Sabarimala: Permitting PILs In Religious Matters Will Open Floodgates To Interlopers; Graver Perils For Religious Minorities: Justice Indu Malhotra’s Dissent

The Supreme Court on Friday permitted entry of women of all age groups to the Sabarimala temple, with a 4:1 majority, holding that “devotion cannot be subjected to gender discrimination”.Chief Justice Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the majority, while the lone woman judge on the Bench, Justice Indu Malhotra dissented.Here are a few highlights from Justice Malhotra’s dissent: Maintainability and justiciabilityJustice Malhotra opined that the right to move the Supreme Court under Article 32 for violation of fundamental rights, must be based on a pleading that the petitioners’ personal rights to worship in the temple have been violated.She then pointed out that the petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. Therefore, to allow the petition, she said, would require the court to decide religious questions at the behest of those who do not subscribe to this faith.“To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith,” she explained.The absence of this requirement, she asserted, must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. She cautioned,“Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.”While opining that entertaining PILs challenging religious practices in a pluralistic society “could cause serious damage to the Constitutional and secular fabric of this country,” she finally asserted, “The right to practise one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not. Religious practices are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practices, especially in the absence of an aggrieved person from that particular religious faith, or sect."Rule 3(b) of the 1965 Rules is not ultra vires the Act The petitions had challenged the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala Temple as being ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. Section 3 states that places of public worship are to be open to all sections and classes of Hindus.Justice Malhotra ruled that Rule 3(b) is not ultra vires the Act, noting that the proviso to Section 3 of the 1965 Act carves out an exception in the case of public worship in a temple founded for the benefit of any religious denomination or section thereof. In other words, the proviso made the provision subject to the right of a religious denomination or section to manage its own affairs in the matters of religion.Applicability of Article 14 in matters of religion and religious practises Justice Malhotra further asserted that in matters of religion and religious practises, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. Article 14, she said, needs to be viewed differently in matters of religion and religious beliefs, as it needs to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious.Besides, she opined that it is not for the courts to determine which practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.“The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. The issue of what constitutes an essential religious practise is for the religious community to decide,” she explained.Applicability of Article 15Article 15 of the Constitution prohibits differential treatment of persons on the ground of ‘sex’ alone.Justice Malhotra made reference to debates of the Constituent Assembly on this issue, noting that the Assembly had considered it fit not to include ‘places of worship’ or ‘temples’ within the ambit of Draft Article 9, which pertained to...

Sabarimala: Permitting PILs In Religious Matters Will Open Floodgates To Interlopers; Graver Perils For Religious Minorities: Justice Indu Malhotra’s Dissent

Apoorva Mandhani

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