The United Democratic Front, led by the Congress party, has reiterated that it will introduce a Sabarimala law to protect the faith of devotees. Releasing its manifesto for the 2021 Kerala Assembly election, the UDF promises to make a law to protect the traditions of the Sabarimala temple, particularly, the ancient practice of barring girls or women between 10 and 50 years from entering the temple, where Lord Ayyappa, considered an eternal celibate, is the presiding deity.
When the Supreme Court overturned this practice through its verdict in 2018 — allowing women of all ages to enter Kerala’s Sabarimala shrine in Pathanamthitta — the Congress party in Kerala had instantaneously welcomed it. Later, the Congress in Kerala condemned the judgment on sensing the general opposition from devotees. They used the Sabarimala issue as a poll plank in the 2019 Lok Sabha election. The party is once again riding on the back of the Sabarimala issue this election.
In early February 2020, in the hope to tap into the Sabarimala sentiments and consolidate votes from the Hindu communities, the Congress-led UDF had announced that it had drafted a bill called the Sabarimala Ayyappa Devotees (Protection of religious rights, customs and usages) Bill, 2021. It said that the bill will be passed into law if it comes to power. The UDF even went to the extent of releasing an absurd and misogynistic video on the Sabarimala issue, which was later pulled down following massive criticisms.
The Sabarimala draft bill defines female devotees as Malikapurams, who are below 10 years and above 50 years. Any violation of traditions at the temple, including abetting or promoting the commission of the offence, will be “a cognisable and bailable offence”, per the proposed draft bill.
The bill prescribed up to two-year imprisonment and a fine for anybody violating or abetting the violation of the age-old customs of the temple as prescribed by the Tantri (chief priest). So, as per the ‘draft bill’, a 12-year-old girl entering the Sabarimala temple on the basis of the Supreme Court order, while violating the state legislation, will be considered an offence, said legal experts.
The UDF has promised to pass the ‘draft bill’ into law if it is voted to power in the 2021 Kerala Assembly election.
But, can the state legislature introduce a new law overturning or nullifying the Supreme Court judgment, which said that the temple's practice of excluding women is unconstitutional? According to legal experts, UDF’s draft bill has no legality, and if it comes into effect, it goes against the Supreme Court judgment.
Speaking to TNM, advocate BRM Shafeer, who is also a secretary of Kerala Pradesh Congress Committee (KPCC), said that the Tantri (chief priest) has the absolute power over the rituals, customs and practices of Sabarimala temple, not the Devaswom Board. “The tantri will decide what are the customs that the temple should follow. If devotees or activists are against these customs, they will not be allowed to enter the shrine. This is the essence of UDF’s draft bill,” he said.
When asked about the legality of such legislation (if passed) that goes against a Supreme Court judgment, the Congress pointed to the Seventh Schedule to the Constitution of India. Under Item 28 of the Concurrent List (List III) in the Seventh Schedule, the Legislature of the state and Union government has the power to decide on "charities and charitable institutions, charitable and religious endowments and religious institutions."
“We are using this constitutional provision as the foundation of this draft. As long as the Union government does not have any objection, the legislation will hold valid,” said Shafeer.
Incidentally, the review petitions in the Sabarimala issue have been referred to a larger bench of the apex court, due to which, the Kerala government has put the implementation of the SC judgment on hold.
“If the current Kerala government has submitted an affidavit while the review petitions are still under consideration, we will repeal that and introduce a new one. The Supreme Court can consider the review petitions based on the new affidavit,” said Shafeer.
The UDF is also heavily relying on the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Bill, 2017, which the Tamil Nadu Assembly had passed on January 23, 2017. The law revoked the 2014 Supreme Court ban on Jallikattu, a bull-taming sport that has been performed during Pongal in Tamil Nadu for ages.
“Our bill will also be along the lines of this law passed by the Tamil Nadu Assembly,” said Shafeer.
In a 2007 judgment concerning the State Bank of India Act, the Supreme Court ruled that the Legislature is well within the “permissible limits” to nullify a judicial decision if it changed the law retrospectively, that is making any amendment deleting a provision of an Act retrospectively.
“If the Supreme Court points out a defect in the legislation through a judgment, the state legislature has the power to rectify the defect and/or add a clause/provision with an amendment in the law. However, the legislature cannot make a new law that completely nullifies a judgment,” explained advocate Manu Sebastian, who is also the Managing Editor of Live Law, a legal news portal.
In May 2014, the Supreme Court quashed a law that the Kerala Assembly had enacted in 2006, when it nullified the apex court’s judgment in the Mullaperiyar Dam issue. While the SC had ruled that Tamil Nadu can increase the water level to 142 feet, the Kerala government introduced the Kerala Irrigation and Water Conservation (Amendment) Act, 2006, stipulating that the neighbouring state cannot increase it beyond 136 feet.
Calling such a law unconstitutional, the Constitution bench said, “Under the pretence of power, the legislature cannot neutralise the effect of the judgment that was pronounced after ascertaining fact by means of evidence/materials that the parties have placed,” he said.
Although the review petitions in the Sabarimala women’s entry case are pending, the Supreme Court judgment has not been reversed. The review bench has also not expressed any doubts regarding the validity of the judgment. So, technically, even today a woman can enter the shrine, said Manu Sebastian.
“By proposing such a law, the UDF is effectively stating that a woman, who is obeying the Supreme Court order and entering the Sabarimala temple, will be treated as a criminal; that is treated as an offence,” he said, adding, “The power or competence of the state to make a law concerning religious matter is not being questioned.”
Reiterating that such a law would be legally impossible, advocate PV Dinesh, a Supreme Court advocate and co-founder of Live Law, said, “This proposed law stands in contradiction to the Supreme Court’s order, and so, it does not matter if the former is being formulated under the constitutional power of the Seventh Schedule.”
Advocate Dinesh had appeared for two women who had filed a contempt of court petition against the Kerala government for being denied protection to enter the temple. He had argued that if it is believed that a 10-year-old girl can breach the celibacy of a god, then she is being portrayed as a sexual object.
Highlighting that the Supreme Court pronounced women’s entry into Sabarimala temple as legal and constitutional, he said, “A law contrary to that legal position is not a good law. If the UDF comes to power, they can pass such a law but the question is whether it will stand the test of law.”
Watch: UDF releases 2021 Election manifesto