Not going with the majority verdict in the Sabarimala case, Justice Indu Malhotra, in a dissenting opinion, said “what constitutes an essential religious practice is for the religious community to decide” and not a matter that should be decided by the courts. She said “notions of rationality cannot be invoked in matters of religion by courts”.
In her order, Justice Malhotra said that in matters of practices of faith, the courts should intervene only if they are “pernicious, oppressive, or a social evil, like Sati”.
Beginning with a cautionary note on how issues raised in the petition have wide implications for all places of worship in India, across religions, which have their own beliefs, practices and rituals “which may be considered to be exclusionary in nature”, she said that “in a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts.”
Noting that the petitioners in the Indian Young Lawyers Association vs. State of Kerala case are not believers of the particular faith in question, she said that permitting such PILs “in religious matters would open floodgates to interlopers” who are not followers of that faith, to question its beliefs and practices, and this would be a matter of grave concern, especially for minority communities. She said the writ petition “does not deserve to be entertained” and the “grievances raised are non-justiciable”.
On the issue of whether Article 14 (equality before law) can be applied in the case of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women between the ages of 10 and 50 years into the Sabarimala temple, she said that the equality doctrine doesn’t override the freedom of religion guaranteed under Article 25.
“Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein,” she said. She held that Constitutional morality in a secular polity gives every individual the right to practice their faith “in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical”.
Dissenting from the other judges on the bench, Justice Malhotra held that Ayyappa devotees form a separate religious denomination.
She cited the submission made by the respondents in the case that there are 1,000-odd temples of Lord Ayyappa where women are allowed, as the deity does not manifest in the form of ‘Naishtik Brahmachari’ (eternal celibate). She disagreed that the ban at Sabarimala temple was arbitrary, stating that this was the “only practical way of ensuring that the limited restriction on the entry of women is adhered to”.
She held that this “limited restriction” on the entry of women of a certain age group does not fall within the purview of Article 17 of the Constitution since the Article pertains to untouchability based on caste prejudice. Untouchability, “literally and historically”, was never understood to apply to women as a class, she said. The petitioners had argued that the exclusion of women who fall in this menstruating age group was based on notions of purity and pollution, which is abolished by Article 17.