Daily PT Capsule Jan 12

Prohibition in Sabarimala Shrine

Sabarimala Shrine in Kerala has been following a custom for the past half century of not allowing women to enter in the temple. Taking a swipe at religious customs and temple entry restrictions violating women’s constitutional rights, the Supreme Court on Monday said no temple or governing body could bar a woman from entering the Sabarimala shrine in Kerala where lakhs of devotees throng every year.

When the board countered that the prohibition was based on custom followed for the past half-a-century, Justice Misra asked what proof it had to show that women did not enter the sanctum sanctorum over 1,500 years ago.

Analysis

Article 15 of the Indian constitution prohibits discrimination on the basis of religion, race, caste, sex, place of birth or any of them. 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 access to shops, public restaurants, hotels and palaces of public entertainment.

Article 25(1) guarantees to all persons the right to freely profess, practise, and propagate their religion. Mirroring this, Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion. Overriding both these provisions, Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

During the debates in the Constituent Assembly, B.R. Ambedkar — supported, among others, by Rajkumari Amrit Kaur, who expressed specific concerns about the plight of women under religious law — endorsed giving wide, interventionist powers to the state on the ground of the deep and pervasive role that religion played in the lives of Indians. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he observed, “I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.” Over the years, the Supreme Court has itself restricted the scope of the religious protection clause to “essential practices of a religion”. While holding that the state cannot use the reform clause to “reform a religion out of existence”, it has nonetheless held that aspects beyond essential practices have no protection from state intervention.

The  Sabarimala governing board’s argument is that the prohibition of women is justified by “custom”. They rely upon the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which permit prohibiting women from accessing places of worship where “custom” or “usage” requires it. During the January 11 hearing, Justice Misra doubted the existence of any such custom. Conversely, however, the women worshippers can argue that prohibiting them from access violates their right to worship under Article 25(1). That does not, however, entirely resolve the issue. The right to freedom of religion under Article 25(1) is enforceable against the state, and not against other individuals, or corporate bodies. The question that the court must answer therefore is whether the Travancore Devaswom Board, which controls access to the shrine, can be equated to the “state”.

That does not yet mean that the case is lost. The Supreme Court has held that if one private party obstructs another private party from exercising her constitutional right, then it is the duty of the state to effectuate her right by restraining the former from continuing with its obstruction. Therefore, the women worshippers may ask the court to direct the state to take all necessary steps to guarantee that they are allowed to access and worship at the Sabarimala shrine. India might be the only republic where the judiciary can pronounce on matters not only relating to law, but also those concerning theology. Thus, courts have ruled on topics like the Jain practice of Santhara (voluntary fasting to death); and on who can and cannot become an archaka (priest). They have even pronounced on rather vexed questions like what should be the shape of the markings on the temple elephant’s head.

Finally, there is another route the court might take. The Kerala Hindu Places of Worship Rules speak about “customs” and “usages”. The Supreme Court has held that while personal law is exempt from the application of the Constitution, mere ‘custom’ is not. It might therefore simply strike down the offending rule on the ground that it discriminates on grounds of gender, and therefore violates the Constitution.

Temple Entry movement in India have been centuries old. The practice of not allowing women to enter cannot be justified based on traditions alone. It violates the right of women as equals in our society and pushes the cause of gender equality.

Source: The Hindu

Marital Rape

The Delhi High Court on Monday sought the government’s response on a PIL petition challenging a provision in the penal law, which does not consider sexual intercourse of a man with his minor wife as rape.

Section 375 of the IPC, states that sexual intercourse by a man with his own wife, who is not under 15 years of age, is not rape.

Analysis

Not only there is an inherent contradiction in the law by setting the age of minors as 15 years, there is also an issue with the concept of marital rape in itself.

Recently when the Bill to criminalize marital rape was introduced in India, it was turned down by the Parliament. According to some of the Parliamentarians, marriage is a sacred institution and touching it will leads to breakdown of marriages. They are of the view that India should be proud of its culture because `the nation has low divorce rates’.

Criminalizing marital rape has been a long standing demand made by the women’s movement in India. Recommendations of penalizing rape within marriages were also made by the Justice Verma Committee Report formulated after Nirbhaya’s gang rape case. This Report reiterates that marital rape stems from the outdated notion of marriage that regards wives as property of husbands. It rules out the common law of coverture, according to which a wife has been deemed to be consented at the time of marriage to have intercourse with her husband at his whims and this consent could not be revoked anytime after the marriage. The Committee suggested that existence of relationship is not a valid defense against the sexual violation.

A report by the Law commission also opined that criminalizing marital rape would amount to “excessive interference with the marital relationship.” Two sets of arguments are being proposed to deny wives their right to protection against sexual assaults within the marital tie. One set holds that due to the conditions of `poverty, illiteracy, religious beliefs and social customs’ the `Indian situations are not suitable’ to adopt marital rape laws as applicable elsewhere. Second line of thought, which is in direct contradiction with the first, opines that women in India are misusing and abusing the dowry and the domestic violence laws, thus trivializing the judicial process.

Curious case of Jallikattu

Jallikattu is a bull-baiting or bull taming sport played in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day. Bulls are bred specifically for the sporting event and a specific breed of cattle bred for this purpose is known as “Jellicut”. Jallikattu was a popular sport during the Tamil classical period. A seal from the Indus Valley Civilization depicting the sport is preserved in the National Museum, New Delhi.

Major injuries and deaths may occur from the sport. From 2010 to 2014, there were approximately 1,100 injuries and 17 deaths as a result of Jallikattu events. Over 200 people have died from the sport over the past two decades.

The Ministry of Environment and Forests issued a notification in 2011 that banned the use of bulls as performing animals, thereby banning the sport. But the sport was continued to be held under Tamil Nadu Regulation of Jallikattu Act No 27 of 2009. On 7 May 2014, the Supreme Court of India struck down the state law and banned the sport. On 8 January, 2016, the Government of India passed an order exempting Jallikattu from all performances where bulls can not be used, effectively reversing the ban.

Analysis

The latest notification circumvents a Supreme Court judgment. The notification had been issued despite contrary legal advice from Attorney-General Mukul Rohatgi following a letter from the Tamil Nadu government to Prime Minister Narendra Modi to make amendments in the law.

The petitions made again recently contended that the Centre cannot legalise a sport inherently causing pain and distress to dumb animals by merely saying that bulls used for jallikattu (bull-taming sport) should not be subjected to cruelty.

They said the January 8 notification circumvents the May 7, 2014 Supreme Court judgment by introducing several regulations meant to protect bulls, all the while glossing over the fact that the very act of jallikattu is “inherently cruel” and blatantly violates several provisions of the Prevention of Cruelty to Animals (PCA) Act, 1960 as interpreted by the apex court two years ago.

They questioned the notification’s justification to allow the return of jallikattu for cultural and traditional reasons, especially when the Supreme Court judgment had extensively discussed and concluded that the “sport” was a gross insult to the Tamil culture and tradition to “embrace bulls and not over-powering the bull, to show human bravery.” The petitions said it was time Parliament elevated the rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour.

Bharat Stage VI Norms

In a bid to curb vehicular pollution, the government has decided to implement stricter emission norms of Bharat Stage (BS) VI from April 1, 2020 by skipping BS-V altogether.

About Bharat Stage Norms: Bharat stage emission standards are emission standards instituted by the Government of India to regulate the output of air pollutants from internal combustion engine equipment, including motor vehicles. The standards and the timeline for implementation are set by the Central Pollution Control Board under the Ministry of Environment & Forests and climate change.

The standards, based on European regulations were first introduced in 2000. Progressively stringent norms have been rolled out since then. All new vehicles manufactured after the implementation of the norms have to be compliant with the regulations. Since October 2010, Bharat stage III norms have been enforced across the country. In 13 major cities, Bharat stage IV emission norms have been in place since April 2010.

BS-IV fuels contain 50 parts per million (ppm) sulphur, while BS-V and BS-VI grade fuel will have 10 ppm sulphur. Oil PSUs will invest about Rs. 28,750 crore for switching over to BS-VI auto fuels.

The phasing out of 2 stroke engine for two wheelers, the stoppage of production of Maruti 800 & introduction of electronic controls have been due to the regulations related to vehicular emissions.

Analysis

Rolling out the BS VI standard nationally, skipping BS V, has significant cost implications for fuel producers and the automobile industry, but its positive impact on public health would more than compensate for the investment.

Past national policy of implementation of the BS IV fuel standard failed primarily because this was not done all over the country and the technical standard also permitted a higher level of sulphur in the fuel. Higher sulphur results in high volumes of fine respirable particulates measuring 2.5 micrometres (PM2.5) being generated in emissions. Since even this obsolete standard was not followed uniformly, many vehicles, especially commercial passenger and freight carriers, have been using lower standard fuel supplied outside big cities. This has rendered their catalytic converters incapable of absorbing pollutants.

Poor civic governance has left roads unpaved and public spaces filled with debris and construction dust, constantly re-circulating particulate matter in the air. Moreover, the monitoring of diesel passenger and commercial vehicles – the biggest contributors to total emissions – for compliance with emissions regulations remains poor. Such a record does not inspire confidence that retrofitting of old vehicles to use higher quality fuels such as BS VI can be achieved smoothly. Equally, the distortions in urban development policy that facilitate the use of personal motorised vehicles rather than expanding good public transport, walking and cycling, are glaring. Many of these issues were underscored by the Saumitra Chaudhuri Committee on Auto Fuel Vision and Policy 2025 in its report submitted in 2014. The panel also recommended appropriate levies to fund the transition to cleaner, low sulphur fuels. A study by the Indian Institute of Technology, Delhi on fuel policy and air quality in the same year concluded that the best results would be achieved by raising the fuel standard and introducing policy initiatives that would influence passenger behaviour and cut personal travel kilometres by 25 per cent.