Sabarimala Verdict: Justice Khanwilkar changes stand on issue to align with CJI of the day

In a review of both the Sabarimala verdicts — one by former CJI Dipak Misra and the latest one by CJI Ranjan Gogoi — it becomes clear that it is Justice AM Khanwilkar who has reversed his stand to align with the CJI of the day.

On the 2018 bench, there were the former CJI Dipak Misra and Justices Rohinton F Nariman, Indu Malhotra, DY Chandrachud and Khanwilkar. Then Justice Khanwilkar had gone with the majority decision penned by then CJI Misra, who ruled that women worshippers between the age group of 10 and 50 must be allowed entry into the famed Ayyappa temple in Kerala’s Sabarimala. Then, he was a part of the 4:1 majority judgment, where only Justice Indu Malhotra has dissented. She was of the opinion that the Court should not interfere in religious practices followed by various communities. She has not changed her views even in the new judgment, while aligning with Justices Gogoi and Khanwilkar.

CJI Misra, who spoke on behalf of Khanwilkar and himself, had observed that religion is a way of life intrinsically linked to the dignity of an individual and patriarchal practices based on exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one's religion. Justice Khanwilkar had also held that the devotees of Ayyappa did not pass the constitutional test to be declared a separate religious identity and exclusion of women cannot be an essential religious practice.

Then both Justice Nariman and Justice Chandrachud had read out separate but concurring judgments.

After CJI Misra’s retirement, current CJI Ranjan Gogoi replaced him on the five-judge bench. All the others remained the same.

In the latest judgment after reviewing a batch of review petitions, Gogoi, on Thursday, November 14, ruled that the Court first needs to decide on whether it can interfere in essential practices of religion and also the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14 .

Until the SC decides what it’s role will be while deciding the extent to which the court can enquire into the issue of a particular practice is an integral part of a religion or religious practice, the Sabarimala review petitions will be kept pending.

Going against his earlier verdict, Justice Khanwilkar decided to agree with CJI Gogoi and Justice Indu Malhotra, who were suggesting the formation of a larger bench to look into these matters. It almost seems that his only stand in the matter is to align with the CJI of the day.

Both Justices Nariman and Chandrachud stuck to their original decisions and gave a scathing minority judgment. In the judgment signed by both, they state that they disagree with the CJI and asserted that “what a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all” and that the Court only had to look at the review petitions with regards to their earlier judgment in the same issue.

They even pointed out that in the earlier judgment, neither did CJI Misra or Justice Khanwilkar “find it necessary to opine on Article 15(2) and Article 17 of the Constitution in view of their findings on various other points. It was only Justice Nariman who had done so and it was to strike down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules of 1965. This rule pertained to entry of women “during such time during which they are not by custom and usage allowed to enter a place of worship”, which translates into during their mensuration.

This decision to keep the Sabarimala petitions pending by a 3:2 majority must be seen in the backdrop of Rashtriya Swayamsevak Sangh’s (RSS) initial interest in ensuring women of all age groups enter the Sabarimala temple. This is a forerunner for the Uniform Civil Code in which the Sangh Parivar is extremely interested in.

Since 2016, RSS general secretary Bhaiyyaji Joshi has been stating that unfair traditions have caused ban of women in many temples. He added that both men and women have been permitted entry into the temples without any discrimination and even women have been learning the Vedas and officiating as priests in temples in the natural course.

This was done in the hope that most women in Kerala would have agreed with their suggestions and would welcome it.

Soon, after the 2018 verdict, initially RSS backed it, but when it became clear that there were protests in Kerala against it, RSS decided to change it track. Then its chief Mohan Bhagwat said, “premise of the tradition that has been accepted by society and continuously followed for years together was not taken into consideration”.

Bhayyaji also changed his stance but tried to balance it saying devotees did not want it. He pointed out that while the Sangh respects the court’s judgment, the sentiments of millions of devotees, including women, cannot be ignored.

The reason for having kept the petition in pendency must be seen through this lens as the Sangh Parivar is essentially for the entry of women into the Sabarimala temple as it would help in paving the way for a Uniform Civil Code. If a ruling on the entry of women into Sabarimala temple is passed, it would allow for other similar cases with respect to the entry of Muslim women in mosques and entry of Parsi women after marrying a non-Parsi in their temples to be reviewed.