Dissent on the Sabarimala Judgment
A plain heads up on the Sabarimala verdict primarily seems a triumphing stand taken by the Hon’ble Supreme Court promulgating a righteous victory of gender equality and women empowerment virtues being recognized over the orthodox practices by religiously regulative customary laws. However, amidst this majority and popular opinion, Justice Indu Malhotra bestows upon the realists, a minor but very rationally justified and resolute view on the entire issue which duly requisites a prejudice free reading and unfettered understanding to be appreciated for the strong and logical reasoning it contains, from an unbiased eye.
OVERVIEW OF THE SABARIMALA CASE
The dispute over the entry of women (aged between 10-50 years)at the Sabrimala temple situated in Kerala has been before the hon’ble courts since more than three decades now. The temple is esteemed with the great Hindu deity lord Sabrimala worshipped by certain sect of Hindus, Ayyappans that firmly believes him to grace the temple in a ‘Naishtik Bhrahmachari’ form in which women in the age group of 10-50 cannot visit pertaining to the sacred mythology based rituals and customary beliefs. Therefore, as per the religious practice, it was incorporated in the rules laid down as per Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act,1965. The said rule was challenged on the grounds of being discriminative as per article 14, 15 and 18 and thus prayed to be held unconstitutional.
While in 1991, the Kerala high court upheld the validity of this practice of excluding women of the certain age group by recognizing the religious freedom of the Ayyappans, the issue was revisited in 2005 when the Indian young lawyer association filed a PIL before the SC challenging the validity of the said HC order. The case was finally heard by a 5 judge constitutional bench constituting of CJI Deepak Mishra, Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra in 2017. The verdict was celebratedly landmark since the bench in majority, i.e. by 4:1, held the practice of excluding women at the Sabrimala temple as unconstitutional and thus secured the principle of constitutional morality by recognizing equality of women over religious freedom which the defendants did not qualify themselves for as per the requirements of article 25 and 26, as per the majority opinion.
Interestingly, Justice Indu Malhotra, the only women on this panel also became the only one judge who recorded her dissent on the matter based on several rationally justified grounds that are pertinent to note and emanate needfully logical interpretations that support her stands that cannot be overlooked. Based on a detailed comparative analysis and follow-up on her views and comprehensive legal arguments backed by exhaustive (undeniable) evidences or basis of the same has been laid out for your understanding and subject to agreeability:
PUBLIC INTEREST LITIGATION
It is pertinent to note that the initiation of this suit by the Indian Young lawyer Association through a public interest litigation, claims to be an acknowledgement by this organisation of the alleged unconstitutionality of the discriminative practice against women by the Kerala Hindu Places of Public Worship (Authorization of Entry) Act,1965. However, it is pointed out in the dissent, as well as taken up as a primary issue in the pending review judgement in the same matter, whether PIL should be extended in terms of religious matters since religious practice and beliefs are subject to perceptive understanding and conscience of the people and any imposition of logical rationality to the matter shall be irrelevant unless the aggrieved party themselves evidence the infringement of their fundamental rights. In such a case, grant of corrective remedy based on perceptions of a third party organisation could be an uncalled and irrelevant exercise of powers and intervention by the courts.
THE ESSENTIALITY TEST
Justice Gajendragadkar in Shirur Mutt case,, suggested an ‘essentiality test’ in terms of which upon collusion of other rights an ‘essential’ part of the religion or belief or not and if found so, may severe it and strike it down. This essentiality test was inherited by many succeeding decisions by the courts.
However, the same judgement contained a very rational dissent by Justice Mukherjea that the courts perhaps are not the appropriate body to understand and determine the essentiality of a religion as the same is subject of centuries old debate among the philosophical thinkers and religious scholars without a definite verdict since ages. A rather sound approach could be a harmonious interpretation of the conflict among fundamental rights and upholding the constitutional morality only when the greater good or any essentiality is being transgressed.
CONSTITUENT ASSEMBLY DEBATES
Justice Malhotra points out the fact that the specific inclusion of “temples” within the meaning of article 15 and thus article 14 was not an alien idea struck by non-mindfulness or anticipation of the constitution makers. She adduces evidence from the constituent assembly debates that it was in fact contended and voted on, for whether to include the same within the freedoms and secured from discrimination as was done with the practice of untouchability. However, the assembly apparently voted against the same and thus we can satisfactorily deduce that it was not the intention of the assembly to include the same. Therefore, extending the interpretation of the constitution in an arena that was specifically discussed and struck down by the able constitution framers would be outraging the sanctity in terms of interpretation.
DISTINCT STATUS TO ‘AYYAPPANS’
The court in its majority denied recognition of a distinct entity with a distinct practice to ‘Ayyappans’ based on the alleged rationality that their religious beliefs and practice involving fasting, pilgrimage and temple worship is as common to any other Hindu follower and thus no special status could be granted to them to qualify their exclusivity on the temple. However, Justice Malhotra points out to the interpretation of the same arguments and facts in favour of granting them a distinct status by adducing the fact that no other Hindu ritual or practice involves such tremendous fasting for 40 days, bare walk to the Sabrimala temple and observing strict exclusion from contact of any women, (even own daughter and wife) by the Ayyappans during the time period of observing the concerned rituals.
A CONCLUSIVE AND COMMENDABLE DISSENT
The discussed dissent along with the grounds therefore adduced, apparently cannot be denied in course of appreciating the logic and rationality it possesses and is very strong. The fact that the Sabrimala verdict that has been reserved for review therefore incorporates few issues based on this very dissent as well and we shall soon a verdict that may soundly resolve our concerns.
The charisma of certain landmark dissents in the history of Indian judiciary forms the core of the comprehensive account of all round development and a celebrates the sense of justiciability in the regime. In my opinion, justice Indu Malhotra’s exhaustively justified dissenting opinion in the legendary Sabrimala verdict is not very short of falling in line with the three incredibly famous dissents in the history of supreme court verdicts that later became landmark legal positions of law which were rightfully appreciated and recognized later.
Justice Subba Rao in Golaknath case ; Justice H. R. Khanna in ADM Jabalpur case,, and Justice Fazl Ali in the A K Gopalan case,, are remarkable legal works in the regime of supreme court decisions under the dissent column which apparently form core legal positions today.
The subject matter of a dissent by any jurist or judge eventually finds its way to enlightenment and recognition based on its merits sooner or later. However, it is fascinating to appreciate and understand them in the manner in which they are presented and justified or contended in the while when they are in fact seen to be a distinct stand from the popular majority and the courage they emit upon denying the accedence.
ENDNOTES  S. Mahendran vs The Secretary, Travancore AIR 1993 Ker 42.  2005 PIL case.  Kerala Hindu Places of Public Worship (Authorization of Entry) Act,1965.  Commissioner, Hindu Religious Endowments, Madras v/s Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954.  Statement of Prof. K.T. Shah, constituent assembly debates (November 29, 1948).  Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762).
ABOUT THE AUTHOR
This blog has been authored by Prashansa Shah, who is a Law Graduate from Alliance University, Bengaluru.
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