There is nothing in the religious sphere which is private: Justice DY Chandrachud on Sabarimala judgment at Harvard Law event

Constitutional movement for freedom was not just a movement for political freedom but it was also a movement for transformation of society, Justice DY Chandrachud said on Saturday while explaining the rationale behind the two-year old Sabarimala judgment of the Supreme Court..Justice DY Chandrachud was speaking at an event organized Harvard Law School Women's Alliance and hosted by Bar & Bench..On SabarimalaHe said that the practice of disallowing menstruating women in Sabarimala was struck down on the ground that it is subject to Constitutional values and right..“The reason why menstruating women were not allowed was that the deity was considered celibate and presence of women would affect the celibate nature of deity. We respect that belief as human beings and judges. We (the majority on Sabarimala Bench) said there is nothing in the religious sphere which is private. Religion essentially has a position in the public space of the nation. So, we said even a religious custom is amenable to Constitutional control,” he said at a fireside chat..Swamini Saranam: Supreme Court allows entry of women into Sabarimala temple.Former President of Slovenia, Dr Danilo Türk and professor at University of Geneva (Law) Dr Laurence Boisson de Chazournes were the other speakers at the discussion, which was on the topic “Journey into Globalised Legal world”..The chat was moderated by Diana Phillip, co-founder of HLSWA and Senior Advisor at Dell and Bombay High Court counsel and Chief Strategic Officer of Her Forum, Maithili Parikh..Constitution as a tool for social transformationJustice Chandrachud also elaborated on the role of Constitution as a document for social transformation and not merely a tool for transfer of political power, adverting to the example of the long history of temple entry movements in India when Dalits were excluded..“In India, you cannot understand the Constitution merely by construing it as a document for transfer of political power from a colonial regime to a home-grown regime. It was also a movement for transformation of society. Our Constitution reflects this deep-seated aspiration for transformation in Indian society,” he added..My icon Justice Ruth Bader GinsbergJustice Chandrachud incidentally highlighted that his icon is late Justice Ruth Bader Ginsberg and his view on women empowerment is akin to what the American judge held.."She was asked how many women judges would be sufficient in US Supreme Court? She said nine. She said she will be satisfied when all nine judges are women. That is my take as well on empowerment of women,” he said..On Essential Religious practices TestJustice Chandrachud made it clear that he is opposed to the Essential Religious Practice test which is used to determine validity of religious customs in India.As per this test evolved by Supreme Court through various judgments, the court decides whether or not a particular religious custom/ belief is essential to the religion. If the answer is in affirmative, then the courts refuse to interfere with the same by applying Constitutional benchmarks to its validity..“I have suggested we must have a different which is the anti-exclusion principle. It means that even if a practice is essential to a religion, if it perpetrates exclusion of a certain class of society, then it must be amenable to Constitutional standards".Interestingly, he also highlighted Justice Indu Malhotra’s dissenting judgment in the Sabarimala case.“There was a very beautifully written dissent in Sabarimala case by my colleague Justice Indu Malhotra. We both agreed that court has jurisdiction to scrutinise essential religious practices. But she said courts should ban only oppressive religious practices.”.On dissentDissent in common law countries is a form of self-expression by the concerned judge for what he or she considers to be a just society for future, Justice Chandrachud said..“When a judge dissents, he / she is giving expression to some fundamental values of the Constitution which are embodied in his heart. If you look at the nature of dissents we have had in India, those have been cases which affect Constitutional democracy,” he opined..He also said that dissents by individuals should not be viewed as hindrance to democracy. Interestingly, he also highlighted Justice Indu Malhotra’s dissenting judgment in the Sabarimala case..State cannot claim monopoly over values that define our plural society: DY Chandrachud J. on why dissent is important.Both Dr Türk and Dr. Chazournes said that dissents are relevant even in civil law countries.“They are really very important in the process of interpretation of Constitution,” Dr Türk stated..On greater understanding among different cultures and acceptance of diversityDr. Turk opined that cross-culture is a complex issue and understanding different cultures is an ethical question..“It relates to ethics of every individual and community. They key element of that ethical base of inter-cultural communication is respect. Respect is essential in terms of self respect and respect of others,” he said..Respect, he added, is not something which comes naturally but is a difficult quality to attain.“It is an ethical requirement which among other things requires law." .On changing role of ICJ and growing role of womenDr. Chazournes highlighted the growing role of International Court of Justice (ICJ) in issues of democratic governance with the court deciding on issues of self-determination, racial discrimination, death penalty etc.“It has told states that there are requirements under international law which should be implemented at domestic level. Same goes for environmental law. It is now telling states that environmental impact assessment should be respected,” she said..ICJ is now being increasingly asked to deal with issues which have impact at domestic level, she added..On the growing role of women in global politics and in matters relating to peace security, Dr Turk was of the opinion that “it is a historic trajectory” but though they are involved in decision making on political issues including on matters of peace and security, they are still lagging behind in terms of numerical strength.“But I think the tendency is clearly there and it is historical,” he said..Dr. Chazournes said that having women particularly in fields like arbitration is a cultural issue too.“There are cultural and racial hurdles. I am not sure (whether) all our societies are ready for that and we have to fight. It is (also) not just a question of having women. It is also a question of having diversity,” she added..The programme came to a close with a discussion surrounding how Covid-19 pandemic has impacted people and response of governments to the same.