Post lunch, Ms Indira Jaising, the counsel for intervenor Nikita Azad and Amicus Raju Ramchandran made submissions.
Ms. Indira Jaising submitted that Article 17 which prohibits practice of untouchability should be horizontally applied to address the gender based discrimination. Furthermore, all Hindus are allowed inside this temple following the enactment of Hindu Places of Public Worship Act, 1965 ("Act")
In matters of entry to the temple, Ms. Jaising pointed out that, Section 3 of the Act overrides “custom and usage”. She argued that Rule 3(b) of the Act which relies on “custom and usage” to disallow women entry at Hindu religious places is contrary to the mandate of the Act. She urged that the Act read with Article 17 make this practice unconstitutional.
Ms. Jaising sought to argue that a law which protects Harijans also extends to women; it is per se discriminatory of Article 14 and Article 15 of the Indian Constitution. She argued that since the objective of the Rule 3(b) of the Act is itself discriminatory, the classification lacks constitutional legitimacy. She queried whether it is constitutionally permissible to consider a menstruating woman impure?
Ms. Jaising argued that Article 17 which prohibits any practice of untouchability should be horizontally applied to include gender based untouchability. Justice Chandrachud observed that the mandate of Article 17 seems to address the specific instance of caste untouchability. He suggested that Article 25(2)(b) which is worded broadly to include all “classes and sections of Hindus” might be a better way to attack the constitutionality of Rule 3(b) of the Act.
Ms. Jaising questioned whether a woman who practises and professes Hinduism can be excluded from entering the temple. Justice Chandrachud observed that it flows from Section 3 that if the premises of temple is open to male Hindus, it is open to all Hindus.
Justice Chandrachud also queried that whether in the absence of a law as required by Article 25(2)(b), is it possible to discriminate? Ms. Jaising responded that the word religion is not defined in the constitution. She also mentioned that all individuals have the freedom of conscience. Justice Chandrachud observed that Article 25(1) specifically provides “equal entitlement” to all persons.
Justice Nariman, citing Devaruand, remarked that the rights under Article 26(b) and Article 25(1) have to be read harmoniously. He suggested to Ms. Jaising that it would be an easier route to follow than placing reliance on Article 14. Justice Misra observed that in this instance, discrimination on basis of menstruation is in effect a gender based discrimination.
Ms. Jaising also submitted that the definition of “law” under Article 13 includes “custom and usage” - hence the court can invalidate any religious custom which violates fundamental rights.
Ms. Indira Jaising then cited Charu Khurana which she referred to as one of her favourite cases. She submitted that the principal question in the case was whether you can register a trade union under the Trade Unions Act, 1926 if there are discriminatory rules. The court had held that if the objective of the rules is discriminatory, it violates the fundamental rights. Similarly, Rule 3(b) of the Act is discriminatory and should be struck down.
Ms. Jaising then referred to Shayara Bano to argue that Rule 3(b) of Kerala Hindu Places of Public Worship Act is manifestly arbitrary and needs to be struck down. She submitted that even customs must have constitutional legitimacy. Constitutional legitimacy upersedes religious belief. Article 26 does not protect superstitions.
Next, Mr. Raju Ramchandran, the amicus began his arguments. He said that Article 25(2)(b) is a substantive provision and not an enabling provision. He argued that Section 3 of the Act is a mirror reflection of Article 25(2)(b) and Article 26(b). He requested the court to read it harmoniously.
Mr. Ramachandran argued that the act of exclusion results in a forced involuntary disclosure by a woman of her menstruating status which violates her privacy. Justice Nariman observed that age is not a logical factor since women stop menstruating at various ages.
Mr. Ramchandran requested the bench to interpret "untouchability" broadly to include gender based untouchability. He argued that since Article 21 has been interpreted creatively, Article 17 also deserves the same treatment.
Mr. Ramchandran started arguing by referring to The Protection of Civil Rights Act, 1955.
The proceedings of the day ended and he will resume his arguments tomorrow.