Sabarimala: An unusual review

The Supreme Court’s order referring the issues related to the entry of women into the Sabarimala shrine to a seven-judge bench for an “authoritative pronouncement’’ on them has actually raised new issues and created confusion, instead of answering the specific question posed to it in the review petition and other petitions filed against last year’s judgement. The September 2018 judgement had held that denying entry for women in the 10-50 age group into the temple was discriminatory and violative of the right to equality. Dealing with the review petition, the court has gone beyond its scope and introduced new issues to be decided by a larger bench. It has framed some issues related to religious freedom of individuals and groups in other religions, too, to be considered, and the interaction between personal freedom and restrictive traditional practices, or a conflict between them, will have to be gone into again. A decision on the review petition will now have to await the court’s decision on those issues.

In a review petition, the court looks at only a particular judgement and corrects lapses or mistakes, if any, in that. In a strange and unusual procedure, the court has sought to go again into the issues which the bench had already settled, and even to produce a new judgement. This amounts to treating the review petition like an appeal and does not set a good precedent. The bench has, in fact, taken decisions on some issues which are being considered by other benches, to the extent that they have to be studied by the larger bench. These include the entry of Muslim women into the dargah, the rights of Parsi women married to non-Parsis and the practice of female genital mutilation among Dawoodi Bohras. The last issue cannot even be clubbed with others.

Last year’s judgment was delivered with an emphatic 4-1 majority. One of the judges, Justice Khanwilkar, who had favoured women’s entry into the shrine, has changed his stance now, but has not given his reasons for that. Two others, Justice Chandrachud and Justice Nariman, have stuck to their views and strongly stated them. The majority judgement has weakened last year’s landmark judgement which had underlined the importance of the constitutional rights of women. This is unfortunate when there are pressures from various sides on the rights of not just women but all citizens. The court has not stayed last year’s judgement and technically it is still valid, but there are celebrations of victory from all those who had opposed that judgement. The court’s treatment of the Sabarimala case review petition seems to take it into another controversial terrain – that of a uniform civil code for all communities.