By K Raveendran
Justice Indu Malhotra, who retired the other day after a distinguished three-year tenure as a Supreme Court judge, produced what many considered as an outrageous verdict on the Sabarimala women’s entry, but subsequent developments on the vexed issue completely bear her out.
Despite her unmatched achievement as a lady of the Bar to be only the second woman to be named Senior Advocate – former Delhi High Court chief justice Leila Seth was the first – during her busy law practice and the first ever lady advocate to be directly elevated as a Supreme Court judge, Justice Indu Malhotra penned a dissenting Sabarimala verdict, which opposed the entry of women into the sacred hill shrine of Lord Ayyappa, vowed to remain celibate forever, something that women activists have been eyeing as the ultimate symbol of equality with men. The age-old custom at the temple, situated in a deep forest, prevented women of menstruating ages from entering the precincts, where devotees go on an arduous pilgrimage at the end of a rigorous 41-day fasting.
Justice Indu Malhotra stated unequivocally in her judgment that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere and argued how the right to equality cannot be the only touchstone to test religious customs and practices.
“Equal treatment under Article 25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith. In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country,” she wrote in her dissenting note.
Unfortunately, Justice Malhotra’s solid reasoning failed to find favour with the majority and as such could not influence the final verdict, which held that the age restriction on women’s entry at Sabarimala was a non-essential religious practice as the Ayyppa devotees did not constitute a distinct religious denomination different from other Hindu faiths that could justify such exclusion as essential.
Although the verdict appeared to have settled the issue for good, the gravity of issues Justice Indu Malhotra raised continued to agitate. The massive post-verdict conflict overwhelmed the Kerala society, forcing a deep division, often accompanied by violence and law and order problems. The tactless assertions by the state government that the court order would be implemented at any cost only led to the confrontation getting aggravated. The ruling Left Democratic Front had to pay dearly for its stand, as it was routed in the Lok Sabha elections that followed. The state government has since gone back on its obduracy and status quo has been restored at the temple for all practical purposes.
Over 50 review petitions against the 4-1 majority verdict prompted a Supreme Court constitutional bench to hear the arguments in the open court, the first time something like that happened in the case of revision petitions, underlining the vital importance of points raised by Indu Malhotra. An interim verdict pronounced by the then Chief Justice Ranjan Gogoi, referred the matter to an even bigger constitutional bench. It expanded the scope of the issue raised in the clutch of review petitions challenging the 2018 September verdict upholding the right of women of all ages to pray at Sabarimala to include almost everything that is related to religions and religious practices when it comes to constitutional propriety.
Accordingly, the Sabarimala issue has been combined with entry of Muslim women in a Durgah/Mosques as well as the restriction on Parsi women married to a non-Parsi into to visit the holy fire place of an Agyari along with the practice of female genital mutilation in Dawoodi Bohra community.
While a large number of jurists have questioned the wisdom of combining all these issues, it has revived debate on the cardinal point raised by Indu Malhotra as to the extent to which state can interfere in matters of faith.
In fact, Attorney General K K Venugopal’s felicitation of her on the last day of her Supreme Court career, summed up her unique contribution. “We are sorry as a Bar that Justice Malhotra is retiring after having done human service, especially in the Sabrimala case, where she propounded Constitutional morality, and people were surprised. The integrity she had shown, specially as a women judge, by holding that women between 15 and 50 should not be permitted because if permitted the religious faith of the entire community would be violated”, Venugopal said. (IPA Service)