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Sabarimala verdict: PIL says testing rationality threat to religion

Using the dissenting judgment given by Justice Indu Malhotra — the lone woman judge on the Constitution bench — the petition said that if all religious practices are to be tested on rationality, none will survive in the country.

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Lord Ayyappa at Sabarimala temple is believed to be a Naishtika Brahmachari
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The first major challenge to the Supreme Court's Sabarimala verdict came on Monday with the Nair Service Society (NSS), a body of Kerala's influential Nair community, filing a petition seeking a review of the September 28 judgment opening doors of the Lord Ayyappa temple at Sabarimala to women of all ages. Prior to this judgement, women between 10 to 50 years of age, were not permitted entry at the ancient Kerala shrine.

Using the dissenting judgment given by Justice Indu Malhotra — the lone woman judge on the Constitution bench — the petition said that if all religious practices are to be tested on rationality, none will survive in the country.

NSS was a party to the case when it was argued before the Supreme Court and had opposed the PIL challenging the age-related ban on women filed by Indian Young Lawyers Association. The NSS and the Travancore Devaswom Board had argued before the five-judge bench in favour of the ban as Lord Ayyappa at Sabarimala is a "Naishtika Brahmachari".

Questioning the logic applied by the majority bench of then Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, and DY Chandrachud, the NSS petition said, "If the general ground of equality under Article 14 is resorted to and the essential religious practices are tested on the principle of rationality, many essential religious practices may be rendered irrational or unjust, unfair and unreasonable, and religion itself may be rendered out of existence."

The petition also questioned the legality of the constitution bench deciding upon questions of fact when it was called upon to decide questions of law. Once the law was laid down, the matter required to be returned to the bench that referred the questions of law to a constitution bench. The petition relied upon the reasoning given by Justice Malhotra that essential religious practice requires examination of evidence by a trial court and cannot be challenged by a third party but a devotee.

The dissenting judge held that matters of religion need to be balanced with individual rights of a citizen to worship as both Fundamental Rights enjoy equal protection of law.

The petition termed these grounds as "error apparent in law" to make a ground for seeking review of the apex court judgment. The petition is expected to get listed in chambers before the same bench that heard it.

Since Justice Dipak Misra has retired, the present CJI Ranjan Gogoi can take his place on the bench or appoint another judge to fill the vacant spot.

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