A Constitution Bench of the Supreme Court, led by Chief Justice of India (CJI) Ranjan Gogoi, is on Thursday scheduled to pronounce the judgment on a series of petitions seeking a reconsideration of the judgment of September 2018 that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.
Sixty-five petitions had challenged the authority of the apex court to intervene in a “centuries old” belief that the Sabarimala deity is a Naishtika Brahmachari whose penance should not be disturbed by the entry of women worshippers of the menstruating age of 10 to 50 years.
The Bench, also comprising Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, had reserved the judgment on February 6 last after hearing arguments in open court.
Justices Nariman and Chandrachud gave separate opinions that concurred with the main judgment shared by former CJI Dipak Misra and Justice Khanwilkar. The majority had condemned the ban as akin to the social evil of untouchability.
Justice Malhotra, however, dissented. She held that judges should not impose their personal views, morality or rationality with respect to the form of worship of a deity. She had held that it was irrelevant whether the practice was rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.
Chief Justice Gogoi has replaced Justice Misra on the Review Bench.
The review petitions focussed on the notifications issued by the Travancore Devaswom Board in 1955 and 1956, which prescribe the age-based restriction on entry of women into the temple as a direct application of Section 31 of the Travancore Act of 1950 that requires the Board to administer temples under it in accordance with their traditions and usages.
The Constitution Bench’s judgment on the review may largely hinge on whether it agrees with this point of view.
The review petitioners have argued that the 1955 notification was protected by the freedom of religion enshrined in the Constitution.
The review petitioners have argued that the principle behind the notifications was to restrict entry of women who fall under a “procreative age group”.
The chief priest of the temple and the devotees are entitled to preserve the traditions of the temple under Article 25(1), and, therefore, the notifications do not run afoul of Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, which states that “places of public worship” like the Sabarimala temple should be open to “all section and classes of Hindus”, the review petitioners had argued.
The majority judgment in the September 2018 concluded that the exclusion of menstruating women from the temple was akin to treating them as the children of a “lesser God”. It said exclusion of any kind, especially based on a biological attribute, amounted to practice of untouchability, an abolished social evil.
The Kerala government had countered the review petitions, saying courts could set aside religious practices that overawe fundamental rights like dignity of women.
“Touchstone of our Constitution is ‘you will not discriminate or exclude’,” senior advocate Jaideep Gupta had submitted for the State.
The Devaswom Board had supported the State.