In the post-lunch session on day 8 of the hearing of Sabarimala matter, Ms. Jaising prayed that women be accorded the same treatment, in context of the Sabarimala Temple, as the Harijans who were earlier disabled from entering places of worship.It was her contention that to restrain women from offering prayers at the Temple on the premise of preservation of ‘perpetual celibacy’ of the...
In the post-lunch session on day 8 of the hearing of Sabarimala matter, Ms. Jaising prayed that women be accorded the same treatment, in context of the Sabarimala Temple, as the Harijans who were earlier disabled from entering places of worship.
It was her contention that to restrain women from offering prayers at the Temple on the premise of preservation of ‘perpetual celibacy’ of the deity tantamounts to stereotyping women as being seductive. To this, Justice Indu Malhotra responded that the restriction on the women was in fact linked to their supposed inability to observe the 41 day penance and not to the notion of seductiveness.
Ms. Jaising advanced that such a ban on women was akin to untouchability and that Article 25(2)(b), which speaks of throwing open Hindu places of worship to all classes of Hindus, should not be construed as eliminating not only caste-based discrimination but also one based on sex.
The Senior Advocate submitted that for a custom to be valid, it must cross the threshold of Article 13 which requires pre-Constitution laws to be tested on the touchstone of Fundamental Rights.
In this behalf, she mentioned the Bombay High Court judgment in Narasu Appa Mali (1951) which had held that ‘personal laws’ were not subject to test of constitutionality under Article 13 of the Constitution of India. Quoting the criticism of constitutional scholar H.M Seervai against the proposition in Narau Appa Mali, Jaising submitted that it required reconsideration.
When Justice Rohinton Nariman reflected that for the constitutionality of a custom to be tested it must be proved to have the force of law, Ms. Jaising asserted that the custom’s acknowledgment by the court conferred on it the required force of law.
The Senior Counsel, on Wednesday, argued that the deity, being a legal person, could not claim the freedom of conscience under Article 25 which is available to natural persons. She said that freedom of conscience was conferred on living beings, and not on juristic persons. The legal fiction conferring juristic personality on the deity is for a limited purpose, like enabling the deity to sue and to be sued in its name. That legal fiction cannot be stretched to confer rights under Article 21 and 25(1) to the deity. Chief Justice Dipak Misra commented that the deity may be entitled to the right to privacy to a limited extent, in so far as the rituals and traditions of the Temple are concerned.
Next, Senior Advocate Raju Ramachandran, the Amicus on the petitioners’ side, invited the attention of the bench to the terms ‘profess’ and ‘propagate’ in Article 25 to reiterate that the right under it could be claimed only by natural persons.
It may be recalled that Senior Counsel K. Parasaran has earlier argued that Article 25(2)(b) could at best be an enabling provision for the legislature and not be taken recourse to by the court.
Mr. Ramachandran contended that right under Article 25 was a horizontal one and hence there was no required to show any State action to ventilate the grievance of discrimination. The petitioners can agitate the right on the basis of Article 25(1) and not Article 14.
Finally, he suggested that a collection of pilgrims could not qualify as a religious denomination unless the criteria prescribed by the apex court in several judgments was proved to be satisfied at trial. Besides, it was his view that ‘morality’ for the purpose of Article 25 is ‘constitutional morality’ and not that of any denomination.
Senior Advocate P. V. Surendranath, appearing for All India Democratic Womens’ Association, repeated that the right of a denomination to administer its religious affairs is subordinate to the right to freely practice their religion of an individual.
Representing the State of Kerala, Senior Advocate Jaideep Gupta advanced that Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules could be read down to safeguard the interests of women. Gupta also ended on the note that constitution was reformist.
After hearing all the parties and intervenors, the bench reserved its judgment on Wednesday.
Read the Written Submissions of Senior Advocates V Giri And PV Surendranath.