Sabarimala Verdict: Supreme Court can't rationalise faith, belief

The Supreme Court's decision to allow women of all ages to enter the Sabarimala Sri Ayyappa temple in Kerala did not have the approval of one judge sitting on the Constitution Bench — Justice Indu Malhotra.

Her opinion was that courts cannot impose morality or rationality on religious practices. Her dissent stands out as both ironic and historic.

Among the judges comprising the Bench, namely Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar and DY Chandrachud, Justice Malhotra was the junior most.

She was elevated as a top court judge on April 27, 2018. Her short five-month experience dwarves her before the other judges, who had been Chief Justices of High Courts prior to becoming judges of the apex court.

But her reasoning and contrarian view struck a chord with the nation. It placed the right of a citizen to enter a temple on one plane and the right to religious practices by a sect or denomination on a different plane altogether.

Constitutional morality, when exercised by a court in a secular and multi-religious polity, must balance both rights.

She said the danger lurks when courts try to read logic and rationality into religious practices, which are a matter of belief and faith. "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," she said in her 75-page judgment. "It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts." The only rider she added where courts could intervene was where women are punished or oppressed, for instance the practise of Sati.

She took a compassionate view of the case as it involved gender justice. The petitioner, who was not a professed devotee of Lord Ayyappa, said that Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965 imposed fetters on women aged between 10 to 50 years due to the stigma attached to menstruation.

The Travancore Devaswom Board, that manages the temple, claimed the restriction was not on women per se, but due to the fact that the deity is a 'Naishtik Brahmachari'. Pilgrims have to observe a 41-day vratham (abstinence) before visiting the shrine.

This practice had the force of law in antiquity, a mention of which was found in the Memoir of the Survey of the Travancore and Cochin States written by Lieutenants Ward and Conner published in 1893.

Justice Malhotra scorned at admitting PILs questioning religious beliefs and practices, saying this holds dangerous consequences for religious minorities in a country such as India, comprising diverse religions, creeds, sects — each which its individualistic faiths, beliefs and distinctive practises.

Moreover, this was the job of a civil court where evidence in this regard can be produced. What is essential to a religion is best left to the religious community and in this case, the Lord Ayyappa followers constituted a distinct religious denomination, she added.