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What constitutes essential religious practice not for Court to decide, Justice Indu Malhotra

What constitutes essential religious practice not for Court to decide, Justice Indu Malhotra

Aditya AK

Even as a Constitution Bench of the Supreme Court today allowed the entry of women into Sabarimala Temple, Justice Indu Malhotra, the only woman judge on the Bench, dissented.

Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud were part of the majority that struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which was the basis for barring entry of women between the ages of 10 and 50 years to the Sabarimala temple.

What constitutes essential religious practice not for Court to decide, Justice Indu Malhotra

The majority had held that Rule 3(b) of 1965 Rules is a clear violation of right of Hindu women to practice religion under Article 25, and that Ayyappa devotees do not form a separate denomination. Therefore, it was held by the majority that the custom of barring entry of women into Sabarimala Temple is violative of Article 25(1) of the Constitution of India.

However, Justice Indu Malhotra offered the sole dissenting opinion on the Bench.

Here is how she dealt with each aspect of the challenge in her dissenting opinion.

On locus of the petitioners

Justice Malhotra held,

“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…

…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.”

On Article 14

“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. 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.”

She went on to hold that the restriction on entry of women of a certain age group did not fail to pass the two-fold test under Article, that it was a classification based on intelligible differentia and it had a reasonable nexus to the objective sought to be achieved by the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

On Article 15

Justice Malhotra made reference to Draft Article 9 of the Constitution, which corresponds to Article 15 (right against discrimination). She noted that that Constituent Assembly chose to omit the words “temples” and “places of worship” from the text of the provision.

This fact, Malhotra J held, thwarted the argument of the Amicus Curiae that  Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2).

On Article 17

Malhotra J shot down the argument of the petitioners that restricting the entry of women into Sabarimala Temple would amount to untouchability under Article 17. She held,

“All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class.”

On Judicial Review of Religious Practices

“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.”

On Constitutional Morality

Having held that the Court ought not interfere in religious matters, Malhotra J gave her own interpretation of Constitutional Morality with respect to religion:

“Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.

Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and nondiscrimination in matters of religion cannot be viewed in isolation.

Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.”

Sabarimala devotees as a Religious Denomination

Relying on a number of Supreme Court judgments on the topic, Malhotra J reiterated that religious denomination is a sect which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith.

The fact that devotees believe that Lord Ayyappa has manifested himself in the form of a ‘Naishtik Brahmachari’, that devotees observe a 41-day ‘Vratham’, which includes observing abstinence and seclusion from the women-folk, including one’s spouse, daughter, or other relatives, and other rituals like bathing in the holy River Pampa, and ascending the 18 sacred steps leading to the sanctum sanctorum, lead to the fact that Sabarimala devotees indeed constitute a religious denomination.

Essential Religious Practices Test

“The only way to determine the essential practises test would be with reference to the practises followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practise in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practise of that temple.”

Malhotra J relied upon submissions of the respondents showing that the restriction on entry of women has been followed for over a century. Thus,

“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.”

Read the judgment by Justice Indu Malhotra.