The court heard a batch of 56 review petitions, four writ petitions, two transfer petitions filed by the Kerala government, two Special Leave Petitions, and a plea filed by the Travancore Dewaswom Board seeking time to implement the judgement.
Lawyer Rakesh Dwivedi, who represented the board, told the five-judge bench led by Chief Justice of India Ranjan Gogoi that “any practice that disentitles equality will fall foul of Article 25”, which gives citizens freedom to practise and propagate their religion. Justices Fali S Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra were also on the bench.
When Malhotra told Dwivedi that the board had opposed the entry of women of menstruating age into the shrine, the lawyer replied that the “board has decided to respect the judgement”, Live Law reported.
“Texts and scriptures do not show anything regarding the practice,” he added. “Women cannot be excluded from any walk of life based on biological attributes.”
Advocate K Parasaran, appearing for the Nair Service Society, opened arguments before the bench and sought that the court set aside the verdict allowing entry to women of all age. He observed that it is an error to strike down a temple custom under Article 15, which allows all classes of persons to enter all public institutions of secular character but omitted religious institutions.
Parasaran said the exclusionary practice in Sabarimala is because of the celibacy of the presiding deity Ayyappa. His observation was echoed by senior counsel V Giri, appearing on behalf of the temple’s chief priest. “The permanent celibate character of the deity erodes in case women are permitted entry,” said Giri, arguing that prohibiting entry to women of menstruating age had nothing to do with caste or untouchability.
Advocate Abhishek Manu Singhvi argued that the belief in the nature of deity cannot be measured with constitutional morality. “The court assumed that unless there is universality, a practice will not become an essential religious practice,” he said. “In a diverse religion like Hinduism, one cannot look for universality. This test applied in the judgement is not correct.”
Another lawyer, Shekhar Naphade, argued that the Sabarimala practice was an internal affair of a particular community and not in the public law domain, Bar & Bench reported. “This is a matter of faith,” he said. “Unless there is a criminal law which prohibits a particular religious practice like ‘Sati’, courts cannot interfere.”
He added that the effect of the Supreme Court’s earlier verdict was a direction to a religious community that it was not allowed to hold a particular belief. “The community has not accepted the court’s judgement,” said Naphade. “The community alone can decide whether centuries’ old belief should be changed or not. A few activists cannot get to decide that.”
Madras High Court advocate Venkataraman argued that one’s faith may be another’s superstition and it’s not possible to test such aspects with rationality.
Another advocate, Gopal Sankaranarayanan told court that several temples in the country have gender-based restrictions. “They will be affected by the judgement. But they were not heard,” he said.
Sabarimala is a public law issue, argues Kerala
The Kerala government, meanwhile, argued there was no need to reconsider the earlier court verdict and the case cannot be reopened using review petitions, PTI reported. A challenge on the ground of untouchability or any other provision will not affect the verdict, said senior counsel Jaideep Gupta, adding that Sabarimala is a matter of public law and has to pass the test of constitutional validity.
The arguments by those who have filed the review petition that certain submissions were not considered in the judgement, or were not advanced, are not grounds for re-examining the verdict, he added.
“That social peace has been destroyed is not a ground for reviewing the judgement,” said Gupta, referring to the massive protests that had rocked the state after verdict. “Constitutional invalidity cannot be permitted to go on.”
Supreme Court’s earlier verdict
On January 22, the top court had declined an urgent hearing as Justice Indu Malhotra was on leave till January 30. Justice Malhotra was a part of the five-judge Constitution bench that had pronounced the verdict overturning the centuries-old tradition of not allowing women between the ages of 10 to 50 entry into the shrine. Justice Malhotra’s was the sole dissenting opinion in a majority 4:1 verdict.
The review petitions rely heavily on her contention that “constitutional parameters of rationality cannot be blindly applied to matters of faith”.
The Kerala government, led by the Left Democratic Front, had promised to implement the Supreme Court’s judgement, but the Bharatiya Janata Party and the Congress have strongly opposed it.
Earlier this week, the Pinarayi Vijayan-led state government said that only two women of menstruating age have entered the hill shrine till date. The government retracted its earlier statement to the Supreme Court in which it had claimed that 51 women of menstruating age had entered the Ayyappa temple during the last pilgrimage season.