An argument has arisen from various quarters that there is a lack of clarity in the Supreme Court verdict pronounced on Thursday about the Sabarimala matter. On a closer examination, this ‘no clarity’ argument turns out to be baseless.
In September 2018, the five-member constitution bench had passed a historical order, with a 4-1 majority, allowing women of all ages to come to Sabarimala. Violent agitations orchestrated by religious fanatics had erupted all over Kerala and women who dared to travel to the Sabarimala temple were thwarted by the protestors.
As many as 65 petitions, including 56 review petitions, were filed by conservatives against the verdict.
The latest judgment referred the review petitions against last year’s ruling to a seven-member Constitution Bench, in a 3-2 majority decision. Chief Justice Ranjan Gogoi and Justices Indu Malhotra and A.M. Khanwilkar opted for keeping the review petitions pending, while in the minority view, Justices D.Y. Chandrachud and R.F. Nariman differed by dismissing the review petitions. These two judges emphasised compliance of the earlier judgment.
The Chief Justice said the Supreme Court should evolve a common policy on religious places such as Sabarimala, and indicated that Sabarimala would be considered along with the question of the entry of Muslim women in mosques, the restriction of access to fire temples for Parsi women who married outside their community, and female genital mutilation in the Dawoodi Bohra community.
By pointing out that the restrictions against women are found in other religions also, the judges appear to be making a broad and reasonable interpretation that in a secular state, the issue of gender discrimination and equal right to worship cannot be selectively focused on any particular religion, but should be equally applicable to all religions.
I stick to my view that the so-called restriction on the entry of menstruating women in Sabarimala is not an age-old custom but a practice imposed by vested interests, barely a few decades ago, without any supporting evidence in religious rituals or scriptures.
On the contrary, the bar on Muslim women regarding entry to mosques has been an old religious taboo. However, in a truly secular republic, discrimination based on gender, should be questionable no matter whether it is an ancient religious restriction or a recent imposition.
Those who say Thursday’s verdict is not clear about whether women of all ages can enter the Sabarimala shrine, have completely missed the point.
The five-member bench did not consider the review petitions. Instead, the bench said that certain vague topics in the Constitution would be framed as seven questions and a larger seven-member bench will be constituted to study and decide on those questions like whether the court should intervene in matters of faith, and if prominence must be given to fundamental rights or religious belief.
The answers the seven-member bench arrives at, regarding these questions, will become the law. Only after that the Supreme Court will decide whether to dismiss or consider the review petitions. It is a long-drawn out and comprehensive process.
It must be noted that that apex court has not stayed the September 2018 order allowing the entry of women of menstrual age into Sabarimala.
Also, the majority judgment has said nothing at all against this previous verdict. The Kerala high court’s ban of menstrual age women in the age range of 10 to 50 has not been revived either. It is clear from the new judgment that September 2018 verdict still stands.
As it is obvious that the country’s topmost court has refused to stay the September 2018 verdict, allowing all women to enter the Sabarimala, in strictly legal terms, the practical implication is that it will continue to remain in force and will be the law of the land until and unless the Supreme Court overturns it in the future.
The new judgment also mentions that the violent protests against the old verdict are against the Constitution. The bench has also warned that protests must not be organised against court verdicts.
These facts mean that any attempt by anyone to prevent women of menstrual age from offering prayers at the Sabarimala temple, will be undoubtedly illegal and the authorities have the legal and moral responsibility to protect them from harm.
What more clarity do we need?
The Sabarimala shrine is to open again on November 16. It is highly likely that tension will be triggered between any women of the reproductive age trying to enter Sabarimala to exercise their legitimate right given by the 2018 Supreme Court verdict that still remains legally operative, and religious fundamentalists who are hell-bent to stop them.
All necessary steps should be taken to ensure that law and order are not disturbed, without sacrificing the safety and rights of women. Everyone needs to deal with the scenario with a sense of balance, learning from past experiences.
Lekshmy Rajeev is a poet, columnist and translator.