Sabarimala Review Hearing #2: Review Petitions Admissions Hearing

Today the Supreme Court heard over 50 review petitions seeking a review of the Court’s 28th September 2018 verdict. In its September 2018 verdict, the Supreme Court held as unconstitutional the Sabarimala Temple Entry custom of prohibiting women between the ages of 10 to 50 years from entering the inner shrine of the temple.

Shortly after the 4:1 majority decision outlawing the ban on the entry of women, several petitions seeking a review of this decision were filed before the Court. Further, a few fresh petitions were filed challenging the entry of women within the inner shrine of the temple, on the ground that it is dedicated to the worship of Lord Ayyappa, a celibate deity. These were taken up for hearing today before a Constitution Bench comprising CJI R Gogoi and the four Justices from the Bench that delivered the 28th September judgment: Justice AM Khanwilkar, Justice R Nariman, Justice DY Chandrachud and Justice I Malhotra.

On 13th November 2018, the Supreme Court had its first hearing pertaining to the admission of review petitions. It took place in the CJI’s chambers and was not open to the public. During it, the Court agreed to hear the review petitions in open court on the question of whether they should be admitted. Yesterday, the Registrar listed the review petitions as admitted.

Today’s hearing began with CJI Gogoi explicitly stating that arguments must be restricted to grounds for review alone. He reminded lawyers not to present arguments that go beyond the scope of review.

The Bench first heard arguments on behalf of the review petitioners who were represented by Advocates including Mr. K Parasaran, Mr. V Giri, Dr. A M Singhvi, Mr. Shekhar Naphade, Mr. Venkataramani, Mr. Venkataraman, Mr. Gopal Sankaranarayan, Mr. Mohan Parasaran, and Mr. Sai Deepak. Following which, the Bench heard arguments of those opposing a review, including Mr. J Gupta, Mr. R Dwivedi and Ms. I Jaising.

I. Arguments for a Review

Advocate K Parasaran opened arguments for the petitioners. He focused on Article 15, the right to non-discrimination. He argued that the customs of a temple cannot be struck down for violating Article 15. Specifically, he said that while Article 15(2) is applicable to secular public institution, religious institutions are not within its purview. Further, Parasaran argued that the judgment’s interpretation of Article 15 is not consistent with previous Supreme Court judgments. He cited Bijoe Emmanuel vs State of Kerala, where the Court established that religious beliefs held by persons cannot be tested on the grounds of rationality.

In addition, he criticized the Court’s expansive interpretation of Article 17 on untouchability. He said that the Court’s interpretation, which extended untouchability to include gender-based untouchability, was too expansive and inconsistent with historical context. He said that untouchability was not applicable in this case as it only applies where a person is treated as “less than a human being”.

Justice Nariman raised the example of a woman belonging to a Schedule Caste, who was denied entry by the Sabarimala custom. He asked whether denying such a woman entry would amount to sub-human treatment. Further, Justice Nariman cautioned that the custom was not struck down on the grounds of untouchability alone. He drew attention to Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (“Public Worship Rules”). The rule allowed for the Sabarimala Temple custom. The Court struck down this rule as both being unconstitutional and in conflict with the aim of its parent Act.

Parasaran concluded by emphasising that the practice of excluding women from the Sabarimala temple is based on the celibate character of Lord Ayyappa and it would be erroneous to strike down such a practice.

Next, Senior Advocate V Giri presented arguments on behalf of the Chief Thantri of Sabarimala. He said that while Article 25 guarantees everyone the right to worship, this worship must be in accordance with the nature of the deity being worshipped. He emphasised that the deity in the present case is a celibate deity. He said that the deity’s celibacy would be eroded if menstruating women were allowed to worship inside the temple. Mr. Giri emphasised that each devotee entering the Temple cannot question the practices of the Temple. He said that it is the duty of the Chief Priest (Thantri) to preserve the essential characteristics of the deity.

Further, he questioned the locus standi of the petitioners. He questioned whether the petitioners had the standing to bring the case before the Supreme Court, as they themselves were not devotees of Lord Ayyappa.

Finally, Mr. Giri touched on the question of untouchability. He said that Article 17 does not apply in this case as the custom has nothing to do with caste and hence untouchability does not apply.

He was followed by Dr. AM Singhvi who appeared for Mr. Prayar Gopalakrishnan, the former Chairman of the Travancore Devaswom Board. The Travancore Devaswom Board manages the Sabarimala temple. Dr. Singhvi premised his arguments on four grounds or reasons for review. First, he stated that the judgment failed to address the essential character of the deity being worshipped, which he argued constitutes a ground for review. He repeated the argument that the exclusion of female worshippers at Sabarimala is justified by the nature of the deity being worshipped. He emphasised that only Justice Indu Malhotra’s dissent addresses the essential character of Lord Ayyappa.

Second, Dr. AM Singhvi reiterated V Giri’s arguments on the non-applicability of Article 17. He stated that Article 17 must be read as caste-based exclusion.

Third, he addressed the issue of constitutional morality and its applicability with regards to the rights guaranteed under Article 25. He said that constitutional morality when applied in matters of religion must be done cautiously as there are many irrational practices and all of them cannot be tested on that standard.

Fourth, Dr. Singhvi he concluded by arguing tha the Bench had incorrectly applied the test for essential practices, while ruling on whether the exclusion was an essential practice. He argued it falsely focused on whether the practice was universally practiced in Hinduism. He argued that this could not be the approach used when assessing a diverse religion like Hinduism.

Next, Shekhar Naphade made his submissions in support of a review and argued that the matter should not have been litigated in the public domain, namely the courts. He submitted that the controversy is an internal matter. He said that the members of the community must decide whether or not the custom is essential to devotees of Lord Ayyappa.

He emphasised the Court’s verdict is not acceptable to the community. He described the judgment as having directed a particular religious community to not hold a belief that had been an intrinsic part of their religion. He cited examples of social unrest in Kerala as evidence that the community has rejected the verdict.

Subsequently, Senior Advocate Venkataramani and Advocate Venkataraman briefly presented arguments in favour of a review of the Sabarimala verdict. Mr. Venkataramani restricted his submissions to the fact that persons seeking to participate in a religious practice could not do so by challenging the very basis of the same. Mr. Venkataraman reiterated the argument that religious practices could not always be tested on the basis of rationality.

Further, Mr. Venkatraman argued that the Supreme Court did not rule on whether the custom was an essential religious practice and that thus, the Kerala High Court’s Sabarimala judgment which ruled that the exclusion was an essential religious practice remains unchallenged and final. Note that the Supreme Court ruled that devotees of Lord Ayyappa do not constitute a religious denomination (i.e. it is not distinct from Hinduism). The essential religious practice test is applied at the unit of a religious denomination. Hence, the Court was concerned with the question of whether the practice is essential for Hinduism writ large.

Next, Senior Advocate Mohan Parasaran challenged the majority ruling that the devotees of Ayyappa do not constitute a religious denomination under Article 26. He said that merely because persons from other religions worshipped Ayyappa it does not follow that the Devaswom Board does not constitute a distinct denomination and on this particular ground, the verdict of the Court needs to be reviewed by the Bench.

Senior Advocate Gopal Sankarnaryanan challenged the verdict on the ground that the other Devaswom Boards had not been given an opportunity to be heard. He said this was an error apparent as the Rule struck down by the Court was also applicable to other temples in Kerala. repeated the argument against an expansive interpretation of Article 17.

Lastly, Advocate Sai Deepak made submissions on behalf of the review petitioners and reiterated Mr. Naphade’s argument about who should decide on the essential nature of a religious practice. Deepak emphasised that the Court cannot make this decision. He said that the only exception should be if a religious community makes a false submission.

At this point, the Court ceased to hear arguments put forth by the petitioners and asked the others who had not been heard to file their written submissions before the Court.

II. Argument against a Review

The Bench next heard the arguments against the review of the Sabarimala verdict. CJI Gogoi asked that the respondents conclude their arguments within 90 minutes indicating that the Bench would conclude hearings and reserve the judgment before the end of the day.

Senior Advocate Jaideep Gupta opened arguments on behalf of the State of Kerala. The State of Kerala opposed a review, stating no grounds for review had been established. First, J Gupta established that non-consideration of arguments is not a ground for review. He submitted that the review petitioners could not present arguments not directly relevant to the findings of the judgment and argue that the Court’s failure to consider these arguments constitutes a ground for review. He summarised that the majority verdict reached a consensus on three primary aspects:

1. Devotees of Ayyappa do constitute a religious denomination, under Article 26
2. The exclusion of women for a significant portion their lives is discriminatory, under Article 15
3. Rule 3(b) [of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules] is violative of Section 4 of the 1965 Act itself and also Article 25(2)(b) of the Constitution.

He emphasised that the arguments of the review petitioners on Articles 15 and 17 would not impact these conclusions and therefore the review petitioners’ detailed submissions on Articles 15 and 17 do not constitute grounds for review and should not be entertained at this stage. He also referred to the detailed analysis of the verdict that had been offered by the petitioners stating that the same was not for the stage of review.

Second, Mr. Jaideep Gupta presented arguments on the question of whether the custom constitutes an essential religious practice. He established that there is a need to distinguish between the practices of a religion and those of a temple. He stated that excluding women is not an essential religious practice for Hinduism. Further, he said that if every practice unique to a particular temple were granted the status of essentiality, the test of ERP would be rendered meaningless. He concluded that practices peculiar to temples can never be exclusionary and/or discriminatory.

Finally, Jaideep Gupta dismissed the argument that the disruption of social peace constitutes a ground for a review. He expressed that he was sensitive to the fact that the verdict has indeed caused social unrest. However, he emphasised that it does not constitute a ground for review, especially in a constitutional matter.

The Bench rose for lunch and arguments by the respondents would continue after the break.

After lunch, Senior Advocate Rakesh Dwivedi presented arguments on behalf of the Travancore Devaswom Board. Recall that the Travancore Devaswom Board had defended the Sabarimala custom during the original hearings. In fact, in today’s hearing, Justice Indu Malhotra intervened to point out this very fact. Dwivedi responded by stating that the Board has accepted the Court’s judgment. Mr. Dwivedi stated that not only had the Court’s verdict settled various issues of law, but further that the custom is never mentioned in historical texts or scriptures.

Dwivedi stated that any practice which excludes women and violates the right to equality under Articles 14 and 15, would contravene any claims made under Article 25. He emphasised that the exclusion of women cannot be justified by reference to physiological or biological attributes because this violates both Articles 14 and 25.

Next, Senior Advocate Indira Jaising presented arguments. She was appearing for Bindu and Kanaka Durga, the two women who had entered the Sabarimala temple in January earlier this year and subsequently received death threats. She substantiated her untouchability (Article 17) argument from during the hearings, by citing the fact that the temple performed a purification ceremony after the women she is representing entered the temple. She stated that this indicates that the exclusion is rooted in notions of untouchability.

She countered the arguments put forth by K Parasaran on Article 15, where he said that Article 15(2) cannot apply to religious institutions. She stated that Sabarimala is a public temple and hence within the scope of Article 15(2), as the provision specifically refers to places for the use of the general public.  Finally, she argued that Articles 15 and 25 be interpreted harmoniously with the preamble to the Constitution. She said that the right to worship and freedom of conscience should extend to everyone recognised as a person by the law.

Finally, the Court briefly heard submissions made by Mr. P V Dinesh, appearing for the intervenors opposed to a review. He argued that disallowing girls as young as 10 from entering the temple on the ground that it would contravene the essential characteristic of celibacy was derogatory.

Having concluded arguments on both sides, the Court reserved the matter for judgment. In its judgment it will decide whether or not to admit the review petitions.