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Judicial review of religious practices shouldn't be done, says Malhotra in Sabarimala verdict


Press Trust of India New Delhi
Judicial review of religious practices should not be done as courts cannot impose their morality or rationality on the form of worship of a deity, Justice Indu Malhotra said in her lone dissenting verdict in the historic Sabarimala Temple case.
While the four male judges, part of the five-judge bench, were in the favour of allowing women of all ages to enter the temple, Justice Malhotra refused to interfere with the centuries-old practice of banning women of age group of 10 to 50 years in the shrine.
She said all forms of exclusion would not tantamount to "untouchability" and the restriction on women within a certain age-band, is based upon the historical origin and the beliefs and practices of the temple.
She said the analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is "wholly misconceived and unsustainable" and held that the limited restriction on women's entry during the notified age group does not fall within the purview of Article 17 (abolition of untouchability) of the Constitution.
The judge observed that the issues raised in the case have far-reaching ramifications and implications, not only for the Sabarimala Temple but for all places of worship of various religions in the country which have their own beliefs, practices and customs and 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," Justice Malhotra said.
She said the right to equality claimed by the petitioners under Article 14 conflicts with the rights of the worshippers of this shrine which is also a fundamental right guaranteed by Articles 25 and 26.
"It would compel the court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practices, which would be outside the ken of the courts. 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 said.
Justice Malhotra said the equality doctrine enshrined under Article 14 of the Constitution does not override the fundamental right guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion.
The manifestation of the deity at the Sabarimala Temple is in the form of a 'Naishtik Brahmachari', who practices strict penance and the severest form of celibacy.
The court said the respondents, including Travancore Dewaswom Board, Chief Thanthri and Raja of Pandalam, have made out a plausible case that the practice of restricting entry of women of certain age group is an essential religious practice of the devotees of Lord Ayyappa at the temple being followed since time immemorial.
The bench was dealing with a PIL filed in 2006 by Indian Young Lawyers Association seeking to ensure entry of women devotees between the age group of 10 to 50 at the Lord Ayappa Temple at Sabarimala.
However, Justice Malhotra said the petitioners do not claim to be devotees of the temple and permitting PILs in religious matters would open floodgates to interlopers to question religious beliefs and practices, even if the petitioner is not a believer of a particular religion or a worshipper of a shrine.
The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a 'Naishtik Brahmachari', and there is no similar restriction in those temples, she said.
"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 practice 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 said.
The judge added that constitutional morality requires the harmonisation or balancing of all such rights to ensure that the religious beliefs of none are obliterated or undermined.
The judge said the worshippers of Lord Ayyappa at the Sabarimala Temple together constitute a religious denomination, or sect thereof, as the case maybe, follow a common faith, and have common beliefs and practices.
"The practices include the observance by the Ayyappans of the 41-day 'Vratham', which includes observing abstinence and seclusion from the women-folk, including one's spouse, daughter or other relatives. This pilgrimage includes bathing in the holy River Pampa and ascending the 18 sacred steps leading to the sanctum sanctorum.
"The restriction on women between the ages of 10 to 50 years from entering the temple has to be understood in this context," she said.
On the issue of untouchability, the judge said the right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se.
"In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place," she said.

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First Published: Sep 28 2018 | 8:05 PM IST

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