Thread by @legaljournalist

Today's #Sabarimala hearing and why the debate in Supreme Court today on Articles 17, 25 and 26 might be have been watershed. #Thread. barandbench.com/entry-women-sa…

The first half of the hearing today was rather subdued but it really came to life in the second half when Sr. Adv. @IJaising commenced her submissions.

The Bench which up until then was quiet, suddenly came to life, thanks to Jaising’s submissions on the ban on women being hit by the abolition of untouchability under Article 17.

Her argument was that the Temple Entry Acts were enacted by different States were in pursuance of Article 17 which seeks to abolish untouchability.

Though the intention was to ensure that discrimination against Harijans was done away with when it came to entry to temples, Jaising argued that Article 17 and the laws pursuant to the same applied equally to women.

"Judgments of SC indicate that these statutes read with Article 17 give unrestricted right to all Hindus to enter places of public worship. It was intended to allow Harijans to enter temples, my case is that it applies to women as well and women cannot be discriminated against.”

The reason she gave was that the ban is not on women but on menstruating women. The same stems from the notion that menstruating women are impure, the same underlying notion which drives untouchability.

She buttressed her case by stating that Article 17 is perhaps the only Article which applies laterally/ horizontally and are not just sanctions against State unlike other fundamental rights.

The point she wanted to make was that due to the same, a broad interpretation should be given to Article 17 by including doing away with the allegedly exclusionary practice against women.

The Bench, especially Justice DY Chandrachud and Justice Rohinton Nariman, however, expressed serious doubts about application of Article 17. Both of them were in favour of the petitioner making out a case under article 25.

Justice DY Chandrachud expressed doubt on whether Article 17 will apply in the present fact situation.

"You don’t have to really go to A. 17", said Chandrachud instead telling Jaising that resort to A.25(2)(b) might be more appropriate.

Rohinton Nariman J. also took a similar stance saying that despite the guarantees to religious denominations under Article 26, the same has to be harmonised with the Article 25 as has been interpreted by the Supreme Court.

Nariman J., therefore, suggested that the said line of argument be adopted rather than going the Article 17 way.

The remarks by these two judges were suggestive of the following:

1. Court is unlikely to give A. 17 a broad interpretation.

2. The harmonisation of Articles 25 and 26 - Whether in favour of individual rights over group rights or other way round, I would not want to predict.

However, wrt 2, the subsequent remarks by the two judges, especially Justice Chandrachud could be indicators of what could happen.

Jaising was relying on Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 to make her case when Chandrachud J. asked,

"Can there be such a restriction in the absence of such a law. Suppose there was no law at all can such restriction stay?"

He even went to the extent of suggesting, that “the right as a woman to pray is equal to that of a man and is not dependent on a law to enable you to do that” but stems directly from Article 25.

Further, a notification issued by the State to implement the entry ban on women was also discussed at length by both Justice Nariman and Chandrachud.

This notification merely prescribed the age group of women (10 to 50) who were barred from entering the temple. It had no mention of menstruation as being the reason for the same.

"If the age prescribed by notification has no basis on menstruation, then it is arbitrary on the face of it since age cannot be a criterion for restricting right of women to worship”, said Justice Chandrachud.

“However, if the age prescribed by notification is based on menstruation, then it is violative of Constitutional morality", Chandrachud J.

Nariman J. said that since the notification does not say anything about menstrual status, it is arbitrary since it leaves out similarly situated persons.

“It leaves out a 9-year old girl and a 53 year-old woman who may be menstruating", Nariman J.

How much these remarks were suggestive of how the Court would want to read Articles 25 and 26, I leave it open.

But another noteworthy chapter in today’s hearing was the stubborn stance which Justice Rohinton Nariman has been adopting on the case of State of Bombay v. Narasu Appa Mali.

This 1951 judgment is a crucial ruling on the extent to which personal laws can be subject to fundamental rights. It involves the question of the extent to which ‘personal laws’ can be considered laws within the meaning of Article 13 of the Constitution.

In the famous Triple Talaq judgment, the Supreme Court had the opportunity to overrule the judgment but refused to do so with Justice Rohinton Nariman making it clear that he will not go into the correctness of the said judgment.

When the same judgment was brought up by Indira Jasing today, Nariman J. was very quick to respond.

“There is one Bombay High Court judgment which has been a stumbling block in the realm of personal laws - Narasu Appa Mali”, said Jaising.

“That is not under consideration here”, was the response of Nariman J.

While Nariman J. could be right when he says that the current case is different, his stance on the said judgment is noteworthy given the nature of most of his judgments.

My feeling is Nariman J. wants to keep Narasu Appa Mali as a safety valve against judicial overreach into the realm of religious and personal laws.

As the hearing drew to a close, CJI Dipak Misra asked Amicus Curiae Raju Ramachandran "How can restriction on women of certain age group be covered by the ground of untouchability".

The hearing on this aspect might see further discussion tomorrow.

The judgment in many ways could be landmark as it could interpret Article 17, 25 and 26 and also clarify in detail about the Essential Religious Practices Test.

It could be very crucial with regard to control of religious institutions particularly in the context of movements for freeing Hindu temples from State control are gaining traction.

In the hindsight, I might have witnessed history in Supreme Court today.