Dissenting judgments have made monumental contributions to the growth of law in India and abroad. To this unique category belongs Justice Indu Malhotra’s epic and masterly dissenting opinion in the Sabarimala women entry case. The dissenting judge took note of the bewildering and confusing scenario that may arise by giving a carte blanche to PILs in religious matters that would open the floodgates to interlopers and busybodies to question the constitutionality of religious beliefs and practices even if the petitioner is an atheist or agnostic, not to mention possibility of abuse of process by unscrupulous persons.
Constitutionality of a rule or a custom shall be decided only as a measure of last resort and not routinely as an academic exercise generating chaos and confusion among millions of devotees leaving them high and dry, dazed and confused as it impinges on their faith.
In this context, it is apt to remember faith has supremacy over everything: He who loses money loses much, he who loses a friend loses more, but he who loses faith loses everything. Swami Vivekananda said on the dynamics of faith: “Do not try to disturb the faith of any man. If you can, give him something better; if you can, get hold of a man where he stands and give him a push upwards; do so, but do not destroy what he has” (Selections from the complete works of Swami Vivekananda P356). “Columbus found a new world and had no chart except faith deciphered on the skies; to trust the soul’s invincible surmise was all his science and his art,” said George Santayana.
It is not for the courts to determine which practice followed by a religious group is to be struck down except in cases where the practice is abhorrent and oppressive or a social evil such as ‘sati’. Matters of faith of millions are out of bounds for courts and the concept of equality cannot override the fundamental right to worship under Article 25.
Besides, notions of rationality cannot be blindly imported into matters of religious faith creating a constitutional and spiritual imbroglio. Exclusion of women devotees between the age group of 10-50 at Sabarimala being a matter of faith of Hindus inter se shall be best left to the decision of religious/spiritual authorities such as the thantris.
An identical question was considered by the High Court way back in 1993 where after adverting to all relevant legal provisions and evidences of stakeholders (which is conspicuously absent in the case on hand) and other men of religion it was held “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not woman as a class.”
In the normal course that should have been the end of the matter in the absence of appeal to the Supreme Court. But look at what happened in the instant case. The court has entertained the petition as a PIL instead of relegating the parties to the High Court with liberty to move the Supreme Court again in the event of an adverse verdict.
Is there a solution for the muddle? Left to me, I would prefer the question being heard by a larger bench. Why not a bench of 13 judges to hear the matter? (Kesavananda – Basic Structure, Kathikalu - Self incrimination etc were heard by 13 judges to mention only a few.) Or let there be a Supreme Court monitored media survey in Kerala to ascertain the wishes of the devotees. At least there is a solitary judicial precedent on the matter.
I wind up this note with the quotes of Justice Jackson and Justice Holmes of the US Supreme Court. “We are not final because we are infallible; we are infallible because we are final.” (Jackson, American Bar Association Journal, 1474 Oct 1983). “If I were dying my last words would be: Have faith and pursue the unknown end.” (Holmes, Oliver Wendell in Boston: Little Brown and company 1944, P-416).
Justice K Narayana Kurup
Former Acting Chief Justice, High Court of Madras