Sabarimala Issue: Seven questions the Supreme Court wants a seven-judge bench to address – Sanyukta Dharmadhikari

Judges vs Sabarimala

Sanyukta DharmadhikariThe majority judgement pointed out that the issue of women’s entry into Sabarimala also overlaps with other matters already pending in the apex court—like the case over the entry of Muslim women into mosques, the Parsi women’s case, and the case challenging the practice of female genital mutilation in the Dawoodi Bohra community. – Sanyukta Dharmadhikari

The five-judge Constitution Bench on Thursday in a 3:2 majority judgment referred the Sabarimala issue to a seven-judge Supreme Court bench, and posed seven questions for the larger bench to answer. The court said that matters that include interpretation of the Constitutional provisions that talk about the right to profess, practice and propagate religion should be heard by a larger bench.

While Chief Justice of India Ranjan Gogoi and Justices A.M. Khanwilkar and Indu Malhotra delivered the majority judgment running into nine pages, Justices R.F. Nariman and D.Y. Chandrachud wrote a dissenting judgment that ran into 68 pages.

The majority judgement pointed out that the issue of women’s entry into Sabarimala also overlaps with other matters already pending in the apex court—like the case over the entry of Muslim women into mosques, the Parsi women’s case, and the case challenging the practice of female genital mutilation in the Dawoodi Bohra community. The court also stated that when more than one petition is pending on similar or overlapping issues, it is essential to judicial discipline and propriety to ensure a larger bench address the issues.

“The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India,” the majority judgement said.

The judgment also stated that the larger bench will also answer seven questions and issues put forth by the Supreme Court:

1. Clarify the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

2. What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution?

3. The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble, or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective.

4. What is the extent to which the court can enquire into the issue of whether a particular practice is an integral part of the religion or religious practice of a particular religious denomination, or should that be left exclusively to be determined by the head of the section of the religious group?

5. What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution?

6. Are the “essential religious practices” of a religious denomination, or even a section thereof, afforded constitutional protection under Article 26?

7. What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The Supreme Court said that until the larger bench decides on these seven issues, the 65 review petitions filed in court will remain pending. The next Chief Justice of India, S.A. Bobde, will be constituting this larger bench. Once the seven-judge bench answers these questions, the review petitions are likely to be taken up.

What the dissenting judgment said

Justice R.F. Nariman authored the dissenting judgment, with Justice D.Y. Chandrachud concurring with him, and ruled in favour of disposing of the review petitions. Justice R.F. Nariman disagreed with the majority judgment, stating that Supreme Court judgments (referring to SC’s 2018 verdict on Sabarimala) are binding.

“The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of government, namely, the legislature and the executive,” the dissenting judgment said.

The two judges also stated that the matters that have been referred to the larger bench have not specifically been mentioned as part of the Sabarimala review petitions at all. They said that the petitions before them strictly talk about women’s entry into Sabarimala, and that other issues concerning Muslims, Parsis and Dawoodi Bohras can be addressed separately by a larger bench.

The dissenting judgment also pointed out that in 2018, three judges had maintained that the exclusion of women from Hindu temples is not an essential part of the Hindu religion and thus could not be held to be an essential religious practice.

The judgment also said, “The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument, that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis.” – The News Minute, 14 November 2019

Sanyukta Dharmadhikari is a senior journalist with The News Minute.

Sabarimala Ayyappan TempleAlso read


3 Responses

  1. Pinarayi Vijayan

    No protection for women visiting Sabarimala, says Kerala minister day before temple opens – Ramesh Babu – Hindustan Times – Thiruvananthapuram – 15
    Noverember 2019

    The Left-led government in Kerala said on Friday it has no plan to give protection and take women to the Sabarimala, a day after the Supreme Court kept the doors of hilltop shrine open to women for now but decided to set up a larger bench to revisit its verdict from last year from a wider perspective.

    The state’s temple affairs minister Kadakampally Surendran said emphatically that the government will not encourage women to gate crash the temple.

    “It is proper to maintain the status quo at the temple. The government is all for peace,” Surendran said during a press conference in the state capital of Thiruvananthapuram.

    When asked about activist and Bhoomata Brigade leader Trupti Desai’s proposed trip, he said it was not a place for activists. Desai has announced her plan to visit the temple on the first day of the three-month pilgrimage season beginning on Saturday.

    “If anyone needs to go they can approach the court and obtain orders in this regard,” he added.

    The five-judge bench led by Chief Justice of India Ranjan Gogoi gave its ruling on Thursday in a majority 3:2 verdict. Justice Indu Malhotra, who have given a dissenting judgment in this case last year, and Justice AM Khanwilkar were the other two judges.

    Justice RF Nariman and Justice DY Chandrachud have backed rejecting the 65-odd review petitions against the September 2018 verdict that opened the doors of the Sabarimala temple to women.

    The 2018 verdict had called the practice of barring women of a certain age group from entering the temple illegal and unconstitutional, triggering protests by traditionalists in the state. It had held that their exclusion on the basis of biological and physiological features denied women the right to be treated as equals.

    There were huge protests outside the temple nestled in the Western Ghats in Kerala’s Pathanamthitta district after last year’s verdict. Two people were killed and 50,000 protesters were booked at its peak by the police.

    The protests had the support of temple priests, who insisted that the presiding deity, Lord Ayyappa, is a celibate and women of menstruating age can’t be allowed on account of “purity”.

    The minister said the government has sought legal advice and it got an opinion to maintain status quo.

    Surendran blamed the media for whipping up passion.

    “I know you people are giving undue publicity for some activists. It is not good. You are hell-bent on TRPs. You should take things positively,” he said.

    Last year, the government had burnt its fingers on the issue and it was reflected in the last LS poll. The ruling Left Democratic Front (LDF) lost all but one of 20 seats in the state.


  2. BJP asks Kerala govt to maintain status quo on Sabarimala – Express News Service – The New Indian Express – Thiruvananthapuram – 16th November 2019

    A day after Supreme Court referred the Sabarimala women entry case to a seven-member bench, the BJP demanded the government not to use the issue for yet another confrontation with devotees. Though the apex court did not clarify if its decision on Thursday could be treated as a stay order of its previous verdict, the BJP demanded the government to treat it like that.

    K. Surendran, BJP state general secretary, on Friday said only the chief minister had not got clarity on the Supreme Court verdict though it was evident. Surendran, who was in the forefront of agitation against the entry of women, said his party’s response would depend on the government’s approach.

    The party would not protest if the government takes the right path, said Surendran.

    The BJP took a cautious approach as Devaswom, Tourism and Co-operation Minister Kadakampally Surendran said the government would not allow entry of women in the age group of 10-50 into the hill shrine. Later, sources said, the government has got legal advice to this effect.

    The BJP, sensing the government’s non-confrontational attitude, demanded the government and Travancore Devaswom Board (TDB) to inform the Supreme Court that they would maintain status quo as existed before the original verdict.

    “The Supreme Court ruling gives an opportunity to the government to resolve the crisis. The government had asked for it. The crisis will not stop naturally if the chief minister appoints his close confidant as Devaswom board president,” said Surendran.


  3. No protection for activists entering Sabarimala: Kerala govt ahead of shrine opening – Shalini Lobo – India Today -Thiruvananthapuram – November 15, 2019

    In view of the protests that broke out in 2018 post the Supreme Court’s order allowing women of all ages to enter the Sabarimala temple, the government and the police, this time, have decided to take necessary measures. A total of 10,017 police personnel have been deployed on the ground in the Sabarimala region including Pamba, Nilakal and Erumeli.

    Sources have informed India Today TV that the “police will not be providing protection to activists” this year. “The temple is not the place to indulge in political activities. Our primary focus is on law and order in the area,” Kerala minister Sunil Kumar said.

    Earlier in the day, Kerala Devaswom Minister Kadakampally Surendran had also said that “Sabarimala is not a place for activism and the LDF government would not support those who make announcements about entering the hill shrine for the sake of publicity”.

    “Sabarimala is not a place for activists to show their activism. There are some people who call press meet and declare they will enter the shrine. They are doing it just for publicity. The government will not support such trends,” the Minister said.

    Several ministers in the Pinarayi Vijayan cabinet have said that law and order must be maintained and “women activists should be keep away from the Sabarimala temple”.

    The doors to the Sabarimala temple would open on November 17 and mark the beginning of the Mandala Puja. Pilgrims have already started making their way to the Sabarimala temple. After the Supreme Court order on Thursday, what now needs to be seen is whether women would be able to enter the temple or not.

    Speaking to India Today TV, N Vasu, Travancore Devasom Board president who took charge on Friday, said that people who can legally enter the temple will not be stopped. He also said the board needs more clarity on the ruling.

    “There is no stay on the September 28, 2018, order on the entry of women. We are not restricting anyone. We will not stop anyone. We need more clarity on the order. We have sought legal expertise and we will get it in a matter of two days and the board is also looking into it,” N Vasu said.

    Post the Supreme Court order in Thursday, Kerala Chief Minister Pinarayi Vijayan said that the government is committed to complying with the top court order no matter what. He also added that opinion from legal experts has to be looked into as well.

    The Kerala Bharatiya Janata Party (BJP) has urged the ruling government not to provide protection to women. “Once we know what the government’s stand is, we will discuss and decide our next move,” former BJP president Kummanam Rajashekaran said.


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