Secularism, Morality and Religion under Indian Constitution

(By M.K.S. Menon, Advocate, Supreme Court of India)

 

Entry of Women from ‘menarche’ to ‘menopause’ at “Sabarimala” a Public Hindu Religious Institution in Kerala has been deliberated upon by the Constitution Bench of the Hon’ble Supreme Court of India, in the case of Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. Writ Petition (Civil) No. 373 of 2006 decided on 28th September, 2018 (2018 (4) KLT 373 (SC). Majority of 4 Judges headed by the Hon’ble Chief Justiceholding that discrimination is writ large on the face of religious practice of keeping the women away from entering the temple during the ticking of their biological clock and also that the tenets of the religion is not the final word when constitutional morality warrants intervention. Constitution Bench by a majority of four against one, struck down Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 for exceeding the limits of delegation under proviso to Section 4(1) read with Section 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, enacted on the strength of Article 25(2) read with Article 14, and 15(1) of the Constitution of India. Hon’ble Court also held that such a discrimination amounts to untouchability under Article 17
of the Constitution of India. This revolutionary Judgment deals with Constitutional Morality, Secularism and Religious practices in the light of ‘untouchability’, a term which is not defined either by the Constitution or by any enactment.

 

Before going into the constitutional interpretation of these terms a useful reference to the Oxford and Webster’s dictionary meaning of those words will be of some assistance.

Secular:

Oxford:                                                                                                

1. Concerned with the affairs of this world; not spiritual or sacred             

2.  Not concerned with religion or religious belief

3.   (a) Not ecclesiastical or monastic

      (b) Not bound by any religious rule

Webster: Worldly; Lay; not monastic; or occurring once in age-

Religion:   

Oxford:

1. The belief in a superhuman controlling power, esp. in a personal god or god’s, entitled to obedienceand worship.

2.The expression of this in worship

3.A particular system of faith and worship

Webster:System of faith and worship.

Untouchable:

Oxford : (adj) That may not or cannot be touched; (n) a member of a hereditary Hindu group held to defile members of higher castes on contact

Webster: Hindu below the caste level.

Simple meaning of the word ‘Untouchability’ was always understood around the world as something connected with cast system in India.

How Constitution of India conceived secularism and religion:

As per the earlier view of Hon’ble Supreme Court of India regarding the first two facets of Indian Constitution was, that both occupy different fields but are required to be blended and followed. That is why in the case of Pannalal Bansilal Pitti v. State of A.P. reported in 1996 (1) KLT OnLine 904 (SC) = (1996) 2 SCC 498 in para 20 Justice K.Ramaswamy observed as follows:

“20.  It would be thus clear that the right to establish a religious institution or endowment is a part of religious belief or faith, but its administration is a secular part which would be regulated by law appropriately made by the legislature.The regulation is only in respect of the administration of the secular part of the religious institution or endowment, and not of beliefs, tenets, usages and practices, which are integral part of that religious belief or faith.”

 

In The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt reported in (1954 KLT OnLine 1002 (SC) = (1954) SCR 1005) it was observed thus:

 “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

Then the question arises as to whether in every case allowing “Entry to a Religious Institution” is administrative in nature. It depends upon the nature of the religious institution in question. In a Muslim mosque a devotee can enter into the mosque and sit anywhere and pray, following the discipline of the mosque as prescribed. In a Hindu temple, in North India one can touch the Idol and pray. There are places like Badrinath where only priests from Kerala conducted the ‘pooja’ and Tantric system of Kerala was followed. ‘Right of entry’ on a different context was considered by the Hon’ble Supreme Court in the case of Badrinath temple. One of the earliest judgments dealing with religious freedom, namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple  Committee, reported in 1952 KLT OnLine 805 (SC) = (1952) SCR 849, in which Hon’ble Supreme Court was concerned with the “right of Entry” in the temple at Badrinath, which is an ancient temple, being a public place of worship for Hindus. At a time when public interest litigation was foreign to Indian judiciary, a representative suit was filed under Order I Rule 8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who, as guides or escorts of pilgrims, sought a declaration that they cannot be obstructed from entering the precincts of the temple along with their clients for darshan of the deities inside the temple.

Hon’ble Supreme Court held:

 

“ ........In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.”

Further observation runs like this:

 “......The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is  said the ’Holy of Holies‘ where the deity is actually located. ....”

 

From the above discussion it is clear, that for administration of the temple, ‘regulation of entry’ is a secular act but at the same Constitution also recognizes religious practices of restricted entry in case there is any religious cause involved, provided it is not against ‘Public Morality, Order and Health’. The ‘Tantric Vidhi’ followed in the Badrinath Temple allow only the priest to enter the sanctum sanctorum and touch the idol. Hon’ble Court did not shut out the argument based on restrictions but held that there can be special right, provided one succeeds in proving a custom or religious practice. Right to touch the idol exercised at many other temples were not allowed in Badrinath Temple. Even though what logically follows from a judgment is not a precedent, there is a message, that once a religious custom or religious practice contrary to the secular principles stands proved, then it seizes to be a secular aspect justifying the democratic machinery to interfere with the said religious practice.

 

In a given situation where a secular government bring in a legislation by relying on Article 14 and 15(1) alone stating that in every religious place every Indian citizen irrespective of religion shall be permitted to enter, it can only create anarchy. That will affect public peace and tranquility and no sensible elected representative shall ever contemplate such an idea. However position found to be different in the case of Section 3 and Proviso to 4(1) of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 alleged to have been enacted by invoking Article 25(2)(b) which enable the State to throw open a Hindu temple to “all classes and Sections” of the Hindus. Hon’ble Supreme Court held that the legislative intent of the said enactment is clear in using the words ‘all sections and classes’’ and the legislature definitely wanted to treat “menstruating women” as a class apart and included it in Section 3 and 4 of the Act.  In the present case ‘menstruating women’, since not permitted to enter the temple as per Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 , Supreme Court held that they fall under the mischief of “ class or section” under the provisions and therefore Rule 3 is beyond the power delegated under Section 4 of the  Act .

 

The real problem lies somewhere else. People in Kerala respect each religion and they celebrate festivals together. Old concept of caste system vanished from the State long back. When anyone deliberates upon the social status of a woman in Kerala, there are many important aspects to be kept in mind. Kerala is the State which is following matriarchal system as well, in which woman is kept at the highest pedestal in a family, being the head of the family. Kerala is the State which gives right to property to a woman by birth from time immemorial and male is married and brought to the female’s house in the system known as ‘Marumakkathayam’ (Matriarchal system), followed in this part of the country. On the contrary in some of the States in India women are considered as ‘paraya dhan’ (another’s property). Articles of Diane Coffey dealing with discrimination against women as a class in some parts of India is referred to in the Judgment, states that even among the educated class in some part of the country, Women are facing discrimination.

 

Any Keralite can say with pride that the highest amount of female literacy is a feather on their cap. An average woman in Kerala is politically and socially literate. Majority among that class till date, did not come forward with a claim that they were discriminated on account of denying entry to Sabarimala Temple, because they strongly believe that going to a temple is not ‘holidaying’ but a ‘pilgrimage’. In 1991 when some women attempted to do trekking to Sabarimala, Kerala High Court applied a break to prevent a public outcry through a judgment in S.Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors. (1991 (2) KLT OnLine 1008 = AIR 1993 Ker.42). Said judgment is now declared as bad law.  In Kerala , women sacrificed their wish to go and see the deity at ‘Sabarimala’ by accepting the wish of the god ‘Ayyappa’ himself and also to enable her beloved husband, son, brother or father to avail an opportunity to embrace celibacy which is considered to be one of the most powerful medium enabling a man to merge with the ‘Omnipotent’. Just like ‘fasting’ practiced by the Muslims during Ramzan, for Hindus 41 days of penance by observing celibacy during ‘Mandalam’ (November-December) is a self-imposed discipline practiced by both men and women. It is a period for sacrifice of worldly pleasures.Highly literate Kerala women never felt that they belong to an oppressed class because they were not given entry to Sabarimala. They know that following tradition is part of discipline which is the first step under Bhakthi Marga. Questioning everything is another school of thought. Kerala Women are fully aware that religion is a code of conduct and temples are to be looked at as a place for following ‘Bhakthi marga’ and not for holidaying, excursion or trekking. In paragraph 1 of the descending judgment the locus standi claimed by the Petitioners are reproduced as follows:

 

“Petitioners have inter alia stated that they learnt ofthe practise of restricting the entry of womenin the age group of 10 to 50 years in the Sabarimala Temple in Kerala from three newspaper articles written by Barkha Dutt (Scent of a Woman, Hindustan Times; July 1, 2006), Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and Vir Sanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times; July 2,2006).”

 

Case was filed not by a ‘believer’, and therefore the locus standi of the petitioner itself is questionable. The so called information can be a matter of concern if there is an element of oppression, and then the democratic machinery is justified in stepping in, to correct that religious practice, reckoning socialistic values enshrined in our Constitution.

 

Every political system has good and bad elements. Democracy also has got its own darker sides. That is why there are checks and balances provided in our Constitution. In a large democracy like India there are innumerable religious practices co-existing and are also respected for its own reasoning’s. However Constitution protects only those beliefs and practices which are within the parameters of ‘Public order ,morality and health’. In India we proudly declare that there is ‘unity in diversity’. A person coming from South India may not be familiar with a religious practice prevalent in North, East or West India and vice versa. In Kerala women believe that going to temple or observing penance during their ‘menstrual cycle’ is against the religious tenets, since that may diminish the cosmic power of the deity/worshipped. May be this has become the practice knowingly or unknowingly by following the Tanthric principles adopted in this part of the country. Body is considered as a temple itself under this theory. In North India it is not much appreciated as part of a religious discipline. That does not mean that one is right and the other is wrong. It is their respective belief imbibed from childhood. Those who are working for the upliftment of women may feel that preventing a woman from entering the temple during menstruation is a violation of the constitutional morality including equality, but that will not justify forcing that revolutionary thinking on those who are not thinking in the same wavelength. What the minority revolutionary thought may not be acceptable for a group who still follow the so called orthodox values in life.

 

Forcefully introducing revolutionary thought without a referendum, is not a democratic way.  There are many beliefs which has no reasoning but are deep rooted. The very basic concept of religion, believing in a ‘supernatural power’ is not in consonance with logic. Can anybody physically demonstrate as to what is ‘GOD’ or a super natural power, so as to satisfy the logic by reasoning? Belief, Law and Logic has got its own boundaries. We are constrained to believe many things as suitable for one’s own wellbeing without disturbing the person next to you. We Indians believe in our Constitution as well as the functionaries under the Constitution because that is a basic necessity for an orderly society. Can we explain as to why, despite our belief in the system, crime and violence continue to exist. That does not mean one shall not strive for an orderly society. Constitutional morality is no doubt is the well accepted norm in  a democracy but the manner in which it is forced in by bulldozing the people with a particular belief is not suitable for a democracy, unless it poses an
imminent /impending danger to the democracy (Eg., ‘Sati, forceful conversion, untouchability’ etc). Any political party especially the ruling party can go in for a referendum through secret ballot. No doubt that Supreme Court judgment is not compelling anyone to go to Sabarimala Temple since it is only allowing those who want to go. Prima facie it appears to be an intelligent remark but the fact remains that the deity worshiped believed to be a permanent celibate and the regular worshipers (majority of women) in Kerala believe that the deity may lose its “Chaithanya” (cosmic power) once menstruating women are permitted to enter the Temple. However the tantric tenets followed in this part of the country prompted them to think in that manner. The same tenets do not permit a menstruating woman to go near the shrine and to touch it. The tenets once found to be sacred by the court are now found to be a stumbling block for the democracy to flourish and is giving way to the modern concept of constitutional morality/equality. For an absolute secularist, following the tenets may appear to be preposterous. However Judgment in Badrinath case (supra), did not say that every one shall be permitted to enter every nook and corner in the temple or to permit entry irrespective of sex, classes and sections of Hindus at the ‘sanctum sanctorum’. Said judgment is also quoted in the Sabarimala case for a different purpose. As per the new dimension of ‘equality’, put forward by the petitioners, women devotees shall be permitted to even ‘enter and touch the idol’ irrespective of her biological condition. There are temples in Kerala like ‘Attukal Bhagavathy Temple” at Trivandrum, allowing only women to perform certain religious offerings like ‘Pongala’. There are many other temples which permit the entry of women alone on certain occasions.  After the present declaration in the Sabarimala judgment, there is every possibility of all those temples loosing its historical importance of the practices followed there in. Can that be the legislative intent of Section 3 and 4 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 is a moot question?

 

Discipline is the core factor for every institution. Many practices may prima facie appear to be out of date by passage of time. In the temples of justice in India, we are wearing black coat and gown during summer. Even judges in lower courts sit in rooms with no air conditioning, beating the heat from morning till evening during summer. Even now we follow this because we believe in the practice of discipline. We are religiously following the practice of wearing gowns, a culture gifted by colonial regime, which has been abandoned by many advanced countries.

 

Any how the present judgmentprima facie dealing with constitutional morality, it is believed that bestowed tremendous heart burn to majority of Hindu women believers in Kerala. Since the women believers in Kerala as a class was not heard during the hearing of the main matter, any women organisation, which has no political or cast allegiance may go for a curative petition after following the procedure prescribed by the Supreme Court Rules.

 

RELEVANT CONSTITUIONAL  AND STATUTORY PROVISIONS:

A) ARTICLE 14 :

“The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India.”

B) ARTICLE 15:

(I)The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them;

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this Article shall prevent the State from making special provision for women and children

(4)..........................

C)  Article 17 :

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.” 

D)  Article 25 :

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with the religious practice;

(b) providing for social welfare and reform or throwing open of Hindu religious instituion of a public charactor to all classes of Hindus.

E)  Article 26:                                                                                     

Subject to public order, morality and health, every religious denomination or any section there of shall have the right-

(a) to establish and maintain institutions for religious and charitable purpose

(b) to manage its own affairs in matters of religion

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with  law.

Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965:

Section 3: Places of public worship to open to all sections and classes of Hindus.-Notwith-standing anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall  be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers there at, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:

 

Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the  provisions of this  section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion. ”

 

Section 4:  Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship:

(1) The trustee or any other person in charge of any place public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein:

 

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

(2) The competent authority referred to in sub-section (1) shall be,-

(i) In relation to a place of public worship  situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the Travancore Devaswom Board;

(ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and

(iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government.”

 

Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965:

Rule 3. The classes of persons mentioned hereunder shall not be entitled to offer worship in any place of public worship or bath in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship:

                                                                 x x x

(b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship

Section 4 provides for subordinate legislation/regulations/rule and reads.:

“to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies” on one hand  and also the proviso which says:

 

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

The word ‘he belongs’ appearing in the proviso can be read as ‘he’ or ‘she’. However further classification based on ‘menstruation’ was visualized or not by the legislature at the time of enacting the law is an arguable point if a review of this judgment is sought. On the contrary regulation can be prescribed for the maintenance of order and decorum in the place of public worship and due observance of religious rites and ceremonies also are prescribed as per Section 3 and 4. Nowhere in the enactment there is ‘discrimination based on sex’ is described, included or discussed. Legislation was intended mainly to abolish the class system within the Hindu community prevailed in Kerala previously. Definition of “Section or class” appears in Section 2 will have to be understood in the light of the definition of ‘ place of public worship’ in Section 2(b).

 

“Section 2. Definitions:- In this Act, unless the context otherwise requires, - 

(a) “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion; 

(b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped, or are used for bathing or for worship, but does not include a “sreekoil”;  

(c) “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.” 

 

The “section and class” will have to be understood to mean a class based on existing castes, division, denomination and sections or classes similar to that. Definition of ‘Untouchability’ in the Oxford and Webster Dictionaries are sufficient guideline. It is too far-fetching to bring in an interpretation totally foreign to the concept even remotely visualized by the legislature to mean that “section or class of Hindu women menstruating”. It leads to an anomalous interpretation. Hon’ble Supreme Court repeatedly held that the construction requiring addition or substitution of words, or leading to absurdity shall be avoided. In the case of Grasim Industries  v. Collector of Customs reported in 2002 (3) KLT SN 95 (C.No. 130) SC = (2002) 4 SCC 297 para 10, in para 10 it is observed as follows:

“ ...While doing so, what has been said in the statute and as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided.....”

In Harbachan Singh v. Press Council of India reported in 2002 (2) KLT SN 84 (C.No. 98)
SC =  (2002) 3 SCC 722 in para 7 it is observed as follows:

“7.........the legislature chooses appropriate words to express what it intends, and therefore , must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material- intrinsic or external- is available to permit a departure from the rule.”

 

Discrimination is specifically discussed in the proviso to Section 4.  What is sought to be eradicated through the legislation is the caste system which included lower castes or backward classes who are backward in the society. Special treatment sought by a denomination under Article 26 of the Constitution is coming in the proviso to Section 3 of the Act. Menstruating women are never treated as a class backward in the society at any point of time and discriminated in Kerala. More over ‘prevention’ can be reckoned as discriminatory shall be permanent in nature throughout the life only because the individual is a woman and not due to some biological condition detrimental to some religious reasonings. Women are not permanently prevented from entering the Sabarimala temple.

 

Most importantly, in Kerala there are many temples in which women alone are allowed to enter during certain periods. By applying this interpretation, one has to presume that the intention of the legislature was to take away the special rights vested in women as well. Something that was not even remotely visualized cannot be assumed.

The interpretation sought to be introduced by the petitioners is aiming to gather strength from Article 17 which describes ‘untouchability’ as a crime. At the time when Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 and the Rules were brought in to force in 1965, legislature never considered ‘menstruating women’ as untouchables. In that case Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 would not have remained in force during the ruling of Communist Party (Marxist) [considered as the champions of secularism] in the succeeding years.

 

Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was not passed in furtherance of Article 17 so as to introduce the definition of ‘section or class” in Section2(c) of the Act so as to deemigly include “prevention of untouchability”. As long as Article 17 has got no bearing on the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, the argument based on discrimination has no legs to stand.

 

As long as Article 25(2) is there in the Constitution, any State in India can bring in a legislation, “throwing open any Hindu Religious Institution of a public character to all classes of Hindus”. However the year in which Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was passed, Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 also came in to force. This also demonstrates the intention of the State Government, not to treat ‘menstruating women’ as a separate class or section. Even though Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, is a piece of subordinate legislation by the executive, none of the Government ever attempted to amend the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965.

 

‘ENTRY TO A PUBLIC PLACE’ UNDER ARTICLE 15 OF THE CONSTITUTION OF INDIA :

‘Entry to public place’ is coming in Article 15(2)(a) of the Constitution.  ‘Religion’, ‘Sex’ etc.,  found place in Article 15(2) but entry to religious institution was consciously excluded in the public places under sub-clause (a) of Article 15(2). More over the words “class or section” is also not appearing anywhere in Article 15.

Article 15(1) reads as follows:

Article 15 (1). The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them.

Sub classification such as “Class or section” is not available in this Article. Therefore bring in a sub-classification of ‘class or section’ in any of the sex is a foreign argument so far as Article 15(1) is concerned. In case framers of the Constitution wanted to include sub-classification, they would have definitely added ‘class or section’ after the words ‘any of them like :

 “on ground only of religion, race, caste, sex, place of birth or any of them orany class or section thereof.”

As long as those words are not included in the Article, we cannot do injustice by adding those words to the Article.

 Article 15(2) reads as follows:

15(2). No citizen shall, on grounds only of religion, race, caste, sex,place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of  public resort maintained wholly or partly out of State funds or dedicated to the use of thegeneral public.

It is a moot question as to why ‘religious places/institutions‘ are not included in Article 15(2)(a)
which is starting with the preface “access to”. The words ‘general public’ appearing in the Article 15(2)(b) by itself shows that the said provision never intended to cover a religious place. If the argument of the petitioners based on Article 15(2)(b) is accepted, people of all religion should be permitted to enter every temple, church and mosque in India. It can also be argued that people irrespective of religion and sex shall be permitted to enter the sanctum sanctorum of a Temple in view of Article 290-A, since the Temple is utilizing the money from Consolidated Fund of India.

In ever so many judicial pronouncements it is held that when there is a specific provision, it excludes a general provision. We can’t forget the fact that Articles 14,15,16, 17, 25 ,26 and 30 are all falling under the same umbrella namely Part III of the Constitution, but cannot be stretched in such way so as to fit in a foreign argument not intended to be covered by the particular Article. Each one Article serves a different purpose even though appear to be overlapping. Mostly, inbuilt safeguards are provided with in the same Article itself.

 

BIOLOGICAL CONDITIONS OF WOMEN AND ‘UNTOUCHABILITY’   UNDER ARTICLE 17 OF THE CONSTITUTION:

While interpreting Article 25(2) it is doubtful as to whether the founding fathers of the Constitution, really wanted a sub-classification of sex on the basis of their biological condition which has got a bearing on a particular ‘religious belief and practice’. There are issues like untouchabilty under Article 17 which happened to be a social evil that drew the attention of the framers of the constitution and that is why a separate Article was brought in so as to make it an offence. Word used in Article 17 is untouchabilty ‘in any form’. No doubt the religious practice involving muslim women stated in Quran was brought to the notice of the Constituant Assembly but was not taken up for discussion by Dr. Ambedkar. Conscious deliberation on this aspect was avoided during the discussion on this subject, because what is an offence of untouchability was left to be deliberated by the respective legislature. This fact is reproduced in Paragraph 72 of the judgment in Sabarimala case as follows: 

“When the draft Article 11 came for discussion before the Constituent Assembly on 29 November 1948, one member, Naziruddin Ahmad, sought to substitute it by the following Article:

“No one shall on account of his  religion or caste be treated or regarded as an ‘untouchable’; and its observance in any form may be made punishable by law.”⁸⁵ 

The amendment proposed would obviously restrict untouchability to its religious and caste-based manifestations. Naziruddin Ahmad supported his contention by observing that draft Article11 prepared by the Drafting Committee was vague, as it provides no legal meaning of the term “untouchability”. Stressing that the term was “rather loose”, Ahmad wanted the draft Article to be given “a better shape”. Professor K.T. Shah had a similar concern. He observed: 

“… I would like to point out that the term ‘untouchability’ is nowhere defined. This Constitution lacks very much in a definition clause; and consequently we are at a great loss in understanding what is meant by a given clause and how it is going to be given effect to. You follow up the general proposition about abolishing untouchability, by saying that it will be in any form an offence and will be punished at law. Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability, which is actually untouchability. We all know that at certain periods women are regarded as untouchables.Is that supposed to be, will it be regarded as an offence under this article? I think if I am not mistaken, I am speaking from memory, but I believe I am right that in the Quran in a certain ‘Sura’, this is mentioned specifically and categorically. Will you make the practice of their religion by the followers of the Prophet an offence? Again there are many ceremonies in connection with funerals and obsequies which make those who have taken part in them untouchables for a while. I do not wish to inflict a lecture upon this House on anthropological or connected matters; but I would like it to be brought to the notice that the lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this,which I am sure was not the intention of the Drafting Committee to make.”

 

Dr. Ambedkar neither accepted Naziruddin Ahmad’s amendment nor replied to the points raised by K.T.Shah.The amendment proposed by Ahmad was negatived by the Constituent Assembly and the draft Article as proposed by Dr. Ambedkar was adopted. Draft Article 11 has been renumbered as the current Article 17 of the Constitution.”

In para 81 of the judgment it is observed as follows:

 

“Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.  “

 

None of the authors like  Sujatha Gidla, Diane Coffey and Dean Spears (Articles written about castes system), whose works are quoted in the judgment had dealt with the status of a women based on menstruation, as equal to that of a lower caste. Sujatha Gidla is an Indian-American author. Gidla is known for her novel ‘Ants Among Elephants’: An Untouchable Family and the Making of Modern India. She was born in Andhra Pradesh and moved to the United States in 1990, when she was 26 years old. Wikipedia refers to the Book written by Sujatha Gidla and states , “’Ants Among Elephants’ is Gidla’s first book and was published in 2017. It is a family memoir that chronicles the life of her uncle, K.G. Satyamurty, a Maoist leader and the founder of a left-wing guerrilla movement called the People’s War Group (PWG). The book also described the personal history of her mother Manjula’s life, both of which are juxtaposed against the peasant revolt and the formation of a new State in newly independent India. Gidla classifies the book under the genre of ‘literary nonfiction’.”  In ‘Economic and Political weekly’ website (Evidence from a New Survey) (Explicit Prejudice Vol. 53, Issue No.1,06 Jan, 2018) deals with the ‘Special Articles’ by Diane Coffey, Payal Hathi, Nidhi Khurana, Amit Thorat which states “A representative phone survey to study explicit prejudice against women and Dalits in Delhi, Mumbai, Uttar Pradesh, and Rajasthan reveals widespread prejudice in several domains and discusses the consequences for women and Dalits, and society as a whole. The results suggest the need for a more robust public discourse and active approach to measuring and challenging prejudice and discrimination.” In this short video interview Dean Spears (Executive Director, RICE/Assistant Professor of Economics, University of Texas at Austin) talks about the key motivations behind the award-winning book he co-authored with Diane Coffey, ‘Where India Goes’: Abandoned toilets, stunted development, and the cost of caste.’ The book addresses a central puzzle: why is open defecation so persistently high in rural India? And what to do about it? It presents evidence showing that poor sanitation is an important determinant of the poor health outcomes of India’s children, and that the continuing relevance of the purity, pollution and untouchability norms of the caste system keeps open defecation alive today despite decades of government latrine construction programmes.

 

All these great authors who wrote their Articles mainly for social reforms and they had in fact considered women as a class subjected to discrimination mainly in 4 places ‘Delhi, Mumbai, Uttar Pradesh and Rajasthan’. Nowhere in their Articles ‘’menarche’ to ‘menopause’ pertaining to women is a subject matter and reckoned as a cause for untouchability. 

Para 76 of the majority judgment in fact contained the depth of the discussion in those Articles i.e., “Annihilation of Caste” but when it came to its application on the facts of the present case, landed in a slippery terrain. Para 76 of the judgment reads as follows:

“76. The practice of “untouchability”, as pointed out by the members of the Constituent Assembly, is a symptom of the caste system. The root cause of “untouchability” is the caste system.The caste system represents a (In his paper on “Castes in India: Their Mechanism, Genesis and Development” (1916) presented at the Columbia University,) Dr.Ambedkar wrote: “The caste problem is a vast one, both theoretically and practically. Practically, it is an institution that portends tremendous consequences. It is a local problem, but one capable of much wider mischief, for as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem”. (See Dr.Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol.1 (2014), at pages 5-6 ] hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. While the top of the caste pyramid is considered pure and enjoys entitlements, the bottom is considered polluted and has no entitlements. Ideas of “purity and pollution” are used to justify this distinction which is self-perpetuality. The upper castes perform rituals that, they believe, assert and maintain their purity over lower castes. Rules of purity and pollution are used to reinforce caste hierarchies.

96.The notion of “purity and pollution” influences who people associate with, and how they treat and are treated by other people. Dr.Ambedkar’s rejection of privileges associated with caste, in “Annihilation of Caste”,  is hence a battle for human dignity. Dr.Ambedkar perceived the caste system to be violative of individual dignity. In his last address to the Constituent Assembly, he stated that the caste system is contrary to the country’s unity and integrity, and described it as bringing “separation in social life”. Individual dignity cannot be based on the notions of purity and pollution. “Untouchability” against lower castes was based on these notions, and violated their dignity. It is for this reason that Article 17 abolishes “untouchability”, which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about “purity and pollution”.

Majority of the Constitution Bench accepted that women on account of their particular biological condition also fall under the mischief sought to be eradicated by Article 17, an offence under the law enacted in furtherance of Article 17 just because Dr. Ambedkar felt it unnecessary to answer Professor K.T.Shah, and also to ignore the amendment sought by Naziruddin Ahmad. In fact this interpretation leads to an irresistible conclusion that, all those who are instrumental for bringing in Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 and those who followed the said rule may also be liable for prosecution under Section 7(1)(c) of Protection of Civil Rights Act 1955 for encouraging and inciting the practice of untouchability in “any form whatsoever”.

Section 7(1)

(c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice” untouchability” in any form whatsoever;

Explanation II(1)  to Section 7(1)(c) stipulates as follows:

“[Explanation II.--For the purpose of clause (c) a person shall be    deemed to incite or encourage
 the practice of “untouchability”—

(i) if he, directly or indirectly, preaches “untouchability” or its practice in any form; or

Meaning in Webster English Dictionary for the word ‘incite’ includes ‘excite’, and the meaning of the word ‘excite’, also means ‘rouse up or set in motion, move to strong emotion etc’.

Definition of the word ‘place’ under Section 2 reads as follows:

“place” includes a house, building and other structure and premises; and also includes a tent, vehicle and vessel;

By accepting the logic in the judgment that a religious practice of prohibiting a woman from entering a religious Institution during menstrual cycle amounts to ‘untouchabilty’, we are faced with another intriguing question i.e., ‘ if the husband refuses to have intimate physical relationship with his wife during menstruation, that will also be reckoned as ‘untouchabilty’ so as to be punished for practicing untouchability under Section 7(1)(c) of the Protection of Civil Rights Act 1955 because neither Article 17 of the Constitution nor Section 7 of Protection of Civil Rights Act 1955 uses the word ‘ at a public place’ to qualify the term ‘untouchability’. On the other hand the definition of “place” under Section 2(b) of Protection of Civil Rights Act 1955 includes a ‘house’. Husband’s denial amounts to practice of or inciting ‘untouchability’ and can also be a valid ground for divorce since it is an offence. Section 7 of Protection of Civil Rights Act 1955 provides for punishment for other offences arising out of untouchability. Therefore this area could be a ground for review of the view expressed by the majority judgment as long as a proper definition for ‘untouchability’ is not brought in by a constitutional or statutory amendment.

Following observations in the Constitution Bench judgment regarding discussions before the Constituent Assembly also is worth reckoning:

 “The framers of the Constitution left the term “untouchability” undefined. The proceedings of the Constituent Assembly suggest that this was deliberate. B .Shiva Rao has recounted the proceedings of the Sub-Committee on Fundamental Rights, which was undertaking the task of preparing the draft provisions on fundamental rights. A clause providing for the abolition of “untouchability” was contained in K.M. Munshi’s draft of Fundamental Rights.

Clause 4(a) of Article III of his draft provided:

“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

Clause 1 of Article II of Dr.Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished.

While discussing the clause on “untouchability” on 29 March 1947, the Sub-Committee on Fundamental Rights accepted Munshi’s draft with a verbal modification that the words “is punishable by the law of the Union” be substituted by the expression “shall be an offence”. Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of “untouchability” would have to be defined in the law which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub-Committee when it met on 14 April 1947 to consider its draft report, decided to add the words “in any form” after the word “Untouchability”. This was done specifically in order “to make the prohibition of practice of “untouchability”comprehensive” Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. While noting that ordinarily, the term “untouchability” referred to a practice prevalent in Hindu society, he queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal’ untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities.” Panikkar elaborated the point by observing that the clause intended to abolish various disabilities arising out of untouchability, irrespective of religion.

On 30-31 October 1947, the Drafting Committee considered the “untouchability” provision and redrafted it as Article 11. It was proposed by Dr.Ambedkar before the Constituent Assembly as follows:

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.” 

Fortunately Section 7(1)(c) of Protection of Civil Rights Act 1955 will not make ‘denying entry for non-Hindu to any Hindu Religious institution’ an act of untouchability because Section 3(a) of Protection of Civil Rights Act 1955 makes it an offence only if it is “a place of public worship which is open to other persons professing the same religion or any section thereof”.and under Section 2 (d) :

“ place of public worship” means a place, by whatever name known, which is used as a place of public religious worship or which is dedicated generally to, or is used generally by, persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein and includes ......”

Article 17 of the Constitution, left the previlege to define the term ‘untouchability’ to the wisdom of legislature. The legislation namely Protection of Civil Rights Act 1955 also does not define the terms “untouachbility”, “class of persons” or “section of person” . However Hon’ble Supreme Court in the Sabarimala case visualised a definition where by “ Menstruating women “ are termed as a ‘sub-class’. However there is no clause in the Act which is throwing light to define an action based on ‘sexual discrimination’, much less ‘untouchabilty based on Menstruation’ as an offence as required under Article 17 of the Constitution.

Section 2(a) states:

“civil rights” means any right accruing to a person by reason of the abolition of” untouchability” by Article 17 of the Constitution.

Section 3.:

“Punishment for enforcing religious disabilities.Whoever on the ground of” untouchability” prevents any person-

(a) from entering any place of public worship which is open to other persons professing the same religion or any section thereof, as such person; or

(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water- course,  river or lake or bathing at any ghat of such tank, water- course, river or lake in the same manner and to the same extent as is permissible to other persons professing or any section thereof, as such the same religion,  or any section thereof, as such person; shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

Explanation.- For the purposes of this section and Section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus.

Therefore, as long as the legislation namely Protection of Civil Rights Act 1955 is not defining “Untouchability” to include menstruating women in “class of persons” or “section of person”, Article 17 cannot be stretched to define an act of “Untouchability” beyond the scope of offenses under the ‘definition clause’ as well as Section 3 to 7A of Protection of Civil Rights Act 1955. Nowhere in the Protection of Civil Rights Act 1955 ‘sexual discrimination’, much less ‘untouchabilty based on Menstruation’ evidently visualised.

Concern of Profesor Shah assumes importance at this juncture :

“ .....Lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”

At the cost of repetition following judgments are once again quoted:

Grasim Industries  v. Collector of Customs reported in2002 (3) KLT SN 95 (C.No.130) SC =(2002) 4 SCC 297 para 10, in para 10 it is observed as follows:

“ .....While doing so, what has been said in the statuteand as also what has not been saidhas to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided.....”

InHarbachan Singh v. Press Council of India reported in  2002 (2) KLT SN 84 (C.No. 98) SC = (2002) 3 SCC 722 in para 7 it is observed as follows:

“7.........the legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomalyor unless material- intrinsic or external- is available to permit a departure from the rule.”

In fact the majority judgment finds support from earlier division bench judgment of the
Hon’ble Supreme Court while considering the right of non- brahmins to conduct poojas. In the case of N. Adithyan v. Travancore Dewaswom Board reported in 2002 (3) KLT 615 (SC) =
(2002) 8 SCC 106at para observed regarding the applicability of Article 17 observed as follows:

It is further observed as follows:

 “The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion...”

In para 17 it is observed as follows:

  “17  .......There has been no proper plea or sufficient proof also in this case of any specific custom or usage specially created by the founder of the Temple or those who have the exclusive right to administer the affairs — religious or secular of the Temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialized form of worship peculiar to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21of the Constitution of India.”

Primarily the above case was not decided within the framework of Article 17 of the Constitution. Even if it is pleaded that it was decided on the strength of Article 17, ‘untouchabilty’ based on ‘caste’, was the subject matter and not a sub-classification of women based on menstruation. In paragraph 5 of the Adithyan’sjudgment, it could be seen that the Senior Advocate who argued the matter took up a plea based on Article 17 and pointed out the fact there is no proper pleading and evidence regarding the religious practice, and also that ‘untouchabilty’ is an offence, but caste was  not decided on the strength of Article 17. It is highly necessary to point out at this juncture that a precedent is an authority for the subject matter and factual matrics of a particular case and what is decided in that case. What logically follows from a judgment is never considered as a precedent (2014) 5 SCC 75 para 47, (2004) 7 SCC 558, (2004) 3 SCC 75,  (1991) 4 SCC 139,
(1987) 1 SCC 213). This principle applies to all those judgments referred to in this article as well as the reasoning in the judgment under discussion.

As a penultimate point, it is necessary to point out that, the first attempt of the court ought to be that it shall save the legislation instead of striking it down. If possible a provision can be read down instead of striking it down. There are many judgments delivered by Hon’ble Supreme Court following this principle .

i) InMohd. Hanif Quareshi & Others v. The State of Bihar reported in 1958 KLT OnLine 1303 (SC) = AIR 1958 SC 731, 1959 SCR 629 observed as follows:                                                                      

“ ........ In any case, bearing in mind the presumption of  constitutionality attaching to all
enactments founded on the  recognition by the court of the fact that the legislature correctly appreciates the needs of its own people there appears to be no  escape from the conclusion that the petitioners have not discharged  the onus that was on them and the challenge under Art.14 cannot,  therefore, prevail.”

ii) Hon’ble Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar
 and Ors. (1958 KLT OnLine 1302 (SC) = (1959) SCR 279 further laid down:

“ .............

(c) that it must be presumed that the legislature under stands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest,

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may  assume every state of facts which can be conceived existing at the time of legislation; and “

Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 required to be read down instead of striking down :

“Rule 3 (b) :

Women at such time during which they are not by custom and usage allowed to enter a place of public worship”

 

Word used in the rule is ‘women’. Prima facie it appears to be discriminatory which lead to the current hairsplitting exercise of interpretation. On the contrary, once we look at the Tantric practices adopted in Kerala, it could be seen that , not only the women but men also are subjected to this restriction. When death or birth takes place in a family, irrespective of the gender both male and female will have to avoid any spiritual activity or going to temple. During this period going to ‘Sabarimala’ is prohibited for the male member also. It applies to all temples. Even though repeatedly argued by all the contesting respondents that it is not possible for a woman to complete ‘41 days Vrutham’ and also that it is an integral part of the religious practice, Hon’ble Court thought it not necessary to formulate a question of law as to:

 

“Whether the religious practice of 41 days Vrutham/penance as claimed by the respondents is an integral part of the religious practice followed in the temple concerned ?.”

The judgment also did not categorically decide as to whether ‘41 days penance’ is an essential/ integral part of the religious practice. Judgment straight away proceeds to decide the validity of Rule 3(b) by taking support from Article 17. If these aspects would have been brought to the notice of the court probably Hon’ble Court would have read down Rule 3(b) in such a manner so as to include both men and women under Rule 3(b). In that case the rule itself could have been saved instead of striking it down. 

 

Conclusion:

Unique judgment in ‘Sabarimala Judgment’ is truely historic and revolutionary in nature by laying down the new parameters for gender equality by widening the scope of undefined term ‘untouchability’ (Undefined both in the Constitution and in the legislation).

 

Constituent Assembly avoided discussion on the objection raised by Professor K.T.Shah because the exercise of defining ‘Untouchability’ was left to the wisdom of the Legislature who may decide as to what constitute an offence of untouchability. None of the legislature till date felt it desirable to define the word ‘untouchability’ but only described various offences under Protection of Civil Rights Act 1955. Hon’ble Supreme Court thought it appropriate to decide the issue in Sabarimala case by giving a new dimension to ‘untouchability’ by bringing in Article 17 to enlarge the scope of  Article 25(2)(b) of the Constitution of India.

Some Thoughts on Celibacy : At and After “Sabarimala”!

(By K.G.Balasubramanian, Advocate, High Court of Kerala)

 

Swamiye Saranam Ayyappa!

 

Non Sub Homine Sed Sub Deo Et  Sub Lege: “Not under man, but under God and law”?

Is not the ruling a milestone, a lollapalooza? Is it? Article 14 has been given a new dimension. I will not be justified in concluding on the correctness of the ruling, given my conventional understanding of law and personal convictions.

Our nation took pride in conducting “surgical strikes” at the enemy within its territory. Without being contemptuous, but admiringly, I would say that the Apex Court has conducted a “Judicial Strike” on home territory.

 

The judgment is sure to form the foundation for the ineluctable Uniform Civil Code, however inconvenient it may be to many. It is welcome from the viewpoint of equality, as a matter of constitutional philosophy. It is unwelcome from the viewpoint of conventions and faith. Not all men are misogynists. If gender segregation in worship is violative of Article 14, I dread that religions may not survive. Many religious philosophies, denominational or not, are bound to crumble in the teeth of Article 14. I have an apprehension, constitutional philosophy notwithstanding, that we are trespassing on “No Entry” areas.

 

“Public policy is a very unruly horse and when once you get astride it, you never know where it will carry you”. That unruly horse is evolving. It is also being manipulated, for and against, by excogitation of many acclaimed (or self-proclaimed) theologians, public figures and vulgarians. I will try to assimilate them in due course. On these pages, I will speak as a lawyer, not as a fanatic.

 

Lord Ayyappan was here long before Genghis Khan and Company, before Vasco De Gama, during Mughal era, during the Raj. He has continued to be with us after 1947 and 1950. He was truly secular. Ayyappan and Vaavar formed the first blood bond between Hindu and Muslim. I am sure they will bless us forever. Sabarimala abode and worship thereat are unique examples of religious tolerance anywhere in the world. It is unfortunate that certain sections of people are stoking the fire on origin of Sabarimala. Are they not forgetting that Sabarimala Ayyappan is the ultimate symbol of unity of all faith and religion?

 

Hinduism is the only religion where Gods are attributed human traits, tastes and character. THATHWAMASI was recognized and practiced by faithful Hindus from the day Brahma took up Srushti, Vishnu took up Sthithi and Siva took up Samharam. We find that principle originating in Smrithi, Sruthi, in Vedas, Upanishads, Ithihasa, Purana and subsequent renderings. No other religion recognizes coalescence of God and man. I will refrain from launching a discourse on religion and God. But, reference to certain religious practices is inevitable.

The learned Judges formulated the following questions for consideration:

 

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by “morality‟ as used in Articles 25 and 26 of the Constitution?

 

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

 

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

 

4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

 

5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

 

Swami, devotees come to you with hearts bleeding with faith, sorrow, devotion and dedication. Many of them observe abstention for 41 days to come to you for solace, to embrace THATHWAMASI. I will not endorse that all male devotees at Sabarimala are puritans. But, do we need bleeding “Rambha”s (misled into disturbing Viswamithra’s penance) at your abode? Let us also not ignore the fact that “a good deal of research shows that in reproductive-age women, libido is to some extent cyclical across the menstrual cycle, with peak erotic motivationoccurring around the time of ovulation midway between menstrual periods. It’s evolution’s way of spurring procreation” -(https://www.psychologytoday.com/us/blog/all-about-sex/201503/how-the-menstrual-cycle-affects-womens-libido).

 

It is not only just right of entry into a place of worship that is the bedrock of faith, but also sincere willingness to follow its practices and conventions that sustain any religion. To be Hindu, temple worship is not essential. But if he/she wants to offer worship at a temple, he/she has to follow accepted customs. Almost every Hindu temple has either a pond or river nearby. A Hindu priest will be committing blasphemy by performing pooja at the sanctum sanctorum without the ritualistic bath every time, every day. There are ordinary men and women who treat and accept that interaction, even by touch, by man with a menstruating woman causes bodily impurity. Is it superstition?

 

I am sure God in any religion does not expect every devotee to be learned in scriptures and be well versed therewith, but He blesses them anyway. The Constitution accepted this fact and recognized religious denominations. What is “essential practice” to many will not be so to some others.

Nobody has monopoly over faith. Think of Sreenarayana Guru who dared to consecrate his own Lord. There has been only progress thereby. Lord Siva never said a word against his personality being divided or regenerated.

 

Logically and scientifically, one may be wrong in holding that unshed blood in the human body and menstrual blood in the female body are same. Menstruation is a caveat to maintain biological balance. Untouchability has nothing to do with it. There is no flaw in its flow. An infant is taught the ways of religion as its parents and teachers understand it. It is not an imposition. It develops its own view as it grows up. Nothing prevents it from going astray (?) and abstaining from faith. I have not noticed much in the early scriptures germinating gender inequality, except as a matter of faithful religious practice.

 

It is common knowledge that many persons do not observe age-old religious customs. Many others do follow those customs. Just the way a person may be entitled to offer worship in a particular manner subject to a particular shrine’s custom, the other person is not entitled to interfere with the same. It will be foolish to assume that every entrant in a shrine has come with the intention only of offering worship.

 

That takes me to the following observations: “Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view of this, it cannot be treated as an essential practice” and “Of importance are some of the observations of the Kerala High Court in Mahendran. The High Court noted that even when old customs prevailed, women were allowed to visit the Temple. It noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen the presence of women worshippers between the ages of ten and fifty for the first rice-feeding ceremony of their children..... The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years. A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala Temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas, but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons. The High Court thus noted multiple instances wherein women were allowed to pray at the Sabarimala temple. These observations demonstrate that the practiceof excluding women from the Sabarimala temple was not uniform. This militates against a claim that such a practiceis of an obligatory nature. That such practice has not been followed on numerous occasions, also shows that the denial of constitutional protection to an exclusionary practice will not result in a fundamental change in the character of the religion .........”

It is heard that Her Excellency the Maharani was medically qualified to visit Sabarimala. The Supreme Court have accepted other isolated breaches of custom as indicative of its non-observance. Swami Saranam. Those breaches had to be remedied. There was nothing ordinary civil courts could do in that matter. The Hon’ble High Court declared what the custom was, that it was within the parameters of law, that it could not be violated. The Supreme Court also noted that “A fervent plea was made by some of the counsels for the Respondents that the Court should not decide this case without any evidence being led on both sides. Evidence is very much there, in the form of the Writ Petition and the affidavits that have been filed in the Writ Petition, both by the Petitioners as well as by the Board, and by the Thanthri‘s affidavit referred to supra. It must not be forgotten that a Writ Petition filed under either Article 32 or Article 226 is itself not merely a pleading, but also evidence in the form of affidavits that are sworn”. I think that whether the present custom was observed in its breach or by its practice is a matter of factual enquiry as in a trial court and not the Writ Court. Stray incidents of breach of an established custom cannot be taken as proof of its non existence or non-observance, but only as a situation compelling enforcement of its observance, as done by the Hon’ble High Court.

 

The Apex Court, have ruled that “notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality”. A custom need not be enforced at all if it is immoral from the viewpoint of ordinary humans (devotees in this case). Restraint on temple entry by females during menstruation has been the morale, morality and custom of Hinduism. In Sabarimala, that was widened and segregated to a class of females aged 10 to 50. That was also because of constitutional morality of the faithful and not as a “colourable device to practise religion”. It does not amount to deprivation as far as large number of female devotees in Kerala is concerned.

 

Legal rights have to be uniform. The present situation amounts to deprival of a legal right based not on morality but on faith, a constitutional right. Morality is a consequence of faith, not its source.

 

If this be the law, then Chapter XV I.P.C. (of offences relating to religion) will have to be revisited and rewritten. Did the Court overlook those provisions? Did not the Court also overlook the present demeaning trend of people competing to heap abuse on one religion or other on social media? Where is equality to the faithful? Freedom of religion and practice thereof does not confer a right to hurt another. If we take the Karnataka example, caste division is finding new inlets, tearing unity apart.

Much reliance has been placed on the concept of untouchability. Untouchability was an abominable practice to differentiate between people, not faith. I am of the firm view that it is wholly foreign to the controversy. It is overlooking the fact that followers of all religions, castes and creeds are welcome at Sabarimala. Untouchability has nothing to do with menstruation. Think of crores of nuclear families residing together since decades in huts, capsule flats and palaces without being inhibited by menstruating members among them. Many of them observe fundamental customs in the kitchen, temples and pooja room. Many of them do not. If discrimination is the standard basis in daily lives, many households will have to be separated at the will of either of the sexes.

 

The beauty of India is in its diversity and cohesion, despite the poisonous web of caste and religion spun around her citizens. There is creativity and beauty in banning gender discrimination in many areas.

 

Let charity begin at home. Equality is not only to be observed, but also seen to be observed; there are more other avenues demanding equality. Let the Government ensure that 50% of all public offices are adorned by women. Let the Devaswom Board also so ensure, for a beginning.

 

Even Gods fought among themselves for supremacy. The situation is plagued by the present system of upsetting precedents, as seen in a series of cases during last few decades. “Change” in society is a must. But that ought to be brought about by the WILL of the people and not by Judges whose views are many times open to reconsideration by other Judges eventually. For instance, consider enactments on various religious activities and amendments thereto in independent India. No Judge lives forever, except through his judgements.

Henry VIII formed Church of England because of failure to secure annulment of his marriage to Catherine of Aragon. Those were days of monarchs and theocracy. They did not have Article 14 or 19 or 25 to reckon with. Ordinary Ayyappa devotees have neither the thought nor the potential to break away from Sabarimala.

 

When Swami Ayyappan set up abode in the hills, when Lord Murugan and countless others directed man to set up divine abodes atop mountains, when Moses went up Mount Sinai, when the Prophet met Gabriel at Jabal an-Nour, they would not have thought of gender discrimination and allied controversies. Pampa Valley has been famous for its beauty and divinity. Pampa River has been notorious for pollution. We are a nation trying to save environment. Sabarimala region is a classic example of nature’s gifts being abused. Millions of people and commercial elements have abused Sabarimala and neighbouring hills for decades. Can the authorities enforce “Polluter pays” principle? Will the Devaswom Board ensure environmental equilibrium and fragility?

 

(QUAERE) Did not the question of locus standi merit consideration? I doubt whether any of the petitioners before the Court in the name of the Lord will chant “Swamiye Saranam Ayyappa” or observe the rituals associated with a pilgrimage to Sabarimala. Will they accept THATHWAMASI as a guiding principle? Will he/she demand that any particular ritual should be performed or that it should not be performed because it discriminates between religions or because it discriminates between God and Goddess? Will he/she say that performing Homam and cracking/burning coconuts causes air pollution? How can persons who do not believe in idol worship express solidarity with persons they style as “idolatrous unbelievers”?

 

When we let unbelievers regulate our belief and practice, there is bound to be loss of faith. That is the seedling of discrimination. Should “We, the People” chant “Fiat justitia ruat coelum”?

Swamiye Saranam!

Ratio-decidendi

(By K.Jagadisachandran Nair, Advocate, High Court of Kerala)

 

1. The precedent value of a decision depends on the ratio or reason for the decision.  It is not at all being looked into by a large number of lawyers at the Bar and some Judges.  So it seems, it  may not be out of place to write a few words on the said subject in the hope that it will be of some use at least to the younger members of the profession, who may care to read this article. Ratio decidendi means the reason behind the decision. In fact  the reason alone  is the precedent.  Without  reasons the Judge’s findings can amount to a decree  which is binding only on the parties. Restricting it to the younger members of the bar, not because I assume that all seniors know and are aware of it whenever they cite decisions.  It is only  common knowledge that in some respects the new generation lawyers are better than their predecessors in the profession.  I often recollect the wise words of Chief Justice Rajamannar of the  Madras High Court who told law apprentices to attend the court from morning to evening with a caution; it is not to repeat the mistakes committed by your seniors at the bar but to avoid committing the mistakes committed by them.  

 

2. What is the ratio of a case and how does one case become an authority for deciding another.  (a) The decision must be by a higher court or by a larger bench of the same court and hence liable to be respected by the principle of judicial discipline.  Then only it is a precedent.  Of course if a bench takes a different view than the larger bench and thinks the said decision has to be reviewed  the bench may place it before the Chief Justice for constituting a larger bench. That is only an internal arrangement in the higher courts.   (b) The decisions to be cited as a precedent must have decided some legal question or principle must have been laid down in the decision.  It must have been a question in dispute on the facts of the case, between the parties. It must have been a question the decision of which was essential to be resolved in order to decide that particular dispute. If even without deciding the question the case could have been decided on other issues of fact or law admitted or undisputed then it does not arise for decision. (c) Next the principle of law decided must have been applied to the facts of the case for the purpose of deciding the case and only if all these three steps stated above are fulfilled, then only the decision becomes a valuable precedent and the ratio of a cited decision can be applied as a precedent in deciding the new case. If any of the above steps is not applicable then it is not a precedent and there is no use in citing it and it cannot the applied as a precedent.  I may here cite one famous example in AIR 1979 SC 745 a Constitution  Bench consisting of 5 Judges decided by the majority of 3.  The majority  judgment  was delivered by Justice V.R. Krishna Iyer.  After considering the real issue involved in the case Justice Krishna Iyer proceeded to consider and decide and purported  to lay down the law regarding Section 384 of the Code of ‘Criminal Procedure. The said decision was cited before a bench of three judges  which  is reported in AIR 1980 SC 1707.  The three judge  bench refused to follow the view expressed by Justice Krishna Iyer regarding Section 384,  for the simple reason that the question did not arise before the Constitution Bench and without it becoming a precedent  according to the principles as stated above, it could not be applied and was not applied in the later case;  the relevant passages are quoted below (AIR 1980 SC 1707 Paragraph 6 & 7).

 

“Para 6. Neither in the application for adducing additional grounds nor in the order of the court directing the matter to be placed before the Constitution Bench, there was any reference to the validity of Section 384 of the Cr.P.C. Neither was it pleaded during the arguments that S.384 of the Cr.P.C. is ultra vires of the Constitution.  As the question of validity of S.384 of the Cr.P.C. was neither raised nor argued, a discussion by the court after “pondering over the issue in depth would not be a precedent binding on the courts”.  The decision is an authority for the proposition thatR.15 (1) (c) of O.XXI  of the Supreme Court Rules
should be read down as indicated in the decision.

 7. We are satisfied for the reasons stated above that the decision is no authority regarding the scope of S. 384 of the Cr.P.C.  The order of dismissal of the appeal summarily will stand”.

 

3. As at present I am not engaged in discussing which view is the correct law regarding Section 384. I do not venture to state my opinion on it. 

 

4. The question that is being considered here is not an unimportant and purely academic question.  On the other hand it is a very crucial question as we will see on a critical examination of many judgments by all the courts both High Courts and the apex court we will be sorry to discover that the points highlighted are often not at issue and merely collateral and discussed at length forgetting that it is more or less a  wasteful exercise of judicial time and space.  So I submit that always when we want to rely on a decision it has to be verified first whether it is a legally valid precedent and whether the ratio decidendi in that case is relevant and applicable in the case on hand.  The same applies to decisions cited by the opponent which you will be called upon to distinguish.  In my view unless such an exercise is resorted to by lawyers it is possible that much havoc will be caused in the delivery of justice according to law and the result we will be getting judgments which cannot be sustained in law. 

 

5. Though the law on a particular point at a particular time is the “last word by the last judge”, it shall not be against the law and a mere mistake of some lawyer or judge due to want of proper application of a legal mind to it.  I am not at all arguing for making the rules stringent but only pointing out the fact that if we have to render equal justice to everyone this sort of exercise cannot be avoided.  I am not citing more recent mistakes than what is quoted already not because of the absence of such cases.

 

6. If the editorial section of the law journals do some intelligent and worthwhile selection of the number of judgments handed down for reporting and report only cases where a new legal question or any new aspect of it is decided the volume of legal literature which forms essential reading for the lawyer will be reduced and there will not be so much pages of case law reported so as to make it nearly impossible for any student of law to keep abreast of the reports to be up-to-date in the law.  As the reports deal with high courts and apex courts it is not open to a careful student to avoid reading the reports from cover to cover or at least the case headings and head notes to ascertain whether anything new has been delivered.
A useful publication like that will reduce the workload of the lawyer and the judge comfortably to a very large extent.

 

7. There is an absence of proper digests also.  Formerly there were all India digests covering all the High Courts and Apex Court.  But unfortunately the quality of digests now available leave much to be desired. I have seen an “acquittal digest” but no “conviction digest” fortunately.  How ludicrous.   

 

8. To the editors of law journals my request is please, do not report all the cases unless each case lays down something new.  If it is a mere repetition of settled law why waste time and money to publish it. It is of interest only to the parties.  The Apex Court reports and the High Court reports show that at least fifty percent of the cases are of interest only to the parties and do not lay down anything new.  When examined it will show some times that age old settled positions are retraced from its roots so as to make legal history or a catalogue of all the decisions on the point. It helps the student but is it worthwhile to be added to the legal literature ?  I leave such thoughts to the discerning readers.

Negotiating on the Negotiable Instruments Act, 2018

(By Sreejith Cherote, Advocate, Calicut)

 

“Rule of law” giving way to “Rule of commerce” is a worldwide vogue and it shouldn’t be embarrassing, if the same phenomenon happens in case of a law which was introduced for the sake of commercial expediency. The question is, whether the set of rules and judicial principles considered as inviolable essentials of legal jurisprudence is worthy to be discarded, as they have become a burden on the commercial philosophy of business.

 

The customs, usages, practices of the merchants and traders, adopted by the legislature and ratified by the decisions of courts, is in short, the Negotiable Instruments Act 1881, as we see it now. If we follow the history of amendments in the Negotiable Instruments Act, probing for a reason for their necessity, it’s apparent that the law was always responding to the challenges espoused by the trading community through these amendments. The fact that 2018 amendment is not an exception to this rule is no reason to be amazed. This time legislative off-roading is at the base of the garden of Justice. Let’s examine the damage.

 

The Negotiable Instruments Amendment Act 2018 introduces to the legislative book, two new sections. Section 143A and Section 148 which reads as follows.

Section 143A. Power to direct interim compensation.--(1) Notwithstanding anything contained in Code of Criminal Procedure, 1973 (2 of 1974) the court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant-

(a) In a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint.

(b) In any other case upon framing charge.

 

(2) The interim compensation under sub-section (1) shall not exceed twenty percent of
the amount of the cheque.

 

(3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be
directed by the court on sufficient cause being shown by the complainant.

 

(4) If the drawer of the cheque is acquitted, the court shall direct the complainant to repay the drawer of the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court onsufficient cause being shown by the complainant.

 

(5) The interim compensation payable under this Section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973(2 of 1974).

 

(6) The amount of fine imposed under Section 138 or the amount of compensation awarded under Section 421 of the Code of Criminal Procedure 1973 (2 of 1974) shall be reduced by the amount paid or recovered as interim compensation under this section.”

 

Section 148. Power of Appellate court to order payment pending appeal against conviction.— (1)Not withstanding anything contained in Code of Criminal Procedure, 1973
(2 of 1974) in an appeal by the drawer against conviction under Section 138, the appellate court may order the appellant to deposit such sum which shall be a minimumof twenty percent of the fine or compensation awarded by the Trial Court:

 

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant.

(3) The Appellate court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the complainant.”

 

The purport and purpose of these two sections is to give “interim compensation” to the payee of the cheque, both at the trial stage and at the appellate stage. The reason for the amendment may sound harmless and perfectly in tune with the justice of trade. But what militates against the concept of legal justice is the statutory condition enabling the court to impose a monetary burden on an accused based on the allegation made against him, before trial. It seems that the Legislature, intoxicated by the overdose of commercialization has lost sight of the fact that Section 138 coming under Chapter XVII of the Negotiable instruments Act 1881 is a penal provision in which the accused cannot be made to suffer, even for a temporary period, the consequence of his alleged illegal actbefore trial. The payment of “interim compensation”, in effect is a sentence, teaser trailer, and is against the basic principle of criminal jurisprudence, that the accused shall be presumed innocent until found guilty by a competent court.

 

It’s true that there are legislations creating absolute liability, doing away with the need of a guilty mind and negating the requirement of “mens rea” in criminal offences, likeSection 29 of the PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012 - (POCSO ACT) etc. Such legislations presume a guilty mind and it is for the accused to prove the contrary, that he is innocent. Courts have tolerated and upheld such legislations as valid, even though literarily against the judicial doctrine of presumed innocence of the accused, only considering the sociology of law, that such legislation was need of the hour. It was an active judiciary overlooking the damage to the doctrine of innocence for a larger social purpose and such an approach is perfectly justified considering the object to be achieved through such legislations.

 

The situation here is different. It is not the presumption of guilt that matters. An accused is made to suffer an advance punishment before trial. This pre-delivery of legal consequence before a lawful climax of a judicial process is perfectly alien to the judicial system we follow. The aforementioned practice doesn’t seem to be supported by any authoritative precedent, practice or judicial doctrine.Rather itseems to be a new rule conceived for commercial compulsion. The pretrial payment, the accused has to make, as a token of proposed punishment in advance, is a blatant violation of natural law, justice and against the very spirit of criminal jurisprudence.

 

When offended by a travesty of a statute, on criminal jurisprudence, every lawyer becomes an instinctive critic, goggling for anomalies within the legislation to taint it totrash and when viewed from this anglesome more provisions seems ambiguous and meaningless.

 

The fact that the accused is made to make a pretrial payment of Interim compen-sation” as a token of proposed punishment, inadvance, can be ordered to be returned, if the accused is acquitted by the court, does not mitigate the gross injustice which is done to the cherished rights of the accused and also to the essential of judicial principles.

Further Section 143A(5) provides that the “INTERIM COMPENSATION” payable under this Sectionmay be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 (2 of 1974), keeping at an equal footing the complainant and the accused in the matter of recovery of the amount paid by them as per ordered by the court. There is no such provision in the appellate stage under Section 148 making it absolutely ambiguous as to how the amount deposited by the Appellant and released to the complainant/respondent as “interim compensation” shall be recovered if the appellant is acquitted. The words “Under this Section” appearing in Section 143A(5) is a conscious deliberation by the Legislature, confining the relief of recovery of “interim compensation” paid as per the order of the court, only to the amount deposited at the trial stage. The reason for this discrimination doesn’t seem to have any bearing on the object of the amendment.

 

It is true that every aspect of the society is intruded by commercial interest, which in course of time, sets benchmark for human conduct and later for the law to follow. There seems to be no escape for the “rule of law” from this “rule of commerce”. It is also acceptable that in a globalized economy banking system should be strong and cheques should be given a commercial sanctity at par with cash or other modes of cashless payment and dishonour of cheques should be treated as a disgrace tohealthy commerce and has to be eradicated as if a disease .What is unacceptable is the possibility of this commercial crusade against dishonour of cheques culminating as a “Dishonour” and “disgrace” to the legal system.

Can A Co-operative Society Refuse to Supply its Membership List to the
Public Information Officer of the Co-operative Department?

(By R.Muralidharan, Consultant, Co-operative Department, Puducherry)

 

The Supreme Court settled the jurisdictional limit of the Right to Information Act, 2005 vis-à-visCo-operative Societies in Thalappalam Service Co-operative Bank Ltd., & Ors.v. State of Kerala & Ors.(2013 (4) KLT 232)and ruled that Co-operative Societies do not answer the definition of ‘public authority’ under S.2(h) of the Act unless they are substantially financed by the appropriate Government.  However, a citizen can have access to information of a co-operative society through the Registrar, who is a public authority. The Registrar cannot access all the information from a co-operative society, but only that information which it is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law.

 

When an applicant seeks the membership list of a co-operative society and files an application to the Public Information Officer (PIO) of the Co-operative Department and when the PIO, in turn, forwards the request to the society to provide such information, can the society take a plea that the society is not legally obliged to part with the membership list to the office of the Registrar of Co-operative Societies was the interesting question came to be decided by the High Court of Kerala in Nedungapra Service Co-operative Bank Ltd., v. the Public Information Officer/Assistant Registrar of Co-operative Societies, Ernakulum & Ors. W.P. (C).No.20772 of 2018  dated 25.6.2018 (2018 (3) KLT 355).

 

The petitioner, viz., Nedungapra Service Co-operative Bank Ltd. was aggrieved by the issuance of proceedings at the instance of the 1st respondent, PIO/Assistant Registrar of Co-operative Societies, Ernakulum whereby the petitioner has been directed to make available a copy of the list of members of the petitioner Co-operative Bank as on 25.5.2018.

 

The 1st respondent is the notified PIO attached to the office of the Assistant Registrar of Co-operative Societies. For collecting the information sought for by the third respondent, the 1st respondent had requested the petitioner co-operative society to make available copy of the list of the members of the petitioner society as on 25.5.2018. The petitioner objected to the said request by taking the stand that the said information sought for by the 1st respondent was not one that was obliged to be maintained by the 1st respondent as per the provisions contained in the Act, Rules, Government Circulars, Government Orders etc., it was contended by the petitioner that there was no question of making available the said information. The 1st respondent has informed the petitioner that under the mandatory provisions contained in R.33(4) of the Kerala Co-operative Societies Rules, 1969 every Co-operative Society is obliged to maintain a list of its members as on the last day of the Co-operative year concerned and that a Co-operative Society is obliged to make available copies of such list to the members concerned.

 

It was argued by the petitioner that going by the legal principles laid down by the Apex Court and by the High Court of Kerala in the matter of disclosure of information under the R.T.I. Act by the Co-operative Societies, the said information is not a disclosable one. There cannot be any doubt that in the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited & Ors. v. State of Kerala & Ors. (supra), a co-operative society like the present petitioner would not fulfil the definition of ‘public authority’ as defined in S.2(h) of the R.T.I. Act. However, an interested person can maintain an application under R.T.I. Act for disclosure of information from the notified PIO attached to the offices of Assistant Registrar, Joint Registrar of Co-operative Societies in the Co-operative Department of the State Government, so long as the information is one in relation to a Co-operative Society which is obliged to be maintained by the Co-operative Department officials concerned.

 

Such an information pertaining to a co-operative society which is obliged to be maintained by the officials of the Co-operative Department of the Government, like the 1st respondent, would be sought for by maintaining an application under the R.T.I. Act before the notified PIOs attached to the offices of the Co-operative Department, in terms of the provisions contained in the R.T.I. Act. There cannot be any dispute on these aspects.

 Reference in this connection would be made to the decisions of the Court in Thrissur District Co-operative Bank, Thrissur v. State Information Commission, Thiruvanathapuram & Anr.reported in AIR 2017 Ker.120, Puthiyatheru Urban Co-operative Society Ltd. v. Joint Registrar of Co-operative Societies (General), Kannur & Ors.reported in  2017 (2) KLT 656).

 

The petitioner would submit that going by the wordings through Rule 33(4), there is no mandate therein that the co-operative society concerned has to necessarily forward a copy of the same to the Assistant Registrar or Joint Registrar of the Co-operative Societies concerned and that all what is required to be done as per the Rule is that the said list should be made available in the office of the society during office hours for inspection by any member of the society free of cost. The Court was not prepared to countenance the said hyper-technical argument raised on behalf of the petitioner society. When the Rule mandates that every Co-operative Society will have to prepare and publish list of its members as on the last day of each co-operative year concerned, such vital information should also necessarily be conveyed by that society to the supervisory officer concerned of the Co-operative Department.

 

If a society does not care to furnish such a vital list to the Co-operative Department of the Government, then those officials in their capacities as the notified Registrar can direct the society to forthwith furnish such a list on its preparation and publication, by exercising their supervisory powers under S.66 of the Act. In such a scenario, the society will be obliged to furnish the same to the Department. Therefore, to contend that the Assistant Registrar has no power to call for the above said list of members is patently untenable and unsustainable.

 

However, the direction to the petitioner was to make available a copy of the list of the members as on 25.5.2018. What is obligated by the mandatory provisions contained in Rule 33(4) is for the Co-operative Society concerned to prepare and publishlist of its members as on 31.3.2018 as far as the co-operative year, 2017-18 was concerned. The next list for 2018-19 is to be prepared and published only after 31.3.2019. Therefore, the direction to the limited extent, it required the furnishing of the list of members as on 25.5.2018, was not fully justified in law. The petitioner society shall without fail ensure that an authenticated copy of the list of members as on 31.3.2018 furnished to the 1st respondent- Assistant Registrar. The Writ Petition was disposed by confirming the order of the first respondent, with the above modification.

 

Impact of the judgment

What the society is legally entitled to maintain, such records can be accessed by the citizen through the PIO of the Co-operative Department.