Sabarimala row: Justice Indu Malhotra's fear that permitting PILs in religious matters would open floodgates 'unfounded', says SC minority judgment

New Delhi: The minority verdict of the Supreme Court in Sabarimala Temple case said on Thursday that Justice Indu Malhotra’s apprehension in the historic judgement last year that permitting PILs in religious matters would open floodgates to interlopers to question beliefs was “unfounded” as the majority judgment cannot be used to undermine the religious rights of others, including minorities. Justice Malhotra had said in her lone dissenting September 28, 2018 verdict in the case that judicial review of religious practices should not be done as courts cannot impose their morality or rationality on the form of worship of a deity. She had said that permitting PILs in religious matters would open 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 shrine. [caption id=“attachment_5512501” align=“alignleft” width=“380”] Representational image. PTI[/caption] In a 3:2 majority verdict Thursday, the apex court referred to a larger 7-judge bench the pleas seeking review of the 2018 judgement allowing women and girls of all ages to enter Kerala’s Sabarimala temple, set to open on November 17, along with other contentious issues of alleged discrimination against Muslim and Parsi women. Justice RF Nariman, who wrote on behalf of himself and Justice DY Chandrachud, said that busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the apex court at the threshold itself. “The issue of locus-standi to file public interest litigation was reargued by some of the review petitioners. Indu Malhotra, in her dissenting judgment, has held that to entertain public interest litigation at the behest of persons who are not worshippers at Sabarimala temple would open the floodgates of petitions to be filed questioning the validity of religious beliefs and practices followed by other religious sects. “We have pointed out in this judgment that the majority judgment cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself… The fear expressed by the learned dissenting judge is therefore quite unfounded,” Justice Nariman said. He further stressed on the earlier judgement where he had pointed out that the case raised grave issues which relate to gender bias on account of a physiological or biological function which is common to all women. “It is for this reason that a bonafide public-interest litigation was entertained by the majority judgment, having regard to women’s rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in,” he said. In the September 28, 2018 judgement, while the four male judges, part of the five-judge bench, were in the favour of allowing women of all ages to enter the temple, Justice Malhotra had refused to interfere with the centuries-old practice of banning women of age group of 10 to 50 years in the shrine. She had observed that the issues raised in the case have far-reaching ramifications and implications, not only for the Sabarimala Temple but for all places of worship of various religions in the country which have their own beliefs, practices and customs and may be considered to be exclusionary in nature. “In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by courts,” Justice Malhotra said. She had further said that the petitioners do not claim to be devotees of the temple and permitting PILs in religious matters would open 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 shrine. “Judicial review of religious practices ought not to be undertaken, as the court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts,” she said.