Justice Indu Malhotra in her dissenting judgment said that issues with a deep religious connotation shouldn’t be tinkered with.
Women of all age group can now enter the Sabarimala Temple, as the Supreme Court of India lifted the ban on entry of women aged between 10-50. The tradition of not allowing menstruating women in Sabarimala started with the belief that Lord Ayyappa, the presiding deity at the Sabarimala temple is a celibate. The tradition that has been followed for ages was struck down by the Supreme Court’s five-judge bench. Incidentally, the majority judgment i.e. the judgment by CJI Dipak Misra, Justice AM Khanwilkar, Justice RF Nariman and Justice DY Chnadrachud termed the ban unconstitutional, the only woman judge on the bench, Justice Indu Malhotra gave a dissenting judgment in favor of the age-old tradition.
Delivering the Judgment, CJI Dipak Mishra said, “Right to worship is given to all devotees and there can be no discrimination on the basis of gender.” The bench further added, “The practice of barring women in age group of 10-50 to go inside the temple violates constitutional principles.”On the other hand, Justice Indu Malhotra in her dissenting judgment said that issues with a deep religious connotation shouldn’t be tinkered with to maintain a secular atmosphere in the country.
Here’s a comparative analysis of the majority and the dissenting judgment:
In his judgment, CJI Dipak Mishra observed that exclusionary practice (denial of entry to women in Sabarimala) is neither an essential nor an integral part of the Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive. This simply indicates that the law does not consider the devotees of Lord Ayyappa, a separate religious section.
In the introduction of the 441-page judgment, CJI Dipak Mishra notes, “The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and the degradation of their status. He further suggested that a perpetual shift is needed in the society “to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man”.
The majority judgment further highlighted that one’s expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors that have arisen out of socio-cultural attitudes. In a stinging word, Dipak Mishra said, “Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practice and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.”
Concluding the judgment, the majority highlights few points including how the popular beliefs or tradition should not supersede the rights guaranteed under Article 14 of the constitution. “The notions of public order, morality and health cannot be used as a colourable device to restrict the freedom to freely practice religion and discriminate against women of the age group of to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple.”
Justice Indu Malhotra, the only dissenting judge in the Sabarimala case, however, differed from the majority judgment. She reiterated that it is not for courts to determine which religious practices should be struck down except in issues of social evil like Sati. She said that the petitioners in the case, The Indian Young Lawyers Association were neither the Ayyappa Devotees nor were they directly affected by the practice. Thus, the verdict in Sabarimala case was given on the basis of a petition of persons who do not subscribe to this faith in the first place. Simply put, the petitioners have no connection whatsoever with the faith and tradition they want the court to alter.
Elaborating her point, she further mentioned, “Permitting PILs in religious matters would open the 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 particular shrine. The perils are even graver for religious minorities if such petitions are entertained.”
While the majority judgment said that the tradition or public morality cannot override the Article 14 of Equality, Justice Indu Malhotra upheld the Article 25 i.e. Right to practice the religion of their choice. She noted that the community has the right to decide what constitutes an “essential religious practice” and it does not come under the ambit 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.
The majority judgment said that the Sabarimala Devotees cannot be termed as separate religious denomination and are a part of Hindu Dharma. Thus, the exclusionary practice isn’t considering essential for the survival of the Hindu religion. However, Justice Indu Malhotra said that even though they are not a separate religious denomination, the Ayyappa devotees are a separate section entitled to the benefits of Article 26 (Freedom to manage religious affairs). They follow an identifiable set of beliefs and customs.
Further going in the contradiction of majority judgment that said banning women from Sabarimala amounted to untouchability, Justice Indu Malhotra said that not all form of exclusion is untouchability. She said, “Untouchability was never understood to apply to women as a class.” “The ban in Sabarimala was because of the deity, not social exclusion,” she added.
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