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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: So that was to give effect to Article 17.

Prashant Padmanabhan: Yes.

Charu Mathur: On untouchability.

Prashant Padmanabhan: Untouchability.

Charu Mathur: Untouchability, only in relation to caste or in relation to a person or a gender also?

Prashant Padmanabhan: That is a very interesting question. Article 17 prohibits untouchability in any form.

Charu Mathur: Right.

Prashant Padmanabhan: So there are two judges who have. There was an argument from the side of Indira Jaising—Senior Advocate. I have assisted Ms Jaising. She has argued that there is a form of untouchability at Sabarimala, in as much as, the custom prevents entry of women between the age of ten to fifty or the law which gives effect to that practice. So that is the form of untouchability that was the argument. That argument was not reflected in the judgment of Chief Justice Dipak Misra or Justice Rohinton Nariman’s judgment but it was dealt with in the judgment of Justice Indu Malhotra.

Charu Mathur: Dissenting judgment.

Prashant Padmanabhan: Dissenting judgment of Justice Indu Malhotra. She said, like what you asked. She said, like if you read the Constituent Assembly Debates or authors like Selvai or some other authors she has referred to. They all say that this is caste-based untouchability, that is undoubtedly Article 17—the root of that is traceable to caste-based untouchability. To that extent we agree. But Justice Dhananjay Y. Chandrachud goes one step ahead and he says—Of course that is a caste-based untouchability, but what is the basis of that exclusion of certain castes from entering certain templesi.ethe notions of purity and pollution.

Charu Mathur: Right.

Prashant Padmanabhan: So those very same notions are behind the exclusion of women in the menstruating age group.

Charu Mathur: Right.

Prashant Padmanabhan: And then he also refers to Constituent Assembly Debates and Justice Chandrachud says there was a question from Naseeruddin Ahmed—one member, he asked … he said … like he suggested like I suggest that this should be is only in relation to religion and caste-based untouchability. That suggestion was turned down.

Charu Mathur: Ok.

Prashant Padmanabhan: That suggestion was not accepted by the Assembly and that modification was not made to Article 17. So it is vide one interpretation. And secondly, there was a specific question from another member—K.T. Shah. He said that in our life, like in our families, women at certain periods are kept aside from day today work and this is also included in the form of untouchability? He asked that direct question.

Charu Mathur: Ok.

Prashant Padmanabhan: So, Dr. Ambedkar did notgive any answer. So that is a constitutional silence. There is no specific answer, it is left to the future to interpret.

Charu Mathur: Ok. That question remained open.

Prashant Padmanabhan: That question is open. So in future, Parliament can make a law and even the judiciary, by interpretation can fill that void.

Charu Mathur: Right.

Prashant Padmanabhan: Justice Dhananjay Chandrachud said—what you are doing in Sabarimala is a form of untouchability. If you see some instances, recent for example, in India itself, Nepal and all that, this taboo is there. And in India also, sometime back in college in Coorg, there was an instance which was reported in the newspaper, where women were asked to remove their undergarments and show whether they were not menstruating. Those types of instances recreates what Justice Dhananjay Chandrachud held in this case, is true. The only argument against that view is that it's a religious place and therefore courts should not apply what is their interest in other places.

Charu Mathur: Right.

Prashant Padmanabhan: But then Justice Chandrachud says that these are all intermixed. It's not religion. Religious right is not an isolated right in the Constitution. It must find a place with other fundamental rights. And what we follow in our daily lives—in families, schools and public places, those are the customs which we bring to our places of worship also. So he locates that and then he says that this is a Constitutional Court, we cannot give effect to such a custom.

Charu Mathur: Right.

Prashant Padmanabhan: That’s how...