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On Friday, the SC permitted, with a majority of 4:1, entry of all women of all age groups to the Sabarimala temple holding that devotion can’t be subjected to gender discrimination. While Justice Indu Malhotra, the lone woman judge on the Bench, dissented, Chief Justice Dipak Misra, Justice AM Khanwilkar, Justice RF Nariman and Justice DY Chandrachud constituted the majority.
Here are some of the highlights from Justice Malhotra’s dissent:
Maintainability and justiciability
Justice Malhotra submitted that the right to approach the Supreme Court under Article 32 for violation of fundamental rightsmust include a pleading that the petitioners’ personal rights to worship in the temple have been violated. She further pointed out that the petitioners don’t claim to be the devotees of the Sabarimala Temple where it was believed that Lord Ayyappahad manifested himself as a ‘NaishtikBrahmachari’. Therefore, to allow the said petition, the court would be required to decide religious questions at the behest of those who don’t subscribe to this faith. The absence of this requirement cannot be treated as a mere technicality but as an essential requirement needed to maintain any challenge for impugning practices of any religious sect or denomination. She finally asserted that the right to practice one’s religion is a Fundamental Right guaranteed by the Constitution and does not mention whether such religion should be rational or not.
Rule 3(b) of the 1965 Rules is not ultra vires the Act
Justice Malhotra ruled that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala Temple is not ultra vires to Section 3 as it carves out an exception for the case of public worship in a temple which has been founded for the benefit of any religious denomination or section thereof.
Applicability of Article 14 in matters of religion and religious practices
Justice Malhotra further asserted that Article 14 needed to be viewed differently in the matters of religion and religious beliefs and thus, it not for the courts to determine what practices of faith need to be struck down, except if they are oppressive, pernicious or a social evil, like Sati.
Applicability of Article 15
Justice Malhotra, while rejecting the contention of including Sabarimala within the ambit of ‘places of public resort’, referred to the debates of the Constituent Assembly on the issue of applicability of Article 15, observing that the Assembly had considered it fit to exclude ‘places of worship’ or ‘temples’ from the ambit of Draft Article 9, which pertained to Article 15 of the Constitution.
Constitutional Morality in matters of religion
While ruling that the respondents has made a plausible case for it being a religious denomination entitled for protection under Article 26, she asserted that that it is the duty of the Court to harmonize the rights of all persons, religious sects or denominations thereof.
Essential practices doctrine
Justice Malhotra emphasized on the fact that the practice of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple and the phrase “equally entitled to”, as it occurs in Article 25(1), shall mean that each devotee is equally entitled to profess, practice and propagate his religion, as per the tenets of their religion.
Summary of Conclusions
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