Sabarimala case Day 10: We are strong because we are diverse, it is unique to India, says Justice Nagarathna

Jaising to continue her submission on Tuesday (May 5).

Jaising: In short, I am not disputing any case decided by the Supreme Court till today. They are asking you to depart far from the two centuries of law.

Jaising: But what I want to tell you is that the drafting history of Article 13 indicates that it was meant to target non-state actors. Customs and usage are not made by the state. Customs and usage are made by people.

The purpose of 13(3)(a) was to invalidate custom and usage which had the force of law. So the question was discussed, what do we mean by have the force of law ,and when we say have the force of law, the question was which aourt of law will enforce.

“clearly that the purpose of 13(3)(a) was to invalidate customer usage which had the force of law. So the question was discussed, what do we mean by have the force of law and when we say have the force of law, the answer was which a court of law will enforce.

Jaising: I was arguing a matter in the Delhi High Court, and suddenly, the single judges sitting there asked me a question. Miss Jaising, why are you not a judge? He said. I said sir don’t worry, I’ve gone past the age.

Jaising: I was not allowed to touch my mother during these periods. As you know, they are not even allowed to go to the funeral pyre. As you know, they are not allowed to carry the funeral pyre. We know all these things, but the question is, is it right or wrong?

Jaising: We are talking about what the basis is. The basis is that I am polluted and polluted during the period of 10 to 15, defiling it, if I go in. How can you take a whole expanse of my life, 10 to 15.

Justice Nagarathna: Why do you perceive it in the form of pollution or defile? Don’t perceive it in that form.

Jaising the word "throwing"

Jaising: Why does the constitution use the word throwing word? Because the doors were closed.

Justice Amanullah: Madam, one thing in your favour, which may probably be an argument from your side, is that the restriction from 10 to 15 can also be seen in the nature of a permanent disability, for nobody knows how much life he has got the very next moment. So, for all practical purposes, you cannot see the I will attend the age of 50, and then I will go. For all practical purposes, what matters is today.

Jaising: Another irony of this case, this case came from Kerala, but the temple entry movement started in Kerala. Actually, it wasn’t even for temple entry. It was for walking on the streets surrounding the temple. There is a report commissioned by the Raj Pramukh of Travancore, which is on record..have filed a full report. He appointed a group of experts and theologians to give him a report on what is the status of entry into temples in the state of Kerala. That report came to the conclusion that the scheduled caste people were not allowed to walk around the roads. I was amazed at a submission made by Dr Singhvi when he said what is the meaning of temple entry, inside the compound and stay there. That’s what he said.

Jaising: It’s a policy decision of the constitution to keep the Uniform Civil Code (UCC) in the directive principle of the state policy. But there is an endowment to the government to create one, if they want to. But they have not done it so far.

Justice Nagarathna: No, the society, if it is ready for it, it will be done. Now, it is coming state-wise. If the parliament finds that it can be done, applicable throughout the country, then the time will come. Therefore, it is in the directive principle.

Justice Bagchi: My question to you is not UCC in what form it is brought? It is naturally examined when it is brought. But you see, the constitutional aspiration of the UCC in the directive principles of the state policy is admitted.

Jaising: The marital rape case is pending before you, my lord. Marital exemption is pending, and what is the argument over there? The argument over there is that this is discrimination.

Justice Nagarathna: Probably, there the question would be, we don’t know, we have not heard whether a woman can be discriminated against or simply because of her marriage. Marriage is the basis of classification there. So, it can be a basis of classification, but whether a marriage for a woman can be a basis of discrimination is the question there. The question is quite different from Sabarimala.

Justice Amanullah: Basically, what you are trying to say is that because I have married somebody, you can’t decide and give a judgment on me that I have changed my religion, that is my belief, you can’t take a stand.

Jasing: Let’s take the case of female genital mutilation. There is an organisation which is claiming that in exercise of their power of religion protected by Article 24 read with Articles 25, 26, they have the power to perform female genital mutilation on girl children who are about seven years of age. This court is called upon to decide the constitutional validity.. is that something which is part of religion or not?

Jaising is referring to various previous judgments to support her arguments.

Jaising: To the best of my knowledge, we can. We did not have an empty debate. To the best of my knowledge, no law has been struck down on the grounds of constitutional morality. Maybe in the future, I don’t know. I don’t wish to address that issue.

Jaising: So all I’m saying is there are new forms of inequality that will emerge as we move down the road. And so inequality is not frozen in time. You will face these challenges. Somebody will file a petition. What about digital equality? Will you declare it a violation of Articles 14 and 15?

Generations to come will aspire to correct inequalities and injustice, to uphold the dignity of human beings in a changing society.

It is for this reason that Ambedkar called it Article 32, the heart… not because he wanted all of us to file petitions over here, but that access is what he was talking about. That is what makes it a living constitution. Otherwise, it would be a dead letter.

Jaising took the opportunity to correct minor facts in her submission with the permission of the court.

The bench will resume post lunch.

Jaising: I am very glad I never became a judge. Very glad…don’t know what is deciding these questions, but you have that onerous burden. I am only saying, don’t avoid that burden. That’s all my burden.

Justice Nagarathna: It’s not a burden. It’s a responsibility, and with the aid of the counsel, we discharge that responsibility.

Justice Bagchi: What is being contested when an expansive definition of denominations is given is that we should not restrict it only to a doctrine approach, but matters of religion must be seen in the form of professing and practising religion as the forms of worship and if a particular denomination or its’s section has a unique from of worship or a practice, that would also stand protected in respect of that temple or that religion institution, which is established or managed.

Jaising: What questions are going to arise for you in the future? I am not going to say. But I am going to tell you what this court has done…it has protected ritualistic ceremonies and said these are beyond social reform because they are the core of the religion. So, therefore, it is not my case that you change those practices. I am not today…I will tell you a very interesting story, just to light in the atmosphere. One of the women lawyers came to meet me. She saw me very agitated all the time, wondering what I was going to argue in court. I was confused after listening to 55 consels on the other side. I lost my mind. So, she came to me, this young lawyer, who is here in this court. She said to me, "Madam, why are you so worried? Never mind, look at this, let them decide what they want to decide. Let them say, let them say that a women can’t enter. We are the younger generation. I am giving you a promise. If this court decides that women can't enter, we are there to reopen the judgment". She said that to me. That’s the day I decided not to get confused. My opponents are saying, " Let me not think about what's going to happen after me".

Justice Amanullah: It is not so compartmentalised there, madam. The difference may not be denominational. It can be only ritualistic, it doesn’t make a denomination or theologically different, it doesn't. I have to perform something; I do it in a particular way, but that doesn’t mean that theology is different.

Jaising: That is ritualistic; ritualistic is part of theology.

Justice Amanullah: Every time if the court intervenes, there is a limit…but sometimes some minority have to be given, otherwise the whole protection of the constitution appears to be illusory.

Jaising: The answer to that is that the religion itself decides. ‘I’ve said it. I am not inviting you to become theologians, but I am inviting you to say please, have knowledge of what is the theology of this particular institution, have that knowledge with you and then take your decision.

What prevents you from getting that knowledge? Everything is available to you. What is not available, the Vedas are available. The Puranas are available. The agamas are available.

Jaising: I am not saying, all right, you decide what is essential. I am saying you own religion, even in Hinduism, there are dictates which are mandatory, and there are those which are advisory, and every normative system of law makes this distinction between void and voidability? Is there no distinction between mandatory and advisory? There is, in every system of law, it exists, in Islam, it exists, it exists in Hinduism, it exists in the constitution. It exists everywhere. How many times, Lordship, have you decided that this particular law is not mandatory, it is only advisory, so it is there. I don't want confusion on these issues; whichever test you use, you use, but it is false to suggest this court is deciding what is essential. No, that religion itself is deciding what is essential to me and what is not, and that is just being used for harmonisation. Now, if you still want to get rid of the test, it’s fine.

Justice Amanullah: Madam, to what extent do you want this essentiality to be gone into the court? We are not very clear about that, you said you keep it, but the religion will decide what ultimately is your crux of the argument? What do you want the court to go into, religiosity or the essential religiosity?

Jaising: Theology is a matter of fact because it is written. For example, it is written in the Quran… in the Vedas, nobody’s been able to date the Vedas so far. We don’t know is the date of the Vedas in the Puranas. In the agmas, it’s all there, right? So what is the matter of religion is a question of fact is my argument, it is a civil right at the end of the day…as my lady put it to me, it always existed, it’s inherent in being human. We all have the right. We didn’t need a constitution to give it to us.

Jaising: There has to be something doctrinal in it to be a denomination. You can’t say I am a temple, so I am a denomination.

Justice Nagarathna: What is unique in India... is diversity is our strength, and what Section Article 26 (b) does is to recognise the diversity. We are strong because we are diverse, and diversity is our strength, and to bring about a recognition of the diversity in denominations, Article 26 (b) protects it. By giving such protection, there is also a unity developed in the country…that is how we should look at it.

Jaising: Yes, it is unity and integrity of the nation. Not only will your doctrinal differences be protected, but your inter-religious differences will also be protected.

Justice Nagarathna: Therefore, respect diversity.

Jaising: Yes, respected, but show me your diversity. Don’t show me your temple, and that therefore I am diverse.

Justice Nagarathna: The whole essence of this debate. Now it’s not that we got freedom of conscience only on the 26th of January 1950. It has been there for ages. So, but that freedom, how far constitutionally we have to curtail that, is the only aspect which has to be developed over. For ages, you know, what has to be protected cannot be taken.

Jaising: Show me one constitution that protects all religions. So, that is the ground on which these two Articles (25,26) have been drafted. There is none, I can tell you. International jurists have given opinions on this that India’s constitution is unique, and that is why it’s called unique. This is the reason why it’s called unique, because it protects all faiths, and because it also gets rid of all the limitations, by rejecting caste, by allowing temple entry, and by removing all the disabilities attached to the religion. That’s the reason why it is considered a unique constitution; there is no other reason.

Jaising: What happened is that after the judgment was declared, these two women went to Sabrimala for the Darshan, for worship…when they came out, the tantri did a shudilkaran. I filed a petition in this court. Mind you, this is when the judgment was in full force and effect. These are the only two women who succeeded in climbing up and doing so. No one else has succeeded since then. Why? Because the state has not cooperated with us. They refused to give protection for going up.

Justice Nagarathna: Are they devotees? And from which state are they?

Jaising: They are both from Kerala. One person’s name is Bindu, and the other person’s name is Kanakdurga. Both are Hindus

Justice Nagarathna: They attempted to go to the temple prior to the judgement…are they devotees or not?

Jaising: Let me tell you the facts before I answer that question. As far as Bindu was concerned, Bindu has been taken to the temple by her mother. That is her statement in a petition filed before this court. When she was age 11, she had already been there. After the judgment came, she succeeded in going there…she was mob lynched for having gone there. Kanakdurga, I believe, had problems with her family. Her family also came down heavily on her…why did you do this, etc.

As far as the first petitioner was concerned, she was left free by her family to go according to her conscience. So, she went, but after that she has not succeeded in going there. In fact, to be honest with you, she has migrated out of Kerala…never mind, that’s just a little fact, I wanted to let you know, but at the present moment, she cannot live in Kerala anymore. And actually, once she approached me and told me that she is going to migrate out of the country…She is also happens to be a lawyer…

Justice Nagarathna: Why do you say it softly? (noting Jaising getting emotional)

Jaising: Because she went in her capacity as a…never mind…It’s just I want to tell you just a small, little story (in emotional tone).

Justice Sundresh: A lawyer is a social reformer… obviously, she has done her part as a lawyer.

Justice Nagarathna: No, you are not prevented because you are a scheduled caste woman, but because you belong to the 10 to 50 group.

Jaising: I intend to do two or three things. I will not necessarily address all the arguments on the other side, but only those which are relevant to my propositions. Apart from that, I am ready and willing to answer any questions that might arise from this court.

I will confine my submissions only to the right to temple entry. This is going to be the substance of my submission.

Senior advocate Indira Jaising starts her submission before the apex court.

A nine-judge bench will resume the Day 10 hearing of the Sabarimala reference soon.

In the last hearing, Justice Nagarathna said that one can’t block roads for religious activity.