The Supreme Court, while referring a clutch of review petitions on the Sabarimala issue to a larger bench on Thursday, seemed to hint that the five-judge Constitution bench that invalidated the ban on menstruating women in Sabarimala on September 28, 2018 had jumped the gun.
The majority judgment read out by Chief Justice Ranjan Gogoi sounded even a bit apologetic that the Sabarimala issue was settled when gender restrictions of equal or even greater import imposed by various other religious sects were still pending in the Supreme Court.
“It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together,” Justice Gogoi said on Thursday. While the Sabarimala question was settled, Justice Gogoi said the prospect of other such cases being referred to a larger bench could not be ruled out. Justice S A Bobde, for instance, had earlier set aside a decision on the question of women's entry into mosques.
The Chief Justice cited the petitions related to the entry of women in durgahs and mosques, the rights of Parsi women married to non-Parsi men, and the practice of female genital mutilation (the equivalent of male circumcision) in Dawoodi Bohra community, a sect of Shia Muslims. “It is our considered view that the issues arising in the pending cases may be overlapping and covered by the judgment under review,” Justice Gogoi said.
Legal interpretation is, the majority judgment led by the Chief Justice wants questions of gender discrimination in all religions to be tested using the same constitutional standards, and simultaneously. It wants all of them – the constitutional validity of women-related customs in Hindu, Muslim and Parsi religions – settled in a single verdict.
Is constitutional morality too vague?
The majority judgment also seems a bit unsure about a principle that the September 28, 2018, majority ruling had quite unequivocally, and splendidly, established. The supremacy of constitutional morality over religious customs.
If any religious practice comes in conflict with this, the September 28 verdict ruled that the morality as stated in the Constitution will prevail. This was why gender equality was given more weightage than an exclusionary religious custom in Sabarimala in the original order. “The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy,” former Chief Justice Dipak Mishra said in the September 28 order: Justice Mishra, then, was speaking for Justice A M Khanwilkar, too.
But now even Justice Khanwilkar is conflicted, he is not as sure. He went along with Chief Justice Gogoi's stand that constitutional morality was not adequately defined. “The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it overarching morality in reference to the Preamble or limited,” the Chief Justice asked, and added: “There is need to delineate the contours of that expression, lest it becomes subjective.”
Last time, Justices D Y Chandrachud and Indu Malhothra had debated the concept. Then, Justice Chandrachud argued: “A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality.”
Justice Malhotra, who then was the lone dissenting voice and now is part of the majority ruling, had a different view. “Constitutional morality in a secular polity would imply the harmonisation of the fundamental rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical.”
Can courts rule on priestly affairs?
After going ahead and striking down the ban on women in Sabarimala, a sudden confusion seems to have crept in on the propriety of such a ruling. The majority ruling on Thursday was doubtful about the extent to which the court can inquire into the issue of a particular practice as an integral part of the religion or religious practice of a particular religious denomination. “Or should that be left exclusively to be determined by the head of the section of the religious group,” Justice Gogoi asked.
The Chief Justice pointed out that even the Supreme Court had given conflicting rulings on the issue. In the Shirur Mutt case in 1954, the apex court ruled that essential religious practices of a particular denomination should be left to be determined by the denomination itself. But in 1962, in Ajmer Durgah Committee case, it said the court had the powers to determine secular and superstitious beliefs and customs.
Can a non-devotee speak for Sabarimala?
Yet another question the Supreme Court wants the larger bench to consider is whether it is proper for a person to file a PIL against the customs and rituals of a religion he or she is not part of. The charge against the petitioners in the Sabarimala case, the Indian Young Lawyers Association, was that most of its members were non-Hindus.
Justice Indu Malhotra had flagged this issue. “The petitioners do not claim to be devotees of the Sabarimala temple,” Justice Malhotra said. “The right to worship, claimed by the petitioners, has to be predicated on the basis of affirmation of a belief in the particular manifestation ('naishtik brahmachari')of the deity in this temple,” she added.
Justice Malhotra also said if this was allowed then it would open the floodgates of petitions to be filed questioning the validity of religious beliefs and practices followed by other religious sects, especially minorities.
Justice R F Nariman, in his dissenting ruling, sought to allay Jutice Malhotra's fears. “The majority judgment (September 28, 2018) cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the court at the threshold itself,” Justice Nariman said.
