Ankitesh Ojha

| @Ojha292 | October 22,2018

On October 17 and then onwards, many of us saw playing on our TV screens the brutal conflicts between the Kerala police and Ayappa devotees challenging the Supreme Court judgment, which has allowed women of any age to enter the Sabarimala temple premises. It seems like the devotees of Lord Ayyappa are mighty upset as they feel that their religious sentiments have been hurt. The people who have faith in the deity cannot see something happening — that is the purported entry of women aged 10-50 entering the Sabarimala temple — non-presence or absence of which (menstruating women) long had been an important aspect for worshipping Lord Ayyappa.

Whenever, the courts have tried to interfere with old customs and have nullified them, there has always been hue and cry. Attachment towards a custom can make one take grave steps when the particular custom is interfered with, but does that mean that the courts should stop taking up religious matters and leave it to the will of people practising it? Does that mean that the practices which are established on the ground on inequality shall prevail just because the religious sentiments of people practising them might get hurt?

The answer to these questions is very simple and bold, and no argument has the ability to counter this answer. The answer was given by the Supreme Court in very concrete terms on September 28, 2018, when it said:

“Woman is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith, Religion is basically a way of life; however, certain practices create incongruities.”

The judgment also has a dissenting opinion and many Indians, especially after the protests, feel that the dissent of Justice Indu Malhotra is well reasoned, strong and should have been the majority opinion. The fact that this verdict resulted in public anger which was predicted by Justice Malhotra in her “dissent” strengthens this feeling.

A review petition has been filed and now the response of the court towards this petition has to be seen. One thing which has to be kept in mind is that the judgment has become significant as it discusses some very fundamental points like the application of Article 14 on religious matters and the extent of Article 25. Hence, any response of the court on the bounds of these provisions of Part III will have far reaching implications and will set a strong precedent.

One thing which has to be kept in mind is that the judgment has become significant as it discusses some very fundamental points like the application of Article 14 on religious matters and the extent of Article 25. Hence, any response of the court on the bounds of these provisions of Part III will have far reaching implications and will set a strong precedent

Therefore, it becomes imperative to understand the dissent by Justice Indu Malhotra which has been a much talked about topic in the past few days.

Role of past ‘dissents’

 

Some great dissents by judges have led to many positive outcomes. When Justice Hans Raj Khanna, dissented from the majority opinion in the ADM Jabalpur case, the entire legal fraternity had kind words for him, who said that the Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive. This dissent of Justice Khanna has contributed in establishment of the rule of law in India. The New York Times once wrote: “If India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna.” Khanna’s dissenting opinions have been the examples of strong and well-reasoned dissents which had the capability of being recognised in subsequent judgments.

Another legend who deserves to be talked about is Justice M Hidayatullah, who, in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, did not concur with the majority opinion and said that judicial action is subject to judicial review. The Supreme Court has always taken the opportunity to reward the well-reasoned dissents by transforming them into majority decisions in subsequent cases. The apex Court in the coming time, will judge the sole dissent of Justice Indu Malhotra in the case of Indian Young Lawyers Assn. v. State of Kerala, WP (C) No. 373 of 2006.

 

Protesters/Sabarimala devotees lionising Justice Indu Malhotra’s dissent in the Supreme Court judgment outside Kerala House. | Photocredit: Unnikrishnan, @News18Kerala

Question of PIL and Article 14

 

The operative part of this landmark judgment says that the practice of not allowing the entry of women of the age group from 10 to 50 is unconstitutional being violative of Part III of the Constitution. Here, the dissenting opinion to this majority judgment does not want the religious practices to be subjected to the test of Article 14 of the Constitution.

The dissent of Justice Malhotra is basically premised on two major grounds which are: one, maintainability of petitions concerning religious practices under Article 32, and two, application of Article 14 in case of such practices. She goes on to say that one who does not belong to that particular religion and/or subscribe to the particular faith has no right to approach the court under Article 32 as the person cannot be said to be aggrieved

The dissent of Justice Malhotra is basically premised on two major grounds which are: one, maintainability of petitions concerning religious practices under Article 32, and two, application of Article 14 in case of such practices. Firstly, the dissent questions the scope of public interest litigations in matters involving religious faith. It makes a distinction between the litigations in public interest and litigations in public interest involving religious sentiments. Justice Malhotra says that allowing such PILs will result in the apex court being flooded with cases involving religious sentiments by interlopers in the name of PILs. She goes on to say that one who does not belong to that particular religion and/or subscribe to the particular faith has no right to approach the court under Article 32 as the person cannot be said to be aggrieved.

However, the entire purpose of a PIL is to allow representation of people who by any reason have not been able to approach the court personally. Some of the cases filed by public-spirited persons and organisations have resulted in tremedous development in the relevant fields which could not have been done if the courts had waited for the “aggrieved persons” to approach personally. Justice Krishna Iyer in the case of Janata Dal v. H S Chowdhary, AIR 1993 SC 892 elaborated the need of PILs and said: “Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where a foul play is absent and fairness is not faulted latitude is a grace of processional justice. Test litigations, representative action, pro-bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural short-comings.”

After perusal of some landmarks PILs filed in the Supreme Court, one thing which comes out very clearly is that justice cannot be denied by the apex court when a matter concerning a public interest comes up and it becomes the duty of the Supreme Court under Article 32 to give a fair adjudication as soon as the questions regarding the infringement of Part III come to the fore

After perusal of some landmarks PILs filed in the Supreme Court, one thing which comes out very clearly is that justice cannot be denied by the apex court when a matter concerning a public interest comes up and it becomes the duty of the Supreme Court under Article 32 to give a fair adjudication as soon as the questions regarding the infringement of Part III come to the fore. The Supreme Court cannot choose to avoid cases concerning public interest on the reasoning that such an entertainment would lead to opening of floodgates to interlopers.

In my opinion, separating the cases of religious sentiments from other cases of public interest sounds unnecessary. It is hard to understand that how a case concerning an organisation representing the bonded labourers for their basic rights is different from a case where a public-spirited organisation is representing the rights of women who are denied the right as basic as the right to worship. In both the cases denial of rights guaranteed under Part III is the main issue involved, with an added element of “religious sentiments” in the latter. It would be unjust to say that the latter does not deserve to be entertained under Article 32 because it has an element of religion in it and the person filing the petition has no connection with that religion. This approach would lead to backsliding of jurisprudence of PILs.

Flawed exemption of religious practices from ‘social evils’

 

Another point which is interesting to observe is that Justice Malhotra wants the cases which involve “oppression in the name of religious practices” and are “social evils” to be entertained. Here, there was a need on her part to clarify as to what shall be considered as a social evil and how banning the entry of women of menstruating age by imposing harsh conditions is not a social evil. Justice Malhotra, by giving the example of the long banned practice of Sati, has set a very high threshold for entertainment of petitions under Article 32 in the matters of religious faith. In my opinion, there cannot be categories of oppressiveness and the courts ought to treat all of the cases of discrimination with due seriousness. A woman has a physiological feature being in a menstruating age, and if that entitles anybody or a group to subject her to exclusion from religious worship then it is a pernicious and oppressive practice for sure.

Justice Malhotra, by giving the example of the long banned practice of Sati, has set a very high threshold for entertainment of petitions under Article 32 in the matters of religious faith. In my opinion, there cannot be categories of oppressiveness and the courts ought to treat all of the cases of discrimination with due seriousness

Justice Malhotra justifies this ban by stating that the people who have subscribed to this faith have their rights protected under Article 25 and hence in such a situation Article 14 does not have any application. The non-application of Article 14 in religious matters would go against the very basic principles of the Constitution. What is not emphasised by Justice Malhotra is the application of Article 25 to the women in age group from 10-50. This provision of the Constitution mentions in very concrete terms that the right under Article 25 is available to all persons, which includes women too.

Justice Malhotra justifies this ban by stating that the people who have subscribed to this faith have their rights protected under Article 25 and hence in such a situation Article 14 does not have any application. The non-application of Article 14 in religious matters would go against the very basic principles of the Constitution

“Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein.” This, according to me, is the most non-agreeable part of her dissent. By saying this, a protection to religious practices from the test of Article 14 has been indicated, which cannot be concurred with.  It is a fact that most of the discriminating practices have stemmed from the faith of people in some really absurd religious practices and hence the religious practices cannot be immune to the test of Article 14. Religion cannot be a veil for practicing something which is not permitted by principle of equality and equity.

When Justice Malhotra contradicts her own judgment in Section 377

Now it could be argued with the reasoning of Justice Malhotra that the religious practices which consider homosexuality as a sin must be given a due consideration under Article 25 and hence there is a difficulty in application of Article 14. However, Justice Malhotra rightly did not discuss about the applicability of Article 25 in this case concerning legal validity of Section 377, IPC

A similar kind of situation arose in Navtej Singh Johar v. Union of India where one intervener contended that “since fundamental rights are not absolute, there is no unreasonableness in Section 377 IPC and decriminalising the same would run foul to all religions practiced in the country, and, while deciding the ambit and scope of the Constitutional morality, Article 25 also deserves to be given due consideration”. Now it could be argued with the reasoning of Justice Malhotra that the religious practices which consider homosexuality as a sin must be given a due consideration under Article 25 and hence there is a difficulty in application of Article 14. However, Justice Malhotra rightly did not discuss about the applicability of Article 25 in this case concerning legal validity of Section 377, IPC. One thing which is clear is, any religious practice which is discriminatory cannot have the backing of Article 25 of the Constitution of India and it is for the Part III, even in religious matters, to play its game and decide whether a particular practice is ultra vires the Constitution or not.

The powerful and praiseworthy dissents of judges like HR Khanna, M Hidayatullah have always spoken in the favour of protecting the sanctity of Part III of the Constitution while the dissent of Justice Indu Malhotra puts restrictions on the bounds of Article 14 of the Constitution

The powerful and praiseworthy dissents of judges like HR Khanna, M Hidayatullah have always spoken in the favour of protecting the sanctity of Part III of the Constitution while the dissent of Justice Indu Malhotra puts restrictions on the bounds of Article 14 of the Constitution. Now it is for the Supreme Court to decide the journey of this peculiar “dissent”.

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