Sabarimala: Right of a Woman to Pray equal to that of man, remarks DY Chandrachud J. [Day 2]

A Constitution Bench of the Supreme Court yesterday commenced hearing in the case relating to the ban on entry of women into Sabarimala temple.

The case is being heard by a Bench presided by Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Live updates follow:

#Sabarimala: RK Gupta resumes submissions on behalf of Petitioner Indian Young Lawyers Association.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: RP Gupta insists on making submissions on history of Sabarimala. Nariman J. and CJI Misra not very keen on the same.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: With Gupta arguing on buddhist origins of Sabarimala, Justice Chandrachud tells
“These are not legal submissions but factual averments. You should show authentic source”.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: RP Gupta now dealing with formation of Devaswom Boards in Kerala and amendments to Travancore- Cochin Hindu Religious Institutions Act, 1950.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Due to State funding, no religious institution can claim to be an independent ‘religious denomination’ claiming rights under Article 26 of the constitution, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Gupta places reliance on Shirur Matt case to cull out attributes of a ‘religious denomination’.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: For a religious denomination to exist, the following attributes are necessary:
1. It should have its own property & establishment capable of succession by its followers.
2. A distinct identity clearly distinguishable from the any established religion.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala:
(iii) It should have its own set of followers who are bound by distinct set of beliefs, practices, rituals or beliefs
(iv) It should have hierarchy of its own administration, not controlled by any outside agency.
— Bar & Bench (@barandbench) July 18, 2018

After Devaswoms were taken over by Devaswom Board through Royal Proclamation in the year 1922 and subsequently Travancore-Cochin Hindu Religious Institutions Act, 1950, no individual Devaswom can act differently in both matters of religious practices and administration, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Since all Devaswoms are Hindu Temples and are bound to follow basic tenets of Hindu religion, any individual ill practice in any temple contrary to basic tenets of Hindu religion is impermissible after it being taken over by the statutory Board, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala Temple is not a separate religious denomination, submits RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Hindu religion does not discriminate against women. Rather, as per Hindu religion women are at higher pedestal in comparison to men. Such discrimination is totally anti-Hindu. Restriction on entry of women is not the essence of Hindu religion, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Even if it is assumed to be a religious denomination without admitting the same, the restrictions on the entry of women is not the essence of its religious affairs, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Restrictions on entry of women in Sabarimala temple is not connected to the religious practices performed there. The question of its being an essence of said religious denomination does not arise at all, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Even if it is the essence of said religious denomination, then the same is hit by Article 25 of the Constitution, RP Gupta.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: CJI Dipak Misra and Justice Rohinton Nariman having a long discussion.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Bench rises for lunch; Hearing to resume at 2 pm.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Bench re-assembles. Bar is protesting presence of two litigants seeking intervention occuppying front seats.
K Parasaran strenuously objecting such intervenors.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: @IJaising commences her submissions.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Article 17 is the solitary Fundamental right which applies laterally to private parties.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: It is in pursuance of Article 17 that States have enacted Temple Entry Acts.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Indira Jaising submits case of petitioners is restricted to entry to temple to offer prayers and the petitioners are not dealing with right to conduct rituals etc in sanctum sanctorum.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: The judgments of the Supreme Court indicate that these statutes read with Article 17 gives unrestricted right to all Hindus to enter places of public worship.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: The law was intended to allow Harijans to enter temples, my case is that such laws apply to women as well and women cannot be discriminated against.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: My argument is that it is discriminatory on the basis of sex alone.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Their argument is restriction is not based on sex alone since only women between age 10 to 50 are prohibited.
Then my argument is it is a discrimination based on Menarche.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Rule 3(b) Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 re-introduces what is banned by Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, Indira Jaising.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: The classification of women based on whether they are in the period of menarche lacks Constitutional legitimacy and does not satisfy the test for classification under Article 14, @IJaising.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Justice DY Chandrachud expresses doubt on whether Article 17 will apply in the present fact situation.
“You dont have to really go to A. 17”, says Chandrachud instead telling @IJaising that resort to A.25(2)(b) might be more appropriate.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Even if I forget untouchability, the issue is whether these women are Hindus. Can women be excluded from the definition of Hindus, @IJaising
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Even if there were customs preventing women, the same now stands overrules by Section 3, @IJaising.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Justice Chandrachud intereacting with @IJaising
“Can there be such a restriction in the absence of such a law. Suppose there was no law at all can such restriction stay”, asks Chandrachud J.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Justice Rohinton Nariman says Supreme Court has held that Article 26 has to be harmonised with Article 25.
“That will be an easier route for you than Article 17”, Nariman J.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: CJI Dipak Misra now weighing in with how temples are places of ‘public worship’.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: The word ‘worship’ is used in the Preamble of the Constitution. That ‘worship’ could be more than religious worship. But that right is given clarity by Article 25, @IJaising
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “Your right as a woman to pray is equal to that of a man and is not dependent on a law to enable you to do that”, remarks Justice DY Chandrachud.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “Every time I argue on A. 25 rights, they claim A. 25 rights”, @IJaising
“They also have A. 25 rights”, Chandrachud J.
“They as individuals have it, not as a temple”, @IJaising
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: State of Kerala through advocate Jaideep Gupta makes it clear that it is supporting entry of women.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Indira Jaising citing Charu Khurana case regarding whether a Trade Union can be registered with a discriminatory clause.
The SC held that it cannot be done on the ground that it was arbitrary and discriminatory.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: There is a judgment which has been a stumbling block in the realm of personal laws – the Narasu Appa Mali judgment, @IJaising.
Justice Rohinton Nariman immediately objects
“That is not under consideration here”.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Constitutional supremacy supersedes any religious belief, Indira Jaising.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: There is one Bombay High Court judgment which has been a stumbling block in the realm of personal laws – Narasu Appa Mali.
Justice Rohinton Nariman immediately objects.
“That is not under consideration here”.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Fraternity encompasses social fraternity and political fraternity.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Indira Jaising concludes. Amicus Curiae Raju Ramachandran commences submissions.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Section 3 is a mirror image of what Articles 25(2)(b) and 26 provide, Raju Ramachandran.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Proviso to Section 4 also provides for non-discrimination the basis of any class, Raju Ramachandran.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: This exclusion results in involuntary disclosure by a woman of her menstrual status.
In other words, a woman who makes a piligrimage to Sabarimala is making a forced disclosure that she is not menstruating person, Raju Ramachandran.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “The notification does not say anything about menstrual status.
It is arbitrary since it leaves out similarly situated persons.
It leaves out a 9-year old girl and a 53 year-old woman who may be menstruating”, Nariman J. remarks.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Bench has taken note that notification only mentions about age and says nothing about menstuation.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: Both Justices Nariman and Chandrachud discussing possibilities on how the notification could be arbitrary.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “If the age prescribed by notification has no basis on menstruation, then it is arbitrary on the face of it since age cannot be a criterion for restricting right to worship”, Chandrachud J.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “If the age prescribed by notification is based on menstruation, then it is violative of Constitutional morality”, DY Chandrachud J.
— Bar & Bench (@barandbench) July 18, 2018

#Sabarimala: “How can restriction on women of certain age group be covered by the ground of untouchability”, asks CJI Dipak Misra.
— Bar & Bench (@barandbench) July 18, 2018