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If a community believes in, and establishes a religious practice as essential, it should be accepted
The Supreme Court’s majority decision in the Sabarimala case has rewritten the constitutional dispensation on freedom of religion, equality and untouchability, in contrast to Justice Indu Malhotra’s no-less-admirable dissenting judgment. When it comes to religious endowments, British-era laws espoused the need for a trust-like structure, with a pointed effort to control corruption in religious institutions, as reflected in pieces of legislation like the Religious Endowment Act, 1863; the Charitable Endowments Act, 1890; and the Civil Procedure Code. The Union government’s Report of the Hindu Religious Endowments Committee (1962) worked out a plausible strategy for a fair administration of these endowments without disturbing their religious integrity. From 1950 to 2018, the Supreme Court has dealt with approximately 90 decisions on conflicts between Hindu endowments and pieces of legislation to control them.
The majority view by Chief Justice Dipak Misra (also for Justice A.M. Khanwilkar); Justice Rohinton Fali Nariman; and D.Y. Chandrachud was that denial of entry to women was not a ‘denominational’ or an ‘essential practice’; Article 17 applied (according to Justice Chandrachud); and constitutional morality included equality and gender justice. Here, we need to examine Justice Indu Malhotra’s spirited dissent. She struck the right note asserting that even if religious beliefs and practices are not accepted as rational by all, there is no reason to deny them constitutional protection. I think that she was right in holding that this was a denominational temple dedicated to Lord Ayyappa and that non-entry of women was an ‘essential practice’ associated with prayer. She was also perfectly right in saying that the ambit of abolition of untouchability, as mandated under Article 17, cannot be taken beyond ending of discrimination against Scheduled Castes and Scheduled Tribes. She said that broadening the provision to include all forms of social ostracism would amount to diluting the protection available to Dalits and tribal people. Most of all, she pointed out that even if we accept constitutional morality as a limitation, this argument was circular in that constitutional morality includes both equality and the right to religious freedom. She said the social reform provisions required specific legislation not enacted in this case. Though Justice Indu Malhotra struck the balance in favour of religious freedom, she could have considered this in the context of public morality, and not constitutional morality, to come to a different conclusion. Having said that, her judgment seems more correct than that of the majority.
Source : https://www.thehindu.com/todays-paper/tp-opinion/when-the-judiciary-rewrites-a-faith/article25222746.ece
