· 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.
· On the other side, the Devaswom Board and others in support of the ban have cited that it forms a part of ‘essential religious practice’ of worshippers under Article 25 of the Constitution.
· In support of the petitioners, it was argued that the exclusion is a form of ‘untouchability’ ( prohibited under Article 17 ).
· But the makers of the Constitution never envisioned including women within the ambit of untouchability as it intended only to protect the interests of the backward classes.
· The above 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.
· Over time, originalism as a method of constitutional interpretation has been subject to serious criticism for being too rigid and inflexible.
· 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.
· It matters little what the intentions were at the time of Constitution making.
· 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..” It is peculiar since it abolishes a social practice in any form.
· In spite of this, 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.
· Women have been kept out of Sabarimala because of menstruation. 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.
· 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.
· If the court indeed reads Article 17 to have a wider meaning, it will signal a new era of transformative constitutionalism in Indian jurisprudence.
Source : The Hindu