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'Essential Religious Practises Cannot Be Tested On Rationality',NSS Seeks Review Of Sabarimala Judgment

Manu Sebastian
8 Oct 2018 12:47 PM GMT
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Nair Service Society(NSS) has filed a review petition against the recent Constitution Bench judgment in Indian Young Lawyers' Association case which permitted entry of women of all age groups in Sabarimala temple, contending that the judgment suffers from "errors apparent on face of record". NSS was the sixth respondent in the case.

The petition states that Court ought not to have entertained the PIL questioning the practises of Sabarimala temple, when women worshippers were not opposed to such practises. "In the present case, subsequent events that transpired after the judgment of which judicial notice may be taken, clearly demonstrate that overwhelmingly large section of women worshippers are supporting the custom of prohibiting entry of females between the age of 10 and 50 years at Sabarimala temple. Such a relief at the instance of third parties in spite of opposition by a large section of women worshippers is anomalous". The petition states that there was no consideration of the issue of "locus standi" in the majority judgment.

"If the general ground of equality under Article 14 is resorted to and the essential religious practises are tested on principle of rationality, many essential religious practises may be rendered void as irrational or unjust", the petition asserts.

Further, it is pointed out that Court wrongly concluded that the basis of prohibition was physiological nature of women. According to the petition,the practise was rooted in the "naishtika brahmachari" character of deity, as per which the deity cannot be in the presence of women. The practise is therefore not derogatory to the dignity of women, states the petition.It is stated in the petition that references made by NSS during hearing to the passages from Valmiki Ramayana and Sivananda Lahiri to show that "naishtika brahmahcari" should avoid seeing women were not duly adverted to by the Court. "Delay or wait for 40 years to worship cannot be considered as exclusionary and it is an error on the face of judgment", submitted the petition.

Questioning the base of Justice Chandrachud's observation that 'burden of man's celibacy cannot be imposed on women', the review petition states : "While this observation may be made qua the individual devotees of Lord Ayyappa, the same cannot be made qua the deity because in case of the latter, it is purely a question of faith. Whether the presence of women in the procreative age affects the character of deity as a "Naishtika Brahmachari" has neither been addressed by the judgment, nor the question as to whether it is within judicially manageable standards to adjudicate thereon has been adverted to by the majority judgment".

The review petition- settled by Senior Advocate K Parasaran and filed through Advocate K V Mohan- further states that the conclusion in the judgment that the practise amounts to untouchability as per Article 17 is baseless, as it is made without understanding the historical context of untouchability, and the relevant Constituent Assembly debates which reveal the real intent behind Article 17, which was to end caste based stigma. The review petition contends that the argument raised by NSS that Article 25(2)(b) (which permits legislative intervention to throw open Hindu temples of public character to all classes and sections of Hindus) can be read only in the light of caste based restrictions, was not addressed by the majority judgment.  The further contention is that the judgment did not take into account the view expressed by Justice Rajagopal Iyengar in Sardar Syedna Taher Saifuddin Sahib  judgment  that Article 25(2) does not enable state to reform a religion out of its existence or identity. The judgment permitting women entry takes away the "naishtika brahmachari" character of Lord Ayyappa, thereby rendering the essence of faith in Sabarimala out of existence, "as it is a unique and the only temple for the Hindus of God being worshipped as manifested in the idol as "naishtika brahmachari".

It is also stated that the restriction was not on the ground of 'only' sex and it was based on sex and age, and hence there was no violation of Article 15.Also, there is no discussion in the judgment of the argument raised that "religious institutions" are conspicuous by their absence in Article 15.

The review also raises points of procedural errors. It is contended that the judgment of High Court of Kerala in Mahendran's  case had attained finality, as no appeal was filed against it. The PIL was an original proceeding, which cannot be regarded as a an appeal. Therefore, the findings of fact regarding the temple custom operated as res judicata and was binding on the SC. However, this aspect  was not discussed in the judgment, except in the minority judgment. It is also stated that the Court committed error by making factual findings merely on the basis of affidavits.

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