Sabrimala and the PIL

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?

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7 Comments

Filed under Non-discrimination, Public Interest Litigation, Sex Discrimination

7 responses to “Sabrimala and the PIL

  1. As far as I know, one of the Petitioners is a man (and a muslim, going by his name). I do not know if women devotees of Ayyappa have been heard. But I also do not know if any intervenors applications by them were rejected (Unlikely). It is always open to them to implead and be heard. Rules loosened to enable petitioners to represent those who cannot represent themselves is an aspect of the first generation of PILs. In the second and third generation of PILs (In the Balwant Singh Chaufal formulation) locus standi requirement is relaxed to permit petitioners to agitate causes on behalf of people who are too diverse and large in number to meaningfully organize. Female devotees of Ayyappa do constitute a class. May not be a clearly distinct class or one capable of organizing (Given the fact that they can’t enter currently, it is difficult to ascertain who would enter if they were permitted to)

    • I understand the diffuse/unorganised logic, but surely in those kinds of cases the person who claims to speak for the class should be *from* that class – even if it is just one person?

      • I would be glad if you could elaborate as to why you feel that person ought to be from the class concerned. Surely, another facet of PILs is to enable well meaning citizens to ask the Court to apply its judicial mind on things wherein there is apparent oppression though no real uprising of the oppressed? I am just wondering why is locus (or the lack thereof) a concern for you in such cases? Is there any potential harm that I fail to foresee?

      • I don’t think the courts are meant to address every social problem that occurs everywhere in the country. They are not institutionally capable of doing so, nor do they have the legitimacy. Judicial mind should be applied to a concrete legal dispute between two parties, one of whose rights are affected by the actions of the other. Standing is pretty much the foundation of an adverserial system, which – rightly or wrongly – we inherited and chose to keep from our erstwhile colonial rulers – it affects how evidence is presented and recorded, the rule of precedent etc.

        In any event, I think that it really isn’t for X person to speak on behalf of Y, and tell the Court that *her* rights are being violated, only that she couldn’t be bothered to come to court to vindicate them. And – as I said in the post – it’s even more dangerous for the Court to rule on such issues without even hearing the people whose rights are allegedly being affected.

        On a more pragmatic level, the last thirty years have demonstrated what happens when you abandon standing – overflowing dockets, frivolous cases, unending interim orders. Anuj Bhuwania has a great book on this which should be out soon.

  2. Ashok Agrwaal

    I agree that the issue of locus has become acute.

  3. D.K.Bhatt

    I feel that before admitting PILs of such nature where the petitioner approaches the court with a reformist zeal in regard to religious or cultural realm, the court should adopt a policy of “strict scrutiny” of such purportedly vicarious claims and admit those only after finding some “compelling reason” for doing that sans involvement of a real “aggrieved person” as necessary party.

  4. Thanks for the response. Much appreciated.

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