It was just days before Chief Justice Ranjan Gogoi retired that the Sabarimala review petition was decided by a majority of 3:2. The September 2018 judgment바카라a 4:1 majority decision in favour of women바카라s entry into the temple바카라now goes before a larger bench for a relook. It is apt, when we consider these contrary outcomes, to recall some basic tenets in constitutional interpretation set out since 2009, marking the turn towards 바카라transformative constitutionalism바카라. These include: the consideration of analogous grounds of discrimination as impermissible (i.e. any form of discrimination akin to what바카라s clearly listed as illegal, say untouchability); the principle of non-retrogression in the delineation of fundamental rights (i.e. a right, once granted, cannot be reversed); the unequivocal rejection of the de minimis argument (that something is too trivial for the law to consider) in keeping exclusions in place; an expansive reading of the Ambedkarite formulation of constitutional morality; and the unanimous 2017 declaration by a nine-judge constitutional bench that the right to privacy (which, the apex court elaborated, meant dignity, autonomy, choice and the right to be left alone, free of surveillance) is a fundamental right. Each of these principles is immediately relevant to how the Sabarimala case is moving.
The intervening year between the two judgments has seen women바카라s attempts to enter the temple despite violent threats, ferocious trolling, hate speech and securitisation of the hill and its environs 바카라like a police camp바카라. The Constitution and the Supreme Court pale into a haze in this muscle-flexing and chest-thumping. The nation becomes a mere dangal. Last week바카라s judgment, mostly reiterating the reasoning of Justice Indu Malhotra바카라s dissent in 2018, is a setback on many counts.
There is a protocol for review petitions: they should be circulated to the same bench that delivered the judgment, the basic purpose being to rectify an error of judgment or a miscarriage of justice. However, CJI Gogoi바카라not part of the 2018 bench바카라announces a departure from that right in the opening para, saying several new writ petitions were tagged on to the review: 바카라The endeavour of the petitioners is to resuscitate the debate about what is essentially religious, essential to religion and integral part of the religion바카라 (para 2). While this is itself an overreach, in the next para, he extends the question to Dawoodi Bohra women, Muslim women바카라s entry into mosques/dargahs and Parsi women바카라cases that are sub judice and specific, and which, no doubt, must be ruled in favour of women바카라s claims to equal personhood. But this cannot be done via an omnibus 바카라judicial policy befitting to [the court바카라s] plenary powers to do substantial and complete justice바카라 (para 3). The policy must be enunciated on a case-by-case basis with recourse to precedent, settled law and principles therein as and when the matters are brought before the court.
Besides, the judgment raises the question whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, governs Sabarimala at all. For those of us who have followed and celebrated the victory of struggles for temple entry a century ago, struggles that are foundational to the Constitution, this is deeply shocking, especially because the specific case of places of public resort is covered by Article 15(2). Exclusion on grounds of menstrual taboos of pollution can be seen as an expression of untouchability proscribed by Article 17 (as Justice D.Y. Chandrachud held), or that it is analogous to practices of untouchability (as Amit Bindal has recently argued). Either way, it attracts Article 15(2), especially after 바카라analogous grounds바카라 have been recognised as discrimination. Justice R.F. Nariman, speaking for himself, and Justice Chandrachud reiterate 2018바카라s majority reasoning, outlining the 바카라greatest common measure of agreement바카라 along the following lines: that Ayyappa devotees do not constitute a separate religious denomination under Article 26; that Article 25 guarantees 바카라equal entitlement of all persons to profess, practise and propagate religion바카라; that exclusionary practice, 바카라even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality;바카라 that 바카라[n]otions of 바카라purity and pollution바카라, which stigmatise individuals, have no place in a constitutional order;바카라 that the Devaswom Board바카라s 1955-56 notifications prohibiting women바카라s entry are ultra vires Section 3 of the Kerala Hindu Places of Public Worship Act, and are even otherwise unconstitutional. On whether the prohibition of women between ages 10 and 50 is an 바카라essential religious practice바카라, Justice Nariman clarifies that it must refer to essential Hindu practices and not specific practices of particular temples. 바카라Nothing has been shown to us바카라from any textual or other authorities바카라 that such exclusion is the religion바카라s essential part. In general, he found the arguments presented for review were 바카라a mere rehash바카라 of past arguments and 바카라can by no means be said to be an error apparent on the face of the record바카라.
Four of the five judges who delivered the 2018 judgment were on this review bench. Three held their earlier position바카라Justices Malhotra, Nariman and Chandrachud. Inexplicably, Justice A.M. Khanwilkar, who signed with then CJI Dipak Misra in favour of women바카라s entry in 2018, reversed his position without explaining the reasons바카라whether error or misjudgment. As he has not authored a judgment in the 16 Constitution benches he has been part of, we have no way of deciphering his individual view. His reversal is critical in overturning the majority view. It could well have been 2:3 instead of 3:2. This judicial opacity is troubling, to put it mildly.
The court has not stayed the 2018 verdict, and it is reasonable for women of all ages to presume they can worship in the temple if they so wish. Will they be allowed to? That바카라s something else, with a telling convergence of views between the state government, the Centre and the Congress leadership. No closet patriarchy, this. The core issue is not whether women want to worship at the temple. Not even about Sabarimala generally. It is specifically about the dehumanising menstrual prohibition. Left to themselves, women believers may choose either way. There can be no rationalisation of the coercive proscription. The god does not need keepers of his celibacy, nor do women need menstruation monitors.
(The writer is professor and director, Council for Social Development, Hyderabad)
