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Monday, October 8, 2018

Shabarimalai Judgment: Review petion filed in Supreme court

Shabarimalai Judgment: Review petion filed in Supreme court

New Delhi: The Supreme Court could not have interfered in an age-old practice of prohibiting women aged between 10 and 50 years to Sabarimala temple on the basis of a petition filed by those who do not claim to be believers in the deity of the temple, a review petition filed on Monday, 8th October 2018 said.

The petition was filed by Shylaja Vijayan, president of the National Ayyappa Devotees Association, who is represented by advocate Mathew Nedumpara. The Petition is based on grounds which formed the crux of the lone dissenting opinion of Justice Indu Malhotra.

The devotees of the temple did not accuse the practices followed as discriminatory to their gender. The practices followed are based on the essential characteristics of the deity, who is an eternal celibate. How could the Supreme Court entertain a writ petition filed by Indian Young Lawyers Association under Article 32 of the Constitution in a religious matter?

Article 32 petitions can be filed in the Supreme Court on religious matters only by co-devotees. What fundamental rights of the lawyers’ association was violated? The association does not even claim to be “believers” of the Sabarimala deity.

This is the crux of the petition filed in the Supreme Court challenging the majority Sabarimala verdict delivered by a five-judge Constitution Bench.

Justice Malhotra, in her strident dissent against allowing women entry into the famed temple, warned that “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.”

Justice Malhotra had cautioned her fellow judges on the Bench that the “perils are even graver for religious minorities if such petitions are entertained.”

Ms. Vijayan’s review petition echoes the judicial conclusions of Justice Malhotra: “Neither the association (Indian Young Lawyers Association) nor other petitioners therein averred that they are devotees of Lord Ayyappa; that they were denied their right to visit the temple at Sabarimala and that such denial has resulted in violation of their fundamental rights.”

The review petition argues that the rights of the petitioners were not violated by the Sabarimala prohibition, hence they had no business to get a remedy in court under Article 32. “Ubi jus, ibi remedium — where there is a right there is a remedy.”

“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’,” wrote Justice Malhotra.

Courts cannot determine the validity of long-standing religious customs and usages of a sect, at the behest of persons who do not subscribe to this faith, Justice Malhotra wrote.

Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect. In the triple talaq case, the court had insisted that it would take up the matter only if women suffering from the practice come forward under Article 32.

“In matters of religion and religious practises, 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 had observed.

“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,” Justice Malhotra wrote.

The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution.

In the Sabarimala case, the worshippers of this temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari,’ Justice Malhotra has observed.

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