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Questions raised by the Sabarimala judgment


What came before the Supreme Court bench in the Sabarimala judgment review petition was, as Justice Rohington Nariman put it, a simple question:  whether the 56 petitions filed against the judgment of the five-member bench should be allowed or rejected.  But instead of answering that question,  Chief Justice Ranjan Gogoi and fellow judges Indu Malhotra and AN Khanvilkar raised seven new questions and then recommended that a seven-member judge find answers for them. Justices Nariman and Chandrachud have recorded their strong opposition to this.

Thus, a matter that could have been easily resolved,  has now been turned by the apex court into a constitutional issue.  As per this judgment,   review of the Sabarimala verdict can be decided only after clarity is obtained on whether there is any contradiction between the constitution's articles 25 & 26 that guarantee religious freedom and Article 14 that guarantees gender equality.  Further,  as part of that,  the court has also tagged to the issue of women's entry into Sabarimala,  the questions about Muslim women's entry into mosques and the practices of Parsi and Bohra women.  To this, the apex court has decided to find answers to seven listed questions related to religious freedom and diversity of faiths such as whether the final say on religious practics lies with priests or the courts.

The purpose behind expanding the matter into a complex constitutional issue,  instead of allowing or rejecting the review petitions,  is as yet unclear.  And some jurists have also raised a criticism that there is a corridor to a uniform civil code hidden in this judgment.  For,  the judgment of Chief Justice Ranjan Gogoi has put even the constitutional validity of the earlier bench - headed by the then Chief Justice Dipak Misra - under a shadow;  an aspect on which fellow judges Justices Nariman and Chandrachud made a strong dissenting note that it goes against the precedents and judgments hitherto of the Supreme Court.  They also contradict Justice Gogoi's dictum quoting a judgment by Justice VR Krishna Iyer of 1975 and the Supreme Court's verdicts of 2013.  In addition to that,  their judgment also mentions the different,  but core view that the matter before this bench is solely the issue of women's entry into Sabarimala and it is unwarranted to tag the issues of Muslilm women's entry into mosques and those related to Parsi women,  to this case.

Indian constitution and precedents of courts follow a tradition of stopping short of ratiocinating on, and thereby denying the religious diversity and differences in religious faiths,  as long as there are no excesses.   And the constitutional morality of the country embraces the citizens' right to freedom of belief as part of human dignity.  Even as the Supreme Court grants permission to women of menstrual age to enter Sabarimala,  terming clause 3 (b) of Places of Worship Act as contradicting Article 25 of the constitution,  it recognizes the right to diverse traditions.  And the court's granting of women's entry into  Sabarimala in the 28 September 2018 judgment, was based on the dictum that prohibition of women's entry is not an essential part of Hinduism and ipso facto not eligible for constitutional protection.

The court had, in its 2018 judgment made it clear that if a temple is of a particular section of a religious community,  it was eligible for this protection and that the law was being applied to Sabarimala entry, because it was not so.   Followers of Hindu religion do have the right to question and criticise the judgment reached by the apex court that the tradition of Sabarimala was not based on Hindu religion.  Given that the legal battle for a review of the five-judge bench has now come to a partial halt, the government or community organisations still have the room to approach the court to get a clarificiation on whether there is a stay on women's entry into Sabarimala.  But nobody should be allowed to take law into their hands holding the state hostage and take political capital out of it.

As things stand, reports say that 36 women have sought permission online from Kerala government for a visit to Sabarimala. And on the other hand,  the BJP – which in the case of Supreme Court's Babri masjid verdict had advised every one that the highest court's verdict is supreme and to be accepted without a word of dissent –  has declared that it will at any cost block the entry of women into Sabarimala.  With such contradicting positions in the air,  there is increasing anxiety whether this year's mandala season will also turn into one of strife and conflict like last year's.   Justice Nariman commented about the agitations of last season that it amounted to a sabotage of the Supreme Court order.   Kerala can ill afford to have such an act of sabotage again.  And every one has an obligation to exercise restraint and abide by law.

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