One thing should be said to the credit of the Supreme Court. Its November 14 verdict on an assortment of petitions seeking a review of its September 28, 2018, verdict on Sabarimala is such that every party involved in it can claim that its stand has been vindicated.
The “progressive-minded” women and men who were happy that the court had allowed women of all ages to enter the temple on the Western Ghats are happy that the court has not stayed the verdict. It means menstruating women can enter the temple and worship Lord Ayyappa.
Those who opposed the 2018 verdict can say that since the whole issue has been referred to a higher bench, yet to be constituted, it means the previous verdict stands cancelled. In other words, no menstruating women can enter the temple as of now. Or, status quo ante has been established.
There are as many opinions on the verdict as there are lawyers. My own opinion, whatever it is worth, is that the 2018 verdict has been undone or undermined.
I have sympathy for the Kerala Government which does not know whether women of certain ages should be allowed or not. Chief Minister Pinarayi Vijayan was being polite when he said that he needed more clarity. Of course, getting clarity will also cost money to the government.
One set of people who are really happy are the lawyers who made tonnes of money by arguing for or against women’s entry without reaching anywhere. They can make more money when the case is heard all over again.
All this has disappointed the common man who expected a verdict which was beyond reproach. In the case of Ayodhya there was clarity. The court said that the Muslims had been in possession of the disputed property ever since the masjid was built about 500 years ago.
It also said that there was no proof that a temple was demolished to build a mosque. The planting of an idol in the mosque in 1949 was a fraudulent act. The 1992 demolition of the mosque was an act of violence. All this was clear and stated unambiguously. It was also very clear why the land was given to the “Hindus”, though it was not stated in so many words and a five-acre plot of land was ordered to be given to the Muslims, though they never sought it.
True, the court did not have the freedom of King Solomon who ordered the cutting of a child into two pieces when two women claimed that the baby was delivered by them. He became the Wise only because the real mother shuddered at the possibility that her child might be killed and allowed the fake mother to have it. Otherwise, history would have judged him as the Butcher of Israel!
What the story of Solomon teaches is that only the morally upright can compromise in the larger interest of justice and fair play. The other will remain adamant like the woman who rejoiced at the possible vivisection of the baby.
To come back to Sabarimala, the 2018 verdict was given by a five-member Constitution Bench. For starters, Constitution Bench is the name given to a Supreme Court bench which consists of at least five judges of the court which sit to decide any case involving a substantial question of law as to the interpretation of the Constitution of India.
Usually, a verdict given by such a Bench is not reviewed. In fact, review petitions are invariably turned down. For example, the court refused to review its verdict on Section 377 decriminalising homosexuality.
Usually, a review petition is considered only if the petitioner is able to point out some infirmities in the verdict which need to be corrected. Such petitions are heard in-camera, i.e., in the chambers of the judges.
Lord Ayyappa alone knows why the court decided to entertain as many as 50 (?) petitions seeking a review. Not only that, it also allowed hearing of the review petitions in an open court. This evoked quite a surprise! Why?
Because the Constitution Bench had heard all the petitioners thoroughly and gave its verdict after going through all the hair-splitting arguments. The judges also took their own sweet time to give their verdict after considering all aspects of the case.
Four of the five judges, including the then Chief Justice Deepak Mishra, gave their verdict in favour of allowing women, irrespective of age, to enter the temple, considered by some as Buddhist in origin. The dissenting verdict was given by Justice Indu Malhotra, the only woman on the Bench.
Usually, the review petitions are heard by the same Bench. However, in this case, two of them, including Chief Justice Mishra, retired from the court. The new Bench was presided over by Chief Justice Ranjan Gogoi. The verdict was not unanimous.
Two judges — Justice RF Nariman and Justice DY Chandrachud — gave a dissenting judgement. They were also on the Justice Deepak Mishra-headed Bench which decided in favour of women’s entry in 2018.
Let me quote a few lines from their minority verdict: “Compliance is not a matter of option. If it were to be so, the court’s authority could be diluted. Organised acts of resistance to thwart implementation of this judgement must be put down firmly.
“After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the holy book is the Constitution of India”.
The Bench had a judge by the name Justice AM Khanwilkar who in 2018 favoured women entering the temple. He made a somersault like many politicians and favoured referring the matter to a larger Bench as if he had done a blunder by taking the stand in favour of women’s entry in 2018.
It was like Justice KT Thomas of the Supreme Court who favoured the harshest punishment for the killers of Rajiv Gandhi while he was a judge and seeking clemency for them after his retirement. The one difference between them is that Justice Khanwilkar made his about-turn while still serving as a judge of the apex court while Justice Thomas did it after he began to be invited to RSS functions.
Justice Indu Malhotra remained firm that Sabarimala issue was a matter of faith and the court did not have to interfere. The Chief Justice and two of his colleagues found many reasons to refer the matter to a higher court. That is how a Constitution Bench has gone back on its own verdict. Now, what will happen?
There is no certainty that a higher court would be constituted to hear the case. It all depends on the new Chief Justice. He may or may not feel compelled to act on the majority verdict as he might find that there were many other issues needing greater attention of the court. In short, the Sabarimala issue will remain in limbo.
It is advantageous for some parties with vested interests to keep the matter alive, rather than settle it. They would rejoice over the decision to refer to a larger Bench.
A higher Bench must have seven or nine or 11 or 13 judges. What are the new arguments they have to hear? Had not the parties exhausted their arguments when they fielded senior, learned advocates to argue on their behalf? What will happen if, say, a 13-member Bench decides like the 2018 Bench? Will the parties concerned allow women of all ages to enter the temple?
The Supreme Court is supreme because there is no other court above it. It is supreme not because the judges are infallible and they have all the wisdom in the world. They are like High Court judges who also have the power to hear constitutional cases.
The people have always considered a Supreme Court verdict as final. They accepted it, whether they liked it or not. In the Marad flat case, everybody knows that it is utter foolishness to demolish the five apartment buildings which withstood even the 2018 Great Flood.
The flats could have been taken over by the government and allotted to Central Government staff, including Navy personnel, posted in Kochi. The demolition process is underway because it is based on an SC order.
Similarly, there is great injustice in giving control to the Orthodox group of some churches, where 95 per cent and more members belong to the Jacobite sect. Yet, it is enforced because it is the order of the Supreme Court which did not review its decision.
Why is an exception made to Sabarimala? In the US, “Blacks” were not allowed in white schools. A law was enacted allowing “Blacks” entry into all schools. There was a huge protest by the whites all over the country. In some places, the “Blacks” were prevented from entering schools. Like in the case of Pulayas in Kerala, necessitating the first agricultural agitation in the country led by Ayyankali.
One State Governor even took the lead in organising the resistance. What did the US Supreme Court do? It put its foot down on the agitation. The Governor in question was sacked. Last year, I visited a government High School at San Antonio where the Principal was an African American woman and the students belonged to all ethnicities, let alone colour.
The point is that the US court took a principled stand and did not bother whether it had the approval of the majority or the minority. That is how the rule of law is enforced.
Having said this, I must also add that I shudder at what would have happened in the country if the court had allowed rebuilding of the mosque at the same place as promised by the Narasimha Rao government at that time. The case in question was entirely about Sabarimala but that did not prevent the three members of the Bench from bringing in extraneous issues and club them with their verdict.
The new Bench, when constituted, will decide if the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965, should govern the Sabarimala temple or whether all sides should be given an opportunity to be heard again. It said that the debate about constitutional validity of practices entailing restrictions of women in places of worship was not limited to Sabarimala.
“There were issues of restrictions on Muslim women to a dargah/mosque and Parsi women married to a non-Parsi. The issue of whether constitutional courts can decide if a practice is essential to religion or is an integral of the religion was pending in the case related to female genital mutilation among Dawoodi Bohras too.”
Why these issues need to be clubbed with the Sabarimala issue is not known. Recently, the triple talaq Act came into being. People who abandon their wives are not punished in the country but a Muslim who divorces his wife is sent to jail. Divorce is a civil issue but it has been made a criminal issue in triple talaq cases which, needless to say, are few and far between.
The rule of law implies that everyone is treated equally. Alas, some are born more equal than others and even the apex court is willing to grant them that status! Hence a higher court must hear Sabarimala all over again.(Published on 18th November 2019, Volume XXXI, Issue 47)