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[Sabarimala] Remember That The "Holy Book" Is The Constitution Of India; Justices RF Nariman & DY Chandrachud Dissent

Ashok Kini
14 Nov 2019 10:29 AM GMT
[Sabarimala] Remember That The "Holy Book" Is The Constitution Of India; Justices RF Nariman & DY Chandrachud Dissent

"It is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this "Magna Carta" or Great Charter of India."

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Let every person remember that the "holy book" is the Constitution of India, remarked Justice Rohinton Fali Nariman, also speaking for Justice Dhananjaya Y. Chandrachud, in his dissent against the majority decision to refer the issues to larger bench.

The judges opined that most of the arguments raised in the review petitions were already argued during the hearing of the writ petitions and were dealt with in the judgment of 28th September 2018. The judge still dealt with the arguments that was made by various parties during the hearing of review petitions. Following are some of those observations made in the dissenting opinion by Justice Nariman. 

Disagrees with Reference To Larger Bench

At the outset, Justice Nariman, expressing his disagreement about the reference made to larger bench by the majority headed by CJI Ranjan Gogoi, said that what a future constitution bench or larger bench may or may not do when considering the other issues pending before this Court is, strictly speaking, not before the Court at all. He said:

"As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice's judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras."

Justice Chinnappa Reddy Judgment Relied By Justice Malhotra Was A Dissenting Opinion

The court noted that the judgment of Chinnappa Reddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a dissenting judgment and Justice Indu Malhotra strongly relied upon the judgment of Chinnappa Reddy stating that the judgment of Chinnappa Reddy, J. is a concurring judgment on the aspect of religious denomination.

"The conclusion of Malhotra, J., based on the observations contained in the dissenting judgment of Chinnappa Reddy, J., could not be said to be a possible view on this aspect. Without entering further into this controversy, we may only reiterate that the majority Judges have correctly held that the views of Chinnappa Reddy, J. are dissentient, as was recognized by Chinnappa Reddy, J. himself."

Nothing To Show that Exclusion of Young Women Is An Essential Religious Practice

Regarding the issue raised whether the practice of excluding women between the ages of 10 to 50 from the shrine at Sabarimala would constitute an essential religious practice, the judge noted:

"Nothing has been shown to us, as was correctly pointed out by the learned Chief Justice, from any textual or other authorities, to show that exclusion of women from ages 26 10 to 50 from Hindu temples is an essential part of the Hindu religion. This again is a ground that must be rejected, both because there is no error apparent, and because the same ground that was argued in extenso before the original judgment was delivered, is being reargued in review

"Constitutional morality" is nothing but the values inculcated by the Constitution,

The review petitioners had contended that judgments of Dipak Misra, C.J. and Chandrachud, J., in relying upon "constitutional morality", suffered from an error apparent, in that constitutional morality is a vague concept which cannot be utilised to undermine belief and faith. On this aspect, the bench said:

Here again, apart from the fact that "constitutional morality" has now reached the level of stare decisis, 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 and IV thereof. This again is a mere rehash of what was argued earlier, and can by no means be said to be an error apparent on the face of the record.

Article 25 Not Carte Blanche To One Particular Section To Trample Right To Belief Of Of Other Section Belonging To Same Religion

The judges also rejected the contention advanced that that belief and faith are not judicially reviewable by courts. It said that Article 25, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion.

Such arguments need to be rejected out of hand. Not only do they not constitute "errors apparent", but are arguments that fly in the face of Article 25. Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument, that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis. The ratio of the majority judgments in this case is only that the exclusionary practice of keeping women from the ages of 10 to 50 from exercising their right of worship in a particular Hindu temple falls foul of Article 25 of the Constitution of India inasmuch as (i) all persons are equally entitled, when they belong to the same religious group, to exercise their fundamental right of practicing religion; and (ii) that this is a case covered by Article 25(2)(b), which deals with throwing open all Hindu religious institutions of a public character to all classes and sections of Hindus. The majority judgments have held that Section 3 of the 1965 Act is a legislation in pursuance of this part of Article 25(2)(b), which expressly comes in the way of any custom which interferes with the rights of women from the ages of 10 to 50 from worshipping in a Hindu religious institution of a public character. Article 25(1) also contains two other exceptions, namely, that this right is (a) subject to public order, morality, and health; and (b) is also subject to the other provisions of Part III, as has been explained in the majority judgments. This argument must also, therefore, be rejected.

Sabarimala Is A Hindu Temple

Another argument raised by the review petitioners was that was made is that since worshippers from all faiths come to Sabarimala, Sabarimala cannot be held to be a Hindu temple. Rejecting the same, the judges said:

"This argument, again, has no legs to stand on. A Christian church cannot be said to be any the less a church on account of allowing persons of all faiths to enter and worship therein. There is no doubt that the temple at Sabarimala, being dedicated to a Hindu idol – Lord Ayyappa – is a Hindu public religious institution, like the other temples dedicated to Lord Ayyappa, which are undoubtedly Hindu public religious institutions. This argument must also be rejected."

Gender Restrictions In Other Places Of Worship Will Be Decided On Their Own Merits

An argument was made that there are gender restrictions in other places of worship, which, being essential religious practices, have not been interfered with. This is a general argument which needs to be rejected on the ground of vagueness, apart from the fact that this is not an argument which could be made in review. As and when such gender restrictions in other places of worship are tested, they will be decided on their own merits keeping in view the provisions of the Constitution.

Previous erroneous decision by HC does not stand in way of SC declaring law of the land

On the High Court judgment being Res Judicata, the court said

A previous decision by a High Court, erroneously interpreting Article 25 in an earlier PIL, can obviously not stand in the way, by resort to a rule of procedure, of a judgment of five Judges of the Supreme Court declaring the law of the land on this aspect. 

Majority judgment cannot be used to undermine the religious rights of others

On the issue of locus standi, the judges said:

Indu Malhotra, J. in her dissenting judgment, has held that to entertain a public-interest litigation at the behest of persons who are not worshippers at Sabrimala temple would open the floodgates of petitions to be filed questioning the validity of religious beliefs and practices followed by other religious sects. We have pointed out in this judgment that the majority judgment cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself, by applying the parameters laid down in State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 SCC 402 (at paragraph 181). The fear expressed by the learned dissenting judge is therefore quite unfounded. As has been pointed by Nariman, J. in the majority judgment (at paragraph 175), the present case raises grave issues which relate to gender bias on account of a physiological or biological function which is common to all women. It is for this reason that a bonafide public-interest litigation was entertained by the majority judgment, having regard to women's rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in.

Incumbent on Executive To Carry Out Court Rulings

The judge then seriously considered the argument raised that the fact that there have been mass protests against implementation of this judgment, we ought to have a re-look at the entire problem. While dealing with them, the judge observed that in our constitutional scheme, the Supreme Court is given a certain pride of place.

The judge, particularly referred to Article 144 and said:

At this juncture, it is important to understand the true reach of Article 144 of the Constitution of India. What is of great importance is that it is not judicial authorities alone that are to act in aid of the Supreme Court – it 38 is all authorities i.e. authorities that are judicial as well as authorities that are non-judicial. The expression "civil" is an expression of extremely wide import, and deals with anything that affects the rights of a citizen. Therefore, even textually, all "authorities" which exercise powers over the citizens in the territory of India are mandated to act in aid of the Supreme Court

Observing that the expression "authorities" in Article 144 is to be given the widest possible meaning, the judge said:

Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all persons bound by it. In addition, Article 144 of the Constitution mandates that all persons who exercise powers over the citizenry of India are obliged to aid in enforcing orders and decrees of the Supreme Court. This then is the constitutional scheme by which we are governed – the rule of law, as laid down by the Indian Constitution.

Taking note of the form of oath administered to ministers of state and Central Governments, Justice Nariman said:

Read with Article 144, this would mean that it is the bounden duty of every Minister, whether Central or State, to follow Article 144 in letter as well as spirit, and to do what is right to all manner of people, in accordance with the Constitution and the law, which means in accordance with the interpretation of the Constitution declared by the law laid down by the Supreme Court. It is, therefore, incumbent upon the executive branch of Government and all MPs and MLAs to faithfully aid in carrying out decrees and orders passed by the Supreme Court of India when such decrees and orders command a particular form of obedience, even where they are not parties to the litigation before the Supreme Court. Any deviation from this high constitutional principle is in derogation of the oath taken by every Minister and Legislator during his term of office. Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes, or instigating or tolerating mob violence, in defiance of decrees or orders passed by the Supreme Court of India does not reign instead.

Thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced

Justice Nariman also quoted the chapter of Fundamental Duties and observed:

Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things. After all, in India's tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the "holy book" is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this "Magna Carta" or Great Charter of India.

Compliance is not a matter of option

The Constitution places a non-negotiable obligation on all authorities to enforce the judgments of this Court. The duty to do so arises because it is necessary to preserve the rule of law. If those whose duty it is to comply were to have a discretion on whether or not to abide by a decision of the court, the rule of law would be set at naught. Judicial remedies are provided to stakeholders before a judgment is pronounced and even thereafter. That, indeed, is how the proceedings in review in the present case have been initiated. Hence arguments have been addressed, exchanged between counsel and considered with the sense of objectivity and fairness on which the judicial process rests. These remedies within a rule of law framework provide recourse to all those who may be and are affected by the course of a judicial decision. When the process is complete and a decision is pronounced, it is the decision of the Supreme Court and binds everyone. Compliance is not a matter of option. If it were to be so, the authority of the court could be diluted at the option of those who are bound to comply with its verdicts.

Organised acts of resistance to thwart the implementation of this judgment must be put down firmly 

Disposing of the petitions, the judge directed thus:

The State of Kerala is directed to give wide publicity to this judgment through the medium of television, newspapers, etc. The government should take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State 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. Organised acts of resistance to thwart the implementation of this judgment must be put down firmly. Yet in devising modalities for compliance, a solution which provides lasting peace, while at the same time reaffirming human dignity as a fundamental constitutional value, should be adopted. Consistent with the duties inhering in it, we expect the State government to ensure that the rule of law is preserved. 

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