KOCHI: The Supreme Court decision to review the Sabarimala verdict has triggered a debate on whether the government should implement the September 28 verdict or tread the path of reconciliation, waiting for the final verdict on the review petition.
While one section of legal luminaries argues the government has no option but to facilitate entry of women to the temple, others feel the state can restrain itself from implementing the order since the apex court has decided to reconsider the matter.
Kaleeswaram Raj, advocate, Supreme Court, said the court order clarifying the position “there is no stay of the judgment and order of (the) court” is significant. It precisely means at least till January 22, the date scheduled for hearing the review petitions, the Constitution Bench decision will govern the field. Any other interpretation would be impossible in view of the court’s clarification.
Still further, the order also forecloses even a possibility for a future stay of the judgment, prior to January 22. As such the government, the police and even the Kerala High Court are bound by the Constitution Bench decision.
The government and the police are bound to render police protection to the women who seek entry to the temple. The High Court will be bound by the declaration, going by Article 141 of the Constitution.
The government is bound to take note of the legal position the judgment is operative and it should be given effect to. Senior advocate Govind Bharathan said the order of the Supreme Court does not say it should be implemented immediately. “It’s the declaration of a right, which has now been doubted by the same bench. The court had decided to hear the review petitions in open court where every aspect can be reargued. In such cases, there is no necessity to stay the order. There is no order to the government to implement the earlier judgment,” he said.
According to Article 141 of the Constitution, it is only the law declared by the Supreme Court to be binding on all courts. Hence, an application can even be made to the Kerala High Court asking for a stay on implementation of the order by the government because it’s not an order declared by the SC and it has been posted for review as the correctness of the order is doubted by the same Bench, said Bharathan.
Justice B Kemal Pasha, former judge, said the SC has not interfered in its earlier order and has, in fact, refused to stay the order. That means the order is still operational. As long as the order exists, the state government is bound to protect the interests of the beneficiaries of the order. Persons who are militating against the verdict are bound to obey it, he said.