Fresh petitions to SC to review Sabarimala Verdict

A number of petitions have been made to the Supreme Court on the premises of the Court’s verdict on September 28, 2018, in the Sabarimala temple case. The petitioners have all urged the Court to review its decision on the case as they feel the verdict have been unwarranted and not representative of all the devotees of Ayyappa who all have a right to be heard.

Review petition: Nair Service Society

Nair Service Society was originally respondent number 6 in the original petition filed by Supreme Court Advocate Indira Jaising representing the advocate-petitioners of the Indian Young Lawyers Association who had been fighting this issue since 2006. The petitioners, Nair Service Society has prayed for a review of the Supreme Court ruling in the case under Article 137 and Rule 40 of Supreme Court Rules stating, “that overwhelmingly large section of women worshippers are supporting the custom of prohibiting entry of females between the age of 10 and 50 years at Sabarimala temple” and hence the practice of banning women between the age of 10 – 50 years is not gender bias.

The Society pointed out that the practice is “not exclusionary as it is not a reflection of the physiological occurrences [of the human body] but to the character of the deity who is a Naishtika Brahmachari (eternal celebate),” hence the practice does not attract the provisions of Article 25(2) (b).

Review petition: National Ayyappa Devotees Association

Shylaja Vijayan, President of National Ayyappa Devotees Association also filed a separate review petition urging for the same relief on behalf of Ayyappa devotees to the Apex Court. Advocate Mathews J. Nedumpara, representing Vijayan submitted to the Court that

“Ubi jus, ibi remedium is a fundamental principle of law. The necessary corollary thereof is that if no rights are infringed, the law will provide no remedy. In other words, there was no cause of action at all in existence for invocation of the jurisdiction of this Hon’ble Court under Article 32. Indian Young Lawyers’ Association nor other Petitioners therein averred that they are devotees of Lord Ayyappa; that they were denied their right to visit the temple at Sabarimala and that such denial has resulted in a violation of their fundamental rights.”

The petitioner questioned the Court’s decision by stating that in the recent past the PIL (Public Interest Litigations) has been used and abused for a variety of reasons and mentioned three cases (the NJAC judgment, the Jallikattu verdict and the dilution of the provisions of SC/ST Act) where the top court has shown their high-handedness in dealing with cases reiterating,

“if Courts were to decide matters concerning legislative, executive and fiscal policies, so too belief and faith of the people, and that too behind their back, without they being afforded an opportunity of hearing, then how such violation of fundamental rights by the judiciary can be remedied?”

The petition stated “the judgment under review is one rendered without taking into account the ground realities, namely, the pilgrimage to Lord Ayyappa temple at Sabarimala is a class in itself, founded on faith, which will mean no discrimination of women, for, women in the non-fertile age group are allowed to visit the Sabarimala temple; there is no question of affecting the dignity of women; it is a simple and pure  matter of faith; and in matters of faith, Court has no jurisdiction.”

“The concept of alteram partem, hear the other side, is the very foundation of the concept of rule of law. No Court is empowered to pass an order which has adverse civil consequences, which will amount to the violation of fundamental rights such as faith and belief of people, as in the instant case, without notice to the persons affected thereby and without hearing them. The judgment is, therefore, one rendered void ab initio.”

Review petition: NGO Chetana Conscience of Women

The petition filed through Advocate Muthu Kumar on behalf of Chetana Conscience of Women claimed a “clear perusal” of the judgment “rendered as part of the majority view shows that, apart from patent legal errors, the factually erroneous assumption that the practice of the Temple is based on notions of menstrual impurity has materially contributed to the majority view,” and hence “the order of this Hon’ble Court deserves review reconsideration.”

The petitioners observed, “enquiry ought to have been whether the practice is essential to the identity of the Sabarimala Ayyappa Temple, and not whether it is essential to Hindu religion since the latter approach completely ignores and does a grave injustice to the diverse practices, traditions and schools which exist within the Hindu faith. Despite this material difference which distinguishes the Hindu faith from other faiths, Ld. Judge tests the practice on the anvils of its essentiality to the Hindu religion as opposed to its essentiality to the nature of the Deity in the Sabarimala Ayyappa Temple. Clearly, the judgment has the effect of Abrahamizing the core of the Hindu faith – diversity and altering its identity.”

It was alleged that

“Chief Tantri of the Temple is the sole authority on the religious practices of the Temple, and there is no reference to the Tantri’s position anywhere in the discussion of Ld. Judges. Judgment has also failed to consider the fact that the practice is observed only in the Sabarimala Ayyappa Temple and not in other Ayyappa Temples in Kerala and outside of Kerala [which] is because the Deity exists as a Naishtika Brahmachari only in the Sabarimala Ayyappa Temple. The rights of the Chief Tantri and the devotees (including women devotees) who put faith in the practice and its nexus to the celibate form of the Deity must prevail over the rights asserted by the Petitioner. This position remains unaffected even if it is assumed that Articles 14, 15 and 17 apply to the case, which they do not.”

Locus standi of the Court with respect to the petitions

The petitions were submitted for the Supreme Court’s consideration on Monday, October 8, 2018, and the Court has of lawnot reviewed them. It is a curious situation as all the parties to the case are arguing for civil rights, liberties and freedom to profess and practice their faith according to the traditions and customs associated with the Hindu religion. All those in favour of the practice are arguing that it is not a discrimination based on gender or religion since women who are younger than the years of age and older than 50 years of age are allowed to enter the temple. The women rights activists are also equally adamant in their counter-argument pointing out that it is a clear violation of women’s rights to worship and has no connection to religious practices but it has its roots in abhorrent exclusionary practices.

According to lawyer Bhakti Pasrija, the General Secretary of the Indian Young Lawyers Association and a respondent in most of the above petitions, “people are giving superstitions the name of religion. Hindu religion is very inclusive. Initially, women were allowed there. After that, because it was a long stretch in those days, and infrastructure was not much developed, it was a long 41 days journey, where one had to travel through forests where wild animals were there. So now that reason is no longer relevant. This a practical difficultythe that has taken the colour of superstition now.” She vows to keep on fighting for women’s rights to enter Sabarimala temple for as long as it takes.

Kerala Chief Minister Pinarayi Vijayan is opposed to the protests rampant in Kerala regarding this case and promised “it is the responsibility of the government to implement the verdict of the Supreme Court. It is not the policy of the government to fight with believers. The people of Kerala faced the recent unprecedented floods unitedly but deliberate efforts are now being made to destroy that unity, to destroy the secular fabric.” Rahul Easwar, chief of the Ayyappa Dharma Sena and the grandson of a former chief priest at Sabarimala, on the other-hand claimed: “hundreds of our men will lie down at the entry point of the hill when the temple opens at 5 pm on October  17 for the pooja, or prayer ceremony.” The situation with Sabarimala case is getting hotter day by day with public agitations and protests showing no signs of abating. With the upcoming elections looming in the horizon in 2019, it would be interesting to see the stand taken by the ruling government of Kerala as well as the Centre. It will indeed be a critical perspective of conservative Hindu worshippers who support such practices and that will a impact the future of South Indian political parties. As regards to North and Central Indian states they have not raised any objections to this issue which is also reflected in the ruling BJP government’s stance of wait and watch, it seems.