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Browse Law School Education Constitutional Law Discussion on the Sabarimala Case

Charu Mathur: So from the Central Government, again I will take your arguments—what I make out of it is—The Central Government says that religion is the status quo. You cannot evolve. What you are saying is that religion is evolving, you have to change with the changing times. Like Sati was good at one point of time, then people evolved and they realised how can you sacrifice one person for the other, or, like in the Hindus, if I say daughters didn’t have a right to inherit the property, it was changed subsequently. Or for the Muslims, triple talaq—it is now declared to be illegal. So what you are saying is that religion is continuously evolving and we have to keep up with the times. As the society evolves, so we need to upgrade.

Prashant Padmanabhan: To be fair to the arguments of Shri Tushar Mehta, I would say that their stand is that there should be reforms according to time, even in religion. But their only difference is the judiciary exercising that power. Judiciary giving an interpretation by which civil rights are enhanced and religious rights are diminished in their view is not welcomed. They say that let the religions do their reform themselves.

Charu Mathur: Religions or the State..

Prashant Padmanabhan: Or we will do it...

Charu Mathur: Or through legislation...

Prashant Padmanabhan: Government or legislation can do it.

Charu Mathur: But not through the judgments.

Prashant Padmanabhan: Not through judgments. And that is very surprising because if the intention of the Constitution is to transform society, there are so many provisions in the Indian Constitution which you may not find in many other Constitutions.

Charu Mathur: True.

Prashant Padmanabhan: Because it provides for social transformation. It can be through law. It should be ideally through law or executive action but if there is no such law, if the Parliament is not making a law, then the court’s interpretation of the provisions must enhance those fundamental rights and the religion should not come as an obstacle in exercising those rights.

Charu Mathur: Our Constitution is a transformative constitution.

Prashant Padmanabhan: Transformative Constitution. And I would say that one judgment is a big problem. Narasu Appa Mali of the Bombay High Court judgment is very old. And it is followed in the Supreme Court. There are some observations by Justice Chandrachud in one of the judgments—either in Sabarimala or I think even in the Right to Privacy judgments. That Narasu Appa Mali is not a good law or it needs a relook, but it has not been overruled officially as yet. In my opinion it is very necessary because that judgment says, of course, under Article 13 you can trust a custom. If you are following a custom, it should conform to the Part III of the Constitution. Now we have a written Constitution, values of those cannot be violated by virtue of a custom. But it says, personal laws are not amenable to Article 13. Personal laws are not law and therefore you cannot test under Part III. That is very wrong because if a custom can be tested and if Article 25 is the origin of religious right and personal law is derived from religion, then, of course, it is amenable to Article 13. So I would wish that the Supreme Court overrules that Narasu Appa Mali judgment and holds that of course even if it is a personal law, it should conform to the values of Part III of the Constitution. The Central Government stand is different. They are saying that transformative constitutionalism if it is applied by individual judges, then it will give rise to different kinds of interpretation.

Charu Mathur: So that is, you are getting?

Prashant Padmanabhan: Yes. And they are aggrieved by that. See, no government would like a strong judiciary, and earlier there were attempts to overcome basic structure theory.

Charu Mathur: Right.

Prashant Padmanabhan: Now, they are afraid that the judges will interpret transformative constitutionalism or they will follow the constitutional morality to strike down a law. Those fears are misplaced in my humble opinion because the judiciary is not striking down any law on the ground that it is against constitutional morality alone. It is saying that it is against Article 14, against Article 21, therefore it is against constitutional morality, while upholding the right of adult individuals even while decriminalise things—adult private consensual sex or in the case of adultery. All those cases, the Supreme Court has not relied on abstract principles like constitutional morality, it has relied on various provisions of Constitution as interpreted by the court in earlier times in the light of modern principles and expanded the right in the Article 21 and hold that this is not in conformity with the values of today and this constitutional morality is adherence to the Constitution values, nothing else. It is not something strange, it is not outside the provisions of the Constitution. But the government’s argument is that the court should refrain from doing all those things. If required, let the religions reform themselves, otherwise the State or the Central Government or the legislation either—the State legislature or Parliament can make law, but the court should not interfere. That’s the argument. We will be opposing that.