I stepped into it out of plain curiosity. But i was sucked in, and held afloat, by the sheer beauty of it. The judgement of dissent, penned by the only woman judge in the #Sabarimala case, 1:4.
I have to admit. It takes guts, courage and immense wisdom to distance yourself. From your peer group, your social circle, and, most importantly your gender identity. Distance yourself from all you are seen as. To go against the mainstream perception. To be truly Objective, to truly Judge. Its not something that can be taught. It is something that is inculcated. With a lot of growth pain.
I feel proud. And i feel happy.
Us, citizens of India, have a woman out there. At the top. One who represents all these qualities, and more. What follows is my celebration of Indu Malhotra and the sharp, sensible, sensitive Judgement she gave on the Sabarimala case.
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It is a judgement i’d encourage everyone to read.
While being taken in by the beauty of her perception of India, i was simultaneously reminded of the #ConstituentAssemblyDebates our forefathers had. I had studied them during my Journalism days. Incidentally, the same college as Indu Malhotra.
Justice Malhotra graduated in Political Science from Lady Shri Ram, New Delhi. One of the top colleges for women in India.
This is the place where as young women we are sensitised to issues of women’s rights. Where we read our first books on feminism. Where we get perspectives, different and much needed.
But this is also the space where we organically learn to question. Those very perspectives that we are taught. To judge them in the light of Life around us, vaster than any book, any theories, any isms.
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While reading the judgement a point kept coming back to me, a point about the parliamentary debates. #MahatmaGandhi, if i remember correctly, questioned the idea of the #Majority decision being held as the #right decision. He spoke of #Consensus as the backbone of decision making in such a complex polity.
What IF, what if that One dissenting voice is the correct voice? Give that voice a chance to convince you. Have debates, discuss, deliberate …collectively. Then decide. Decisions have to be based not just on numbers, 4:1, but on wisdom sharing.
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Indu Malhotra. The lone woman. The lone dissenter.
In about seven decades of India’s independence, she is one of the ONLY eight women to be a Supreme Court judge. We have had more than 200 men as judges since then.
I am certain it has not been an easy journey.
She specialises in Arbitrations, which, in simple english, means settling things harmoniously without the court coming in. Like, well, mothers have always done. Or village elders have always done. No need for a stick, when conversations can sort the mess. Indu Malhotra, carries this warm motherly feel into the Sabarimala judgement.
To give you an idea of her sensibilities i will give you a few instances.
1. Justice Malhotra was, again, the only woman Judge for #Section377 where she categorically stated, that “History owes an apology to the members of the LGBT community and their families…”
[ The same media that has all but ignored her present judgement celebrated this as a mic drop moment,
“It is not as if only female judges should hear cases related to gender. But a female perspective on such issues is such a valuable addition. It is also refreshing to read her lucid judgments written in the style of submissions like the ones a senior advocate would submit to the court.” ]
2. Indu Malhotra has also been on the Vishaka committee on Sexual Harassment at work places. And also of a 10-member committee constituted by the Supreme Court to deal with complaints of sexual harassment within the court.
3. Justice Malhotra was also the counsel in a petition against discrimination against women make-up artists in film industry.
4. Supreme Court had appointed Malhotra as amicus curiae in a case on arrests for dowry harassment with the consent of a family welfare committee to be set up in every district.
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So one would think here is a person, a woman, who is openminded, sensitive toward minority rights, women’s rights … hmm?
BUT this same person, a woman, who is obviously sensitive to women’s rights … says a clear NO to women’s entry in Sabarimala?! Standing in favour of GENDER DISCRIMINATION? Gosh! What is she thinking?!
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Indu Malhotra is not just thinking.
She is understanding. Historically, all the debates that have happened in India. Globally, all the judgements that have ever been passed on religion and the courts.
And, she is sensing. The future implications of this Judgement. On all minority communities of India. On the future of India. As a diverse, plural, secular state.
Indu Malhotra is not just thinking.
She is laying the guidelines for the nation to refresh its imagination about itself, again.
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Her Judgement reads like art to my eyes. It warms my heart for she sketches an India that i - as a child of an army officer - travelling and culturally absorbing all the diverse traditions of India, have lived, loved, sung, danced. #Plurality.
And her judgement also senses like deep philosophy. For here is a woman, who writes, who judges, who speaks. Not confined to her identity as a woman. She is that, of course. But also, much much more.
For that much much more - since i come from a culture of Goddess worship - i use the word Mother. Here is a how a #mother would respond to the Sabarimala case. Not sentimentally. But hugely hugely wisely, sensitively.
This is the #ArtOfWiseWomen that India is much in need of. Now.
India has never had a woman as a Chief Justice of the Supreme Court. We may just have found one.
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Read on for excerpts which i have compiled for a quickish read. Or best, just go to the link and read the whole Judgement yourself. You’ll get the facts of the case, a depth of research and impact no media will be able to offer.
LINK : https://bit.ly/2RaBz1V
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Justice Malhotra’s judgement begins by first clearly stating the case from both perspectives. That of the petitioners. That of the respondents. Then she goes into her own analysis, clearly stating her understanding of various issues, quoting from previous judgements not just in India, but globally. Putting into perspective how other democratic nations respond to such situations of Religion vs Law.
She begins with a cautionary remark that Indians of all faiths, all sects, and the so called voice of the Indian peoples, the mainstream media, may do well to heed.
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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, 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 ordinarily be interfered with by Courts.�
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The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple.
Permitting PILs in religious matters would *open the floodgates to interlopers to question religious beliefs and practises*, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine.
The perils are even graver for religious minorities if such petitions are entertained.
The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious.
In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country.
Equality in matters of religion must be viewed in the context �of the worshippers of the same faith. �
The right to equality claimed by the Petitioners under Article 14 conflicts with the rights of the worshippers of this shrine which is also a Fundamental Right.
It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts.
It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.
The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples 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 context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply. �
The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts.
The issue of what constitutes an essential religious practise is for the religious community to decide.
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#JusticeMalhotrasResearch #ZorastrianCommunity #ConstitutionalExperts #HouseOfLords #US
Indu Malhotra quotes judgement of the case of
* Jamshed Ji v. Soonabai:
“If this is the belief of the Zoroastrian community, - a secular Judge is bound to accept that belief – it is not for him to sit in judgment on that belief , he has no right to interfere …
… Our personal views and reactions are irrelevant. ”
* H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II
“The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another.
The real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a denomination’s religion.”
* The House of Lords in Regina v. Secretary of State for Education and Employment & Ors.35
“The European Court of Human Rights has rightly noted that in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the State of the legitimacy of religious beliefs or of the manner in which these are expressed: Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335, para 117.”
* U.S. Supreme Court
“The determination of what is a religious belief or practise is more often than not a difficult and delicate task...
However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practise in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection...
Courts are not arbiters of scriptural interpretation.”
“...It is not within the judicial function and judicial competence, however, to determine whether appellee or the Government has the proper interpretation of the Amish faith; courts are not arbiters of scriptural interpretation...”
“ What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is central to his personal faith?
Judging the centrality of different religious practises is akin to the unacceptable business of evaluating the relative merits of differing religious claims…
…courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim...”
* Chinnappa Reddy, J. in Bijoe Emmanuel & Ors. v. State of Kerala & Ors �
“ Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to borne in mind in interpreting Article 25…”
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#RationalisingReligion #OutsideTheKenOfCourts #FreedomToPractiseOnesReligion
Justice Malhotra summarises.
In other jurisdictions also, where State made laws were challenged on grounds of public morality, the Courts have refrained from striking down the same on the ground that it is beyond the ken of the Courts.
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.
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#ConstitutionalMorality #ReligionInSecularPolity
The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity, with diverse religions and faiths, which were protected within the fold of Articles 25 and 26.
State interference was not permissible, except as provided by Article 25(2)(b) of the Constitution, where the State may make law providing for social welfare and reform.
�
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.
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#Harmonisation #BalancingofRights #NotIsolation
Equality and non-discrimination are certainly one facet of Constitutional Morality.
However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation.
Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand.
Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. �
*Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange Board of India & Anr.
“At the outset, it may be stated that Supreme Court is not only the sentinel of the fundamental rights but also a balancing wheel between the rights, subject to social control...under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution.
It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict.
Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values.”
It is the Constitutional duty of the Court to harmonise the rights of all persons, religious denominations or sects thereof, to practise their religion according to their beliefs and practises.
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#ReligiousDenomination
The issue whether the Sabarimala Temple constitutes a ‘religious denomination’, or a sect thereof, is a mixed question of fact and law.
It is trite in law that a question of fact should not be decided in writ proceedings. The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.
The Constitution ensures a place for diverse religions, creeds, denominations and sects thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’ should receive an interpretation which is in furtherance of the Constitutional object of a pluralistic society.
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#ESSENTIALPRACTISES
“20...what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”
* Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
The ‘essential practises test’ in its application would have to be determined by the tenets of the religion itself. The practises and beliefs which are considered to be integral by the religious community are to be regarded as “essential”, and afforded protection under Article 25. �
The only way to determine the essential practises test would be with reference to the practises followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practise in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practise of that temple. �
The practise of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple.
In the present case, the character of the temple at Sabarimala is unique on the basis of centuries old religious practises followed to preserve the manifestation of the deity, and the worship associated with it.
Any interference with the mode and manner of worship of this religious denomination, or sect, would impact the character of the Temple, and affect the beliefs and practises of the worshippers of �this Temple. �
Based on the material adduced before this Court, the Respondents �have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial. �
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#UNTOUCHABLITY
All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class.
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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. �
In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi.
The reforms were based upon societal morality, much before Constitutional Morality came into place.
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#SUMMARY #JUSTICEMALHOTRA
. (i) The Writ Petition does not deserve to be entertained for want of �standing. The grievances raised are non-justiciable at the behest of �the Petitioners and Intervenors involved herein. �
. (ii) The equality doctrine enshrined under Article 14 does not override �the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. �
. (iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. �
. (iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.
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. (v) The limited restriction on the entry of women during the notified age- group does not fall within the purview of Article 17 of the Constitution. �
(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.
In light of the aforesaid discussion and analysis, the Writ Petition cannot be entertained on the grounds enumerated hereinabove.
It is ordered accordingly.
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