Sabarimala Review: Writ Petition Summary (Nair Service Society )

What does the petitioner seek?

The petitioner prays for the Court to-

1. Allow the Review Petition filed against the majority judgement in Indian Young Lawyers Association & Ors v. State of Kerala & Ors, and restore and dispose of the writ petition. 

Grounds

The Court went into questions of fact, and not law as per Article 145(3)

Under Article 145(3), a Bench consisting of five judges is to be constituted when there is a substantial question of law. The petitioner contends that the impugned judgement goes into questions of fact that the High Court of Kerala had previously disposed of in 1993. 

In the Kerala High Court’s judgement, the Court was deciding whether the exclusion was for women between 10-50 years of age, or whether women were only excluded for certain days in a month. In deciding this the Supreme Court decided a question of fact, violating Article 145(3).

The petitioner argued that the reliance on affidavits filed in the case before the Kerala High Court is an error, as they do not fall under records of the writ petition before the Supreme Court. Finally, they noted that the impugned judgement does not explain why res judicata does not apply under Article 226. 

Practice not intended to exclude women, but to isolate the deity  

The review petitioners contend that the exclusion is not derogatory, since the basis of exclusion are not physiological occurrences of women, but the character of the deity. The restriction is on the deity, as he is not allowed to be in the presence of women. The petitioner further contends that Article 17 does not apply in this instance. 

The petitioner also notes that the impugned judgement states that there is no scriptural basis for the exclusion of women. The petitioner contends that the Bench ignored Valmiki Ramayana and the texts of Sivananda Lahiri, both of which discussed the rules for “Naishtika Bramhachari”, which the deity in Sabarimala is. 

The exclusion is not only based on sex; is not the same as untouchability

Nair Service Society also contends that the interpretation of Article 17 in this instance cannot be applied to Article 25(2)(b). They argue that the interpretation of Article 25 to include gender based injustices is an error of law. The fact that women are not allowed to enter the temple between the ages of 10 and 50 is not exclusionary; it is merely a regulatory tool used to isolate the deity. The petitioner notes that since the exclusion is also based on age, it is not only a exclusion based on sex. Finally, they argue that ‘social welfare and reform’ under Article 25 cannot take away the essential practices of a religion.

Further, the petitioner refers to the Constitution Assembly Debates to state that Article 15 does not apply to religious institutions of public character. Further, that Article 29(2) does not imply the throwing open of public religious institutions based on sex. The Society contends that Article 29(2) applies to untouchability, and since the impugned practice is a regulation based on menstruating years of a woman, it does not apply. The petitioner also contended that if the tenets of Article 14 were to apply to all religions, many religious practices would be rendered void. Further, that religion itself may be removed from existence.