Ways to read the Constitution

Ways to read the Constitution

Article:

1. Thulasi K. Raj is a lawyer has talked about the women religious rights in context of Sabrimala temple entry.

Important Analysis:

2. Ban on entry in temple for women of certain ages raises the concern over religious freedom, gender equality and the right of women to worship.

3. According to author

• Biological reason cannot be held for discrimination against women.
• It was argued that discrimination based on notions of purity and impurity is a form of ‘untouchability’ under article 17.

4. However this argument was countered with the view that untouchability was only meant for backward classes and not for women.

5. On the other side, who are in support of the ban have cited

• It as an age-old custom.
• Under Article 25 of the Constitution it forms a part of essential religious practice.
• Article 26 provides for rights to administer and manage religious institutions.

6. Author has cited two approaches to consider both the arguments in context of constitution.

First approach is Originalist Approach

• Based “Intent of the framers” of the constitution when they drafted the text.
• According to this approach they could not have thought of situation to protect the same-sex relationship rights under article 21.
• Similar argument was provided for Homosexuality as well.
• They asserted, under article 15 the word sex had binary sense (male and female).

7. However, this method of constitution interpretation was severely criticized.

8. Canadian Supreme has also rejected the Originalist approach as it undermine the freedom and values of individual and restricts the growth and development to changing society needs.

9. Second approach is Living Tree Doctrine approach

• Involved understanding of constitution as evolving and organic instrument.
• In this approach, framer’s intention matters little but how the constitution will be interpreted matters the most.
• They emphasized on Moral reading of the constitution.

10. Article 17 has provided for

• Untouchability and its practice in any form is prohibited.
• It has also provided for removing social stigma associated with certain classes and eradicate inequality.

11. According to Living Tree approach why the Article 17 interpretation cannot include the discrimination against the women as well.

12. They argue, the criteria for discrimination between menstruating women, homosexual and impure caste are different but the effect of exclusion is common.

13. In this essence, it is the right time for Supreme Court to asses not only the freedom of religion and women’s right but also constitutional interpretation.