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Legal Matters | SC’s Sabarimala review makes a bad judgment worse

The cases clubbed with the Sabarimala case for consideration by a larger bench of the Supreme Court are so distinctly different that it is unlikely that an authoritative pronouncement will come out of considering each of them in combination.

May 10, 2020 / 12:27 PM IST

Last year, when a Constitution Bench of the Supreme Court ruled in favour of permitting entry of menstruating women into the Ayyappa temple at Sabarimala, there was a deep sense of unease with the judgment: Not just among the devout across religions, who now feared that the court was going to judge their religious practices, but also many Constitution watchers, who felt that the court should have stayed out of this one.

Religion, after all, is an endeavour that can be rationalised only in the minds of the devout of that religion. Can you then hold religious practices to constitutional standards, which inherently presumes rationality?

The widespread protests against the judgment, probably orchestrated, left people with a bad aftertaste. In addition, citizens began filing petitions seeking entry of women into places of worship for other religions. Therefore, there was more than usual expectation that the review petition filed against the judgment would be allowed (and effectively overturning it).

However, when it came, the Supreme Court managed to make a bad problem worse, without really addressing the criticisms against the judgment. Referring to a slew of cases elating to religion that were before the court — the barring of women from most mosques, the restrictions on non-Parsis from entering their sacred Fire Temple, and the practice of Female Genital Mutilation among the Dawoodi Bohra community of Muslims — the court recommended that the interplay of religion with constitutional rights be examined by an even larger bench.

Alas, these cases are so distinctly different that no authoritative pronouncement can come out of considering each of them in combination. Each of them perpetuating a different form of discrimination, some more egregious than the others.

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The most startling of these instances is the practice of Khatna, which involves the full or partial removal of the clitoral hood of girl children around the age of six or seven (The Dawoodi Bohra community objects to the term Female Genital Mutilation). Last year, its legality was referred to a Constitution Bench. Its critics argue that it involves inflicting of bodily harm on a minor child (The lawyer for the community argues that it is merely a nip, no different from male circumcision, and that an overwhelming majority of the women of the community have embraced the practice). Irrespective, this is, by no means, a question of religious beliefs. Bodily harm (of whatever intensity) on children cannot be judged through the mere lens of religious freedoms. Even if the religious leader thought it was an absolutely essential practice, the court can and should step in.

Similarly, the question of entry of women into the Fire Temple isn’t a question of discrimination against women. Goolrokh Gupta, the appellant before the court was a Parsi who married a Hindu, and was consequently denied entry to the sacred Tower of Silence to attend her father’s last rites. The court essentially will be examining whether a person completely loses her previous identity on marriage outside a community.

In the appeal over entry to the Haji Ali shrine, the court will be examining a question of discrimination against women simpliciter, but it is important to remember that the Sabarimala case is more complex. In Sabarimala, the relevant constitutional question was whether the temple authorities discriminated between menstruating women and other women, and the attendant notions of purity and pollution. Justice DY Chandrachud, in his concurring judgment says that the “social exclusion of women based on menstrual status, is a form of untouchability which is an anathema to constitutional values”, taking the dispute much beyond the realm of mere religious practices.

In fact, as the dissenting judgment argues, the main judgment should have decided the review petition on merits (either upheld its earlier judgment, or rescinded it). A judgment can be reviewed if there is ‘a mistake on the face of the record’. Its vacillation has now sent the message that the Supreme Court might be cowed by shows of strength — both on the streets, as well as through the filing of frivolous petitions targeting other communities, obviously intended to browbeat the court.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
Abraham C Mathews
first published: Nov 18, 2019 10:24 am

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