Sabarimala Verdict: Justice Indu Malhotra emerges Hero of millions of Ayyappa devotees

The Supreme Court verdict allowing the entry of women of all ages has usurped the immemorial custom followed in Sabarimala Sri Ayyappa Temple, in Kerala. The verdict has opened up a spill of protests all across Kerala and the issue is being widely debated among the devotees. The lone woman judge in the Bench, Justice Indu Malhotra, has given a dissenting note, the dissent, is now becoming the central focal point, as the same raises umpteen number of questions, to the Hindu religious followers and the trend set by the Apex Court, is sure to open flood gates to litigations, which would be challenging the customs and beliefs prevalent all across the nation.

The nation being a synonym of the word diversity, would walk into undoubted chaos, when such diverse customs and religious beliefs would be dragged into the judicial arena, especially by groups who are either non-believers or have nothing to do with the said religious practices. The practices which were derogatory and uncivilized to the human race have existed here, and the social reformers and the long clutches of the law interfered, to do away with such barbarianism, at various point of times.  The judge observed

The issues raised in the present Writ Petition have far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practises, customs and usages, which may be considered to be exclusionary in nature. In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts.

The judge pointed to the practice of challenge being posed to the State action with regard to the control and management of the affairs of the temple in following words:

In the past, the Courts, in the context of Hindu temples, have been asked to identify the limits of State action under Articles 25 and 26 on the administration, control and management of the affairs of temples, including the appointment of archakas. For instance, in the case of Adi Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil Nadu & Anr. 16 (2016) 2 SCC 725, this Court was asked to consider the issue of appointment of archakas in Writ Petitions filed by an association of archakas and individual archakas of Sri Meenakshi Amman Temple of Madurai.

The present case is a PIL filed by an association of lawyers, who have invoked the writ jurisdiction of this Court to review certain practises being followed by the Sabarimala Temple on the grounds of gender discrimination against women during the age-band of 10 to 50 years.

Justice Indu Malhotra’s dissenting judgment, highlights a big question which would be echoed in the coming days, this case would be debated widely due to the herculean challenge it poses to the religious beliefs and customs followed in the country from time immemorial. The question which would be repeatedly echoed would be, whether the Petitioners, who do not claim to be the devotees of Lord Ayyappa, who is manifested in as Naishtika Brahmachari and their filing of a petition, in the Apex Court, to decide on the religious questions, which they don’t subscribe to. This has ignited social chaos and has hurt the religious sentiments of the worshippers and their Constitutional right to worship their deity in the form its manifested.

Justice Indu Malhotra, before concluding the grievances of the petitioners as non-justiciable and terming the writ as not deserved to be entertained for want of standing, made certain vital observations.

Article 25 of the Constitution guarantees to all persons the freedom of conscience, and the right freely to profess, practise and propagate religion. This is however subject to public order, morality and health, and to the other provisions of Part III of the Constitution.

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 this Temple have been violated. 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’. 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.

There has been lot of hue and cry over the origin of this Petition and the observations made by the Hon’ble Judge, especially regarding entertainment of such a petition, which are thought provoking for every independent observer. The Hon’ble Judge, also raised serious concern over entertaining of a Public Interest Litigation, in a religious matter, the social bonhomie can be brought to an abrupt end, by the “litigations of fame”.

The judge further observes:

The right to worship, claimed by the Petitioners has to be predicated on the basis of affirmation of a belief in the particular manifestation of the deity in this Temple.

The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practises of any religious sect, ordenomination. 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.

It’s also interesting to observe that there are various temples and religious institutions which observe the distinct customs and the Senior Advocate who  appeared on behalf of one of the Respondents had submitted an illustrative list of various religious institutions where restrictions on the entry of both men and women exist on the basis of religious beliefs and practices being followed since time immemorial.

Annexure C-8 in the Non-Case Law Convenience Compilation submitted by the Senior Advocate enlists places of worship where women are not allowed. This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple in Pehowa, Haryana and Pushkar, Rajasthan; Bhavani Deeksha Mandapam in Vijaywada; Patbausi Satra in Assam; Mangala Chandi Temple in Bokaro, Jharkhand.

Annexure C-7 in the Non-Case Law Convenience Compilation submitted by the, Senior Advocate enlists places of worship where women are not allowed. This list includes the Temple of Lord Brahma in Pushkar, Rajasthan; the Bhagati Maa Temple in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple in Kerala; the Chakkulathukavu Temple in Kerala; and the Mata Temple in Muzaffarpur, Bihar.

The judge further observed that In matters of religion and religious practises, the Hon’ble Court that Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practices which are found to be oppressive or pernicious.

The judge observed that the right of an individual to worship a specific manifestation of the deity is protected by Article 25(1) of the Constitution.

Article 25(1) confers on every individual the right to freely profess, practise and propagate his or her religion. The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a

certain deity, the same has to be articulated in accordance with the tenets of that faith.

The judge further observed that

In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this Temple, based on the essential characteristics of the deity.

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 practises are rational or not.

Religious practises are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect.

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 Court.

There are instances where the judgment becomes path breaking and historical, at times the dissent note gets recorded in ornamental letters, the present case is also one such instance where the dissent recorded by Justice Indu Malhotra has carved out a niche for itself, like that of Justice HR Khanna’s famous dissent.

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