Courts shouldn’t interfere with faith: Lone dissent on Sabarimala case by woman judge

A file image of Justice Indu Malhotra | PTI

Justice Indu Malhotra says it is not for courts to determine which of these practises of a faith are to be struck down, except if they are oppressive. 

New Delhi: The Supreme Court Friday allowed women to worship at the Sabarimala Temple in Kerala, with the Chief Justice Dipak Misra-led bench delivering a 4:1 verdict.

The dissenter, to the surprise of many, was the lone woman judge on the bench — Justice Indu Malhotra — who said in order to maintain secularism, issues which have deep religious connotations should not be tinkered with by courts.

Here are the other important points Malhotra made, excerpted from her dissenting judgment.

“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 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… would require this court to decide religious questions at the behest of persons who do not subscribe to this faith.”

“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, or denomination. 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.”

“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… 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 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.”

“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.”

“In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country.”

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

“The issue of what constitutes an essential religious practise is for the religious community to decide.”

“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.”

“India is a country comprising of diverse religions, creeds, sects each of which have their faiths, beliefs, and distinctive practises. Constitutional morality in a secular polity would comprehend the freedom of every individual, group, sect, or denomination to practice their religion in accordance with their beliefs, and practises.”

“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.”

“Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.”

“If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’.

“A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals are also regarded as an integral part of religion. If the tenets of a religion lay down that certain ceremonies are to be performed at certain times in a particular manner, those ceremonies are matters of religion, and are to be protected as a religious belief.”

“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. 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.”