Tomorrow, the Supreme Court will hear final arguments on the question of whether women between the ages of 10 and 50 can be excluded from the Sabrimala shrine – an issue that has gained a degree of notoriety in the last week. On the constitutional question, I think the arguments in this case, for the most part, track the ones in the Haji Ali Dargah case, which I wrote about on this blog early last year (I wrote a separate piece on Sabrimala for The Hindu a couple of days ago). I’m not as confident about the correct result in this case as I am about Haji Ali Dargah, especially because in the latter, the arguments of exclusion were based upon entirely non-religious, or even non-customary bases (such as the ‘inappropriate’ clothes worn by women).
I think it’s also worth pointing out that Sabrimala has taken the form of a PIL (unlike Haji Ali Dargah, where the petitioners are the women who are actually excluded from the inner sanctum of the dargah). The two petitioners here are lawyers, neither of whom is a female Sabrimala devotee (my understanding is that one of the petitioners is a man). The fact that the Court is hearing this case as a PIL tells us something about how standing simply doesn’t seem to be a question for the judiciary any more. Ssomething very similar happened in the Rajasthan High Court’s santhara judgment, which I had written about earlier, and I think it’s important to stress this fact every time this happens:
The loosening of standing rules [through the institution of PIL] was intended to ensure the representation of those who could not represent themselves. By now, it is used to transform the Court into a super-legislature, where any social question might be agitated by any person.
This is particularly stark in the present case, because matters of conscience, religious belief, and religious practice, are among the deepest and most personal issues for the individual. There seems to be something rather strange in one person agitating for the religious rights of a completely different person.
So surely, a PIL is a singularly inappropriate remedy for this kind of a claim? Was it right for the Court to have admitted the case without the actual affected parties (the excluded women) coming before it? More worryingly, is it right for the Court to decide the case without even hearing the excluded women?