Religious faith beyond judicial review, Centre tells SC; backs restriction on women’s Sabarimala entry

Asserting that religious faith was beyond the purview of judicial review, the Centre on Tuesday backed the age-old restriction on entry of women aged between 10-50 years into the famous Lord Ayyappa Temple at Sabarimala hilltop in Kerala.

Opening arguments on behalf of the Centre before a nine-judge Constitution Bench led by Chief Justice of India Surya Kant, Solicitor General Tushar Mehta submitted that if there was something unscientific in a religious practice, it was for the Legislature to take remedial measures.

Mehta cautioned the top court against exercising its jurisdiction to interpret any religion, saying there’s an inherent risk involved in it. He also questioned the doctrine of “constitutional morality”, saying it was a vague political doctrine not defined in the Constitution.

“It is pertinent to note that ‘constitutional morality’ is not textually present in the Constitution. Rather, it’s a judicially evolved, vague and indeterminate concept. Hence, the expansion of the term ‘morality’ — which is explicitly referred to in the Constitution to mean and include ‘constitutional morality’ — amounts to not only judicial overreach but an amendment of the Constitution,” the Centre submitted.

Urging the bench to overturn the 2018 judgment and declare it a wrong law, the Solicitor General said, “It’s my case that it’s wrongly decided and deserves to be declared a wrong law.”

He said, “We have to respect every (religious) denomination’s practice; not everything is related to dignity or bodily freedom. If I go to a mazar or a gurdwara and if I have to cover my head, I can’t say my dignity, right or choice is taken away.”

Noting that Lord Ayyappa temples all over the world were open to women, Mehta said Sabarimala Temple was a sui generis case (of its own kind). The attributes of the deity (Lord Ayyappa) — a ‘Naishtika Brahmachari’ (an unfailing celibate) — cannot be judicially examined, he contended.

“Sabarimala is a specific sui generis case, this is the attribute of a deity, how can we judicially examine that…If a religious head states that something is a matter of faith and the followers abide by it, the question whether such a faith exists is something which the court can examine using accepted judicial tools. However, the rationality or scientific basis of that faith cannot be gone into,” Mehta Submitted.

The bench — which also included Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi — commenced hearing on petitions seeking review of the Supreme Court’s 2018 verdict that set aside the traditional restriction on entry of women into Sabarimala Temple.

The top court is also examining discriminatory practices in other religions to lay down constitutional principles for determination of such issues. On Monday, it clarified that it was not going into merits of the Sabarimala verdict and that it will confine itself to the broader Constitutional questions.

As the hearing remained inconclusive, the arguments will resume on Wednesday.

During the hearing, Justice Nagarathna questioned the application of Article 17 to women in the 2018 verdict, saying a woman cannot be treated as “untouchable” for three days in a month and then cease to be considered untouchable on the fourth day.

Her comments came after Mehta criticised the observation in the 2018 Sabarimala judgment that said the exclusion of women in the age group of 10-50 years from the temple was a form of ‘untouchability’ and a violation of Article 17 of the Constitution that prohibits untouchability.

“One opinion in Sabarimala says Article 17 applies to women… You are treating them as untouchables… I have very strong objections to it. India is not that patriarchal or gender stereotyped in the way that the West understands,” Mehta told the bench.

He said Indian society has historically accorded women a position of reverence and respect and the cultural ethos of the country reflected deep respect for women in both spiritual and public life.

Justice Nagarathna — the lone woman on the bench — suggested that the women members of the Constituent Assembly should be called ‘Founding Mothers’. “We call them the Founding Mothers; we always say the Founding Fathers of the Constitution, so let’s call these women the Founding Mothers of the Constitution,” she said.

Mehta said if someone claimed that human sacrifice is an essential religious practice and approached the court under Article 32 of the Constitution, then the court needed not examine if it’s a religious or essential practice, and reject it on the ground that it directly violated public order, morality or health.

By a 4:1 verdict, a five-judge Constitution Bench led by the then CJI Dipak Misra had on September 28, 2018 allowed entry women, irrespective of their age, into the Lord Ayyappa’s temple at Sabarimala, overturning the age-old tradition that restricted the entry of women in the age group of 10 to 50 years.

Justice Indu Malhotra, the lone woman judge on the bench had delivered a dissenting verdict and supported the practice.

The verdict led to massive protests by Lord Ayyappa’s devotees — particularly after the entry of two women into the temple. The devotees believed the age-old tradition of the shrine should be respected as the deity was an eternal celibate.

The ruling led to the filing of a large number of review petitions by various individuals and organisations. On November 14, 2019, the Supreme Court delivered its verdict on the review petitions which didn’t decide the issues involved.

Enlarging the scope of Sabarimala Temple entry restrictions issue, it referred to a seven-judge bench the issue of discriminatory practices in other religions as well for laying down constitutional principles for determination of such issues.

By a majority verdict of 3:2, a five-judge bench headed by the then CJI Ranjan Gogoi framed seven issues for consideration of the seven-judge bench for enunciating constitutional principles to be followed in dealing with such issues in any religion. Now, all these issues are being examined by a nine-judge Constitution Bench.