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 justiciability
Justice 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 15
Article 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 Article 15 of the Constitution of India.
This “conscious deletion” of “temples” and “places of worship” needs due consideration, she opined, while rejecting the contention that Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2).
Role of courts in matters concerning religion
The judge was of the view that any interference in these practices, which are considered to be essential or integral to the temple, would conflict with the rights guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.
“Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts,” she explained.
Constitutional morality in matters of religion
Justice Malhotra asserted that it is the Constitutional duty of the Court to harmonise the rights of all persons, religious denominations or sects thereof, to practise their religion according to their beliefs and practises.
She went on to rule that the respondents had made out a plausible case for it being a religious denomination entitled for protection under Article 26, asserting that the worshippers of Lord Ayyappa at the Sabarimala Temple follow a common faith, and have common beliefs and practises.
“The Constitution ensures a place for diverse religions, creeds, denominations and sects thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’ should receive an interpretation which is in furtherance of the Constitutional object of a pluralistic society,” she then asserted.
Essential practices doctrine
Justice Malhotra emphasised on the fact that the practise of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple. She then opined that the phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that religion.
“Based on the material adduced before this Court, the Respondents have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial,” she then observed.
Restriction does not amount to untouchability
The petitioners had contended that the restriction imposed on the entry of women during the notified age group, tantamounts to a form of ‘untouchability’ under Article 17 of the Constitution. Justice Malhotra, however, clarified that all forms of exclusion would not tantamount to untouchability.
The analogy, she said, sought to be drawn by comparing rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable, explaining,
“Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class. The right asserted by the Petitioners is different from the right asserted by Dalits in the temple entry movement. The restriction on women within a certain age-band, is based upon the historical origin and the beliefs and practises of the Sabarimala Temple.”
Summary of conclusions
She summarised her analysis as follows:
- The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.
- The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
- Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
- The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.
- The limited restriction on the entry of women during the notified age- group does not fall within the purview of Article 17 of the Constitution.
- Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.