Sabrimala #2: Petitioners Argue Exclusion Violates Right Against Untouchability and To Free Expression

On July 19th 2018, a 5-Judge Bench led by Chief Justice Dipak Misra and comprising Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman and Indu Malhotra continued hearing the Sabarimala Temple dispute.

In the previous hearing on 18th July, Senior Advocates Indira Jaising and Raju Ramchandran made two key arguments–first, the religious custom which prohibited entry of women into Sabarimala violated right against untouchability under Article 17; second, the right of a religious denomination to manage its internal affairs under Article 26(b) has to be harmonized with women’s right to practice religion under Article 25(1) of the Constitution.

Today, the Court heard Mr. Ramchandar continue his argument on untouchability. The Kerala government opposed women’s exclusion as well. Finally, Senior Advocate Dr. Abhishek Manu Singhvi began his arguments for the Devosam Board, defending the exclusion.

Sr. Adv Ramchandran: The Sabarimala custom is Gender Based Untouchability, Prohibited Under Article 17

Mr. Raju Ramchandran resumed by arguing that Article 17 covers gender based untouchability. He said that the enabling legislation for Article 17, The Protection of Civil Rights Act 1955, is not restricted to caste based offences but penalizes all forms of untouchability. He invoked Constituent Assembly debates on Article 17; K.T. Shah clarified that untouchability in Indian society can take many forms of discrimination which goes beyond the scope of caste.

However, the bench was not convinced to give expansive interpretation to Article 17. It prodded the counsel to argue on the lines that the religious custom would not enjoy protection under Article 25(1) and Article 26(b) of the Constitution. In a last effort, Mr. Ramchandran tried to convince the bench by referring to former Chief Justice B.P. Sinha’s dissent in Saiffudin, where he held that religious excommunication violates Article 17.

Mr. Ramchandran concluded by saying that disallowing women from entering the Sabarimala temple is a form of untouchability – it equates menstruating women with notions of impurity. This kind of religious morality should not supersede constitutional morality.

AIDWA Argues That Prohibition on Worship Violates Fundamental Right to Expression

Senior Advocate P.V. Surendranath, representing All India Democratic Women’s Association, began his arguments: the act of worship is covered by the fundamental right to expression under Article 19 (1)(a). Thus, the said religious custom not only infringes Article 25(1) but also Article 19(1) (a) of the Indian Constitution.

Mr. Surendranath pointed out that the fundamental right of a religious denomination to manage its internal affairs under Article 26(b) is not an unfettered right – it is subject to the limitations of public order, morality and health. He maintained that morality has to be understood as constitutional morality. Any sex-based discrimination founded on notions of impurity violates constitutional morality.

At this point, Justice Indu Malhotra queried “What about the status of temples which do not receive state funding?” Mr. Surendranth replied that irrespective of whether a temple receives state aid or not, if it is open to public, it cannot have discriminatory religious customs. With this, Mr. PV Surendranth concluded his arguments.

Kerala Opposes Entry Ban

Senior Advocate Jaideep Gupta, the counsel for State of Kerala began his arguments. Chief Justice Dipak Misra observed that the submissions by Mr. Gupta will be considered as the State of Kerala’s final stand.  Mr. Jaideep reiterated that the stand of State of Kerala is that women should be allowed entry into the temple. He said that age based restriction (between ages 10-50) on women can turn out be a life long restriction – there is no guarantee that women would live as long as 50-55 years. He submitted that the said customary practices would qualify as ‘law’ under Article 13(1) and can be struck down by the court for fundamental rights violation.

Dr.Singhvi, for the Devosam Board, Argues Exclusion Necessary As Women Cannot Observe 41 Days Penance

Senior Advocate Dr. Abhishek Manu Singhvi, the counsel for the Devasom Board commenced his arguments. He said that prohibition on entry of menstruating women into Sabrimala has to be seen in context of the chief deity Lord Ayappa being a “Naishtika Bharmacharya”( a celibate bachelor). He maintained that since Lord Ayyappa is a celibate deity, excluding menstruating women from entering Sabrimala is justified. He added that “it is physiologically impossible for women to observe 41 day penance”; restricting their entry is justified. To this, Chief Justice Misra responded that as menstruation is intrinsic to women’s biological identity, the religious custom of observing  penance for 41 days before entering the temple indirectly affects their rights.

With this, the bench rose for the day. The matter will be  heard next  on July 24th.