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Kerala Govt On Sabrimala Case: Constitutional Invalidity Cannot Be Permitted To Go On

Kerala Govt On Sabrimala Case: Constitutional Invalidity Cannot Be Permitted To Go On

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by February 6, 2019 India, Law, Lead, Legal, States

A five judge bench headed by Chief Justice Ranjan Gogoi was set up to hear review petitions against the Sabrimala temple verdict on Wednesday morning. The petitions were opposing the entry of women of reproductive age in the temple. In the initial two hours of the hearing, the Court allowed 10 representative advocates on behalf of Nair Service Society, Ayyappa Seva Samithi and the Sabarimala thantri to present their stance. The Court then asked the Kerala government to present their side. 

Appearing for the Kerala government, advocate Jaideep Gupta made it clear that the government was opposing the review petitions as no grounds had been made out for review.

He started his argument by laying out three major points on the basis of which the Supreme Court had decided that the ban on women of all ages needs to be struck down. “The majority judgment had consensus on three points: 1. Ayyappas are not a religious denomination by themselves. 2. When a person’s right to worship is violated, Article 25 gets violated. 3. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorises restriction on women “of menstruating age” is violative of the parent Act itself,” he said.

Jaideep Gupta asserted that essential practice of religion and essential practice of a temple cannot be confused and that exclusion of women from a temple was not essential to Hindu religion.

“Every temple may be having its own practice. Court cannot go into the essential practices of every temple. That would mean each temple is a denominational temple. That will lead to the destruction of essential religious practise test,” he argued.

The Kerala government’s counsel also opposed arguments put forward by various petitioners that it was a private issue. “It is about public law issue unless they argue that women between age 10 to 50 are not a class of Hindus,” Jaideep Gupta said.

The counsel also told the bench that it should not consider the tension and violence that followed the judgment. “That social peace has been destroyed is not a ground for reviewing the judgment. Constitutional invalidity cannot be permitted to go on,” Jaideep Gupta argued.

The proceedings of the day started with the Chief Justice asking the senior advocates to confine their arguments to the grounds in the review petitions. In the course of two hours, nine advocates, appearing for various petitioners, presented their arguments before the Supreme Court.

The first to present the case was senior advocate K Parasaran, who was appearing for the Nair Service Society. Speaking for more than 20 minutes, he submitted that the Constitution bench had failed to deal with the interplay of the Constitution’s Preamble and Articles 15, 17, and 25 of the Constitution.

Parasaran highlighted that Article 15 (prohibition of discrimination), which threw open all public institutions of secular character to all classes of person, conspicuously omitted religious institutions and therefore it was an error to strike down a temple custom under Article 15.

He also asserted that the Supreme Court’s September judgment did not consider the crucial aspect that Article 15 (2) does not cover religious places. The omission to consider this aspect constitutes an error apparent on record, the counsel submitted.

Parasaran concluded saying that the exclusionary practices in Sabarimala are based on the character of the deity, which is that of Naishtika Brahmachari or permanent celibate.

Appearing for the chief priest or thantri of the Sabarimala temple, senior advocate VV Giri reiterated that right to pray has been in consonance with the nature and form of the deity. He argued that the restriction in Sabarimala had been based on the character of the deity.

Advocate VV Giri argued that any person who asserts right under article 25(2)(b) to worship has to do it in consonance with the nature of deity.

On September 28, the Supreme Court in a 4:1 majority ruling lifted the ban on the entry of women between the ages 10 to 50 into the Sabarimala temple in Kerala.

The SC bench, comprising the then Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra, observed that Article 25, the right to practice religion, is applicable to both men and women and struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

Justice Indu Malhotra was the lone dissenting judge who ruled against lifting the ban and had observed that issues of deep religious sentiments should not be ordinarily be interfered by the Court.

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