The arguments before the Supreme Court around the entry of women of a certain age to the Sabarimala temple in Kerala raise issues about religious freedom, gender equality and the right of women to worship. The petitioners have argued that discrimination based on biological reasons is not permissible going by the constitutional scheme. They maintain that due to the current exclusion, the right of women to worship the deity, Ayyappa, is violated.
On the other side, the Devaswom Board and others in support of the ban have cited it as an age-old custom. It forms a part of ‘essential religious practice’ of worshippers under Article 25 of the Constitution. It was also urged that matters such as who can or cannot enter the temple are covered under the rights to administer and manage religious institutions, under Article 26.
A specific argument made in the court, based on Article 17, triggers interesting thoughts on constitutional interpretation. In support of the petitioners, it was argued that the exclusion is a form of ‘untouchability’ since the exclusion is solely based on notions of purity and impurity. But this argument was resisted on the contention that the prohibition of untouchability was historically intended only to protect the interests of the backward classes. The claim is that the makers of the Constitution never envisioned including women within the ambit of untouchability.
The two arguments reflect the two approaches to reading the Constitution. The first is the ‘original intent’ approach which is based on the intent of the framers of the Constitution when they drafted the text. For example, an originalist will adopt a certain understanding of a constitutional right — say, the right to same-sex relationships under the right to liberty promised under Article 21 only if she is convinced that the drafters intended that. She may argue that the framers never thought of such a situation and, therefore, a same-sex couple cannot have a constitutional right under Article 21.
In fact, a similar argument has been made in the debates in India on homosexuality. Article 15 enjoins the state from discriminating on grounds such as religion, caste and sex. By relying on the originalist approach, it was asserted that the makers of the Constitution meant the word ‘sex’ under Article 15 only in the binary sense of ‘male and female’.
Over time, originalism as a method of constitutional interpretation has been subject to serious criticism for being too rigid and inflexible. In B.C Motor Vehicle Reference (1985), the Canadian Supreme Court, while rejecting originalism, said that such a method would mean that “...the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs.”
The second approach — the ‘living tree’ doctrine — is very prominent in Canadian jurisprudence. It involves understanding the Constitution to be an evolving and organic instrument. For the living tree theorists, it matters little what the intentions were at the time of Constitution making. What matters the most is how the Constitution can be interpreted to contain rights in their broadest realm. The moral reading of the Constitution, propounded by Ronald Dworkin, also complements the living tree approach. Dworkin says in Freedom’s Law that “according to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power.”
A specific acknowledgment
Certain observations about the abolition clause are important. Article 17 is emphatic in its wording: “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.” It is peculiar since it abolishes a social practice in any form. All the other provisions in the same chapter lay down substantive fundamental rights.
In spite of the specific equality and anti-discrimination guarantees in the Constitution, Article 17 is inserted to specifically acknowledge and remove the social stigma associated with certain castes. It was enacted in an attempt to eradicate historical inequality. V.I. Muniswamy Pillai said in the Constituent Assembly that “the great thing that this Constitution brings to notice, not only to this country but to the whole world is the abolition of untouchability.”
The ‘living tree’ approach — being an alternative and a finer reading of the Constitution — supports a broader interpretation of Article 17. Now, even if the framers of the Constitution intended this provision to address a specific category of discrimination, what prevents the constitutional court from adopting an interpretation to include women under Article 17?
Women have been kept out of Sabarimala because of menstruation. As a distinct class, they are being discriminated against. If certain castes are considered ‘impure’ because of their social status, menstruating women are considered to be so because of their gender. The criteria are different but the effect of exclusion is common. It seems that such an interpretation does not do any violence to the language and content of Article 17, but only emancipates it.
In Living Originalism in India: Our Law and Comparative Constitutional Law (2013), Sujit Choudhry argues that untouchability and the exclusion of the homosexuals are comparable. He says that “the treatment which homosexuals experience today is similar in kind to that which ‘untouchables’ experienced and which prompted the adoption of Article 17, in that the treatment of homosexuals likewise flows from their social status.” This is a case where discrimination is based solely on sexual orientation.
Therefore, in essence, the Sabarimala case is a test case not only for freedom of religion and women’s rights but also for constitutional interpretation. It presents to the court an exemplary opportunity for an alternative reading of the Constitution. If the court indeed reads Article 17 to have a wider meaning, it will signal a new era of transformative constitutionalism in Indian jurisprudence.
Thulasi K. Raj is a lawyer in the Kerala High Court