Supreme Court call on Sabarimala is counterintuitive

The framers of the Indian Constitution picked the three ideals of the French Revolution — liberty, equality and fraternity — and put them on its preamble. They are unconditional and non-negotiable; all other freedoms, including the right to profess and practise religion, have been put a notch below them. The courts have all along upheld that principle. The historic judgment by a Constitution Bench on the Sabarimala issue on September 28, 2018, was the latest to reiterate the primacy of equality, pronounced in Article 14 of the Constitution, and decreed that the idea of gender justice gets its protection. It also held that a ban imposed on women in the menstruating age from entering the hill shrine was illegal and ultra vires of the Constitution.

In the 70th year of the Constitution’s coming into being, the Supreme Court of India has ordered a review of that long-held idea. In a majority 3-2 judgment, the bench headed by Chief Justice of India Ranjan Gogoi which heard a batch of review petitions on the 2018 judgment on Thursday ordered that a larger bench take up for discussion and bring in clarity on seven issues, the first one being “the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14”. The court felt that the courts have no epistolary jurisdiction and hence the order. It is tough to understand what coaxed the apex court to order a review of an idea which has defined modern, constitutional democracy. It also defies logic since the other three matters which the court said the larger bench will examine — the entry of Muslim women in mosques, the rights of Parsi women marrying out of their religion and the female genital mutilation practised by the Dawoodi
Bohra community — contain traits common to the seven issues.

The Supreme Court has also kept the review petitions on an issue that has been agitating the minds of a lot of people, especially in South India, pending. Those who believe that young women’s entry in the hill shrine will alter the character of the deity at Sabarimala rushed to the court to have its order reviewed, but got no conclusive ruling. Neither the majority nor the minority order stayed the 2018 order, nor overruled it. As per the majority verdict, there will be no decision on the review petitions until a larger bench decides on the seven questions. It would be unfair to them to keep the issue pending for long. The apex court must bring a closure to it at the earliest.

The minority judgment, however, opens a window for the state government as to how to approach the Supreme Court order. Justice Rohinton Nariman, who wrote the dissenting judgment and later on Friday reiterated that the original judgment sustains, has said the “government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the court meet the genuine concerns of all segments of the community”. The state government must act on it.