Why Justice Indu Malhotra, the sole woman judge on SC bench for Sabarimala, dissented

NEW DELHI: The Supreme Court Friday paved the way for the entry of women of all ages into the Ayyappa temple at Sabarimala in Kerala. The verdict was given by a five-judge bench where four concurred while the sole woman judge on the bench - Justice Indu Malhotra - dissented. 

Justices RF Nariman and DY Chandrachud concurred with Chief Justice of India Dipak Misra, and Justice AM Khanwilkar and said that banning the entry of women into the shrine is gender discrimination and the practice violates rights of Hindu women.

However, Justice Indu Malhotra passed a dissenting judgement. 

Justice Malhotra said that issues which have deep religious connotation should not be tinkered with to maintain secular atmosphere in the country. She said that it is not for courts to determine which religious practices are to be struck down except in issues of social evil like 'Sati'.

She also added that the right to equality conflicts with the right to worship of devotees of Lord Ayyappa. She said that notions of rationality cannot be brought into matters of religion and India has diverse religious practices and constitutional morality would allow anyone to profess a religion they believe. She said that equality doctrine cannot override fundamental right to worship under Article 25. 

Justice Malhotra also asserted that the issue in this case not limited to just Sabarimala and will have far-reaching implications for other places of worships as well. 

The apex court passed four sets of separate judgements on a clutch of pleas which challenged the ban on the entry of women of menstrual age in Sabarimala temple. 

In his judgement, the CJI said that devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion. He also said that devotees of Lord Ayyappa do not constitute a separate denomination.

The CJI said the practice of exclusion of women of 10-50 age group cannot be regarded as essential religious practice and Kerala law denies rights to women on the ground of physiological reasons.

Justice Nariman said the Sabarimala temple custom barring women of 10-50 age is not backed by Article 25 and 26 of the Constitution.

Terming the practice to be against human dignity, Justice Chandrachud said that religion cannot be used as cover to deny rights of worship to women. He said prohibition on women is due to non-religious reasons and it is a grim shadow of discrimination going on for centuries.

He said the popular notion about morality can be offensive to dignity of others and exclusion of women because she menstruates is utterly unconstitutional.