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Justice Indu Malhotra’s opinion in Sabarimala – The H.R.Khanna Moment for Modern Judiciary

Advocate, )Supreme Court of India) & (PhD Scholar, RMLNLU) 03 Nov 2018

The Indira Gandhi led government in the mid 70’s attempted to create a ‘committed judiciary’. In her spree of political attainment, she used all weapons in her political repertoire. The worst and the most ill advised amongst these was imposition of emergency and consequent suspension of fundamental rights with no legal remedy of filing a writ petition. This lead to widespread overnight arrest of the opposition leaders. In the landmark judgment of ADM Jabalpur v Shivakant Shukla [1976] the Supreme Court vide a majority of 4:1 approved this and held that no person could move any writ petition before a High Court for any writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration. Justice H.R.Khanna dissented. He held that the same to be unconstitutional. He paid the price for writing the most powerful judicial dissent ever in democratic India and was superseded in line of becoming the Chief Justice of India. The dissent by Justice Khanna is considered to be the strongest emblem of judicial strength.

42 years later, the Supreme Court delivered one of the most hotly debated judgment in the Sabarimala case. By a 4:1 majority, the Court permitted entry of women of all age groups to the Sabarimala temple, holding that devotion cannot be subjected to gender discrimination. Justice Indu Malhotra dissented this time. Writing arguably the most powerful dissent in recent times, Justice Malhotra held that the petitions were not maintainable and it was not the Supreme Court’s domain to look into such affairs. She held that there exists a difference between diversity and discrimination, something which the majority completely failed to observe. She also held that that in matters of practices of faith, the courts should intervene only if they are “pernicious, oppressive, or a social evil, like Sati.

The facts surrounding the issue are that the Sabarimala Temple, dedicated to Lord Ayyappa, is a prominent temple in Kerala which is visited by over twenty million pilgrims and devotees every year. As per a centuries old tradition of this temple, and the ‘acharas’, beliefs and customs followed by it, women in the age group of 10 to 50 years are not permitted to enter this Temple. This is attributable to the manifestation of the deity at the Sabarimala Temple which is in the form of a ‘Naishtik Bramhachari’, who practises strict penance, and the severest form of celibacy. Lord Ayyappa is believed to have explained the manner in which the pilgrimage to the Sabarimala Temple is to be undertaken, after observing a 41-day ‘Vratham’. It is believed that Lord Ayyappa himself undertook the 41-day ‘Vratham’ before he went to Sabarimala Temple to merge with the deity. The 41 day “Vratham” is a centuries old custom and practise undertaken by the pilgrims referred to as ‘Ayyappans’. The object of this ‘Vratham’ is to discipline and train the devotees for the evolution of spiritual consciousness leading to self-realization. Before embarking on the pilgrimage to this shrine, a key essential of the ‘Vratham’ is observance of a ‘Sathvic’ lifestyle and ‘Brahmacharya’ so as to keep the body and mind pure. A basic requirement of the ‘Vratham’ is to withdraw from the materialistic world and step onto the spiritual path. When a pilgrim undertakes the ‘Vratham’, the pilgrim separates himself from the women-folk in the house, including his wife, daughter, or other female members in the family. On the 41st day, after puja, the pilgrim takes the irimudi (consisting of rice and other provisions for one’s own travel, alongwith a coconut filled with ghee and puja articles) and starts the pilgrimage to climb the 18 steps to reach the ‘Sannidhanam’ for darshan of the deity. This involves walking from River Pampa, climbing 3000 feet to the Sannidhanam, which is a climb of around 13 kilometres through dense forests. As a part of this system of spiritual discipline, it is expressly stipulated that women between the ages of 10 to 50 years should not undertake this pilgrimage. This custom or usage is understood to have been prevalent since the inception of this Temple, which is since the past several centuries.

It is pertinent to note that there are about 1000 temples dedicated to the worship of Lord Ayyappa. Interestingly nowhere else the deity is in the form of a ‘Naishtik Brahmachari’. In those temples, the mode and manner of worship differs from Sabarimala Temple, since the deity has manifested himself in a different form. There is no similar restriction on the entry of women in the other Temples of Lord Ayyappa, where women of all ages can worship the deity.

A Division Bench of the High Court of Kerala, in S. Mahendran [1993], upheld the practice of banning entry of women belonging to the age group of 10 to 50 years in the Sabarimala temple during any time of the year. This was never challenged before the Supreme Court and therefore attained finality. It is important that none of the women worshippers challenged this practice ever.

In 2006 few totally unconnected petitioners in view of attaining publicity approached the Supreme Court directly stating have inter alia stated that they learnt of the practise of restricting the entry of women in the age group of 10 to 50 years in the Sabarimala Temple from three newspaper articles. They sought issuance of directions to ensure entry of female devotees between the age group of 10 to 50 years to the Temple; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India. The Supreme Court issued notice and in 2017 referred the same to a Constitution Bench which allowed the petition.

While the majority judgment recently permitted the women in the age bracket of 10-50 years to enter the pilgrimage, the sole woman voice on the bench; Justice Indu Malhotra is unequivocal terms held the petitions to be not maintainable and the relief sought as outside the scope and authority of the Supreme Court. Noting that the petitioners in the case are not believers of the particular faith in question, she held 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 did not deserve to be entertained and the grievances raised were non-justiciable. In a legally correct tone, Justice Malhotra held that the equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. She further 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.

The majority judgment is not only legally incorrect but also fails to attest to logic as well. There are thousands of religious establishments in India. A vast chunk amongst these follows their own respective customs. For example, in Meenakshi Tempe, Madurai and in Jagannath Temple, Puri, non hindus are not permitted to go beyond a certain point. In a lot of mosques, non muslims are not permitted. In Gurudwaras, a lot of them belong to a particular sub sect in Sikhism and anyone else is not allowed. We ask ourselves, whether the Supreme Court will trace out such establishments and take cases of each of these religious independently to permit whether the practice of a restricted entry is constitutionally correct or not. If not for all others, why only plea against Sabarimala Temple was entertained. Using this judgment any person unconnected with a particular religious establishment can directly knock the doors of the Supreme Court and seek relief against such an centuries old practice. It opens an unending Pandora’s Box. Lately, a trend can be observed in the judgments of the Supreme Court to prove itself to be ‘pro-rights’ by accepting constitutional challenges against customs of faith and religion.

Fortunately even while being under immense pressure of being open to woman rights issues, for being a woman herself, Justice Indu Malhotra strongly held the petitions to be non maintainable and the issues to be non justiciable. ADM Jabalpur’s case was recently overruled by a 9 judge bench and Justice Khanna’s opinion was accepted as rule of law. Perhaps, after 40 more years, another bench of a larger quantum will correct the defect instituted by the majority judgment in Sanbarimala and the powerful dissent by Justice Indu Malhotra will prevail. Till then, fingers crossed!


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