Justice Indu Malhotra’s rationale that courts should not allow “interlopers” to file PIL pleas challenging religious practices is a common thread in the review petitions filed in the Supreme Court on Monday against the Sabarimala judgment.
Justice Malhotra, in her dissent against allowing women aged between 10 and 50 entry into the temple, warned that “permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practices, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine”.
The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioners’ personal rights to worship have been violated. Entertaining of PIL pleas on religious practices by third parties may invite “perils even graver for religious minorities”.
Petitioners’ claim
The petitioners did not claim to be devotees of the Sabarimala temple where Lord Ayyappa is believed to have manifested himself as a NaishtikaBrahmachari . The Indian Young Lawyers Association only said it was involved in activities related to the “uplift of women and helping them become aware of their rights”.
Former Supreme Court judge Justice K.T. Thomas countered Justice Malhotra’s reasoning. Justice Thomas was on the Bench which first heard the Sabarimala case in the Kerala High Court.
“Justice Indu Malhotra said faith is irrational. But whenever faith inflicts harm on fundamental rights, the court should intervene. An aacharam (tradition) should not become an anaacharam (bad tradition),” he said.
Justice Thomas upheld the principle of constitutional morality, where beliefs and usages should be in tune with the fundamental rights enshrined in the Constitution.
Cites Thapar petition
He pointed to the recent PIL plea filed by historian Romila Thapar and four others under Article 32 against the arrest of five activists in the Bhima Koregaon violence case. “If only affected persons can file under Article 32, what about the PIL filed by complete strangers highlighting the right to dissent and personal liberty of the five intellectuals in the Bhima-Koregaon case,” he asked.
Justice Thomas disagreed with the 1991 Kerala High Court decision, which upheld the prohibition on women, based on the findings of a devaprasnam . “That was certainly not the job of a High Court,” the former judge said.
But Justice Malhotra’s dissent was particular to PIL pleas filed on religious matters. She objected to the Supreme Court delving into the validity of long-standing religious customs and usages of a sect, at the behest of persons who do not subscribe to this faith.
“In matters of religion and religious practices, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed or sect,” Justice Malhotra observed.
The minority view emphasised the fundamental right under Article 25 of an individual to worship a specific manifestation of the deity in accordance with the tenets of that faith or a place of worship.
