Ways to read the Constitution

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Context:

  • ‘Sabarimala’ is a test case for freedom of religion, women’s rights and also constitutional interpretation.

The arguments before the Supreme Court:

  • 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.

Essential religious practice:

  • 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. 

Rights to administer and manage religious institutions:

  • 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.

Special arguments under Article 17

  1. A specific argument made in the court, based on Article 17, triggers interesting thoughts on constitutional interpretation
  2. 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
  3. 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
  4.  The claim is that the makers of the Constitution never envisioned including women within the ambit of untouchability

What does this suggest?

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
  1. Over time, originalism as a method of constitutional interpretation has been subject to serious criticism for being too rigid and inflexible
  2. This is because 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
  1. It involves understanding the Constitution to be an evolving and organic instrument
  2. 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

How living tree approach read Article 17?

  • The ‘living tree’ approach — being an alternative and a finer reading of the Constitution — supports a broader interpretation of 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

Conclusion:

  1. The Sabarimala case is a test case not only for freedom of religion and women’s rights but also for constitutional interpretation
  2. It presents to the court an exemplary opportunity for an alternative reading of the Constitution
  3. 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:TH