27 July, 2021

OPINION | 'Judicial Opacity On Women's Entry In Sabarimala Is Troubling'

The Sabarimala verdict is a setback to the struggle against a dehumanising prohibition, writes professor Kalpana Kannabiran

A nine-year-old girl waits outside the Sabarimala temple with a placard that reads: “Ready to wait. Will visit the shrine after I am 50 years old.”
OPINION | 'Judicial Opacity On Women's Entry In Sabarimala Is Troubling'

It was just days before Chief Justice Ranjan Gogoi retired that the Sabarimala review petition was decided by a majority of 3:2. The September 2018 judgment—a 4:1 majority decision in favour of women’s entry into the temple—now goes before a larger bench for a relook. It is apt, when we consider these contrary outcomes, to recall some basic tenets in constitutional interpretation set out since 2009, marking the turn towards “transformative constitutionalism”. These include: the consideration of analogous grounds of discrimination as impermissible (i.e. any form of discrimination akin to what’s clearly listed as illegal, say untouchability); the principle of non-retrogression in the delineation of fundamental rights (i.e. a right, once granted, cannot be reversed); the unequivocal rejection of the de minimis argument (that something is too trivial for the law to consider) in keeping exclusions in place; an expansive reading of the Ambedkarite formulation of constitutional morality; and the unanimous 2017 declaration by a...

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