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.
