universal human right must be extremely guarded from these enemies of the people of India consisting of human species.

    this criminal act of discriminating women, trans genders, LGBT people, women of presumed menstrual/ ovulating age is impermissible in a civilized society.

    there is no need for hair splitting, referring to constitution.

    different countries or geographical or religious societies have in the past had different inhuman customs.

    rogue countries like Saudi Arabia and rogue people like white supremacists Donald trumps still believe and practice inhuman practises and devour other people in different forms.

    ovulation can occur at any age based on the physiological growth and nutrition.

    similar biological reactions occur in almost every evolved species other than primitive bacteria and viruses!

    ovulation is the sign of physiological growth in a living organism where the organism becomes or grows up and acquires the capability of producing the gamete for reproduction.

    in human species, when the gamete forms and grows and becomes ready for fertilization, and no fertilization happens for whatever million reasons, the uterus of the ovulating woman that has prepared itself to receive a fertilized embryo and take implantation of it, receives signals from the nuero electrical and chemical systems. the uterus thus prepared develops an inability to use the prepared biological tissue or flora. it needs to be exited out of where it has been made ready, so that fresh preparation begins for the next cycle of ovulation.

    similar things happens to the male!

    as a male of species attains similar age of reproduction, the process of spermatogenesis begins, semen forms, and irrespective of the desire or practice of sexual intercourse, the process of exiting of the semen containing spermatozoa happens in many ways other than sexual intercourse.

    so every male and female entity undergoes this process of enabled reproductive cycles in their bodies irrespective of their religious, social or other affiliations!

    we eat food of whatever kind, we practice the exiting system. all the rogue elements speaking against ovulationg women as impure too do all this exiting in every way.
    any foreign body entering our body through any normal system exits the body in the natural course.

    in trans genders and LGBT TOO SIMILAR THINGS HAPPEN WITH ASSOCIATED VARIATIONS.

    MANU was a man of his age and time.

    he made out certain practises he believed were right.
    Benito Mussolini did similarly in his time and in his country.
    Adolf Hitler did it in his time and in his country.
    Marx and Engels have tried it in their own way and different countries adopted their codification.

    united kingdom and rest of Europe adopted their own varied versions that were opposed to these two demons that attacked mankind.

    gautama Buddha evolved his own codes.

    prophet Mohammad did so in his time and age.

    Mohandas karamchand gandhi did in his own time and age.

    so did hegdewar and golwalkar in their time and age.

    there is a constant struggle between what is progress and what is degenerate, what is good and what is evil and the human species is trying to evolve better.

    there is a mixture of the good and evil in varying ratio and proportion in different systems.

    India has adopted a system of it’s choosing in the way it has evolved and the constitution becomes supreme and unassailable in it’s basic structure, irrespective of how different people perceive it to be.

    the RSS and sangh pariwar considered the constitution of India evil and manu dharma sashtra as good.

    hindu maha sabha was established and they killed mohandas karamchand gandhi because they thought they can not overthrow the government established by law that was yet making the constitution if the old man continued to live.

    we had rogue criminal elements associated with sangh pariwar recently enact the killing of gandhi with toy gun and manufactured blood like liquid!

    rss has refused to fly the national flag of India for fifty years.

    when some overzealous young fellas wanted to provoke them and ran up to an rss office building and hoisted the national flag some 15 or odd years ago in Nagpur, the rss gentlemen filed a criminal case for hoisting the national flag on independence or republic day against the young fellas and they were acquitted of the stupid charge a couple of years or so ago.

    rss and the their large sangh pariwar realized they do not have the power or reasoning to challenge the Indian constitution, the Indian national flag and the Indian national anthem they have opposed tooth and nail.

    so like all people who did not respect a regime for whatever reasons, they appear to have entered into a great conspiracy and began sanitizing their public posture and postulations.

    they formed a political party and experimented and devised various ways to use the methods offered by the constitution of India to get elected to public office and governments.

    finally they succeeded a few times. when they became confident they can get away, they started abominable things like criminally pulling down the structure of babri masjid, while giving outward assurance to supreme court and the then prime minister.

    they made demands to pull out a hundred other structures against the constitution and the law of the land.

    they have used the state machinery to kill thousands of people they considered their adversaries because of their different faith these people practiced.

    the factum that the so called great administrators of rss elected to power were not able to administer peace as per constitution, were not able to enforce rule of law and register criminal cases against those who have been killing thousands of people, could not get police investigate even ten percent of the cases of murder and rape, is a sign and irrevocable proof that there is a great neo-fascist conspiracy being secretly formed and practiced and implemented to subvert the constitution of India.

    so use the constitution to subvert constitution.

    how shameful is it that the union government ministers and the president of their political party dares to openly challenge the implementation of the judgment of the supreme court of india by the state government elected in that state by the people of that state.

    congress too has joined this shameful act because of some survival cravings it has.

    congress, let us remember, was the first killer of Indian democracy and the constitution when it dismissed the elected government of kerala in 1950’s. rahul gandhi must dare to admit the roguery committed by his party and vow to never adopt any such practises.

    rahul gandhi must admit their party was stupid and thoughtless in bringing in the EVM SYSTEM FOR CONDUCTING ELECTIONS IN INDIA out of ignorance and overconfidence and political arrogance and must unite all parties to get rid of this system as soon as possible.

    so what is at stake is do we implement our constitution and enforce equality of all living human beings in every aspect and respect or not.

    do we protect our constitution from sabotage by these rogue neo-fascist elements that draw their ideological and philosophical inspiration from Benito Mussolini and Adolf Hitler or not.

    supreme court has been vacillating to uphold and enforce the constitution and protect the rights of the people.

    it has more often upheld the unconstitutional laws and actions of rogue governments than it has protected the right s of the people under the constitution.

    the most shameful act of the supreme court has been upholding the neo-fascist action and plea of the then Union government during the internal emergency to kill people and not be answerable in court .

    it is a different matter that later larger bench has acknowledged and bowed it’s head in shame for that despicable act of their predecessors.

    the strategy of the present unconstitutional governance and government before the supreme court is to burden and disturb the supreme court with infinite number of unconstitutional acts and measure and enactments, and then make it impossible for supreme court to discharge it’s functions as per the Constitution, subvert the electoral system with fraudulent processes and practice, subjugate election commission and courts and police institutions, and then stage a coup against the constitution when the forces supporting the Constitution are in no position to defend the constitution.

    this is the sabotage that has been happening and there have been considerable number of successes.

    let us hope the honorable supreme court will uphold the constitution and can see through the sabotage of the constitution.

    let us hope our people become progressively smarter and see who are their enemies, who are the enemies of constitution, who are the killers of mohandas karamchand gandhi, who are the killers of the people of India, what is neo-fascism and how do we protect ourselves from the neo-fascism.

    there is nothing other than hoping and perhaps doing anything little to make people understand the truth of the constitution, the truth of the sabotage of the constitution by the enemies of constitution and manuwadis and help them uphold our constitution.

    amen

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