The Supreme Court on Wednesday will take up a batch of petitions seeking review of its September 28 verdict allowing entry of women aged between 10 and 50 into the famous Lord Ayyappa temple at Sabarimala in Kerala. The review petitions would be heard by a Constitution bench comprising Chief Justice Ranjan Gogoi and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
As many as 48 review petitions, filed by various Hindu outfits and individuals, were earlier scheduled to be heard on January 22, but was postponed since Justice Indu Malhotra went on medical leave. Justice Malhotra, the lone woman judge in the then CJI Justice Dipak Mishra-led bench that heard the case, had given a dissenting verdict, saying that it is not for courts to determine which religious practices are to be struck down, except in issues of social evil.
The petitioners claim that the top court verdict striking down a centuries-old custom of barring women of menstrual age in the hill shrine was “absolutely untenable and irrational”. The National Ayyappa Devotees Association (NADA), the Nair Service Society (NSS), temple tantri Kandaru Rajeevaru are among those who moved the court seeking revision of its order.
“The delay or wait for 40 years to worship cannot be considered as exclusionary and it is an error of law on the face of the judgment,” the NSS said in its petition.
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The petitioners are likely to point out how the court "ignored" its earlier seven-judge Constitutional bench in the Shirur Mutt case in 1954. Their assertion is that the apex court itself has maintained that in matters of faith, courts have no jurisdiction. They also take exception with the observation that the Ayyappa devotees do not constitute a separate denomination under Article 25 and 26 of the Constitution.
The September 28 verdict had led to demonstrations, violent protests and shutdowns during the ensuing 67-day long annual Sabarimala pilgrimage season in the state which was limping back to normalcy after the devastating floods last year.
In a rare move, the top court, on November 13, agreed to hear the review pleas, but refused to stay its earlier verdict, leaving the state on the edge.
At least a dozen women, armed with the court verdict, tried to trek the hill. However, barring two, almost all of them were forced to abandon their journey midway owing to intense protests from devotees. Two women—Bindu and Kanakadurga—managed to enter the temple in the wee hours of January 2 with tight police security.
All eyes are now on the Supreme Court since any decision from the judiciary will create ripples in the state, especially ahead of the Lok Sabha elections. The Bharatiya Janata Party and the Congress have rallied behind the devotees, accusing the Left front government of showing “unnecessary haste” to implement the verdict. The saffron party has been at the forefront of the protests, along with several other Hindu right-wing organisations, and all these demonstrations were anchored in strong anti-CPI(M) sentiments.
A few possible scenarios
1. Court rejecting the review pleas: Although there were instances of the Supreme Court reviewing its own verdict, the revision of the order of a Constitution bench lacks precedence. However, Article 137 of the Constitution enables the apex court to review its own judgments.
Except Chief Justice Ranjan Gogoi and Justice Indu Malhotra, all the other three judges in the bench had, in their verdict, asserted that the custom at Sabarimala is gender discrimination and violates women's equal rights. It remains to be seen whether they would be open for a revision of their orders.
A rejection of the review pleas would lead to another pandemonium in the state with the Sabarimala Karma Samiti, which is spearheading the campaign to protect tradition, insisting that it would continue the protests. The temple will open for the five-day monthly poojas for the Malayalam month of Kumbham on February 13 evening.
The BJP, which has been trying make inroads into the state, will also be keen to cash in on the situation since the party feels that the Sabarimala episode has given it a major boost ahead of the general elections. The saffron party had a vote share of 10.33 per cent in the 2014 Lok Sabha polls, but failed to win even a single seat.
Rejection of review pleas will throw the ball into the court of the Union government. Since the state government has made its stand clear and maintained that it would implement the Supreme Court verdict, the Union government will be under pressure to bring an ordinance to overrule the verdict. Prime Minister Narendra Modi and BJP president Amit Shah, during their recent visits to the state, have asserted that their party stood by the tradition.
2. Court staying its earlier verdict: The Supreme Court decision to take up the review pleas in an open court—a rarest of the rare decisions—itself has given a ray of hope to the devotees. If the court agrees to stay its earlier verdict allowing the temple to practise the tradition, it will be hailed as a major shot in the arm for devotees and will have far reaching effects on various other temples and religious places across the country.
Politically, such a decision from the top court would be a dampener for the Left parties in the state as they had hailed the September 28 verdict as a major step towards ending gender discrimination. Despite the intense agitation, Chief Minister Pinarayi Vijayan and his colleagues have been vociferous of the government's stand in favour of the verdict.
In a recent interview to THE WEEK's Cithara Paul, Vijayan said: “We did only what we are constitutionally bound to do. Our actions are not marred by either haste or delay. As per the ruling of the Supreme Court, the state is bound to provide security for women devotees who visit Sabarimala.”
The BJP seems to be in a win-win situation. A verdict in favour of the devotees will give a morale booster for the saffron party as it could claim vindication of its stand. The Congress, too, will try to leverage the situation to corner the ruling party. The party, though distanced from active protests and demonstrations, has been maintaining that traditions at Sabarimala should be respected.
3. Leaving the case for a larger bench: If the judges in the five-member bench find merits in the review petition, the case would be referred to a seven- or nine-judge bench. In such a scenario, hearing would have to start afresh.
