The five-member constitutional bench headed by Chief Justice Ranjan Gogoi and comprising Justices S.A. Bobde, D.Y. Chandrachud, Ashok Bhushan and S.A. Nazeer did a major course correction when it decided that the Ayodhya land dispute “is not only about property; it is about mind, heart and healing…” .
This was in sharp contrast to the approach of the previous bench, headed by the then Chief Justice Dipak Misra, which insisted that it was solely a property title dispute and decided to keep all other issues away. That would have been a travesty of truth and justice.
Gogoi’s bench declared that the issue was not just about 1,500 square feet land, but about deeper sentiments. The issue could not be considered unmindful of its gravity and impact on public sentiment and also on the body politic of the country.
“We cannot undo what has happened but we can go into what exists in the present moment,” the court observed. That was a whole new approach.
The court has gone beyond the physical evidences cited by the parties to the dispute and has used faith to fill the gaps in the supplied documentation. Matters of faith are not always amenable to be backed by orderly evidence and many a times dependence has to be made on assumptions. In this respect, the court has clearly established a new precedent.
Most importantly, the verdict also provides a template for dealing with matters of faith versus evidence and could perhaps have a major bearing on the Sabarimala women’s entry issue, a spate of review petitions on which are now pending for the apex court’s consideration.
In a 4:1 majority, the Supreme Court had ruled that Sabarimala's exclusion of women violated the fundamental rights of women between the ages of 10-50 years was unconstitutional.
The decision was based purely on the basis of constitutional propriety while rejecting all arguments in support of upholding the age-old customs and traditions of the temple, the main characteristic of the deity being celibacy.
The decision of the leftist Pinarayi Vijayan government to hastily implement the verdict virtually split the state’s population vertically and led to much tension and violence, marring an entire pilgrimage season and affecting the flow of pilgrims to the famous hill shrine.
In a dissenting note by the lone woman judge on the bench, Justice Indu Malhotra had said that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere in the country and argued how the right to equality cannot be the only touchstone to test religious customs and practices.
Application of this yardstick to the Sabarimala issue could perhaps produce an entirely different kind of result for the review petitions pending in the court. Apart from the issues of faith, the Sabarimala issue also brings up the cost of enforcing individual rights of a handful of women by sacrificing the individual rights of a multitude.
When there is a conflict between the individual right and the collective right, the cost of upholding that right in comparison to the benefit to the group as constituted by individual members must be taken into account.
Sacrificing the individual right of millions of devotees for the sake of enforcing the right of a handful of individual women, who can by no stretch of imagination be called devotees, is an issue that needs to engage the court's attention when it delivers its judgment on the review petitions, the outcome of which is awaited eagerly by millions of Ayyappa devotees not only in Kerala and the rest of India, but all over the world.