The Supreme Court of India in a 4:1 majority decided to lift the ban on women between the ages of 10 and 50 entering the Sabarimala temple. Chief Justice of India Dipak Misra and Justices AM Khanwilkar, RF Nariman and DY Chandrachud struck down provisions of The Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, lifting the ban.
The majority judgement said that the ban must be lifted on the grounds that men and women are equal in the eyes of the Indian Constitution and that the ban was in violation of Article 25, under which everyone is guaranteed the freedom to practice what religion they choose. The court said that barring the entry of women between the ages of 10 and 50 also constitutes a form of untouchability, in violation of Article 17 of the Constitution.
The lone dissenter, Justice Indu Malhotra, disagreed with the other judges when it came to allowing women of all ages entry into the Sabarimala temple.
Justice Malhotra’s arguments:
The petitioners: In her dissenting judgement, Justice Indu Malhotra said that the petitioners, the Indian Young Lawyers Association, were not directly affected by this and were not devotees. Therefore, the court was being made to decide on the entry of women into the temple “at the behest of persons who do not subscribe to this faith”.
“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,” she said.
Gender discrimination/Article 14 and 15: Article 14 of the Constitutions gives everyone equality before the law and Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. While the majority judgement maintained that the practice of banning women was discriminatory in nature, Justice Malhotra said that it doesn’t override Article 25, which allows one to practice a religion of their choice.
She maintained that what constitutes an “essential religious practice” is for the religious community to decide, and not the court. “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,” her opinion said.
Rationality: In her judgement, Justice Indu Malhotra stated that under Article 25, equality in matters of religion “must be viewed in the context of the worshippers of the same faith,” and that a judicial review of religious practices must not be undertaken.
“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,” she stated.
Religious denomination: The judgement stated that Devaswoms were Hindu temples, and follows the rules pertaining to Hindu temples. To be considered as a separate religious denomination, it must be a collection of individuals who have a common faith, common organisation, and are designated by a distinctive name.
Justice Malhotra disagreed with the majority judgement, and said that they are a separate denomination entitled to the benefits of Article 26 (Freedom to manage religious affairs). Differing from the majority judgement, she said that the Article 26 not only applies to religion but also sects. Stating that they satisfy the requirements for being a religious denomination because they follow ‘Ayyappan Dharma’, are designated by different names for devotees, follow an identifiable set of beliefs and customs and that the Travancore Devaswom Board does not receive money from the Consolidated Fund of India, Justice Malhotra said:
“The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.”
Untouchability: While the majority judgement said that barring women between the ages of 10 and 50 amounted to untouchability, Justice Malhotra said that all forms of exclusion “would not tantamount to untouchability”. Stating that Article 17 of the Constitution pertains to caste prejudice and “untouchability was never understood to apply to women as a class”, she between the ages 10 and 50 are allowed into all other Ayyappa temples, and that the ban in Sabarimala was because of the deity, not social exclusion.
“Not a single precedent has been shown to interpret Article 17 in the manner contended by the Petitioners,” the dissenting judgement stated.