Why the SC will find it difficult to review its Sabarimala verdict

On Monday, a review petition was filed in the Supreme Court against its September verdict allowing the entry of menstruating women into Kerala’s Sabarimala temple.

The central point of the review petition filed by Shylaja Vijayan, president of the National Ayyappa Devotees Association, is that the petitioners in the Sabarimala case did not have any right to bring the plea before the court in the first place since they were not devotees of Ayyappa, the deity of the famous temple. In effect, the petition argues that the petitions were tantamount to outside interference into the belief of Ayyappa devotees, who consider the deity an eternal celibate or “naishtika brahmachari”.

This point was made in the dissenting opinion delivered by Justice Indu Malhotra, who had deemed Ayyappa devotees a separate denomination and had articulated that allowing the entry of women between 10 and 50 years would be a violation of the right to religion under Article 25 and 26 of the Constitution.

But can the judgement, passed with a 4:1 majority, be overturned so easily? The first impediment would be the process of review itself. Second, overturning the Sabarimala verdict would mean reconsidering a central aspect of the judgement decriminalising homosexuality, a unanimous decision of a Constitution bench, also delivered in September.

In the judgement reading down Section 377 of the Indian Penal Code, former Chief Justice of India Dipak Misra asserted a constitutional concept called “non-retrogression of rights”, which means judicial interpretation has to be consistently progressive to keep in line with the transformative nature of the Constitution.

Review process

If the Supreme Court admits the review petition, it will have to be placed, according to precedent, before the same bench that delivered the judgement in September. The bench included Justices Dipak Misra, AM Khanwilkar, DY Chandrachud, Rohinton Nariman and Indu Malhotra.

Since Misra has now retired, his place will be taken by another judge. However, the other four will remain, which means the majority would continue to be those who allowed entry of menstruating women into the Sabarimala temple – Chandrachud, Khanwilkar and Nariman.

The bench will first have to decide if the petition is fit to be taken up. If they decide to review it, then the Chief Justice Ranjan Gogoi will form a new bench, the size of which will depend upon the reference.

This rule has been reiterated in many judgements. In Ratanlal Nahata vs Nandita Bose, the court said:

“When the court sits to review its own order, it obviously is not sitting in appeal over its judgment but is seeking to have a fresh look into its own Judgment of course within the limits of review powers, but still invoking for that limited purpose the very same Jurisdiction which it exercised earlier. It it axiomatic that if a division bench of two learned Judges deciding the appeal had exercise appellate powers and when its decision is sought to be reviewed it can be said to be required to reconsider its own decision within the limits of review jurisdiction but still in exercise of the same appellate jurisdiction which it earlier exercised.” 

Non-retrogression of rights

Apart from the arguments made by the judges in the Sabarimala verdict itself, which included the necessity to test religious practices for equality, the review petition will have to pass a concept strongly articulated in the judgement decriminalising homosexuality to be accepted.

In his opinion in the case reading down Section 377 of the Indian Penal Code, former Chief Justice of India Dipak Misra said the courts have to adhere to the concept of “non-retrogression” of rights. Simply put, this means once the citizens are afforded a right through the interpretation of fundamental rights chapter in the Constitution, this right cannot be taken back by the court through subsequent judgements or through a legislative amendment. In the Indian context, this will also be violative of the “basic structure” doctrine.

Dipak Misra said:

“The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead. The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.”

If this principle is applied to the Sabarimala verdict, the right to worship of menstruating women at the Sabarimala temple, which has already been declared, will be difficult to meddle with. If it is overturned through a review, it would mean not only a strike at women’s right to worship, but also on a central equality principle articulated in the Section 377 judgement decriminalising homosexuality.