Petitions challenging Sabarimala Judgment: Live Updates from Supreme Court
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Petitions challenging Sabarimala Judgment: Live Updates from Supreme Court

Bar & Bench

The Supreme Court is hearing a total of 65 petitions, including 56 review petitions and 4 writ petitions filed challenging its judgment of September 28, 2018, by which it allowed the entry of women, irrespective of their age, into the Sabarimala Temple in Kerala.

These petitions are being heard by a Bench of Chief Justice of India Ranjan Gogoi and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. 

A Constitution Bench of then Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra had, by a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which was the basis for barring entry of women between the ages of 10 and 50 years into the temple.

This judgment has had significant ramifications in the State of Kerala, with the BJP, right wing organisations, as well as the Congress Party opposing the verdict. Attempts to prevent women from entering the shrine have also led to violence in and around the temple.

Live Updates of today’s hearing follow:

Arguments of Senior Advocate K Parasaran

  • CJI Ranjan Gogoi asks lawyers appearing in review petitions to limit their arguments to review grounds. Sr. Counsel K Parasaran commences submissions.
  • This case primarily involves enforcement of fundamental rights under Article 25. Interesting aspect is both petitioners and respondents in this case are relying on Art. 25, submits K Parasaran.
  • Article 15 threw open all public institutions of secular category. It does not refer to public institutions of religious category, K Parasaran.
  • Justice Rohinton Nariman interjects, “I have referred only to Article 15(2)”.
  • K Parasaran referring to A 25(2). Submits unless practice is very abhorrent, Court normally does not interfere in activity associated with religious institutions, cites Jehovah Witnesses case to buttress his point.
  • Parasaran now making submissions on Article 17 regarding untouchability.
  • The expanded meaning given in judgment to untouchability under Article 17 will result in it applying only to Hindu Religious institutions under Article 25(2)(b), K Parasaran.
  • Parasaran now moves to the Preamble of the Constitution.
  • What if we ban Scheduled caste woman between 10 and 50? Rohinton Nariman J. asks Parasaran in response to Parasaran arguing against expansion of Article 17
  • Dont go by the notion that it was struck down only on the basis of Untouchability, remarks Nariman J.
  • Nariman J also brings up Section 3 of Kerala Act to stating that the Rules are contrary to the Act.
  • K Parasaran concludes, Sr. Adv. V Giri now commences his arguments.

Arguments of Senior Advocate V Giri

  • Any person who asserts right under Article 25(2)(b) to worship has to do it in consonance with the nature of deity, V Giri.
  • Giri relies on Mahendran judgment, says in the absence of any material which shows that it is an exclusionary practice, the 2018 verdict should be reconsidered.
  • Giri now countering the ‘Constitutional morality’ argument which he submits find no place in Constitution but has been evolved by ‘Your Lordships’.
  • Untouchability has nothing to do here. Entry is sought to be prohibited only due to nature of deity. It is not an exclusionary practice, V Giri.

Arguments of Senior Advocate Abhishek Manu Singhvi

  • The exclusion in this case is based on inherent physiological characteristics which has nexus with the nature of the deity.
  • The above argument of intrinsic character of Naishtika Brahmachari of the deity has not been dealt with by the 2018 judgment and that is my ground for review.
  • The Gods in Hinduism are worshipped in various forms and manifestations and this particular God/ deity is worshipped in this manner.
  • Article 17 has to be read as a caste based or religion based exclusion. In this case there is no exclusion of women or men or any caste of men or women.
  • My third submission is regarding Constitutional morality. My argument is where rights under Article 25 are under consideration, Constitutional morality has to be applied keeping in mind the occupied field facet.
  • Further, while applying Constitutional morality the subjective morality of devotees have to be considered.
  • Many aspects of faith will be irrational. But it is not a Science museum but religion. So Constitutional Morality should not be applied in all of it. Court should be careful while applying Constitutional morality in matters of religion.
  • Hinduism is one of the most diverse religions. There is so much diversity within it. To seek an “essential religious practice” in it might not be the correct approach.

Arguments of Senior Advocate Shekhar Naphade

  • Shekhar Naphade commences his arguments. This is not a matter within the public law domain. It is an internal affair of a particular community
  • This is a matter of faith, Shekhar Naphade. Unless there is a criminal law which prohibits a particular religious practice like say Sati, courts cannot interfere.
  • Who is to decide what is an essential religious practice, it should be the members of that particular community?
  • We all saw on TV how social peace in Kerala was disturbed due to the judgment.
  • Shekhar Naphade concludes

Arguments of Senior Advocate R Venkataramani

  • This is a Sampradaya, either you believe in it or don’t.

Counsel for the petitioners

  • There are two conflicting judgment of Constitution Bench of SC. One is the Puttaswamy judgment on Aadhaar which says individual rights subjective to community interest. Second is Sabarimala judgment which props up individual rights.
  • How can court split faith into permissible faith and impermissible faith? Faith is faith.
  • We will hear two more lawyers on the side of review petitioners, remarks CJI Ranjan Gogoi
  • Merely because Ayyappas are from different religions is no ground to deny them denomination status, Senior Advocate Mohan Parasaran
  • There are several other places of worship across India with gender based restrictions which will be affected by the 2018 judgment. None of them were heard, advocate Gopal Sankaranarayanan
  • There is no reference to Section 4 of the Act, submits J Sai Deepak.
  • The current practice is not present in Rule 3(b). It flows from the two notifications, submits Sai Deepak.
  • When it comes to essential religious practice, Court should accept the word of the community, unless the Court finds that the community has made a false submission to that effect, Sai Deepak.
  • Review petitioners conclude. “We will give you 90 minutes”, CJI Ranjan Gogoi to respondents.

Arguments of Senior Advocate Jaideep Gupta

  • Sr. Counsel Jaideep Gupta for State of Kerala submits, “We are opposing review since no grounds have been made out for review.”
  • A challenge on the ground that Articles 15 and 17 have not been considered will not hold ground.
  • The review petitioners have analysed judgment in detail. That cannot be done in review.
  • Non consideration of arguments cannot be ground for review.
  • On essential practice there is tendency to confuse between essential practice of religion and essential practice of a temple. In this case, it is not an essential religious practice of the religion.
  • If Your Lordships go into essential practice of temple, each temple will have unique essential practice and hence each temple will be denomination temple. This would mean complete destruction of essential practice test.
  • So essential practice of individual temple will not amount to essential religious practice of religion for the purpose of Constitutional test.
  • It is not a private issue but a public law issue unless they argue that women between age 10 to 50 are not a class of Hindus.
  • Non-discrimination and non-exclusion are two values found throughout our Constitution.
  • Social peace has been destroyed is one argument that has been made. However, that is not something which Constitutional court should worry about while deciding Constitutional questions.
  • Bench rises for lunch. Hearing to continue at 2 pm.

Arguments of Senior Advocate Rakesh Dwivedi

  • Sr. Counsel Rakesh Dwivedi begins arguments for Travancore Devaswom Board.
  • Any practice which denies an equal right to practice or propogate the religion falls foul of Art. 25
  • Justice Indu Malhotra observes that Travancore Devaswom Board (TDB) had argued against the entry of women in the main case. Rakesh Dwivedi says TDB has taken a decision to respect the judgment and not seek review.
  • Dwivedi pointing out various questions of law addressed by the 2018 judgment and how each judge addressed them.
  • We have to transform society and include women in all walks of life. We should not point out biological attributes to exclude women from any walk of life.
  • “Equality” runs through the Constitution.
  • Rakesh Dwivedi concludes arguments for Travancore Devaswom Board.

Arguments of Senior Advocate Indira Jaising

  • The women who entered the Sabarimala Temple are facing social exclusion, a purification ceremony was held in temple after they entered.
  • Purification ceremony being held affirms that menstruating women are considered ‘polluted’.
  • The argument of Parasaran is that A.15(2) does not apply to Hindu temples. But last words of Art.15 (2)(b) is “dedicated to use of General public”. So a public temple like Sabarimala is covered by A.15. It is not a family temple.
  • Interpret all Articles of Constitution harmoniously.
  • What was at stake in the original hearing of this case was gender justice.
  • On dissenting judgment of Indu Malhotra J., Jaising says it has relied upon other dissenting judgments.
  • If the judgment was against us, we would not have rioted, says Jaising. We would have filed review and curative but not indulged in violence.
  • A case for review is not made out. Your Lordships may keep in mind the basic feature of Indian Constitution which is gender justice, Jaising concludes while seeking positive directions to facilitate entry of women who have applied online.
  • Supreme Court reserves judgment in 65 petitions including 56 review petitions and 4 fresh writ petitions.

Read the order:

Kantaru-Rajeevaru-vs-Young-Lawyers-Association-order-watermark.pdf
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