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A dissenting view

The Hindu

The Hindu   | Photo Credit: LejuKamal

In Indian Young Lawyers Association v. State of Kerala, the Supreme Court by a 4-1 majority held the practice of the Sabarimala temple of prohibiting entry of women of menstruating age as illegal and unconstitutional. In my opinion the majority judgment is incorrect, and the correct judgment is that of Justice Indu Malhotra, the sole dissenting judge.

A contrast of the judgments of Justice Malhotra and of the majority shows the vital difference in their approaches. While the majority judges go by abstract and theoretical notions of dignity, equality and gender justice, ignoring the ground social realities of India, Justice Malhotra takes notice of the tremendous diversity of India and the care that judges must take when dealing with a sensitive issue like religion.

She states: “The issues raised in the present writ petition have far-reaching ramifications and implications not only for the Sabarimala temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practices, customs and usages. In a secular polity, issues which are matters of deep religious faith and sentiment must not ordinarily be interfered with by courts.”

Contrast this realistic approach with the remarks of Chief Justice Dipak Misra: “In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature.” Or of Justice D.Y. Chandrachud: “To treat women as children of a lesser god is to blink at the Constitution.”

It was held earlier by the Kerala High Court that this prohibition of entry to women of menstruating age was a practice prevailing for centuries. It was not aimed at degrading women, but was based on the belief that Lord Ayyappa, the temple deity, was a Naishtik Brahmachari (celibate). The devotees practise celibacy and austerity for 41 days before starting their journey to the temple.

Justice Malhotra rightly said that the right to equality in Article 14 had to be harmonised with the right of people under Article 25 to follow their own religious practices, and the court was not entitled to see whether the practice was rational or not.

There are thousands of temples, mosques, and gurdwaras in India, many with their own rituals and practices. There are some temples which do not permit entry to women, and some to men. Should courts now start interfering in all these?

And what about mosques? While in theory there is no bar to women going to mosques, in practice hardly 1-2% mosques in India permit women to enter, and they have to pray at home.

I fear that the judgment has opened a Pandora’s box. Litigation will surely start about other places of worship too.

The writer is a former judge of the Supreme Court

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Printable version | Sep 26, 2020 8:05:51 PM | https://www.thehindu.com/opinion/op-ed/a-dissenting-view/article25114433.ece

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