Justice Indu Malhotra cautions against judicial review of faith in Sabarimala case

Hindustan Times, New Delhi | By
Sep 28, 2018 11:36 PM IST

Prohibition of women essential practice for Lord Ayyappa devotees, Justice Indu Malhotra said.

Justice Indu Malhotra, the sole woman judge on the Supreme Court constitution bench that opened the doors of the Sabarimala temple to women of all ages, dissented against the majority verdict.

The argument that Lord Ayappa as a deity was a juristic person and cannot be denied his rights under the Constitution too was dismissed by the court.(PTI)
The argument that Lord Ayappa as a deity was a juristic person and cannot be denied his rights under the Constitution too was dismissed by the court.(PTI)

She cautioned against judicial review of religious faith and practice, especially in the absence of an aggrieved person from that particular religious sect.

The prohibition for women between the ages of 10 and 50 at the hill shrine, she held, was an essential practice for the devotees of Lord Ayyappa, the presiding deity of the temple.The president, who formed a religious denomination and was thus protected under the Constitution.

“Judicial review of religious practices 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 court. Serious damage can be caused to the constitutional and secular fabric of the country if PILs questioning religious faiths by those belonging to another sect are entertained by courts. It would open the floodgates to interlopers to question religious beliefs and practices,” she warned.

She held that the prohibition on women of a menstruating age did not upset the constitutional right to equality as the practice was protected by yet another constitutional right to practice one’s religion.

And, it is “irrelevant” whether the practice is rational or logical, she said.

“Notions of rationality cannot be invoked in matters of religion by courts,” justice Malhotra said, observing that the decision in the case will have wide-reaching ramifications for all places of worship of various religions in the country.

It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati, she opined.

“Constitutional morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical,” she said.

“Harmony has to be struck between the principles of equality and protection of the cherished liberties of faith, belief and worship.”

The court, she said, must leave it to the religious community to decide what constitutes an essential religious practice.

A challenge to the age-old prohibition, if any, could have been only by the members of the religious sect, one who are offended by it.

However, the petitioners in the case were not devotees. They were either organisations or individuals who involved in social developmental activities.

Assertion of the right to equality can be invoked only by persons belonging to matters of same faith, creed or sect, she held.

Justice Malhotra rejected the submission that the exclusion on physiological basis was akin to untouchability that stands abolished. “The restriction on the entry of women during the notified age group in this temple is based on the unique characteristic of the deity, and not founded on any social exclusion,” she said, noting that women of the notified age group are allowed to enter other temples of Lord Ayyappa.

The practices, including both the restriction and 41-day Vratham (penance) to be observed by a male devotee, are considered to be essential or integral to the temple. Any interference with the same would conflict with their right to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’, a unique character of the deity at the temple, justice Malhotra said.

She concluded that worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination and the practices followed by this sect constitute a code of conduct, which is the essential spiritual discipline related to the pilgrimage.

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    Bhadra is a legal correspondent and reports Supreme Court proceedings, besides writing on legal issues. A law graduate, Bhadra has extensively covered trial of high-profile criminal cases. She has had a short stint as a crime reporter too.

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