Social Exclusion Of Women, Based On Menstrual Status, Is A Form Of Untouchability: Justice DY Chandrachud

“Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity.”The judgment by Justice Dhananjaya Y Chandrachud, which runs upto 165 pages, is the longest among all four judgments delivered in the Sabarimala case. Most importantly, the observation made by Justice Chandrachud that social exclusion of women, based on menstrual status, is a form of untouchability, will have far-reaching consequences.Justice Chandrachud, like the CJI, holds that devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the Constitution. Though he concurs with CJI’s opinion that the practice of excluding women from the temple at Sabarimala is not an essential religious practice, he goes further to hold that a claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. He also holds that exclusionary practices are contrary to constitutional morality and observes that constitutional legitimacy shall not be granted to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The judge also holds that notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order. Finally, the notifications issued by the Devaswom Board prohibiting the entry of women between the ages of 10 and 50, are held unconstitutional.Without doubt, the judgment by Justice Chandrachud is a feast to read as it covers almost every aspect of the Sabarimala case, and beyond. The judgment succinctly narrates the history of Sabarimala temple and Lord Ayyappa. Justice Chandrachud deals with almost every submission made pertaining to essential religious practices, religious denomination status of Ayyappa devotees, Article 17, “untouchability” and the notions of purity, constitutional rights of the deity.Article 17 also applies to the systemic humiliation, exclusion and subjugation faced by womenWhile the judgment authored by the Chief Justice do not address the argument based on Article 17 (abolition of untouchability) of the Constitution, Justice Chandrachud widely discusses it vis-à-vis the issue of practice of exclusion based on menstruation constitutes a form of untouchability and is prohibited by Article 17 of the Constitution, egregiously raised during the arguments, particularly by Senior Advocate Indira Jaising and Amicus Curiae Raju Ramachandran.The judge discusses the history, the constitutional assembly debates, in relation to Article 17 and observes that background of Article 17 lies in protecting the dignity of those who have been victims of discrimination, prejudice and social exclusion.After a detailed analysis, the judge observes: “The operation of the words used by the Constitution cannot be confined to a particular form or manifestation of “untouchability”. The Constitution as a constantly evolving instrument has to be flexible to reach out to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it 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.”The judge further holds that Article 17 not only applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women.Social exclusion of women, based on menstrual status, is a form of untouchabilityHe further observes that the ideology of “purity and pollution” is a violation of the constitutional right against “untouchability”.“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...

Social Exclusion Of Women, Based On Menstrual Status, Is A Form Of Untouchability: Justice DY Chandrachud

Ashok kini

Tags