The sabarimala conundrum

The five-judge Constitutional bench led by the Chief Justice of India, Justice Deepak Mishra is in the process of hearing the Sabarimala case, with respect to entry of women between the ages of 10 and 50.

This issue throws open a very interesting debate regarding the balance that needs to be found between a person’s fundamental rights which are enshrined in the Constitution, and custom and usages that prevail in our society today.

Both these set of rights have great importance in the legal and constitutional perspective.

Advocate Indira Jaising and senior advocate Raju Ramachandran, appearing for the group that filed this case, is taking the unconstitutionality road of this present rule against entry. They vehemently argue that the exemption of women between the said ages, because of their physiological conditions is against their basic fundamental rights. This issue deals with the basic mentality of our society, which lays down inherent conditions that menstruating women as considered ‘impure’, and not allowed inside temples, and even the kitchens of their own homes. This concept of being ‘impure’ during the time of menstruation is the main reason that a woman cannot undergo the 41-day customary penance or vritham that a person needs to undertake for their pilgrimage to Sabarimala. Moreover, it is the belief that Lord Ayyappa in Sabarimala is a ‘brahmachary’ or celibate, thereby, entry of women who are capable of reproduction will alter Lord Ayyappa’s divine penance.

In their arguments, the counsels took up the protection given under Article 17 of the constitution, which abolishes untouchability. They urged the court to construe the aspect of women being forcefully separated from society due to their ‘impurity’ during the time of menstruation.  Jaising, in her very convincing arguments, walked the bench through the nuances of the rule of restriction at hand, making it a case of a restriction placed on the basis of ‘purity’ which in turn reflects as ‘untouchability’ cast upon women. However, Justice Chandrachud was quick to point out an interesting observation. The words “untouchability,” in the Indian Constitution at Article 17, is put in quotation marks (“). It says

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

The legislative intent behind the use of quotation marks, as per Justice Chandrachud’s remarks, shows that the makers of the constitutions would have meant “untouchability” in the strict sense, to include only caste based untouchability. Other forms of untouchability, which includes the one being raised here, might not fall strictly within the ambit of “untouchability”.

The court, upon this finding, may hold it a roadblock to consider all kinds of violation by exclusion to be brought under the bracket of “untouchability,” due to the existence of the inverted commas.

This point was further clarified by the counsels for the petitioners that, looking at the Constituent Assembly Debates, one can find arguments in favour of widening the ambit of the said provision to include all forms of untouchability, which Dr Ambedkar opposed.

This proposition, although considered by the court, seems to be not fully accepted, where they feel that there are other more important provisions like Article 25 (2) (b) which concrete the right of a woman to enter the holy shrine of Sabarimala.

The court although observed that the provisions under Article 17 need not be looked into very deeply under the given circumstances. But these proceedings show the importance of statutory interpretation, and how a small punctuation can change the course of a proceeding.

Justice Indu Malhotra who is part of the bench, observed that there are a few temples in India where men are not allowed to enter. The allowing of entry to women in this given situation will have to be a blanket right to all sexes throughout India, which the counsel for the state pointed out would be problematic.

The state, however, is not taking a solid stand. The Chief Justice in his remark, chided the state government saying that the state has changed its stance four times in the course of the hearing, which senior advocate K Parasaran was keen to point out that it was because of the changing governments in the state. The counsel for the state clarified that the court should consider the stand as on November 2017 in support of entry of women, but it is not in support of the arguments put forward by the petitioners about the purity-untouchability concepts and is of the considered view that this custom should be allowed to stand, and can be taken off upon the contrary finding of the Supreme Court. The state left the decision to the knowledge of the Supreme Court.

AM Singhvi, counsel for the Travancore Devasom Board, which is the government administrative body of Sabarimala, rejected the arguments of the petitioners. He tried to convince the court that this custom is a well-found bona-fide custom and there is no discrimination within the rule because the rule is a blanket rule, which disallows all women between the ages of 10-50. It has been followed from time immemorial and had the requisites to be considered as a law under Article 13 of the Constitution. He made pleadings that there is no relation with the said rule and the concept of untouchability.

The Supreme Court has completed six days of intense arguments of this complex and balanced issue, including the pleadings of Parasaran, one of the oldest members of the Bar. Incidentally, this case marked his retirement from litigation with an emotional and content note of thanks to the bench. He said that his first love has always been the Constitution, and has now completed 68 years at the Bar.

The issue before the Apex Court is complex. Holding the rule to be unconstitutional on the grounds raised may turn out to be a headache for the judiciary because India being one of the most ancient countries in the world, have deep roots in customs. Such a ruling might indirectly cause innumerable similar customs to be held unconstitutional as well, which may have adverse effect.

(The writer is an advocate)