An Intersectional Analysis of Malhotra’s Dissent in the Sabarimala Judgement, on its 3rd Anniversary

Updated: Jan 29

Written by: Ishan Khare and Pratyush Nigam

Saksham Gangwar/Unsplash

I. Introduction

Contemporary India has been marked by a discord between the judiciary and the religious institutions. The battle can be largely explained as a standoff between people’s religious practices and democratic thoughts. The idea of democracy stresses upon the equality of individuals, equality in managing their own religious affairs and so on. The constitution of India, in particular, puts special emphasis on the concept of ‘Secularism’, ‘Freedom of Religion’ and even the ‘Rights of the Deity’.[1]

The common law countries practice the precedent set by the English court in the landmark case of Davie v. Benson, wherein the court defined religion in the following manner:

“A system of doctrines and beliefs which are regarded by its adherents as conducive to their spiritual well being. A religion may or may not lay down a code of rules for its followers to accept, prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion. However, it would be incorrect to declare that religion is nothing but a doctrine or belief”.[2]

Further, in India, the Andhra High Court’s landmark ruling in “N Veerabrahmam vs State Of Andhra Pradesh” stated that:

“India is a pluralistic society, dawned and dotted by all the major world religions. There are innumerable religious groups that practise diverse forms of worship. This is especially true amongst the majority Hindu community, where different sects and denominations maintain their own form of religious practice. Due to the lack of codification of Hindu customs and laws, there exist several religious denominations which practice a form of worship that is extremely distinct from the larger community. Religion in certain such cases can be associated with a particular form of worship and the community can be totally different from the rest of the community.[3] It would, therefore, be difficult to devise a definition of the Hindu religion that would be regarded as applicable to all the denominations. Lastly, it is extremely crucial to understand that- ‘To one class of persons a mere dogma or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be predominant facets of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion’.”[4]

II. Seeds of controversy

Keeping the aforementioned in mind, separating religion from state, as well as for opting for a “progressive and modernist” approach, is a murky task. The Sabarimala temple’s legal tryst started in the year 1991, when the Kerala high court in the case of S.Mahendran v. the Secretary, Travancore held that the exclusion of women entering into the temple was constitutional and just as it was a long-standing custom prevailing since time immemorial.[5] Later this judgement was challenged by the Indian Young Lawyers Association, where a public interest litigation (PIL) was filed in the Supreme Court, stating Article 14 of the constitution was being violated by the Kerala High Court’s judgement.[6]

This raised an extremely important question:

Who has the right to decide the validity of the practices of a temple and classify them?

In the 1991 judgement, the Kerala High Court citing the concept of ‘Freedom of religion’ held that the right to make the final call in all such matters should be with the Trivandrum Devaswom Board. This was done citing Article 26 of the Indian Constitution, which guarantees any denomination based on religion, “the right to manage its internal religious affairs”. This was moreover aided by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which protect the custom of Sabarimala temple.[7]

The rule permitted the Devaswom board to exclude women from the Sanctum sanctorum of the temple due to the prevailing ‘custom.’ This authority was challenged by the Young India Lawyers Association, which questioned this prohibition. In 2018, the apex court, in a 4:1 majority, held that the exclusion of women violated the fundamental rights enshrined in the constitution. It further added that Rule 3(b) of the Public Worship Rules was unconstitutional. However, what was remarkable was the dissent penned by the single woman judge, Justice Indu Malhotra. Justice Malhotra, in her judgement, stated that “in a secular country, it is not for the Courts to interfere in matters pertaining to religion. Reformation of customs must be left to those practising the religion and faith.”[8]

III. The Dissent

Justice Indu Malhotra, in her dissenting note specifically highlighted two factors that were the cornerstone of her judgement- the first included the questions of legality and the ‘wrong’ precedent the court may set by divulging in this case. The second one was rather convoluted dealing with the concept of Essential Religious Practices, and the scope of judicial intervention in such cases.[9]

Elaborating on the first point, Justice Malhotra stated that if the Supreme Court entertained such PILs then, there might be a scenario wherein the already overburdened courts might get further piled up by an influx of cases regarding “religious sentiments by persona non grata of Public Interest Litigation.” She further stated that it doesn’t make sense for “a person who does not belong to that specific religion and subscribes to the specific religion has no right to approach the court under constitutional remedies of the Indian Constitution because the person cannot be said to be aggrieved”.[10] This was in particular raised in the dissenting note as the petition did not arise out of some aggrieved devotee, but rather from an independent organisation.[11]

The last aspect that was raised in her dissent was the tacit inclusion of Articles 25 and 26 of the Indian Constitution which guarantees religious freedom and rights to denominations in India.

Interpretation of Articles 25 and 26

The idea of morality as envisaged in Articles 25 and 26 of the constitution does not refer to individual morality per se but subtly mentions that morality has to be on a similar footing with constitutional morality. Article 25 of the Indian Constitution guarantees the right to “practice, profess and propagate” religion, while Article 26 deals with the rights of the religious denominations.[12]

India is a diverse country, and having a (western) objective standard of equality and morality can potentially damage the communal fibre of the country. Equality, parity, inclusivity and non-discrimination are some of the most notable factors on which morality, the principles of western morality is based.[13] Justice Chandrachud, while drawing a comparative analysis between the practice of exclusion followed at Sabarimala with social evils like child marriage, presented a picture polar opposite to what Justice Indu Malhotra had presented. These two judgements were also amongst the most debated and scrutinized opinions of the judgement.

A major fallacy in J. Chandrachud’s opinion was the caste link presented with respect to article 17. The practice of untouchability was imposed on a class of people on the basis of their social capital, which caused their marginalisation from the society at large. Further, the practice of untouchability also included the aspects of economic and social boycott and was in a form ‘hereditary’ in nature.[14] Exclusion of people from a place of worship, on the basis of a practice, which has in a form been transformed into a tradition, does not come within the ambit of Article 17.

The idea behind the drafting of Article 17 was to explicitly prohibit the aberrant, but rampant practice of exclusion and ill-treatment of people of less fortunate caste- generally on the basis of their occupation and social position; however, nowhere has the concept of gender been either highlighted ot ‘considered’ by the legislature. This raises another burning issue, which revolves around the doctrine of “living constitution” into consideration, something which had been raised at the time of formation of the constitution.[15] This means that the interpretation in the case is not based upon the intention of the legislature but upon the factual matrix of how the law needs to be interpreted and used in the present societal circumstances. The Constitution is considered to be the mother of all legislation- a source of law from where other legislatures derive their validity and validity. Treating it as a living constitution, threatens the validity of several such laws, and is cited as a major deterrent in practicing this doctrine.[16]

Another major issue with the article 17 link was the blatant disregard placed on a leading precedent in this case. In the landmark judgment of Sri Venkataramana Devaru v State of Mysore, the court categorically drew a major distinction, between the exclusion of an individual from the society at large and that from a denominational religious institute.[17] The judgement in the aforementioned case stated that while exclusion of an individual was hit by Article 17, exclusion by a religious denomination is protected under Article 26(1).[18]

The prohibition of the entry of women in the sanctum sanctorum of the temple based on the specified age group does not constitute the practice of untouchability by the State.

Understanding the doctrine of ‘Essential Religious’ practices

According to the Constitution of India, there is a clear and absolute demarcation between those “practices which are secular in nature and those which form the basis of a religion”. Essential religious practices include beliefs and practices which are quintessential to the essence of a particular religion and are thus protected under Article 25 of the constitution.[19]

The crux of the fact in this case were the two notifications that had been released by the Travancore Devaswom Board. One of them barred the entry of those devotees who could not follow the 41 days Vratham- a traditional practice followed by Ayyappa devotees where devotees 'quarantine’ themselves from the outside world, and the second notification, which barred female devotees who had reached the menstrual age.[20]

In 1965, the Kerala Hindu Places of Public Worship Act[21] was enacted in order to govern the effortless entry of Hindu devotees belonging to all classes and sections. According to the custom, the completion of Vritham is the fundamental requirement in order to worship the deity. Such practice has not evolved in a decade but was followed even before the institution of the Constitution. The Hon’ble Bench has placed more reliance upon the procedure and has completely ignored the objective. The objective is the fulfilment of the 41 days vow in order to worship the celibate Lord Ayyappa. The “Satvic lifestyle” & “brahmacharya” for these 41 days does constitute an essential religious practice.

Justice Malhotra argued that “an essential religious practice is not something having a fixed standard but varies from case to case. The application of the doctrine of essential religious practice is itself faulty as religious beliefs cannot be based on formulas of logic, moreover rather than relying upon such doctrine the court should have tested the practice based on the restrictions prescribed under Article 25 of the Constitution like morality, health, public order and the fundamental rights.[22] An essential religious practice cannot be based upon precedents but can only be taken from religious scriptures and books which prescribes the core of any religion.”[23]

The Supreme Court however, took a very progressive approach, trying to determine what is an essential religious practice, which brings us to an extremely raised issue, which is backed by J. Malhotra’s dissent:

In a secular country does the judiciary have any power to decide the dimensions of any religion or neither interfere with the practices, and if yes, then to what degree?

The answer to the question is self-explanatory. Under article 26 of the constitution, the rights of institutions which are religious denominations are subjected to morality, public order and health but are not answerable to Part III of the Constitution. However, it does not create any new rights for the denomination but protects the existing rights.[24]

There exist three major criteria in order to satisfy whether a place constitutes a religious denomination or not, these include:

  • It must be a collection of individuals who have a common faith, a common organization and a distinctive name.

  • The pilgrims of the organization must have a distinct identity. The pilgrims in this case are referred to as Ayyappans, while the female devotees are called Malikapurams.

  • And lastly, there should be an association on the basis of common faith pertaining to a specific task. In the case of Sabarimala, the pilgrims have a common faith to undertake 41 days of Vratham and undertake the 3000 feet journey to Sabarimala. Hence the Sabarimala temple forms a religious denomination under Article 26 and has the power to govern its own affairs. The denominational character of the temple has already been decided in the case of S. Mahendran by the Hon’ble Kerala High Court.[25]Even if the temple is financed under Article 290A of the Constitution of India in order to carry out its affairs, it does not change the denominational character of the Sabarimala.[26]

Under the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 the entry of all sections of Hindu devotees was to be regulated as per the local customs.[27] This definition comprises any/all division, sub-division, or denomination whatsoever. The Supreme Court held that Rule 3(b), which prescribes the power to make laws, is ultra vires as it forms a discriminatory practice based upon the class of women on the basis of their age.[28]

Here, Justice Malhotra countered the argument stating that “the intention of the legislature cannot be taken in a contrasting manner that violates the pristine custom and beliefs that are followed by the temple”. She further stated that Article 14 of the Constitution protects discrimination based on “intelligible differentia where such classification is based in order to achieve the objective of the Act”.[29] The distinctive or what has been called as differential treatment does not for good, on the face of it constitute the violation of Article 14. Article 14 rather exempts equal protection only in the cases where there is no equitable or rational basis for such classification, meaning that the classification should not be arbitrary in selection in any manner.[30]

IV. Conclusion

The Supreme Court in the landmark case of Ratilal Gandhi,[31] held that, “if a person can show that ones' religious practice is essential to ones' religion, then one shall be exempted from the challenge posed by Part-III of the constitution”, thus laying down the framework for the essential religious practices doctrine.[32] Unfortunately, post this judgment, the Supreme Court unknowingly waded into the marshy and murky waters of interpreting theology and secularism. This also sets a potentially threatening precedent and henceforth presents the jurists two scenarios:

  • First, where the courts use this as a deciding precedent, then it in some cases could lead to grave injustice. This can be extremely detrimental to folk religions in the NorthEast region where they have already been marginalised and on the fringes of extinction due to colonization.

  • And, Secondly and more importantly, a situation where the courts continue to decide such matters on a case-by-case basis, what is truly part of a religion, and what is not, and therefore, what will receive constitutional protection, and what will not.

Justice Indu Malhotra, in her judgement rightfully went with the latter. While the morality of the practice(s) is a different question in its own right, it is imperative that Jurists in former colonies should refrain themselves from interpreting native customs and practices through a colonial lens.

A crucial element in this case was whether the devotees of Sabarimala constituted a religious denomination, as it would help in ascertaining whether Section 3 of the Act holds water. The majority in this case ruled that the devotees do not constitute a religious denomination.[33] That being said, despite having the noblest of intentions, the Supreme Court made an extremely narrow interpretation of the concept of Essential Religious practices and religious freedoms, which can potentially have detrimental effects in future.[34]

[1]Aankhi Ghosh, 'Essential Religious Paradox? The Supreme Court’S Interpretation Of Article 25' (, 2017) <> accessed 11 November 2021. [2] Wen-Chen Chang, Constitutionalism In Asia: Cases And Materials (4th edn, 2014). [3]Thomas F Banchoff, Religious Pluralism, Globalization, And World Politics (Oxford Univ Press 2012). [4] N Veerabrahmam vs State Of Andhra Pradesh (1959) AIR 1959 AP 572 [5] S Mahendran vs The Secretary, Travancore (1991) AIR 1993 Ker 42 [6]Indian Young Lawyers Association vs The State Of Kerala (2019) 11 SCC 1. [7] n 4 [8]Indian Young Lawyers Association vs The State Of Kerala (2019) 11 SCC 1. [9] ibid [10] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) SCR 1005 [11] ibid [12] The Constitution of India, 1950, Art. 14,25,26; The International Covenant on Cultural and Political Rights, 1966, Article 18. [13] Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights, pp17-18 (2001). [14] 'The Case Against Customary Exclusion' (The Hindu, 2020) <> accessed 21 September 2021. [15] 'Constituent Assembly of India Debates (Proceedings), Vol. 7, 37' (Govt Of India). [16]Hormasji M Seervai, Constitutional Law Of India (Universal Law Publishing 1993). [17] Sri Venkataramana Devaruand v The State Of Mysore (1957) 1958 AIR 255. [18] n 16 [19] Aishwarya Deb, 'Religion V. Reform: Role Of Indian Judiciary Vis-À-Vis ‘Essential Religious Practices’ Test' [2018] SSRN Electronic Journal. [20] n 16 [21] Staff Author, 'The Sabarimala Judgment: Reformative And Disruptive' (The Hindu, 2019) <> accessed 12 November 2021. [22] Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948). [23] n 8 [24] n 16 [25] n 5 [26]Shalini Shah, 'Gendering The Sabarimala Conundrum: Female Body, Sexuality And Desire In The Sanskritic Brahmanic Tradition' (2021) 4 Orientalistica. [27] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965. [28] ibid [29] n 6 [30]Ananya Singh, 'The Dichotomy Of The Sabarimala Verdict And Its Juxtaposition With The Private Law, Indian Secularism And Western Secularism' [2020] SSRN Electronic Journal. [31] Ratilal Panachand Gandhi vs The State of Bombay and Ors (1954) 1954 AIR 388 [32] n 30 [33] Vipula Bhatt, ‘Rise of Religious Unfreedom in India: Inception and Exigency of the Essential Religious Practices Test’, 3 RSRR 126 (2016). [34] ibid

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