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Justice Indu Malhotra’s dissent resonates deeply with the Podcast Playlist
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The Supreme Court’s verdict on entry of women in Sabarimala Supreme Court with their arguments
 Facebook temple reverberated across India as millions of Hindu devotees Jul 29, 2018 Religion
of Ayyappa reacted with disbelief and disappointment. Research
 Google + Ironically, the sole voice of dissent in the Sabarimala verdict Justice Indu Malhotra’s dissent resonates deeply
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 Science And Technology
 Twitter was that of Justice Indu Malhotra, the only woman in the 5- with the silent majority
judge bench whose differing judgment struck a sympathetic Presentation
Sep 29, 2018
 Pinterest chord with many Hindus like me who feel that her judgment Social Issues
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Hindu religious customs and practices. Ecosystem exposed in Kerala
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It is perhaps keeping this day in mind that Swami Vivekananda Support
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hundred years ago when he said that social reform in India
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should not disturb the faith of the masses. A reformatory Travelogues
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discrimination against the Hindu
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bring about a lasting change in society. Blogs
Sep 23, 2018
Survey
Justice Indu Malhotra echoes this sentiment in a significant
observation she makes in her judgment: MyInd Debate
“In the case of temple entry, social reform preceded the
statutory reform, and not the other way about. The social
Elections 2019- A Discussion on the
reform was spearheaded by great religious as well as national
NOTA option. Is it a Game Changer?
leaders like Swami Vivekananda and Mahatma Gandhi. The
reforms were based upon societal morality, much before  Aug 05, 20…  Myind Sta…

Constitutional Morality came into place.”

It is thanks to the efforts of Advocates Parasaran, Sai Deepak

and others who took great pains to make the judges aware of
the rationale behind the timeless spiritual practices of
Sabarimala that this note of dissent became possible. Two of
the women petitioners also withdrew their plea on 1st August
stating that they had now understood that the exclusion of
women between the age of 10 and 50 was not intended to be
discriminatory.

Otherwise, we would have perhaps had a unanimous judgment

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 of a bench which appeared to be in a great hurry to prove at
any cost that the Indian judiciary is a progressive, liberal and
forward looking institution – even if upholding that image
meant trampling over the sensitivities of millions of Hindus and
dumbing down the larger vision behind the diversity of religious
customs and practices that exist in India to make it appear like
a triumph of feminism over patriarchy.

As the representatives of Hinduism try to understand and

respond to the Sabarimala verdict, Justice Indu Malhotra’s
observations assume great significance. Commenting on the
larger ramifications of the Sabarimala verdict, Justice
Malhotra writes in her judgment: As we approach Elections 2019- Vivek
“The issues raised in the present Writ Petition have far- Singh discusses the NOTA option. Is it
reaching ramifications and implications, not only for the a Game Changer? Will it impact 2019
Sabarimala Temple in Kerala, but for all places of worship of and how useful has it been?
various religions in this country, which have their own beliefs, ....Read More
practises, customs and usages, which may be considered to be
exclusionary in nature. In a secular polity, issues which are
matters of deep religious faith and sentiment, must not Top Authors
ordinarily be interfered with by Courts.” (p.22)

For example, one can now argue that temples should not insist
on any form of ritual purity while entering the temple premises
and that this amounts to discrimination against those who
cannot maintain such purity. This leads us down a slippery
slope and where does one draw the line?

Further, she points out that the petitioners are not devotees of
Ayyappa and therefore the court is deciding on a religious
question at the behest of petitioners who do not subscribe to
the faith, which does not satisfy the condition to move the
Supreme Court under Article 32:

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 “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 in this Temple
have been violated. The Petitioners do not claim to be devotees
of the Sabarimala Temple where Lord Ayyappa is believed to
have manifested himself as a ‘Naishtik Brahmachari’. To #MyIndSurvey
determine the validity of long-standing religious customs and
usages of a sect, at the instance of an association/Intervenors
who are “involved in social developmental activities especially Why does Indian Military buy
activities related to upliftment of women and helping them foreign equipment ?
become aware of their rights”, would require this Court to  Sep 20, 20…  MyIndMak…
decide religious questions at the behest of persons who do not
subscribe to this faith.” (p.23)  Total vote…

“If women between the age of 10 to 50 years are Because Indian Engineers cannot
permitted entry, it would result in changing the very make world class Military Hardware.
character/nature of the deity, which would directly impinge
India has to keep throwing crumbs at
on the right of the devotees to practise their religion Foreign Players to keep the Human
guaranteed by Article 25(1) of the Constitution. The right of Rights & Evangelical lobbyists happy.
the devotees under Article 25(1) cannot be made subject
Indian Military planners want short
to the claim of the Petitioners to enter the temple under
term acquisitions to stem the tide and
Articles 14 and 15 of the Constitution, since they do not
don't believe in Long term building.
profess faith in the deity of this Temple, but claim merely to
India lacks a Strategic Military
be social activists.” (p.20-21)
Doctrine.
She warns that by permitting PILs in religious matters at the
behest of non-practitioners, the Supreme Court will be allowing VOTE
interlopers to question religious beliefs and practises and that
the perils of such interventions are even graver for religious
minorities if such petitions are entertained.

Further, commenting on the contentious notification issued by

the Travancore Devaswom Board in 1956, Justice Malhotra
explains why the devotees of Ayyappa can be construed to
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 form a distinct religious denomination:

“The worshippers of Lord Ayyappa at Sabarimala Temple

constitute a religious denomination, or sect thereof, as the
case maybe, following the ‘Ayyappan Dharma’. They are
designated by a distinctive name wherein all male devotees are
called ‘Ayyappans’; all female devotees below the age of 10
years and above the age of 50 years, are called
‘Malikapurnams’. A pilgrim 52 on their maiden trip to
Sabarimala Temple is called a ‘Kanni Ayyappan’. The devotees
are referred to as ‘Ayyappaswamis’. A devotee has to observe
the ‘Vratham’, and follow the code of conduct, before
embarking upon the ‘Pathinettu Padikal’ to enter the Temple at
Sabarimala... The religious practises being followed in this
Temple are founded on the belief that the Lord has manifested
himself in the form of a ‘Naishtika Brahmachari’. It is because Categories
of this nishtha, that women between the ages of 10 to 50
years, are not permitted to enter the temple.”
 Current Affairs 393
The dissenting judge was able to grasp the point that the
 Politics 366
restriction is only on women of a certain age group in
Sabarimala owing primarily due to the brahmacharya aspect of  History and Cultural Issues 244
the deity and the devotees’ vratham and does not amount to
 Foreign Policy 170
discrimination as it is not a blanket ban on women’s entry. She
also recognizes the fact that there many other temples of  Economics 113
Ayyappa where there is no such restriction at all on the entry of
women of any age group whatsoever:  Military and Strategic Affairs 113

“The right to gender equality to offer worship to Lord Ayyappa  Social Issues 69
is protected by permitting women of all ages, to visit temples  Dispatch 58
where he has not manifested himself in the form of a ‘Naishtik
Brahamachari’, and there is no similar restriction in those
temples. It is pertinent to mention that the Respondents, in this Archives
context, have submitted that there are over 1000 temples of
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 Lord Ayyappa, where he has manifested in other forms, and  August 2018 42
this restriction does not apply.” (p. 29)
 July 2018 37
The judge refers to the earlier verdict of the Kerala High Court
which held that the restriction on the entry of women between  June 2018 33
the ages of 10 to 50 years was in accordance with the practice  May 2018 33
prevalent since time immemorial, and was not violative of
Articles 15, 25, and 26 of the Constitution and that this  April 2018 35
judgment had attained finality and was not challenged further.
Hence, she avers that this issue should not have been reopened
under Article 32.

While the other judges frequently compared the Sabarimala

issue with social evils such as the temple entry of Dalits,
untouchability etc. Justice Malhotra differed and pointed that
these are entirely different issues:

“In the present case, women of the notified age group are
allowed entry into all other temples of Lord Ayyappa. The
restriction on the entry of women during the notified age group
in this Temple is based on the unique characteristic of the
deity, and not founded on any social exclusion. The analogy
sought to be drawn by comparing the rights of Dalits with
reference to entry to temples and women is wholly
misconceived and unsustainable.” (p.67)

“It is clear that Article 17 refers to the practise of

Untouchability as committed in the Hindu community against
Harijans or people from depressed classes, and not women, as
contended by the Petitioners.” (p.69)

The Hindu community feels rightly aggrieved that while the

courts are cautious and circumspect when it comes to
sensitive matters of faith of other religions, they consider it a
Constitution given right to interfere in every custom and
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 practice of Hindu faith and it’s festivals – Ganesh Visarjan,
Dahi Handi, cracker ban on Diwali, Shani Shingnapur and now
Sabarimala. The judgment also reflects on the dangers of such
judicial overreach:

“Judicial review of religious practises 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 practise 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... (p.43)

Constitutional Morality in a pluralistic society and secular

polity would reflect that the followers of various sects have the
freedom to practise their faith in accordance with the tenets of
their religion. It is irrelevant whether the practise is rational or
logical. Notions of rationality cannot be invoked in matters of
religion by courts.” (p.45)

As the devotees of Ayyappa file a review petition in the

Supreme Court, one can only hope that all these points are
given further consideration. The biggest weakness of Hindu
society today are its deracinated and ignorant elite who seek to
shove down their biased judgments of Hindu customs and
practices down the throats of the masses. And therefore, our
strongest weapon of resistance against this oppression is to
ensure that the gap between the worldviews of the practicing
Hindu and the intellectual elite is reduced through dialogue and
understanding. “Bring light to the ignorant, and more light to
the educated,” as Swami Vivekananda said.

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