The Leaflet

| @theleaflet_in | August 2,2018

As the judgment is reserved in one of the closely contested constitutional bench cases of 2018, the arguments for the rights of women to enter Sabarimala Temple in Kerala took a comprehensive turn towards reiteration of the foundational principles of equality before the eyes of law and the right to be not discriminated against owing to one’s gender and/or sex. Senior advocate Indira Jaising, representing one of the intervenors for the petitioners, Nikita Azad, presented that “the deity as a legal person has rights vested in it, but the same are limited to maintenance of properties and the taxation matters related therein. This principle has been consistently maintained in the Indian legal jurisprudence since the time of Privy Council and the Judicial Committee decisions”.

“The deity as a legal person has rights vested in it, but the same are limited to maintenance of properties and the taxation matters related therein. This principle has been consistently maintained in the Indian legal jurisprudence since the time of Privy Council and the Judicial Committee decisions”

Previously, it was argued that the minor Lord Ayappa had his rights to privacy as a “juristic person” and therefore could dictate the character of the Temple, which insisted on celibacy, and not being in company of menstruating women. There were elaborate legal calisthenics displayed to prove that the deity as a juristic entity had rights under Article 25 of the Indian Constitution, and therefore the deity’s right to celibacy couldn’t be discriminated against.

However, on August 1, the last day of hearing concluding which the judgment has been reserved in the case, Jaising submitted her additional rejoinder, establishing that the deity’s celibacy and women’s menstruation had very little to do with each other, while clearly discrimination based on a physiological function has been going on. In addition, Jaising punctured the convenient legal fiction of the deity as a juristic person which she said only extended to civil matters and issues of taxation, and did not amount to anything that would override the fundamental rights of women.

Jaising cited the decision of Maharaja Jagindranath Roy Bahadur v. Rani Hemanta Kumari Debi 1904 SCC OnLine PC 22,the Privy Council stated the law thus:

“There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. And probably this is the true legal view when the dedication is of the completest kind known to the law…. Assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol.”

She also held:

“Moreover, it has been established in Yogendra Nath Naskar v. CIT 1969 AIR SC 1089 that the actual management is done by the Shebait in the name of the idol or the deity. The Supreme Court in this case, agreed that the deity fell was covered under ‘individual’ under the Income Tax Act and was capable of being taxed through its Shebaits. It is pertinent to note that in this case, the statute had an explicit provision that included legal entities in the definition of “individual.”

As has been mentioned above, that it is only in the “ideal sense” that the rights even for a property vest in an idol. The rights of the Shebaits, the trusts, and the denomination have been secured under Article 26. The pre-constitutional right now finds a place in Article 26, that it is the right to manage a religious denomination and must be interpreted in the light of the judgments of this Hon’ble Court as being subject to public order, health, and morality.”

Jaising said that rights under Article 25(1) solely relate to the individual and not to a denomination.

“It is submitted that the right under Article 25(1) vests in the individual and is personal in nature. The Hon’ble Supreme Court has referred to that the right to worship the deity, in reference to the rituals, ceremonies, and other such matters relating to the deity are covered under Article 26(b) as management of religious affairs.”

She also held that scope of Article 25(2)(b) is wider than enabling laws for temple entry for untouchables.

“It is submitted that Article 25(2)(b) cannot be interpreted as only being an enabling provision for making welfare and social reforms against untouchability solely on the ground that the second half of the provision is about throwing open of Hindu religious institutions. It is submitted that the first part of Article 25(2)(b) that provides for making social and welfare reforms is separated by the second part regarding throwing open of Hindu religious institutions with an “or”, thereby making it clear that the social welfare reform could be of a wider scope than just throwing open of temples.”

She added that the condition imposed namely that women cannot enter between the ages of 10 to 50 is an “unconstitutional condition and hence it lacks constitutional legitimacy”

Jaising submitted that the “Kerala High Court judgment does not operate as res judicata” and the present bench of the Supreme Court is competent to hear the arguments raised regarding the fundamental right to worship of women, and any ancillary issues that may arise regarding the denominational status of the Sabarimala temple. She added that the condition imposed namely that women cannot enter between the ages of 10 to 50 is an “unconstitutional condition and hence it lacks constitutional legitimacy”.

Finally, Jaising cited United States Supreme Court Judge Ruth Bader Ginsburg’s famous face-off with Judge Antonin Scalia, which was turned into a mini-opera, and in fact, has been cheerfully included in Justice Ginsburgs juristic memoir, My Own Words. Jaising narrated an excerpt from an interesting opera written as a conversation between Justice Scalia and Justice Ginsburg about their different styles of interpreting the Constitution, where Justice Scalia believes in an original intent of the Constitution school of thought, and Justice Ginsburg is known to follow purposive interpretation.

Read the excerpt here. Watch the trailer of the cinematic adaptation of the mini-opera below!

 

[CLICK] Read Indira Jaising ’s rejoinder in Sabarimala case.

[CLICK] Read Indira Jaising’s additional rejoinder in Sabarimala case

 

[WATCH] Sabarimala discriminates against women on a public health issue: Nikita Azad

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