SC begins hearing on women's entry into Sabarimala temple
New Delhi, July 17: The Supreme Court on Tuesday began hearing on whether prohibiting the entry of women in Kerala's Sabarimala temple on grounds of biological factors was discriminatory and violative of the constitution.
Article 14 guarantees the right to equality, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 17 abolishes untouchability and forbids its practice.
The constitution bench comprising of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra will address four questions framed by a three judge bench while referring the matter to a five judge constitution bench on October 13, 2017.
The petitioner -- the Indian Young Lawyers Association -- has challenged the 800-year-old practice of prohibiting the entry of women into the famed Lord Ayyappan Temple.
The PIL has sought direction to the Kerala government, the Travancore Devaswom Board, Chief Thanthri (priest) of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10-50.
Appearing for the petitioner, counsel Ravi Prakash Gupta told the court the restrictions on the entry of women in Sabarimala temple is not the essence of their religious affairs as discrimination on the entry of women in the temple is "neither a ritual nor a ceremony associated with Hindu religion".
Gupta said: "Mere sight of a woman does not affect anybody's celibacy, if one has take oath of it, otherwise such oath has no meaning."
The constitution bench will examine whether the exclusion of women based on biological factors amounts to "discrimination" and violates the very core of Articles 14, 15 and 17 and not protected by 'morality' as used in Articles 25 and 26 of the Constitution.
In the coming days, the court will hear arguments focusing on whether excluding women (in the age group of 10-50 years) constitutes an "essential religious practice" under Article 25, and "whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?"
Besides, the court will address the question whether "Ayyappa Temple has a denominational character" and if it was permissible for religious denomination managed by a statutory board and is funded by the Kerala and Tamil Nadu governments to indulge in practices "violating the constitutional principles/morality".
Another question to be addressed is whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits 'religious denomination' to ban entry of women between the age of 10-50 years.
If Rule 3 permitted the ban on the entry of women in Sabarimala temple, then would it not be foul of Articles 14 and 15(3), which says that nothing in the provision prohibiting discrimination on grounds of religion, race, caste, sex or place of birth shall prevent the state "from making any special provision for women and children".
The constitution bench will also examine whether Rule 3(b) is ultra vires of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and if not, is it violative of the fundamental rights.
The court on Tuesday asked the petitioner and others to conclude their arguments on Wednesday.
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CJI's remark on Krishna Iyer unwarranted, could have been avoided: Justices Nagarathna, Dhulia
New Delhi, Nov 5: Supreme Court judges B V Nagarathna and Sudhanshu Dhulia on Tuesday took exception to Chief Justice DY Chandrachud's remark during his judgement related to private properties that the Justice Krishna Iyer doctrine did a "disservice" to the broad and flexible spirit of the Constitution.
While Justice Nagarathna said the CJI's observations are unwarranted and unjustified, Justice Dhulia strong disapproved the remarks and said the criticism is harsh, and could have been avoided.
The nine-judge bench comprising Chief Justice D Y Chandrachud and justices Hrishikesh Roy, B V Nagarathna, Sudhanshu Dhulia, J B Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih pronounced the verdict.
The majority verdict pronounced by the CJI overruled Justice Iyer's previous ruling that all privately owned resources can be acquired by the State for distribution under Article 39(b) of the Constitution.
The CJI wrote for himself and six other judges on the bench which decided the vexed legal question on whether private properties can be considered "material resources of the community" under Article 39(b) and taken over by State authorities for distribution to subserve the "common good".
Justice Nagarathna partially disagreed with the majority judgement penned by the CJI, while Justice Dhulia dissented on all aspects.
In a separate 130-page verdict, Justice Nagarathna quoted Chandrachud saying, "Thus, the role of this court is not to lay down economic policy, but to facilitate this intent of the framers to lay down the foundation for an 'economic democracy'. The Krishna Iyer doctrine does a disservice to the broad and flexible spirit of the Constitution."
Justice Nagarathna said merely because of the paradigm shift in the economic policies of the State, cannot result in labelling the former judges of this court as doing a "disservice" to the Constitution.
"It is a matter of concern as to how the judicial brethren of posterity view the judgments of the brethren of the past, possibly by losing sight of the times in which the latter discharged their duties and the socio-economic policies that were pursued by the State and formed part of the constitutional culture during those times.
"Merely because of the paradigm shift in the economic policies of the State to globalisation and liberalisation and privatisation, compendiously called the 'Reforms of 1991', which continue to do so till date, cannot result in branding the judges of this Court of the yesteryears “as doing a disservice to the constitution," Justice Nagarathna said.
Justice Dhulia said the Krishna Iyer Doctrine or O Chinnappa Reddy Doctrine is familiar to all who have anything to do with law or life and based on strong humanist principles of fairness and equity.
"I must also record here my strong disapproval on the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh, and could have been avoided...
"It is a doctrine which has illuminated our path in dark times. The long body of their judgment is not just a reflection of their perspicacious intellect but more importantly of their empathy for the people, as human being was at the centre of their judicial philosophy," Justice Dhulia wrote.
Justice Nagarathna, who is set to take over as India's first woman CJI in 2027, said such observations emanating from this court creates a concavity in the manner of voicing opinions on judgments of the past and their authors by holding them doing a disservice to the Constitution.
She said such observations imply that they may not have been true to their oath of office as a Judge of the Supreme Court.
"I may say that with passage of decades after the enforcement of the Constitution and on India becoming a Republic, the transformative impact of the Constitution has been deep and pervasive not only on governance in the country, whether at the central, state or local level but its impact on the Indian judiciary is also a significant aspect of Indian constitutional development.
"As a result, the basic features of the Constitution including the Preamble, Fundamental Rights, Directive Principles of State Policy, Separation of Powers, Judicial Review and Independence of the judiciary have impacted both governance as well as the judiciary," she wrote.
The top court judge said bearing in mind the goals of the constitution, it is the obligation on the part of this court to consider the correctness of such legislation in light of the vision of the framers of the Constitution as well as the transformative nature of the Indian Constitution and the intent of the policy makers and the law.
"It is in the above background that the Judges of this court have been deciding constitutional issues over the decades. Of course, no particular line of thinking is static and changes are brought about by the State by bearing in mind the exigencies of the times and global impact particularly on the Indian economy.
"Such attempts to create an environment suitable to the changing times have to be also appreciated by the judiciary, by suitably interpreting the Constitution and the laws. But by there being a paradigm shift in the economy of this country, akin to Perestroika in the erstwhile USSR, in my view, neither the judgments of the previous decades nor the judges who decided those cases can be said to have done a disservice to the Constitution," Justice Nagarathna said.
