The CJI delivered these remarks during the MK Nambyar Memorial Lecture in New Delhi, on the theme Foresighted Mr. MK Nambyar – Constitutional Journeys Beyond Original Intent.
NEW DELHI: Chief Justice of India (CJI) DY Chandrachud on Thursday(26th Sept) defended his judgment in the Sabarimala temple case, where he ruled that the exclusion of menstruating women from the Kerala shrine constituted untouchability, prohibited under Article 17 of the Indian Constitution.
The CJI explained that the framers of the Constitution had intentionally refrained from confining the definition of untouchability under Article 17 to a single social issue.
“The context of this provision (Article 17) was the stratified society in which we lived. After reviewing the Constituent Assembly debates, I concluded that the framers purposefully left the concept of untouchability untied to caste alone; Article 17 was intended to safeguard against ideas of impurity and pollution, with caste being just one of its manifestations,”
he said.
The CJI delivered these remarks during the MK Nambyar Memorial Lecture in New Delhi, on the theme Foresighted Mr. MK Nambyar – Constitutional Journeys Beyond Original Intent.
Nambyar was the father of Senior Advocate and former Attorney General KK Venugopal. The event opened with an introduction by KK Venugopal, followed by remarks from Senior Advocate CS Vaidyanathan. Senior Advocate Krishnan Venugopal, KK Venugopal’s son, gave the closing remarks.
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In his speech, the CJI criticized the rigid, originalist interpretation of the Constitution.
“Originalism incorrectly assumes that the framers’ intent can be definitively understood. It assumes that history speaks with a single voice and that this voice can be consistently interpreted by different readers. But should a Constitutional Court confine constitutional guarantees and provisions to the perceptions of the ‘Founders’?”
he asked.
He argued that constitutional principles must evolve in line with societal changes.
“As society progresses, so too must constitutional doctrine. The institutions created by the Constitution must adapt to address the challenges of an expanding knowledge economy.”
The CJI emphasized that the Constitution was never intended to be a set of inflexible rules governing social and legal relations.
“It was not the intention of the framers to lock the Constitution’s provisions in place for eternity. Doing so would have undermined the flexibility that is essential for the Constitution’s longevity.”
The Constitution, he noted, goes beyond its text.
“It serves as the foundation of democratic culture, rather than its final word. While it stems from the framers’ intent, as Mr. Nambyar demonstrated, it flourishes within the lived realities and specific social contexts of its people.”
Sabrimala Verdict
On September 28, 2018, a 4:1 majority of the Supreme Court ruled that the prohibition of women entering the Sabarimala Temple was unconstitutional. Justice Indu Malhotra was the lone dissenter. The key opinions were:
- Chief Justice Misra (for himself and Justice Khanwilkar)
- Justice Nariman (concurring)
- Justice Chandrachud (concurring)
- Justice Malhotra (dissenting)
The majority held that excluding women aged 10 to 50 violated their fundamental rights, ruling that Lord Ayyappa devotees were not a separate religious denomination. Justices Misra, Khanwilkar, and Chandrachud determined that this exclusion was not an essential religious practice.
While the majority did not specifically address whether the custom violated Article 14 (equality), they found it discriminatory under Article 15.
Justice Chandrachud expanded on this, asserting that the right against untouchability extends to social exclusion based on ideas of purity. Additionally, Rule 3(b) of the Public Worship Rules, which permitted the prohibition, was declared unconstitutional. A judgment matrix on SCO outlines each judge’s position on key aspects of the case.
In her dissent, Justice Malhotra argued that in a secular state, courts should not interfere with religious practices unless they are harmful, oppressive, or social evils like Sati.
Over 50 petitions sought a review of the 2018 judgment, including submissions from the National Ayyappa Devotees (Women’s) Association, the Nair Service Society, and the All Kerala Brahmins’ Association. On November 13, 2018, the Court began hearing these review petitions. By that time, Chief Justice Dipak Misra had retired and was replaced by Chief Justice Ranjan Gogoi.
A year later, on November 14, 2019, the Court, in a narrow 3:2 decision, opted to keep the review petitions pending. Anticipating that future cases involving religious freedom might challenge the 2018 ruling, they referred broader constitutional questions, including women’s access to religious institutions, to a 9-Judge Bench.
Justices Nariman and Chandrachud dissented, arguing that this went beyond the scope of a review petition. The 2018 judgment remains in effect until the review petitions are resolved.
