Travancore Devaswom Board, which runs Sabarimala temple, and the Kerala government Wednesday opposed in the Supreme Court a batch of pleas seeking review of its historic verdict allowing entry of women of all ages into the shrine, even as several organisations sought re-consideration of the judgement.
The apex court, by a majority of 4:1 on September 28 last year, lifted the ban that prevented women and girls between the age of 10 and 50 from entering the temple in Kerala and had held that this centuries-old Hindu religious practice was illegal and unconstitutional.
A five-judge constitution bench headed by Chief Justice Ranjan Gogoi, which had earlier agreed to hear in open court the pleas seeking review of the verdict, Wednesday reserved its decision after hearing for three-and-half hours the parties, including Nair Service Society, Thantry of temple, temple Board (TDB) and the state government, in favour and against of the plea.
As many as 65 petitions including 56 review petitions and four fresh writ petitions and five transfer pleas were filed in the apex court after its verdict had sparked violent protests in Kerala.
The bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was in for a pleasant surprise as the temple board, which also comprises the state government nominees, took a U-turn by supporting the verdict and said the people should gracefully accept it.
The temple board, in earlier round of litigation, had opposed the PIL by Indian Young Lawyers Association seeking to throw open the shrine for all women.
Justice Malhotra interdicted senior lawyer Rakesh Dwivedi, appearing for temple board, and said, "You had argued against women's entry".
"The Board has now decided to respect the judgment", Dwivedi replied, adding, "Article 25 (1) equally entitles all persons to practice religion."
"Women cannot be excluded from any walk of life on biological attributes... equality is the dominant theme of the Constitution," Dwivedi said.
The Kerala government, which had taken conflicting stands on entry of women into the hill-top shrine, supported the verdict and urged the court to trash review pleas.
Senior advocate Jaideep Gupta, appearing for the state government, said a constitutional court should not worry about the law and order problem and "social disturbances".
Exclusion of women from temples is not essential practice of Hindu religion, he added.
At the outset, the bench made clear to lawyers that it would hear only those who are parties to review petitions and asked them to confine arguments on grounds for reconsideration of the judgement.
Senior advocate K Parasaran, appearing for Nair Service Society, assailed the majority verdict, saying Article 15 of the Constitution throws open for public the secular institutions of the country but it doesn't deal with religious institutions.
The article "throws open all public institutions of secular character for all classes of citizens but the article conspicuously omits religious institutions", he said.
Seeking reconsideration of the verdict, he said the Article 17 which deals with abolition of untouchability in society was wrongly used by the apex court in its judgment as exclusion of certain age groups of women was not based on caste.
Parasaran also referred to the celibate or 'Naishtika Brahmachari' character of the deity at Sabarimala and said the exclusionary practise was based on the nature of the deity and the apex court should have considered this aspect.
He said also referred to Article 25 (fundamental right to practice religion) and said unless a religious practice is "abhorrent', a court usually does not interfere with the activities associated with religious institutions.
Senior advocate A M Singhvi, representing Travancore Devaswom Board's ex-chairperson, argued in favour of the review of the judgment.
"There is no exclusion of women. There is no exclusion of men. There is no exclusion of a class of men or women based on religion and caste. There is an exclusion inside a class (women). Hence Article 17 (removal of untouchability) will not apply," Singhvi said.
Dealing with the aspect of constitutional morality, the senior lawyer said that in a pluralistic Hindu society this concept cannot be applied objectively by the court and it has to be subjective keeping in mind different kind of essential religious practices.
Another senior advocate V Giri who represented the thantry of the shrine said the temple allows entry of all persons inside and there is no exclusion of any class of citizen based on caste, gender and religion.
"The fundamental right to worship also includes the character of the deity and every devotee cannot question this character which also formed part of the essential religious practice there," he said.
Senior lawyer Shekhar Naphade, also appearing for a party, said in a matter of faith, the court cannot direct a community to practice the religion in a particular manner.
"This is an internal affair of a religious community which worships a particular deity in a particular manner. This has never been in dispute that this practice is being followed for centuries.
"The court cannot issue a writ of mandamus against a community to practice its religion in a particular manner," Naphade said, adding that this was an essential religious practice which cannot be scrutinised.
He said that any religious practice cannot be stopped unless it constituted a criminal offence.
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