“SC’s Latest Judgement Has De Facto Dislodged The 2018 Verdict,” Says Sabarimala Lawyer J Sai Deepak

The Supreme Court of India on Thursday (14 November) called into question its own verdict of September 2018 and referred the matter to be heard by a larger bench of at least seven judges. The decision was pronounced with 3-2 majority by a bench of Chief Justice of India Ranjan Gogoi and Justices Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. Justice Nariman and Chandrachud dissented.

The majority judgement held that many issues of great importance have arisen out of recent judgements including the Sabarimala case, which need to be addressed by a larger bench. These relate to interplay between the freedom of religion under articles 25 and 26 of the Constitution with rights enshrined in Article 14; sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution; need to delineate the contours of ‘morality’ or ‘constitutional morality’; regarding “essential religious practices”, etc.

On the day (14 November) of the verdict, Swarajya spoke to advocate J Sai Deepak, who represented the Pandalam Royal Family, People for Dharma and Chetna in Sabarimala case to get a better handle on what the Supreme Court judgement means for Lord Ayyappa's devotees, and what is the significance of SC referring critical issues to a larger bench.

Q. By a 3-2 split, SC has referred the review petitions in Sabarimala case to a larger bench. How are you viewing the majority judgement?

A. The parties who I appear for in the case, namely the Pandalam Royal Family, People for Dharma and Chetna, view today’s verdict as a vindication of their position that the verdict of 28 September 2018 had several patent infirmities because the earlier bench had failed to appreciate the fundamental role of a temple in general and the specific nature of the Sabarimala Ayyappa Temple, which is informed by the nature of the presiding deity.

The 2018 judgement brought to fore the important issue of secular courts attempting to rewrite religion and theology, which perhaps they may not be equipped to do. Also, the problem of people who have no faith in the temple approaching the court through public interest litigations (PILs) also came to the fore.

On a specific factual note, we had highlighted in the review petitions the inapplicability of Rule 3(b), which the verdict of September 2018 struck down as unconstitutional, to the Sabarimala Temple. Each of these aspects has resulted in the questions, which have been identified by the majority view, thus endorsing our grounds of review.

Clearly, today’s verdict expresses serious reservations with respect to the 2018 verdict, and therefore calls into question its enforceability pending a decision by a larger bench on all the questions raised. I believe that the review petitioners have every reason to welcome today’s verdict and they look forward to a peaceful holy season when the temple opens on 16 November for a brief period.

Q. The majority of the SC bench is clearly not convinced about its own verdict of September 2018. Shouldn't this be reason enough to put a stay on the earlier judgement until the larger bench decides on this case?

A. A clear reading of today’s majority opinion from paragraphs 4-8, according to us, makes it abundantly clear that the questions identified by the majority view directly affect the fundamental factual and legal underpinnings and assumptions of the verdict of 28 September 2018.

That coupled with the fact that the court has referred all review petitions and writ petitions to a larger bench leads to the clear and reasonable conclusion that the judgement of 28 September 2018 cannot be enforced pending adjudication of all issues by a larger bench.

Consequently, the judgement that currently holds the field on the issue is the 1991 judgement of a division bench of the Kerala High Court in S Mahendran Vs The Secretary, Travancore wherein it was held that the practice of the Sabarimala Ayyappa Temple of not permitting the entry of women of a procreative age group was constitutional and directly relatable to the nature of the presiding deity. Following were the operative conclusions of the Kerala High Court which, according to us, bind the State Government of Kerala:

“44. Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.

45. In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”

Q. Technically, the matter is no longer sub-judice and won't be so until the larger bench starts hearing the case again. Can/should the government come with a law in the meantime to protect the faith of Sabarimala devotees because there is no stay on September 2018 judgement and Kerala government has said that in absence of stay, it will have to enforce last year's order?

A. The Kerala government itself is revisiting its views now on the aspect of stay because after reading the judgement even they understand that the validity, and hence enforceability of the 2018 verdict, has been called into question. Therefore, I do believe that they may want to tread with caution.

As far as the Centre is concerned, there is a strong school of thought which believes that in light of the widening of the scope of issues by today’s verdict, a window of opportunity has presented itself for the Centre to intervene in the matter before the court at the very least, so that it clarifies its position on the Sabarimala Temple issue as well as on religious traditions in general.

Given that the Sabarimala Temple issue formed part of the Bharatiya Janata Party’s (BJP’s) manifesto for 2019, it is possible that they may be trying to understand the implications of today’s verdict on their electoral promise to Ayyappa devotees, especially in Kerala.

Q: There are some concerns that by clubbing other issues (entry of Muslim women in durgah/mosque, of Parsi women married to a non-Parsi in the agyari, and including the practice of female genital mutilation in Dawoodi Bohra community) with Sabarimala case, there is a risk of conflating totally different matters. Justice Nariman has noted that the other issues were not even the subject of the review petitions and are pending before the court with various benches. Is the majority judgement legally right in clubbing these sub-judice issues with this case? Is it philosophically right because these issues are different from Sabarimala like chalk and cheese?

A. I think the purpose of the clubbing needs to be understood in the perspective of the prayers sought by the original petitioners as part of their writ petition to the court in 2006. Extracted below is the court’s own recordal of their prayers in the judgement of 13 October 2017 when the matter was originally referred by a three-judge bench to a constitution bench:

In light of the above, the majority view was right in expanding the scope of the 2018 judgement so that the court may address the broad question of the extent to which a secular constitutional court can wade into issues of religion and theology and decide for the community what is the essential religious practice of the community.

That, I believe, is the spirit behind the reference to a larger bench for these issues to be taken up together. I am also confident that in light of the specific ground raised in the review petitions filed on behalf of the Pandalam Royal Family, People for Dharma and Chetna that the judgement of 28 September 2018 ends up Abrahamising the Hindu faith, the larger bench of the Supreme Court will be conscious of this ground and not apply the yardsticks of one faith to another.

As regards the minority dissenting view on the issue, it would have helped if the minority view had referred to the broad prayers contained in the original petition and asked itself as to why the case was being limited to the issue of the practice of the Sabarimala Temple. Unfortunately, I don’t think the minority view has undertaken such an enquiry bearing in mind the express prayers contained in the original writ petition.

Q. Chief Justice of India Ranjan Gogoi has written that India is a plural diverse society where it’s normal for two sections of the same religious denomination to perceive faith and essential practices of their religion for a particular deity differently. Isn't it a severe indictment of the SC, which in recent past, has taken upon itself the task of defining what constitutes a practice essential for any religion?

A. I do believe that this is a sign of introspection because perhaps even the Supreme Court has realised that its intervention in matters of faith may have resulted in often painting outside the lines at the expense of the rights of the devout and their cherished long-standing religious practices. One hopes that this introspective approach is taken to its right conclusion so that the contours and limits of judicial intervention in matters of faith can be etched in accordance with constitutionally guaranteed religious freedoms.

Q. Justice R F Nariman is still insisting that, “what has to be seen in the judgments of this Court is whether such practice is an essential practice relatable to the Hindu religion, and not the practice of one particular temple". This is not in consonance with the diversity which polytheist religion like Hinduism champions and which CJI also spoke of. Doesn't it raise serious questions about the court's ability (or lack thereof) to pronounce on things like essential practices of a religion?

A. I respectfully disagree with Justice Nariman’s opinion who has spoken on behalf of the minority dissenting opinion in today’s verdict. I do believe that this is precisely the issue we had highlighted in the review petitions that the Hindu faith is being Abrahamised as a consequence of this monolithic approach which does not take into account the sheer sampradayic diversity of the faith. I hope this issue is addressed comprehensively and put to bed for good by a larger bench.

Q. You had argued that in the hindi text of Constitution expression “sampradaya” as opposed to the English expression “denomination” is used in Article 26 and the court has made a mistake by relying on the English word too literally and ignored the connotations of Hindi expression, which is not religion per se but refers to different sects as well within the same religion. But Justice Nariman and Justice Chandrachud have rejected this argument saying what constitutes religious denomination has already been decided by the court in earlier judgements. Should these questions of “what constitutes religious denomination” or “whether the court even be getting involved in defining anyone's faith” be revisited as well by larger bench in your opinion?

A. I do believe that these questions will necessarily have to be addressed as part of the fairly broad canvas identified by the majority view. This is of particular importance to the Hindu faith whose concept of a sampradaya is poles apart from the Abrahamic concept of a religious denomination. The court cannot apply the definitions, concepts and yardsticks of one faith to another. Hinduism is not an Abrahmic faith and will never be one, and the Supreme Court should certainly not turn it into one in its attempt to apply the same definition across the board without any customisation.

Q. Seven-judge bench of Supreme Court in Shirur Mutt case had said that what are essential religious practices should be left to be determined by religious denominations. This has put the essential religious practices doctrine of the Supreme Court in the dock. Won't we need a larger bench than seven in that case?

A. The conflict is between what was said in Shirur Mutt and how it was applied in subsequent decisions like the Durgah Committee case as well the 2018 Sabarimala verdict. I think a seven-judge bench can certainly revisit judgements after Shirur Mutt to perhaps bring the law back in line with Shirur Mutt, and also clarify several misconceptions about the actual import of Shirur Mutt.

Q. Justices Nariman and Chandrachud have called our Constitution as the 'holy book' for every Indian citizen. This line of thinking has gained traction recently. How healthy is this in a democratic setup?

A. All said and done, we are of the view that diversity of opinions, religious and judicial, must be respected. We do not deny at all that the Constitution is what we must measure up to and we believe that the views represented by us are squarely within the four corners of the Constitution, which we believe were not done justice to in accordance with the Constitution by the verdict of 28 September 2018. In short, our position is not unconstitutional or extra-constitutional. We are protected by the Constitution, which the minority dissenting opinion has referred to as “the Holy Book”.

That being said, we must be alive to the fact that the Constitution has been amended over 100 times for multiple reasons, some of which have been openly political, especially under the Nehru-Gandhi dynasty. Therefore, to accord it the status of an immutable book and also lending it a degree of fixity, is to defeat the spirit of constitutionalism in a democratic republic.

Also, what is the basis of the assumption that every point of view which supports indigenous/Indic religious practices and traditions is necessarily extra constitutional or against the Constitution? The Constitution has worked out a contract with religion which is captured in the provisions of the former. The judiciary must respect the terms of that contract instead of shrinking the space of religion through what it calls “constitutional morality”.