The Sabarimala verdict of the apex court is a wakeup call for urgent and unavoidable judicial reforms. To delay or turn a blind eye to the need to make the judicial proceedings transparent and judges accountable will be to drive the country into turmoil as proved by the events that have unfolded in Kerala, post the verdict.

To recapitulate some crucial information about the events leading to the verdict and its effects, let us begin with the petition filed by Indian Young Lawyers Association, an NGO based in Delhi, and six women, including the general secretary of the NGO, in the Supreme Court in 2006. Incidentally, all these petitioners were or had been office bearers of the Supreme Court Bar Association. Why an original petition demanding permission of the apex court for women of a restricted age group to enter Sabarimala was never asked, the locus standi of the petitioners was never questioned.

The writ petition filed on July 28, 2006 alleged violation of articles 14, 15 (fundamental right to equality), 25 (fundamental right to freedom of religion) and 51A(e) (fundamental duty of every citizen…to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; and said the prohibition was derogatory to the dignity of women. It was based on newspaper reports published on July 1, 2006 and July 2, 2006 authored by Barkah Dutt, Sharvani Pandit and Vir Sanghvi.

Another newspaper report on July 25, 2006 in The Hindustan Times, under the heading ‘Sex slur fells Sabarimala priest’, involved the abduction of the Tanthri and photographing him with a woman who had been arrested earlier in an immoral trafficking case. This information was given in much detail to enable readers to deduce how the plot was hatched up in the first place. Finally, the petition sought to challenge rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which restricted women’s entry into a place of worship during such time when they were by custom and usage not allowed to enter a place of worship.

Ten years later, Naushad Ahmed Khan, President of Indian Young Lawyers Association, moved the Supreme Court in January 2016 to withdraw the PIL citing a threat to his life. The court, however, held that once a PIL is filed, it can’t be withdrawn at a party’s will.

A cursory reading of the petition shows that the petitioners had branded the basic beliefs and faith of devotees regarding the birth of Ayyappa Swamy and his choice of celibacy as false legends. The language used is hurtful of the religious sentiments of the devotees of Ayyappa Swamy. The High Court of Kerala had given a verdict on April 5, 1991 in S Mahendran Vs Travancore Dewaswam Board (AIR 1993 Ker 42) stating that the restrictions (on women between the ages of 10 and 50) were not violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. No appeals were made by the affected parties.

Recent reports in the media have sought to make out that the restriction came into force only with the verdict of 1991. The restriction is a tradition and matter of faith since the pilgrimage to the temple started: Ayyappa Swamy gave instructions to his foster father, the Raja of Pandalam, before he decided to settle down in Sabarimala at the place where an arrow shot by Ayyappa Swami had landed.

Interestingly, two women advocate petitioners in the case went on record that they were withdrawing from the case as they did not know about the faith of the devotees and rituals of the temple and had been misled into believing that it was a case of gender discrimination. The then Chief Justice, Dipak Misra, responded that the case would be pursued even if the petitioners withdrew. However, a comparison of the list of petitioners in the petition and the judgment shows that the name Ms Bhakti Pasrija, General Secretary of IYLA through whom IYLA had filed the petition, is missing from the list in the copy of the judgment. The list of respondents had increased from 5 to 13.

There is a website that provides copies of most documents connected to the case, right from the petition to the verdicts of each of the judges of the Constitution Bench that had heard the issue (http://scobserver.clpr.org.in/court-case/sabrimala-temple-entry-case). There are a lot of documents pertaining to the case listed under the heading Case Timeline; links to copies of the documents have been provided. However, one important document is missing at one of the links provided – a document purportedly clarifying the stand of the Kerala Government filed on November 7, 2016 (should have been available at

http://scobserver.clpr.org.in/court-case/sabrimala-temple-entry-case/sabarimala-order-clarifying-stand-of-the-kerala-government)

The Government of Kerala had filed its original affidavit on November 13, 2007 during the earlier tenure of the LDF government; it apparently favoured entry of women of all age groups. An additional affidavit was filed by it on February 4, 2016 (near the end of the tenure of the last UDF government) which, apart from refuting the averments in the original affidavit, explicitly stated that the present writ petition that seeks to change the beliefs and customs of crores of devotees by judicial process is wholly misplaced and liable to be dismissed. The chronology of the progress of the case makes interesting reading.

On August 18, 2006 the Supreme Court issued notices to the parties. On March 7, 2008 the matter was referred to a three-judge Bench. It came up for hearing seven years later, on January 11, 2016. After a year, on February 20, 2017 the Court expressed an inclination to refer the case to a Constitution Bench. Finally, on October 13, 2017 a Bench comprising Chief Justice Dipak Misra and Justices R. Banumathi and Ashok Bhushan ordered a Constitution Bench to pass judgment on the case. On September 28, 2018 the Constitution Bench, headed by Dipak Misra, delivered its judgment. Misra retired on September 30, 2018.

On the face of it, the majority verdict flies in the face of Article 26 of the Constitution which provides a fundamental right of freedom to manage religious affairs. If at all the fundamental right to equality had to be applied to the fundamental right of freedom of religion, it had to be to Article 25(2)(b) which is specific to Hindu religious institutions and Hindus. Worse, the court’s verdict seems to apply only to Sabarimala because there are plenty of temples in Kerala itself that have restrictions based on gender and this verdict has not been applied to them. Soon after the verdict, a petition was filed in the High Court of Kerala seeking permission for Muslim women to pray in mosques. But the court declined to entertain the petition on grounds that the petitioner had no locus standi.

The conflict between Articles 25(2)(b) and 26 and the need to harmonize the two had been dealt with by a Constitution Bench in Sri Venkatramana Devaru and Others Vs State of Mysore and Others (1958 SCR 895). The substantial finding of the court was that women of the restricted age group do not form a separate class or section and hence the restriction is not violative of the rules. This verdict was questioned in the current petition. Yet, it is common knowledge that when the decision of a Constitution bench of five judges has to be overturned it can be done only by a bench of seven judges.

With the Chief Minister of Kerala immediately announcing his government’s determination to comply with the court order, there was mayhem in Kerala and in many parts of South India with people, led by women, taking to the streets with Naamajapa yatra, chanting ‘Swamiye saranam Ayyappa’. Even in America and Australia devotees led by women organised protests, some carrying placards stating ‘we are ready to wait’. 

Before the temple was to open for the first time after the verdict, for the monthly rituals in mid-October, three separate review petitions had been filed by National Ayyappa Devotees (Women’s) Association, Nair Service Society, and All Kerala Brahmin’s Association. The court decided to list the petitions for hearing in the second week of December, a few days before the temple was to open for the annual pilgrimage season lasting till the latter half of January 2019.

The Bharatiya Janata Party, which initially welcomed the verdict, sensed the public mood and joined the protests, giving the protests some political support. But the protests were spontaneous, dominated by women, and peaceful. The situation began to turn murky when the police, under pressure from political bosses, tried to get women of questionable intentions inside the temple to prove that the court order had been complied with and it was open to all women to enter the temple. But they had not reckoned with the spirit of the devotees who resisted such moves even when the police retaliated with lathi charges and mass arrests. Even the wife of the tanthri, a senior citizen involved only in the peaceful protest through prayer, was arrested. Finally, the Chief Minister’s designed failed as even the staff of the Travancore Dewaswom Board protested and the Pandalam royal family and Tanthri declared they would close the temple if women of restricted age group entered and breached the traditions.

While mainstream media suppressed reports of police atrocities, Janam TV and social media led by Karma News, Marunadan TV, rose to the occasion and shared the videos of the police rampaging, even damaging vehicles parked in the area. One video showed the police swooping down on devotees sitting peacefully and singing devotional chants in a pandal, arresting them and dragging them through the road. Section 144 IPC was clamped, initially for a few days, but extended regularly to cover the entire season ending January 14. Even curbs were imposed on media which the High Court removed after petitions filed by Janam TV.

Devotees were not only denied basic amenities like drinking water and toilets but also prevented from resting after completing the trek up the hill. They were denied permission for overnight stay which resulted in many pilgrims not being able to complete their pilgrimage with the ritual offering of ghee for anointing the deity which is done only in the early mornings. The police were nasty to the extent of even keeping all resting areas wet and old devotees accompanied by children could be seen sleeping next to garbage dumps with pigs and stray dogs for company. Union Minister Alphonse Kannanthanam who visited Sabarimala to take stock of the situation declared that the government had not spent a rupee from the Rs 100 crores granted by the Centre, post floods, for creating amenities for pilgrims.

The police drew the ire of a judge of the High Court of Kerala and a Union Cabinet Minister after a superintendent of police, Yathish Chandra, reportedly misbehaved with them. The High Court appointed a committee of two judges and DGP to monitor the situation in Sabarimala; the DGP has since sought deputation to the Centre, fearing victimisation by the regime.

Meanwhile, the number of petitions filed in the apex court rose to nearly 50. The court took up the petitions in December and decided to have open hearings in the third week of January 2019, but failed to retrieve the situation by refusing stay on the original order. The state government’s effort to have women, atheists with links to ultra left groups like Maoists and of questionable intentions, enter the shrine, escorted by police, always met with stiff resistance from devotees. The first two were Rehana Fatima, a Muslim, and Kavitha Jakkal, a Christian. More arrests and torture followed. At the end of the season, it has been reported that cases have been filed against 60,000 devotees of whom only 10,000 have been identified. A few hundred are still in jail. Rehana Fatima has been ostracised by her community.

The state witnessed some bandhs masqueraded as hartals. The KSRTC, thanks to Sabarimala, earned a profit of around Rs 30 crore, thanks to the extortion of pilgrims by the State owned facility. The High Court of Kerala had turned down a petition by some private operators to provide free transport service between Nilakkal and Pampa, a distance of about 14 kms for which the KSRTC was charging Rs 40/- for ordinary service which on regular routes cost only around Rs 14/-.

The state government, having failed to get women into the temple using muscle power, started scheming. One such scheme was a Vanitha Mathil (literally, wall of women) from the north end of the State to the South end on January 1, 2019. Its stated purposes were: to protect the values of the reform movements in the State; to prevent Kerala becoming a lunatic asylum; and to ensure gender equality. Then, on December 31 night, the Chief Minister announced that the purpose of the event was to support women’s entry in Sabarimala temple. thus, when reporters interviewed participants on January 1, many did not know why they were there and none knew that it was for supporting the entry of women in Sabarimala.

The CM had informed the Legislative Assembly that no public funds were being spent for the ‘wall’. But the High Court was told that Rs 50 crores would be spent from public funds earmarked for social welfare, which includes gender equality. Vijayan is now threatened with a breach of privilege motion in the State Legislative Assembly. Employees were threatened to make contributions for the cause. Thus, women in burkha, participating in Vanitha Mathil holding placards with slogans like ‘Down with Brahminism’ and patriarchy made a curious sight. Also about a lakh of Christian women were reportedly mobilised by the churches for the event. 

Nevertheless, the Government-sponsored event did not match the Ayyappa Jyoti organised by the Sabarimala Karma Samithi on December 26, 2018 when devotees of Ayyappa Swamy lined up along the National Highway all the way from the northern tip of Kerala to land’s end at Kanyakumari in Tamil Nadu. The participants were volunteers who had spent their own money to participate in the event.

On January 2, 2019 Kerala woke up to the Chief Minister’s claim that two women of the restricted age group had entered the temple; video clips were released. The clip showed two women in burkha-like clothes run through the forecourt of the temple, stand in front of the sanctum sanctorum and return faster than they had entered. The names of the women were given as Kanakadurga and Bindu, both known supporters of Marxism/Maoism. Reports said they had been trained to keep a low profile and strictly follow the directions of the policemen escorting them in mufti. They were taken to the temple premises in an ambulance of the forest department and sneaked in through the path meant for employees only. The time was soon after the temple had opened for the day when the crowd was thin. Even then a few devotees questioned their identity but were told that they were transgenders.

Needless to say, the temple was closed for purification rituals and genuine devotees were put to a lot of hardship. The treachery of the police, supported by Pinayari Vijayan, who holds the Home Portfolio, forced devotees to be more vigilant and no more women could reach the temple thereafter. Kanakadurga was thereafter rejected by her family as well as her husband’s family. She alleged that her mother-in-law had assaulted her and got herself admitted in a hospital, but doctors have stated that there were no signs of any injury. She is now in a women’s care home and under police protection, provided on orders of the apex court. The mother-in-law was also admitted to hospital with injuries, allegedly caused by her daughter-in-law’s assault on her.

The Government of Kerala played another foul by informing the apex court that 51 women of restricted age group had entered the temple since the court verdict. The list was leaked to the media and soon devotees proved that most were women in the permitted age group and some were even men. It seems the list was prepared from the online booking records.

Some other points are pertinent. Even during arguments, the judges of the Constitution Bench had asked whether there is any guarantee that all women will live till 50 years of age to visit the temple. Advocate Parasaran retorted that even in courts there are cases pending for more than 50 years and there was no guarantee the petitioners would get justice in their lifetime. Attorney General K.K. Venugopal openly supported the dissenting judgment of Justice Indu Malhotra. Former apex court judge Markandey Katju denounced the majority verdict.

At the cost of harping, let me reiterate that our judiciary requires total overhaul to make it perform credibly and effectively. The Sabarimala verdict shows how arbitrary and whimsical our judges can be in deciding cases and how such verdicts can affect the rule of law in the society.