14 November 2019
New Delhi: The minority judgment by Supreme Court's Justices R.F. Nariman and D.Y. Chandrachud in the Sabarimala review case on Thursday cited the US Congress decision to outlaw racial discrimination in every form to justify its stand on quashing the custom barring entry of women in 10-50 age group to the temple in Kerala.
"Constitutional morality did ultimately triumph over racial discrimination," said the judges referring to the US Congress finally outlawing racial discrimination in every form, including segregation of races at schools.
The enactment of the Civil Rights Act by the US Congress in 1964 came after the US Supreme Court, in Brown v. Board of Education of Topeka, (1954), overruled a long-standing precedent of 1896, namely Plessy v. Ferguson, which ruled segregation of black and white students in state schools.
The judges also cited the constitutional crisis, when the Governor of Arkansas openly flouted the desegregation order mandated by the US Supreme Court. "In 1957, the Governor and officers of the Arkansas National Guard obstructed black children from entering the high school at Little Rock. Uneasy tension prevailed as the students were prevented entry," the scenario cited by judges, which they considered fits well in Sabarimala issue.
However, President Dwight D Eisenhower then dispatched federal troops to the high school, and as a result, admission of black students was effected.
Justices Nariman and Chandrachud reckoned it paved the way for social transformation, and supported a similar movement to allow women of all age group entry into the temple.
"The great democratic constitutions of the world have been promulgated, so that social transformation takes place peaceably, as the result of the application of the rule of law," said the two judges, citing implementation of the Supreme Court judgement which allowed women entry into the temple.
Both judges were on the Constitution bench that delivered the original majority judgment in September 2018, and they also dismissed the majority referring the issue to a larger Bench.
Justice Nariman, who wrote the dissent, observed the verdict of the five-judge bench was the last word on the interpretation of the Constitution. Once a Constitution Bench has laid down the law, both the legislature and the executive, were bound to comply, and this is the rule of law.
The judges observed that it is necessary to restate constitutional fundamental in the light of the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at Sabarimala temple.
"Let it be said that whoever does not act in aid of our judgment, does so at his peril - so far as Ministers, both Central and State, and MPs and MLAs are concerned, they would violate their constitutional oath to uphold, preserve, and defend the Constitution," said the judges.
They criticized 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.
"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 when such decrees and orders command a particular form of obedience, even where they are not parties to the litigation," observed the court.
The judges highlighted the grave of gender bias in procedures of the temple. "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," observed the court.
The judges also emphasized 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.
Justice Indu Malhotra, who was part of the majority judgement, in her dissenting judgment, has held that entertaining 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," observed the minority judgement.
Chief Justice Ranjan Gogoi's majority judgement clubbed entry of Muslim women in mosques, Parsi women to tower of silence, etc, with Sabarimala women entry issue. Justice Nariman disagreed and said the issue is for future Constitution benches.
The five-judge Constitution bench has kept the final decision on the Sabarimala temple review petitions pending until a larger seven-judge bench decides on the court's role in scrutinising matters which are essential religious practices in multiple faiths.