Sabarimala #7: Amicus Submits Article 14 Not Applicable to Essential Religious Practices

On August 1st  2018, the final day of oral arguments commenced before the five Judge Bench in the Sabarimala Temple Entry case.

Mr. K. Ramamoorthy, the amicus curiae, began by submitting that this case revolves around people’s faith in Lord Ayyappa. He argued that the writ petition seeks to challenge the very existence and origins of Lord Ayyappa.

Justice Indu Malhotra enquired about a different route for women to enter the temple through the northern gate in the month of March.  Mr. Ramamoorthy replied that it is a recent development which should be perceived as an aberration.

Mr. Ramamoorthy: Right to Religion should be construed harmoniously with right of a religious denomination to manage its affairs

Mr. Ramamoorthy contended that the court must refrain from developing a standard “litmus test” to determine the nature of a religious faith. He added that the Lord Ayyappa’s temple has a unique character which cannot be found anywhere else in the world.

Mr. Ramamoorthy pointed out that the Jehovah’s witnesses consider the law laid down by the God to be superior to the law laid down by the government. He further requested the court to uphold the spiritual freedom of Lord Ayyappa’s devotees.

Mr. Ramamoorthy submitted that Article 14 applies only to the secular aspects of a religion and not to the essential religious practices. He requested the Court to read the fundamental rights in a harmonious manner.

The respondents closed their arguments; the petitioners submitted their rejoinders.

Mr. R.P. Gupta, the counsel for the petitioner began his arguments by stating that Rule (3b) under the Kerala Hindu Places of Public Worship Act  is discriminatory – it seeks to bar women of a certain age group from entering the temple. Thus Article 14 should be invoked to strike down this discriminatory rule. Justice Nariman observed that since the Devaswom Board does not come under the definition of ‘State’ as per Article 12, Article 14 might not apply.

Justice Nariman commented that the bar on women entry is a time immemorial tradition which has to be considered. The CJI refused to entertain any references to the Kerala High Court judgment and certain newspaper articles produced before the court by Mr. R.P. Gupta.

Ms. Jaising: Article 17 must be expanded to include other forms of untouchability

Ms. Indira Jaising, representing the intervenor Nikita Azad, commenced her arguments. She pointed out that the petitioners have merely asked for the right to worship; they do not intend to interfere with the management of the temple. She argued that the constitutional guarantee given to the Harijans, in terms of entry to the temple, must be extended to women. Women and untouchables are “similarly situated”.  Article 17 is a verb and not a noun; it should be expanded to include other forms of untouchability including based on gender.

Ms. Jaising then referred to Article 15(1) which prohibits discrimination ‘only’ on grounds of sex, amongst other categories. She argued that the use of word ‘only’ had been a great difficulty since most cases involve discrimination on the basis ‘sex+’ (sex and some other category). Thus it escapes constitutional scrutiny. Justice Chandrachud observed that if the impact of ‘sex+’ (sex and some other category) form of discrimination is disproportionately impacts sex, then it will be violative of Article 15(1).

On the aspect of religious denomination, she argued that the devotees cannot be considered a religious denomination since there is no distinctive mark. She asserted that the respondents have not produced any proof to claim that the custom is unbroken or has been in existence since time immemorial.  She submitted that even customs must have constitutional legitimacy. Justice Nariman observed that  the courts will decide on the issue of constitutional legitimacy.

In her closing remarks, Ms. Jaising referred to the outlawing of menstrual discrimination in 2005 under the anti-discrimination laws of a Hindu kingdom in Nepal.

 

The parties closed their arguments; the court has reserved its judgment.

 

(This report has been prepared by Mr. Samya Chatterjee)