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If the Supreme Court has decided to raise its pitch on constitutional morality, equality and gender justice, it could have chosen a case more befitting than Sabarimala. By coming down on a hapless Kerala shrine's practice of barring women in the age group of 10-50, in consonance with the reigning deity's celibate status, it has chosen an exceptional case to underline a broad principle. Unique cases make for bad law. The final verdict, which went 4:1 in favour of ending this limited form of exclusion at this one temple, pits the combined wisdom of four male judges against one female.
Chief Justice Dipak Misra and Justice AM Khanwilkar wrote a common judgment, while Justices RF Nariman and DY Chandrachud produced separate ones while arriving at the same conclusion. Only Justice Indu Malhotra dissented, puncturing some of the pretensions of the majority verdict. The major issues at stake were the following: a) whether the temple's exclusionary practice amounted to discrimination under articles 14 (equality before the law), 15 (non-discrimination) and 17 (outlawing untouchability); b) whether this exclusion was part of an essential religious practice, and hence protected under Article 25 (freedom of conscience in religion); c) whether the followers of Swami Ayyappa constituted a separate religious denomination, and thus entitled to additional protection under Article 26; and d) whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, which bars women between the ages of 10 to 50, is unconstitutional?
The majority judgment answered yes to the first question, and no to the next two. All four held Rule 3(b) to be discriminatory and struck it down, thus throwing open the temple to all women devotees, regardless of age. The dissenting judge, Indu Malhotra, said the exact opposite. One aspect of the judgment emphasised by Justice Chandrachud needs critiquing. He drew false equivalence between the Sabarimala exclusion and the pernicious practice of caste untouchability. Justice Chandrachud said: The social exclusion of women, based on menstrual status, is a form of untouchability Notions of purity and pollution which stigmatise individuals, have no place in a constitutional order. In doing so, he extended the ambit of Article 17 to areas well beyond caste.
The Sabarimala rules on temple entry do not constitute a general form of social exclusion of women. Justice Malhotra junks this idea: The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable.