Examining the Contentious Dissent – Hon’ble Justice Indu Malhotra’s Opinion in the Sabarimala Case

By: Chandni Ghatak


When the judgment concerning the Sabarimala issue was rendered by the Hon’ble Supreme Court of India, amidst the entire furore over the majority holding, there seemed to linger an ‘Et tu Brute’ sentiment amongst activists, targeted directly towards the dissenting opinion authored by Justice Indu Malhotra. Unfortunately, social media has since then, witnessed a large-scale disappointment being showered upon this dissenting opinion, simply because it emerged from a woman, who as assumption would have it, was compulsorily required to have sided with the female devotees affected by the now erstwhile ban on their entry to the Sabarimala temple. However, before embarking onto discussing the nuances of the dissenting opinion, it is of utmost importance to point out that justice does not emanate from an individual but from an institution. Therefore, expressing unfounded disappointment such as what has been observed, is an undesirable practice and must be avoided.

Coming to the nuances of the concerned dissent, the main premise for such opinion has emerged after discussing eight main issues that have been clearly delineated. For the purpose of this post, the author chooses to analyse two major points which have, in the author’s opinion, proven to be a highlight in the dissent.


In her dissent, Malhotra J., has dealt with the aforesaid issue in two parts i.e. first, are the petitioners the correct persons to move such petition and second, is the petition itself capable of admission by the Court on procedural counts?

Upon perusing her view on the first question, it becomes pertinent to recall that the Hon’ble Supreme Court in 2010 has laid down general guidelines for consideration, while entertaining ‘Public Interest Litigation’ (hereinafter ‘PIL’). While High Courts are advised to devise their own rules regarding admitting a PIL, it has been recommended that the Court must satisfy itself of whether the matter being argued deals with a question of larger public interest. In her dissent, Malhotra J. has observed that in the instant matter that the petitioners do not belong to the concerned group of devotees visiting Sabarimala, thereby making them devoid of any real interest. The Hon’ble Judge argues that since the main questions of the petition deal with determining the appropriateness of a specific religious practice, making such an evaluation at the behest of those not engaging in such practice is an inappropriate course of action.

Naturally, given the majority verdict and the fact that the practice in question is seen to have abrogated the rights guaranteed under Part III of the Constitution, to say that a question affecting larger public interest is missing, becomes a difficult argument to accept. Additionally, the Hon’ble Judge finds support for this line of reasoning by relying on judgments wherein the concerned religious denomination has sought an action against the State on account of alleged violation of its rights under Articles 25 and 26 of the Constitution [¶ 7.7]. While this is correct, what must be noted is the distinction between the two scenarios. In the instant matter, a practice is being challenged, which in most cases would not be done by the concerned Trustees etc; of such recognised religious denomination, whereas the Hon’ble judge is presuming that if any discussion has to happen on any practice of a religious denomination, such occasion arises only when persons belonging to the religious denomination itself move such petition. This is incorrect because discriminatory practices do not only affect the rights of one class but instead run the risk of having a domino effect on the rights of others as well; which is the line of reasoning the petitioners in the current matter adopt. Therefore, the author humbly submits that the instant matter accordingly deserves to be treated differently.

On the second question, the Hon’ble Judge finds no merit in the course adopted by the Petitioners. The Petitioners approached the Apex Court under Article 32, whereas a Division Bench of the Kerala High Court had already ruled on the same issues emerging in this PIL, previously. The said decision had not been challenged and thus, as observed by the Hon’ble Judge is hit by the principle of res judicata. To support this finding [in ¶ 13.8], reliance has been laid on the Constitution Bench decision of the Apex Court in Daryao and Ors v. State of U.P and Ors, which clearly states that for any writ petition which has already been considered on merits and dismissed, the decision would remain binding unless reversed by appeal. Pursuing an action under Article 32 would, therefore, not be available to a party on the same contentions.

Although the said judgment remains the correct and accepted position of law, the author would argue in favour of the school of thought which argues against this line of reasoning. For this, a perusal of the exact nature of Article 32 as a provision becomes necessary. It was observed by Hidyatullah J., previously that principles such as res-judicata must ideally not affect the application of the Article 32, for it is the duty of the Supreme Court in all cases to act as a guarantor of fundamental rights. Therefore, if it is established on a prima facie basis that there exists an instance of violation of a fundamental right, a recourse under Article 32 must accordingly be made available. What is also essential to note is the point that anyone who believes a fundamental right has been abrogated, invariably has an independent right to approach the Supreme Court under Article 32. To stifle such right using such a hyper-technical approach appears to be a direct contravention of the duty of the Hon’ble Apex Court, as rightly pointed out by Justice Hidyatullah and stalwarts such as H.M Seervai[1].


The instant judgment has in every opinion so rendered dealt exhaustively with the questions of what may constitute as an essential practice and what may emerge as a religious denomination or sect for the purposes of applying the autonomy granted under Article 26.

Before moving onto the specifics, the author would like to laud the recalcitrant approach undertaken by the Hon’ble judge in applying the essential practice test. This is corroborated by the constant reference made to various US judgments and Prof. Derret’s work which advocate for a non-interference [ ¶ 10.1 – 10.4] approach to be adopted in such matters which must ideally be subject to the wisdom of the concerned religious group, itself. In a pluralistic society such as ours, for the Court to adopt so aggressively an interventionist attitude, is a dangerous path to take. Inevitably, however, an elaborate discussion on these two questions does ultimately take place.

Let us peruse first, the question of whether the ‘Ayyappans’ i.e. the devotees worshipping in Sabarimala do in fact constitute a religious denomination by themselves. Constant reliance has been placed on the case of Commission Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt (hereinafter ‘Sri Shirur Mutt’) to corroborate the view that the devotees in the instant case, do constitute a religious denomination. However, the author humbly disagrees with the observation made by the Hon’ble Judge on a question of fact. In the Sri Shirur Mutt case, it was a noted fact that those who were part of such denomination followed strictly the practices of Madhavacharya and Sankaracharya respectively and lead a certain way of life. However, in the instant matter, even the practice of the ‘Vratham’ is restricted only to 41 days. The devotees are generally not required to lead frugal lives or abstain from sexual relations. Additionally, this practice of observing the said ‘Vratham’ is peculiar to Sabarimala alone. The worshippers of this shrine, although observing such practice are in no way restricted from undertaking the ordinary course of worship in other temples of Lord Aiyappa. A religious denomination by ordinary understanding must ideally engage in practising only one set of practice throughout. The respondents in their argument did not, in the author’s opinion, sufficiently indicate the same and therefore, the observation provided in the dissent appears weakly substantiated. Given that this requirement of the religious denomination for the purposes of application of Article 26 was not convincingly put out, the ascertainment of whether the prohibition of entry constitutes an essential practice is accordingly not required.

For the sake of argument, however, let us presume that the finding regarding ‘Aiyyapans’ forming a religious denomination is correct. Justice Malhotra has in her dissent observed that Article 26 is not subject to restrictions placed under Article 25 [¶ 11.3], making it absolute and not open to challenge.

Such an extreme stance goes against the ethos of a constitutional democracy in which no right is absolute. In situations of conflict between two rights, the ideal course is to undertake a harmonious construction, a path which is adopted by Chandrachud J.

If we peruse the concurring opinion of Chandrachud J. in the said case, he makes a symbolic observation accepting the argument that women as a result of this practice are being subjected to a form of untouchability. This argument emanates from the fact that menstruating women are denied entry, on account of them being viewed as ‘impure’. If this is the case, Justice Malhotra’s observation then falls flat. This is because in an earlier decision of the Apex Court i.e. in Venkatramana Devaru v. State of Mysore (hereinafter ‘Devaru’), the Court clearly held that  harmonious construction ought to be adopted when dealing with the conflicting rights presented by Articles 26(b) (allows religious denominations to manage its own affairs pertaining to its religion) and 25(2)(b) (allows State for furtherance of social welfare and reform to throw open Hindu Religious Institution of a public character to all classes and sections of Hindus). The concerned religious sect, having the right to exercise autonomy under Article 26, challenged a state law which restricted their right to deny entry to certain Hindu classes, since the temple was supposed to be for the benefit of the Saraswath Brahmin community. The Court held that there was a need to balance both rights and aside from the few occasions wherein entry was reserved to the Saraswath Bramhin Community, the entry had to be granted to all other Hindus at all other occasions.

Applying this judgment and the understanding of ‘untouchability’ as developed in Chandrachud J.’s opinion, the author contends that the denial of entry of women into Sabarimala is, in fact, running in contravention of Article 25(2)(b). In the aforesaid case, the restriction was time-bound. Sabarimala, on the other hand, remains open only for a few months when devotees undertake ‘Vratham’. Post the said auspicious period, the temple is not open to the public at all, denying almost indefinitely to women the opportunity to worship in the concerned temple. A balance may only be struck, when there is a possibility of still catering to the rights of the denied, as illustrated in the Devaru case. In the context of Sabarimala, there arises no opportunity at all, for a reconciliation of rights to emerge. Therefore, the author submits that even if the ‘Ayyapans’ were to constitute a religious denomination for the purposes of Article 26, given the facts, it would seem that they are being provided with a license to at all times abrogate the protections guaranteed otherwise under Article 25 and other provisions of Part III. This makes way for a dangerous trend to emerge, for it makes equality as a value to be protected on a conditional basis.


There is no denying that the dissent came as a surprise however it does significantly contribute to the ever-persistent debate surrounding the question of state intervention in religious matters. As noted by Justice Malhotra, India is a pluralistic society, one that stands to benefit when the Courts do not interfere in matters not coming within its ken. Considering that secularism forms a part of the basic structure, such dissent highlights the need for the Court to resolve this dichotomy. The Hon’ble judge has also very rightly pointed out the minimal role Courts must have in determining the status of religious beliefs; in order to avoid a floodgate of appeals challenging every possible practice, thereby disrupting the diverse and secular fabric India prides itself with.

[1] HM Seervai, Constitutional Law of India (Reprint 2007 ed, Universal Law Publishing) 425.

(Chandni Ghatak is a final year student at NLU Jodhpur. Her interests mainly revolve around Commercial & Constitutional laws. She intends to ultimately pursue a career in litigation.)

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