Justice Indu Malhotra, the lone woman judge on a Constitution bench, on Friday, dissented with the majority view to allow entry of women of all age groups to Kerala's Sabarimala temple.
She said the constitutional morality in a secular polity would imply the harmonisation of the fundamental rights, which included the right of every individual, religious denomination, or sect, to practice their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical.
“The restriction on the entry of women during the notified age group in the temple is based on the unique character of the deity and not founded on any social exclusion,” Justice Malhotra said.
Differing with four male judges on the bench, she termed the analogy sought to be drawn by comparing the rights of 'Dalits' with reference to the entry to temples and women as “wholly misconceived and unsustainable”.
“The equality doctrine enshrined under Article 14 does not override the fundamental right guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion,” she said in her 75-page separate judgement.
She said the character of the temple was unique on the basis of centuries-old religious practices 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 practices of the worshippers,” she said.
Justice Malhotra said the restriction was in pursuance of an ‘essential religious practice' granted under the Constitution.
She said if the plea for women of all age group was allowed, it would amount to exercising powers of judicial review in determining the validity of religious beliefs and practices, “which would be outside the ken of the courts.”
“The issue of what constitutes an essential religious practice is for the religious community to decide,” she said.
On the claim of the right to equality, she said the court is not to undertake judicial review under Article 14 of the Constitution to delineate the rationality of the religious beliefs or practices. “It is not for the courts to determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati,” she said.