Sabarimala review petitions: Petitioners say appeal not against judgement but case involves fundamental rights

A five-judge bench of India’s Supreme Court, headed by CJI Ranjan Gogoi, began hearing Wednesday review petitions filed against its September 28 verdict last year that had allowed menstruating women to enter Sabarimala temple in the state of Kerala. 

There were 56 review petitions, four new writ petitions, and two special leave petitions listed before the court. 

The petitioners argued that their appeal was not against the Supreme Court's Sabarimala judgement but that the case involved fundamental rights guaranteed to every Indian citizen under article 25 of the Indian constitution (Freedom of conscience and free profession, practice and propagation of religion). 

The petitioners told the court that there was an apparent error in its Sabarimala judgment — that Article 15(2) prohibited discrimination in access to public institutions of a secular category and not of a religious category. 

Lawyer K Parasaran submitted to the constitution bench that: “The judgement highlights the meaning given to untouchability under article 17 (Abolition of Untouchability: It is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law). This will result in applying to only Hindu religious practices and institutions.”

Justice Rohinton Nariman interrupted him, saying he had referred to article 15(2) in his judgement. “Please don’t be under the notion that it was struck down only on the basis of untouchability,” he told the senior lawyer. 

However, the counsel for the head priest of Sabarimala temple told the court that devotees had a fundamental right to worship inside temples in a manner which is in sync with the character of the deity. “Exclusion of women of menstrual age was not based on immorality, but on the essential religious practice that Sabarimala deity is a permanent celibate,” he said. 

Senior lawyer Abhishek Manu Singhvi, representing the former chairman of the Travancore Dewaswom Board, added that In Hinduism gods are worshipped in various forms and manifestations. “In Sabarimala, the deity is worshipped in this particular manner. Exclusion of menstruating women is not based on caste but the nature of the deity. Only Justice Indu Malhotra’s dissent judgment took into consideration the Bhramachari character of the deity being worshipped. The Court assumed that unless there is universality, a practise will not become an essential religious practise. In a diverse religion like Hinduism, one cannot look for universality. This test applied in the judgment is not correct,” he said. 

Senior lawyer Shekhar Naphre emphasised that the community did not accept the court's judgement. “The community can decide whether centuries-old belief should be changed or not. Few activists cannot decide that aspect,” he said. 

The Kerala government meanwhile told the court that the judgment does not require a review. “Non-consideration of arguments is not a ground for review at all. There is no error apparent in the judgement. The petitioners are confused between essential practice of Sabarimala temple and essential practice of Hindu religion. The exclusion of women is not essential to the Hindu religion as women are allowed in other Ayyappa temples,” the counsel for the state of Kerala said. 

He added that the state's social peace has been destroyed. “It is bandied about that courts cannot touch religion. Religious practices can be overruled when they overawe fundamental rights. Custom is subject to fundamental rights. Touchstone of our Constitution is that you will not discriminate or exclude.” 

However, the hearing took an interesting turn when the Travancore Dewasom Board, which manages the temple's affairs, told the court that it respects the judgement of the Supreme Court and that it does not seek to file a review petition. It was then that Justice Indu Malhotra, the lone dissenting judge in the Sabarimala verdict, quizzed the board since it had earlier opposed the entry of women into the shrine.