Supreme Court decision may end up helping BJP keep Sabarimala controversy burning in Kerala

The major takeaway from the Supreme Court’s order on Thursday in a batch of review petitions filed in the Sabarimala case is that the legal aspects will take a back seat for the time being. The Bharatiya Janata Party and the Sangh Parivar, looking desperately to convert the issue into a campaign plank in Kerala, will try to derive maximum mileage from the religious controversy that has now been kept alive.

But before examining these political repercussions, a legal analysis of the judgement is warranted to put things in context.

In September last year, a five-judge bench of the Supreme Court declared that the practice of preventing women of menstrual age from entering the Ayyappa temple in Kerala’s Sabarimala was unconstitutional. That judgement was delivered by a majority of four judges. Justice Indu Malhotra dissented, taking the opposite view. Of the five judges on that bench, four took spots on the bench that considered the petitions that the judgement be reviewed. The new addition to the bench was the Chief Justice of India Ranjan Gogoi, who replaced former Chief Justice Dipak Misra.

On Thursday, the tables were turned. Justice AM Khanwilkar, who agreed with declaring the practice illegal last year, joined a three-judge majority opinion consisting of Justices Gogoi and Malhotra to refer what they believe are important constitutional questions that emerge from the review petitions to a larger seven-judge bench. Last year’s judgement allowing all women to enter the temple has not been stayed. But the review petitions have been kept pending till the larger bench decides on the constitutional questions.

Dissenting against this opinion of the majority were Justices RF Nariman and DY Chandrachud. The dissent written by Nariman is not just a fantastic elucidation of the principles of review, but also a lesson in history on the importance of implementing the decree of the highest court of the land, failing which the very idea of rule of law will be destroyed.

Larger questions

In its opinion written by Justice Gogoi, the majority of three judges have held that it was time for a larger bench to authoritatively rule on the tenets that govern fundamental rights connected to the freedom of religion in Article 25 and Article 26 of the Constitution.

In this, the majority has listed seven questions that the larger bench may look into. This includes the meaning of reasonable restrictions that govern Article 25, including public order, morality and health; the very question of what the term “constitutional morality” means; and the meaning of the expression “section of Hindus” in Article 25 (2) (b) of the Constitution.

In doing so, the majority opinion points out that Sabarimala is not the only instance where substantial questions relating to gender and religious rights have come up before the court. Other cases include the entry of Muslim women into mosques, the entry of Parsi women marrying non-Parsi men into fire temples and female genital mutilation in Dawoodi Bohra community and court feels such substantial questions on religious rights may emerge from those cases as well.

The Sabarimala petition will remain pending till the larger bench decides on these substantial questions of law.

Authoritative dissent

In his dissent, also shared by Justice Chandrachud, Justice Nariman argued that the scope of review petitions was limited and this has been established by a number of previous judgements of the Supreme Court. Expressing his inability to agree with Justice Gogoi and the other two judges, Justice Nariman said:

“What this Court has before it is review petitions arising out of this Court’s judgment in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006, which was delivered on 28 September, 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa. What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018.” 

Justice Nariman then extracts from earlier judgements that have established in unequivocal terms what the court should consider when dealing with review petitions, which are filed seeking reconsideration of a final order of the court. These principles are:

  “(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; 

(ii) Mistake or error apparent on the face of the record; 

 (iii) Any other sufficient reason.   

The term “any other sufficient reason” has also been defined by the Supreme Court in 1954 as a “reason sufficient on grounds at least analogous to those specified in the rule”. The court has been certain that a review is not an appeal where the same arguments made during the case proceedings get a fresh look. There has to be an error apparent in the face of the record that either undermines the soundness of the order or results in miscarriage of justice.

Justice Nariman then analyses every argument made by the lawyers during the review proceedings and shows that none satisfied the test for the review to be accepted. In other words, those seeking review failed to establish any error.

Rule of law

Justice Nariman also partly answers the question of what constitutional morality is, left to a larger bench by the majority. The parties had argued that this concept was vague. He noted in his opinion:

“Here again, apart from the fact that ‘constitutional morality’ has now reached the level of stare decisis [binding precedent], and has been explained in several Constitution Bench judgments, reliance thereon cannot be said to suffer from any error apparent. Constitutional law and constitutional interpretation stand on a different footing from interpretation of statutes. Constitutional law keeps evolving keeping in view, among other things, the felt necessities of the time. As has been explained in some of our judgments, ‘constitutional morality’ is nothing but the values inculcated by the Constitution, which are contained in the Preamble read with various other parts, in particular, Parts III[ fundamental rights] and IV [fundamental duties] thereof. 

In eloquent detail, Justice Nariman then moves to the importance of implementing orders of the Supreme Court. It was pointed out during the arguments that people were protesting against the court’s judgement and that there was obstruction to women entering the temple.

Stating that the holy book of the republic is the Constitution, the judge argued that the scheme of the Constitution is such that it binds all authorities to act in the aid of the Supreme Court to implement its orders. This does not exclude even the prime minister and the chief ministers. He warned:

“It is necessary for us to restate these constitutional fundamentals in the light of the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple. Let it be said that whoever does not act in aid of our judgment, does so at his peril – so far as Ministers, both Central and State, and MPs and MLAs are concerned, they would violate their constitutional oath to uphold, preserve, and defend the Constitution.”

New standards of review?

What the contrasting opinions highlight is the curious nature of the majority’s view. Here is a case where in anticipation of issues in different proceedings that have not yet concluded – like of Muslim women entering mosques – a bench refers substantial questions of law to a larger bench. Like Justice Nariman points out, benches hearing those matters will refer questions to larger benches if there is a need. To preempt proceedings of those benches is indeed judicial indiscipline, which the majority seems to have disregarded.

The ruling also brings together absolutely unconnected matters under the same umbrella in the form of raising substantial questions of law. Though it has not expressly said that the matters relating to other communities will also remain pending till the larger bench decides on constitutional questions, this indeed makes it difficult for benches hearing those matters to continue proceedings till the larger bench decides on these questions.

Political impact

The Bharatiya Janata Party is bound to take advantage of this ruling as it has two effects. First, the ruling, by moving away from settled principles to deal with review petitions, has kept alive the politically sensitive Sabarimala controversy. It can be safely assumed that constituting a larger bench and then answering these questions before reverting back to the review petitions will take some time, given the enormous workload of the Supreme Court.

On the other hand, the court has not stayed the operation of its 2018 verdict allowing women to enter the Sabarimala temple. This means if women attempt to set foot in the temple, a fresh round of protests will erupt, something that is advantageous to the BJP in Kerala.

Further, the decision, by clubbing matters of different religious communities, will invariably put huge pressure on the Communist Party of India (Marxist) government in Kerala. With Assembly elections coming up in 2021, the party may not be ready to offend multiple communities and thereby may show reluctance in coming to the aid of women who want to pray at Sabarimala.