10/10/2018 Sabarimala review pleas take dissenting judge’s line - The Hindu

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Sabarimala review pleas take dissenting judge’s line

Krishnadas Rajagopal
NEW DELHI, OCTOBER 08, 2018 21:07 IST
UPDATED: OCTOBER 09, 2018 07:33 IST

Justice Indu Malhotra had warned that permitting PIL pleas in religious matters would
throw open the oodgates to ‘interlopers’

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

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10/10/2018 Sabarimala review pleas take dissenting judge’s line - The Hindu

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 Naishtika Brahmachari. 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”.
 
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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.

Only believers
“Justice Indu Malhotra said faith is irrational. But whenever faith inflicts
could have harm on fundamental rights, the court should intervene. An aacharam
moved against
Sabarimala ban (tradition) should not become an anaacharam (bad tradition),” he said.
on women,
argues review 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.
 
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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.
Sabarimala: BJP
nds a cause
celebre in Kerala
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10/10/2018 Sabarimala review pleas take dissenting judge’s line - The Hindu

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.

Printable version | Oct 10, 2018 1:05:39 AM |

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