Nine-Judge Bench Will Decide Sabarimala Fate By Comparing Apples To Oranges

The setting up of a nine-judge Supreme Court bench to examine the issue of women’s rights in the context of faith essentially puts apples and oranges in the same judgement basket.

It is not clear how the bench, headed by Chief Justice S A Bobde, will decide a case like Sabarimala (which is about one special practice in one specific temple) by lumping it with FGM (female genital mutilation, practised by some Muslim communities) and the exclusion of women from mosques (a systemic issue in Islam) based on the same set of constitutional principles. The issue of Parsi women married to non-Parsis entering agiaries will also be among the issues taken up.

The issue of equal rights cannot be wished away even in the context of faith, but the real problem is in trying to equate the issues involving an already diverse faith like Hinduism with practices in monotheistic faiths like Islam, where the discrimination against women is systemic.

Women in the 10-50 age group not being allowed in Sabarimala relates to the specific form of worshipping Swami Ayyappa as a celibate. There is no general exclusion of women from worshipping the deity in other temples. But exclusion of women from mosques is almost generic, with few exceptions. If at all the issue of faith versus gender has to be decided on a principle, it is with respect to FGM and women entering mosques.

Sabarimala is completely different, and the principle of allowing diversity in forms of worship is surely as important a liberal and constitutional principle as gender rights?

On the plus side, the good thing about the nine-member bench is that it comes with a fresh mind. The bench excludes all the judges who were part of the earlier Sabarimala judgement. While Dipak Misra is out as he has retired as chief justice, justices D Y Chandrachud, R F Nariman, A M Khanwilkar and Indu Malhotra do not find a place in the nine-judge bench.

This is as it should be. Expecting judges who may have already made up their minds to now think afresh as part of a new bench is unreasonable. This means three of the four judges who supported the entry of women in Sabarimala will not be influencing this verdict.

The nine judges in the constitutional bench include Chief Justice Bobde, and justices R Banumathi, Ashok Bhushan, I Nageswara Rao, M M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R Gavai and Surya Kant.

Given the diversity of this bench, it is anybody’s guess which way it will decide Sabarimala. The issue of FGM, though, is not just a gender rights issue, but child rights too. You don’t mutilate a child’s genitals when it has no say in the issue, and the operation can even be painful. It needs to be banned. The faith part can be adhered to by the girl once she attains majority and can decide things for herself.

Given the mixing up of issues, if the bench decides to allow all women entry into mosques and agiaries, by implication it will not exclude Sabarimala from its ambit. On the other hand, if the bench decides that such reforms should be left to the communities concerned, especially given the scale of the issue in Islam, it cannot decide that Sabarimala ought to be the only one to be viewed in the perspective of gender rights.

The nine-judge bench will weigh not only constitutional principles but also political and communal impact while delivering its verdict. Maybe, just maybe, Swami Ayyappa’s devotees will get their due this time.