Prashant Padmanabhan

| @PrashantPadma | January 14,2019

IN his book titled, Politics Women and Well-Being: How Kerala Became ‘A Model’ , Professor Robin Jeffrey praises a politically active population, in which women have some degree of autonomy for the best quality-of-life figures in India. Kerala has the high literacy levels, low infant mortality rate, high life expectancy, highest human development index and a sex ratio of 1084 women for every 1000 men. Last year, NITI Aayog has placed Kerala at the top among Indian States, in the health index report.   Social development indices are the result of a series of factors over several decades.

Still, Kerala is in national attention for wrong reasons from August last year. At first, it was a natural disaster, a flood which resulted in more than 400 deaths and more than a million displacement. The whole nation stood with Kerala and offered its assistance. Different High Courts and even the Judges of Supreme Court offered valuable financial and moral support.

The second disaster was manmade, for which there is absolutely no justification whatsoever. It has ripped apart the image of Kerala as the most progressive State in India. It has resulted in violence, street fights, deaths, hartals and it still continues.

 

The Sabarimala judgment

 

The reason is bewildering. A Bench of five judges of the highest Court of the land, by four to one majority, has permitted women aged between ten to fifty years to enter and take darshan at the Sabarimala temple. The judgment is of September 28, 2018. The Supreme Court held that the exclusionary practice based upon a biological factor of female gender (menstruation) amounts to discrimination. Besides, the Court recorded, the exclusionary practice has not been observed with unhindered continuity. It further held that the exclusionary practice, with the backing of a subordinate legislation, is neither an essential nor an integral part of the Hindu religion.

In the Sabarimala case, Chief Justice Dipak Misra and Justice A M Khanwilkar found from various records that there was no such practice of exclusion of women at Sabarimala, followed continuously and without break. Justices Rohinton Nariman and Dhananjaya Chandrachud agreed to the said finding. All of them also found that exclusion of menstruating women at Sabarimala is not an essential part of Hindu religion. The test laid down in earlier cases to find whether a practice is “essential religious practice”, is to see “whether the nature of the religion will be changed without that practice”. In the case on hand, applying the said legal test, the judges found that exclusion of women of menstruating age group at Sabarimala is not an essential part of Hindu religion.

Justice Dhananjaya Chandrachud held that the Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. It was further held by him that the social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatise individuals, have no place in a constitutional order, wrote Justice Chandrachud.

Written submissions of senior lawyer Indira Jaising, who represented intervenors Nikita Azad and Sukhjeet Singh, gender rights activists who launched the “happy to bleed” campaign against menstrual taboo, finds reflection in the judgment of the majority of judges. A scholar on comparative religions himself, Justice Rohinton Nariman makes an amazing comparison of the menstrual taboo in various old religions and compares it with modern faiths like Sikhism and the Bahai faith, where there is no ritualistic impurity.

 

The question of ‘untouchability’ and its application in the Sabarimala judgment

 

Dissent is natural and, ironically enough, the only woman judge in the Bench — Justice Indu Malhotra — dissented. It is interesting to compare the reasons recorded by Justice Malhotra with that of Justice Chandrachud, on the aspect of application of the provision of Constitution, prohibiting untouchability, in any form.

Justice Indu Malhotra held: “Literally or historically, untouchability was never understood to apply to women as a class.” Justice Indu Malhotra referred to speeches of several members of the Constituent Assembly as well as to the scholarly opinions of H M Seervai and Professor M P Jain to hold that untouchability was practised against Harijans or people from depressed classes, and not women.

Justice Chandrachud also quoted from the Constituent Assembly debates. The Judge notes that the Constituent Assembly rejected the proposal by member Naziruddin Ahmad which would have restricted untouchability to its religious and caste-based manifestations. Justice Chandrachud then refers to another member Professor K T Shah, wherein he asks this question while discussing abolition of untouchability: “Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability, which is actually untouchability. We all know that at certain periods women are regarded as untouchables. Is that supposed to be, will it be regarded as an offence under this article?”

Justice Chandrachud notes that Dr Ambedkar did not give any reply to Prof K T Shah. The Judge then held: “The refusal of the Constituent Assembly to provide any definite meaning to ‘untouchability’ (despite specific amendments and proposals voicing the need for a definition) indicates that the framers did not wish to make the term restrictive.” Justice Chandrachud also held: “Locating the basis of Article 17 in the protection of dignity and preventing stigmatisation and social exclusion, would perhaps be the apt answer to Professor K T Shah’s unanswered queries.

The Constitution has designedly left untouchability undefined. Any form of stigmatisation which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”… The guarantee against social exclusion based on notions of “purity and pollution” is an acknowledgment of the “inalienable dignity of every individual”.

Justice Chandrachud then records: “The root cause of ‘untouchability’ is the caste system. The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. ..Individual dignity cannot be based on the notions of purity and pollution. ‘Untouchability’ against lower castes was based on these notions, and violated their dignity. It is for this reason that Article 17 abolishes ‘untouchability’, which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about ‘purity and pollution’.”

In the conclusions at point no.4, Justice Chandrachud held: “The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of ‘purity and pollution’, which stigmatise individuals, have no place in a constitutional order.”

 

Reactions on the ground

 

What followed thereafter, validated the statement of the learned Judge to be true. Some self-proclaimed believers protested violently, attacking young women who tried to enter Sabarimala on the strength of the Supreme Court Order. Even, those from media were not spared. Those women were branded as “activists”, “non-believers” or “Maoists”. Their houses were attacked. National media reported the visuals of a woman who was aged above fifty, who came for her grandchild’s rice-feeding ceremony, being attacked by such people in the temple premises. She was mistaken to be in the menstruating age-group. That was a national shame!

In the early morning on January 2, 2019, after several failed attempts by several other women and an earlier attempt by themselves, two women were finally able to reach Sabarimala and offers prayer there. Those women — Bindu Ammini and Kanakan Durga — are no less than Tenzing Norgay and Edmund Hillary for a law student. Questioning their background is futile as we have no means to assess the comparative level of devotion of each devotee. NDTV reported on January 5, 2019 that these brave women are in the run for their lives and hiding from public.

Faith is deeply personal and if someone gets solace from a darshan at a temple, who are the general public to question their credentials. Buddha rejected invitation by several princes but visited the house of Amrapali; Jesus mingled with sinners and when questioned about it answered that it is the patient who needs a doctor; Krishna accepted the invitation of Vidura to be his guest instead of accepting Duryodhana’s invitation. It is therefore, utterly foolish for someone to claim themselves as real devotees while denigrating young women who wanted darshan. Most importantly, the Supreme Court has not put any special onus on women who visit Sabarimala, to prove their levels of devotion which a male is not required to prove to anyone.

The Government in power at the State deserves applause for avoiding lathi-charge and still facilitating darshan for those two women. However, the reactions were terribly wrong. While mob frenzied, without any logic, many of the top political leaders belonging to opposition parties criticised the Chief Minister and the Government for women entry. “Sabarimala Karma Samithi” declared a hartal on January 3, 2019 and force-closed shops; went on a rampage attacking commuters, public and private vehicles, party offices etc. They used abusive slogans against Chief Minister Pinarayi Vijayan, even hinting at his caste, burnt buses and pelted stones and petrol bombs. Attacks and counter attacks have resulted in the loss of one precious life and injury to around a hundred people. It is estimated that the Kerala State Road Transport Corporation has a loss of around Rs.3.3 crore on account of the stone-pelting on its public vehicles.

While dissent is part of any democracy, those who took law into their hands had no patience to wait for the hearing before the Supreme Court of about 49 review petitions, which the Court agreed to take up on January 22, 2019. Further, most of them have no answer to some of the most basic findings recorded by the Supreme Court, including the finding that there was no such custom in Sabarimala in the first place.

In fact, majority of those protestors have not even bothered to read the Supreme Court judgment. Many political leaders, instead of discharging the role of a constructive opposition, found fault with the Chief Minister and the Government of Kerala. Any student of law would wonder what would have they done if they were in positions of power in the State? Can they ignore the Supreme Court judgment and the mandate of Article 144 of the Constitution which states that all civil and judicial authorities in the territory of India, shall act in aid of the Supreme Court.

Chief Minister of Kerala, in his Press Conference dated January 3, 2019 mentioned that it was the seventh hartal in the State within three months, all related to the Sabarimala women entry. On January 4, 2019 again, one woman from Sri Lanka has taken darshan at Sabarimala. But the violent reactions in parts of the State is continuing.

Those who are aggrieved by the Court order must adopt constitutional methods. If violent mob is allowed to take law into their hands, the day is not far when India turns Pakistan way. Asia Bibi, the Christian woman, acquitted by Pakistan Supreme Court of blasphemy charges, is no more safe there. The violent mob wants not only her blood but death to the Supreme Court Judges who acquitted her.

The silence or lack of support from even the liberal political leaders, when the Government is trying to implement a Supreme Court order, is all the more worrying. A former Foreign Secretary, that too a lady, went on record to state that there is no gender discrimination at Sabarimala. While she is entitled to her views, it would have been better if she explains as to why the reasons recorded by the Supreme Court is wrong.

Prime Minister Narendra Modi tried to distinguish the so-called “tradition” at Sabarimala from the practice of triple talaq, saying that the latter alone, according to him, is an issue of gender equality.

This reminds me of the conversation between King James I of England and Chief Justice Coke on November 13, 1608.

Chief Justice Coke: “…the King in his own cannot adjudge any case. But that ought to be determined and adjudged in some Court of justice, according to the law and customs of England.”

King replied: “That he thought that the law was founded upon reason, and that he and others had reason as well as the Judges”.

Reply by Chief Justice: “..true that it was that God had endowed His Majesty with excellent sense and endowments of nature; but His Majesty was not learned in the laws of his realm of England and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognisance of it that the law was the golden metwand and measure to try the causes of the subjects”.

To the question of King James whether he is under the law, the Chief Justice Coke replied in the affirmative. Needless to say, India is a Constitutional democracy for around seven decades now and all authorities function under Constitutional limits. Interpretation of the Constitution is the role of the Judiciary and Executive cannot go beyond the law declared by the Court.

Political leaders have a duty to be more responsible in controlling their cadres from indulging in violence. The violent strategy adopted by the hooligans in Sabarimala found sudden reflection in the strategy of Jacobite faction in some of the Churches within Kerala. They tried to prevent the execution of a Court order by violent protest, suicide threats etc.

 

Can a judgment of a Court of law, be overruled by Legislation?

 

One demand by those who are opposing the Sabarimala judgment is to overturn the same by Legislation/Ordinance. Some political leaders raised the possibility of bringing a law to overturn the Supreme Court judgment on Sabarimala, in the recently concluded Winter session of the Parliament. The legal position is that the Parliament or State Legislatures are competent to pass any legislation that is within their legislative competence. Various subjects are listed in Schedule 7 of the Constitution under Union List, State List and Concurrent List. The other condition for making a valid law, is that the legislation should not be against any provisions of the Constitution of India, which is the supreme law. By making laws with retrospective effect, sometimes even a judgment of the Supreme Court can be overturned.

However, there is an important caveat to it. Separation of powers between legislature, executive and judiciary is the basic structure of the Constitution and legislature cannot overturn a judgment without changing the basis of the law upon which that judgment is based. This can be illustrated by an example. Suppose in a dispute between A and B, there is a judgment from the Court that “A” has won. There cannot be a law saying that “B” has won. That is the role of the adjudicator, that is the court and the legislature cannot usurp that power. Imagine the legal basis of that judgment is adverse possession. Legislature can make a law repealing the claims based on adverse possession with retrospective effect and thus nullify the judgment of the court between A and B.

Now let us see, whether the Sabarimala judgment can be nullified by legislative action. There cannot be any law, simply overturning the judgment of the Supreme Court on Sabarimala. As explained earlier, the law should change the legal basis upon which the judgment is based.

The Sabarimala judgment is based on the Constitutional values of liberty, equality and dignity of individuals derived from a combined reading of the Constitution. Those values are derived from various provisions including specifically Articles 14 (equality and equal protection of laws), 15 (2) (non-discrimination) and 17 (untouchability in any form is prohibited) along with Article 25(1) (right of every individual to profess, propagate and practice her religion) and 25 (2)(b) (throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus) and 26 (freedom to manage religious affairs). “Rights are not isolated silos”, held Justice Dhananjaya Chandrachud.

It is impossible to amend all these provisions of the Constitution so as to overturn Sabarimala judgment. Further, those are the basic features of the Constitution which cannot be abrogated by way of an amendment to the Constitution in view of the thirteen-judge Bench judgment of the Supreme Court in 1973 in the Kesavananda Bharati case. It is clear from the discussion that the legislature (Parliament or State Legislature) cannot overturn the legal basis of the judgment of Supreme Court on Sabarimala. Political blame game and demand for legislation is therefore, meaningless.

 

‘Purification’ ceremony self-explanatory

 

The narration of facts will not be complete unless it is mentioned as to what the Thanthri (Chief Priest) at the temple has done after the women entered Sabarimala. He closed down the temple and did a “purification ceremony”. Anyone who had the slightest of doubts regarding the findings of Justice Chandrachud about the form of untouchability at Sabarimala, the notions of purity and pollution, must be clear of all such doubts after this. Purification ceremony reiterates the deep gender bias, the form of untouchability at Sabarimala.

Are those violent incidents in Kerala, a precursor to what is going to happen to our country, when issues like Ayodhya, are decided by the Supreme Court? The Ayodhya case is going to be taken up again on January 29, 2019. Will all those men in high Constitutional positions, who have sworn their allegiance to the Constitution of India, re-assure their firm commitment to the Constitutional values and various institutions under it? Supreme Court is certainly one and unless its orders are going to be honoured, we deserve no more to be called a democracy governed by rule of law.

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vimala
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vimala

Excellent article

Ganesh
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Ganesh

Kudos for writing an excellent piece of article. The facts have been put to justify the views of the author. Hope the real sense prevails on the issue

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