Sabarimala PIL was entertained in 2006, but would have been dismissed now: Supreme Court

NEW DELHI: Acknowledging rampant misuse of public interest litigation for ulterior motives or for pursuing pet agendas, SC on Wednesday said it would have dismissed a PIL petition if it had been filed by a lawyers' body presently challenging the Sabarimala custom of barring entry of women of menstruating age.

This remark came from a bench of CJI Surya Kant, Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A G Masih, P B Varale, R Mahadevan and Joymalya Bagchi when solicitor general Tushar Mehta said the custom was not challenged by a Lord Ayyappa devotee and argued that the SC had struck it down as unconstitutional on a misreading and misapplication of 'constitutional morality' test to judicially inscrutable concept of faith, belief and religious custom.

The attributes of deity Ayyappa, which at Sabarimala are believed by devotees to be that of Naistik Brahmachari, cannot be scrutinised on the anvil of western imported concept of constitutional morality, which is applicable to test validity of the actions of the state or those of constitutional post holders, he said.

Justice Nagarathna agreed and said that even if the lawyers' body had filed a civil suit, it would have been dismissed for lack of cause of action. CJI Kant agreed but caveated by pointing out that the PIL was entertained two decades back in 2006 and there is a judgment of the court, "We are tasked to determine the scope and ambit of judicial intervention in religious matters," he said.

Mehta flagged the corrupting influence of western mindset on the judgment in Joseph Shine case, which decriminalised adultery on the grounds that the archaic provision violated women's dignity, liberty and equality by shackling her sexual freedom and burdening her with fidelity. SG clarified that the provision could have been struck down on grounds of discrimination and that he would have had no objection to the outcome of the case. However, he said fidelity is applicable equally to a man and woman in marriage and that a provision curbing extra-marital affairs cannot be termed as shackling of sexual freedom. What is more worrisome is that societal norms have been termed as 'mob morality' and inexplicably the court had used constitutional morality to strike down the provision, he said.

Justice Nagarathna said, "What was considered immoral and obscene in the 1950s is no longer considered so. That is now considered narrow-minded and old-fashioned. That is the problem of India today. But public morality is not static."

On the question - whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL, Mehta said PIL was devised by SC in 1984 in Bandhua Mukti Morcha case as a tool to champion the grievances of marginalised sections bereft of access to courts for protection of their fundamental rights.

It had adopted a lenient approach in testing locus standi of the person filing PILs, but that has become now a tool for anyone unconnected with an issue to file PILs in abuse of the strict locus standi provision. With the sea change in access to justice, the courts must insist on strict locus standi rule to prevent abuse of PILs, especially in matters relating to religion, customs, faith and beliefs.

The hearing also saw Centre arguing that locus should be not be liberally defined and the court agreeig to do so. CJI Kant said, "In the last few years, the courts have started enforcing strict locus standi rule to PILs. The constitutional courts are very circumspect in entertaining PILs as people come with ulterior motives or to advance their agendas." Arguments would continue Thursday.