Article 17: Expanding Frontiers? (Part II)
– Karthik Rai*
In this post, Karthik Rai continues the analysis of J. Chandrachud’s opinion on the interpretation of Article 17 and the meaning of untouchability in Sabarimala, and locates it within the Hart-Fuller Debate and feminist legal theory.
A Feminist Viewpoint on Justice Chandrachud’s stance
Notwithstanding the many feminist struggles that have embellished Indian history, many precepts of personal law in India are defined in terms of male prestige and preserving the status quo in tradition, which is a masculine construct in several ways. Since male preferences govern institutional structures/working and constitutional interpretations, gender neutrality is a far cry. For instance, in the CADs on Art. 17, only one female representative, Smt. Dakshayini Velayudhan, was present. When it came to the question of whether women would be included in Art. 17, her views weren’t even asked – the question went straight to Dr. Ambedkar, and he refused to answer the question. All these further bolster the conviction that the reason behind Art. 17’s being considered settled are part of a male-centred discourse. Therefore, it is on these grounds, and not on the aforementioned analyses made by Justice Chandrachud, that an effective case could be made out to redefine Art. 17’s confines.
Renowned radical feminist Mackinnon talks of rape, and the dominating relationship it creates between the man and the woman. Men have intercourse with women without their consent, and women, in fear of men, comply, to such an extent that the distinction between rape and sex is blurred. This could be extrapolated to the current controversy, where even women are arguing against the permission of women into the temple. As Mackinnon states, it clearly evinces the internalization of power relations permeating Indian society. That apart, the existing male-centred discourse means that the man’s perception takes precedence over the woman’s rights’ violations, and women are placed at fault. This is evident when the Travancore Devaswom Board’s President voiced that permitting entry of women would lead to ‘immoral activities’ and create a Thailand-like sex tourism spot.
Basing Article 17 on gender equality
Since the issue deals with how sexual equality has to be achieved, I look at Prof. Littleton’s conception of sexual equality because she states that the differences (including biological) humans have must not affect the “lived-out equality” of the humans. She utilizes two broad terms which encapsulate the perspectives employed to understand gender equality: the liberal-symmetrical approach, which states that women are to be provided the same status ‘as men’, and treated like them. The other is the radical-asymmetrical approach, which claims that an understanding of domination and its relationship with equality is important to recognize inequalities, not mere assimilation. Though the latter seems more suitable to address the issue, I argue that the denial of entry to women based on their physiological characteristics is prima facie sex discrimination, in both the assimilationist approach and the radical-asymmetrical approach.
The liberal approach is symmetric in its outlook, in that it considers both men and women to be placed symmetrically with respect to any given issue. It comprises two models: first, the assimilation model; and second, the androgyny model. The assimilation model claims that women, if provided the requisite rights and opportunities, could be similar to men. As a corollary to this, women must be treated in the same manner as men are. Under this model, denying entry to menstruating women would be sex discrimination, as women are not being provided the right to entry and are not placed on the same footing as men are. Religious institutions like Sabarimala are, therefore, treating these women differently than they would have been treated, had they been a member of the opposite sex.
The androgyny model states that both the sexes could be similar to each other, but adherence to equality requires a ‘golden mean’ to be chosen. Therefore, as Wendy Williams states, both women and men must be treated the way an androgynous person would be treated. This would better promote the normalization of the issued viewed as a problem (here, menstruation). Thus, the ‘disability’ arising from menstruation must be treated as similar to the ‘disability’ a person from the SC/ST category faces. This way, there is a uniform norm (of ‘disability’) for both these characteristics; both must, therefore, receive the same level of protection. Consequently, menstruating women must be allowed to enter the temple.
The radical approach is asymmetric, in that it does not ignore the differences, but proposes to deal with such differences. The broad approach includes three models. First, the special rights model, which suggests that a rights-based justice isn’t determined by ‘sameness’, but by ‘needs’ – if women have any need which men don’t, then the society must provide them with the same. Secondly, the teleological acceptance model, which avers that law must concentrate on the consequences of sexual/gender differences, not on the differences per se, and they must be resolved such that said incongruities are “‘costless’ relative to each other”. So, women shouldn’t be disadvantaged because they are different. The third model is the empowerment model, as per which laws/practices/policies ensuring subordination violate equality. Therefore, equality becomes the balancer of power among genders, and reduces domination – rights must be apportioned so as to ensure a “breakdown of male domination”.
First, women need to destroy the taboo of menstruation that has crippled them with notions of impurity and this has disadvantaged them – consequently, the society (here, the opinion Supreme Court) was right in providing women the Art.17 protection. Secondly, the consequence of such differences is that the natural process of menstruation becomes an everlasting stigma, leading to significant cost to many women in terms of restriction of their movement. Thus, via Art.17’s application, the ‘costs’ would be reduced, and dissimilarities could now become increasingly costless. Thirdly, the practice of disbarring entry of menstruating women must be overturned –power will be redistributed to an extent, and reduce male domination/monopoly in the religious sphere. This will give women a greater sense of control, without structural change, and create a group consciousness that women’s problems are actually constructs created due to lack of power. This will reduce women’s self-blame and will instil in them greater personal initiative to develop solutions to other problems they face. As Lorraine Gutiérrez states, the basis of any empowering practice is the sharing of power by the enabling/dominant class – so the judges must act as the representatives of the enabling group and thus provide women the right they deserve.
The Hart-Fuller Debate and the Penumbra
The judgement delivered by the two judges, in the end, seemed to have adopted two separate philosophies placed at different positions on the jurisprudential spectrum – positive and natural law. The exchanges between Prof. Hart and Prof. Fuller, popularly called the Hart-Fuller Debate, remain, till date, the most significant reference-point for understanding this ideological divide in jurisprudence.
During the course of this exchange, an important point of deliberation was the idea of statutory interpretation in light of a ‘core’ of settled meaning and the outer region of ‘uncertainty’, called the penumbra. Since the manner of interpretation of the word “untouchability” was the most significant aspect of difference between Justice Chandrachud and Justice Malhotra’s opinions, it would be relevant to look at the arguments on the penumbra from the Hart-Fuller Debate. In doing the same, I try and justify why I believe Prof. Fuller’s stance is more satisfactory in the current case.
When presented with the penumbra, the judges must decide if the words of the law cover the current facts or not. Prof. Hart mentions two scenarios when a case may fall into the penumbral region: one, when the case cannot have been specifically envisaged as falling within the ambit of the law; and two, when it is difficult to ascertain the applicability of the general meaning of the term. This ‘fringe of vagueness’ is the open texture of rules/language.
It is difficult to predict, from the CADs, if the former scenario is satisfied. As stated, there was no reply to the question of whether “untouchability” included discrimination towards menstruating women. However, for the sake of argument, let us assume that there is a problem of ‘open texture’ in this case. Thus, while interpreting this penumbral case, one has to consider if it is sufficiently similar to the ‘paradigm’ purpose of the rule in ‘relevant’ aspects.
Prof. Hart did not wish for judges to ascertain the legislators’ objective from rule-making records, but only from the rule’s words – that is, their intention as evinced with ‘clear examples’ falling under the language used in Art. 17. ‘Clear examples’ indicate Prof. Hart’s belief that rule-makers legislated the way the law exists, because of a definite purpose. Such a purpose, he explicitly states, may not necessarily be moral. This could be counter-productive because the penumbra of ‘untouchability’ wasn’t bolstered with a definite purpose to include women.
For Prof. Hart, if a judge interprets the penumbral area in a mechanical manner, instead of deciding in light of the supposed moral aims, it may actually be considered to be a choice made in light of conservative social values. This too is an acceptable manner of interpretation as per Prof. Hart. Such an interpretation cannot be disregarded just because it doesn’t uphold some supposed moral aims of the law. What ought to be needn’t necessarily be something morally ought to be.
Moreover, for him, there is a ‘hard core’ of ‘settled meaning’, and whether a case falls into the penumbra is a matter of the judge’s discretion. Within the penumbra as well, the discretion available is in the strong sense of the term, for a Hartian judge in the penumbra is not bound by any rule or standard, and can interpret the penumbra any way. So, a word may not necessarily be interpreted in light of a social purpose the law probably seeks to achieve, or an evil it seeks to conquer. Even when he admits that penumbral situations merit going beyond the core meaning, he says that an “obvious or agreed purpose” will help solve a penumbral problem.
Justice Indu Malhotra stated that there was not even one precedent that concurred with the interpretation of Art. 17 to include menstruating women. She utilized the Untouchability Act, along with CADs, to justify the ‘decided’ and obvious intent being the protection of the traditionally-recognized untouchables. Therefore, Justice Malhotra seems to take recourse to the manner of interpretation utilized by Prof. Hart while writing about the penumbra.
Prof. Fuller’s conception of the penumbra, in contrast, takes into consideration all legal factors that would make an outcome justifiable and reasonable. He states that laws are to be interpreted keeping in mind a reasonable purpose (unlike Hart’s requirement of a definite and ‘clear’ example). His theory is concerned with the moral purpose of the rule, i.e., “What evil does it seek to avert? What good is it intended to promote?”
In the park-vehicle instance, Prof. Fuller asks, what is to be done if a truck used in WWII had to be mounted in the park – would it be considered a ‘vehicle’? Practical purposes would merit going into the intention and the social policy behind establishing the statute, which is to prevent the tranquillity of the park from being disturbed by noise. However, adopting Prof. Hart’s core-penumbra distinction here is confusing – where would this truck which is in perfect working condition fall?
If we adopt Prof. Hart’s core-penumbra distinction, and his statement that there is a non-requirement of a strict adherence to morality in his theory, it could lead to problems while interpreting Art. 17 to include menstruating women. For Prof. Hart, the interpretation of the ‘core’ usually influences, and is reflected in, the interpretation of the penumbra. So, as Anthony D’Amato opines, a positivist watchman (in the vehicle case) will proscribe more penumbral cases than a naturalist guard who relies on the social and moral purpose behind the statute.
Prof. Fuller upholds and interconnectedness between the core and the penumbra of ‘untouchability’ – the core idea of who an untouchable is, transmorphs into a ‘mini-theory’ of untouchability and its concomitants like purity/pollution. Thus, the core itself is amenable to ‘radical reinterpretation’. But, Prof. Hart uses ought only in the penumbral matters, which is problematic.
Prof Hart’s theory falters because his core-penumbra theory rests on the presupposition that laws’ interpretation depends on individual words’ meaning. We have to designate meaning to the whole context, moving beyond a single word. Thus, it is my view that Justice Malhotra’s conclusion – that “untouchability” has a predefined meaning regardless of context – is incorrect. The ‘settled’ meaning of a word is not because it is fundamentally unalterable, but because the ‘general aim’ of the rule, which is moral, is unthinkingly manifest.
Prof. Hart subscribes to the ‘pointer theory’ – he permits the least minimum influence from the speakers’ purpose behind the law, on words’ meanings; usually, such a theory favors upholding the ‘common usage’ of words. Common usage of “untouchability” is generally in a caste-based scenario, and is not usually used to describe the inequality faced by menstruating women. What is essential, therefore, is to determine the evil the rule seeks to avert. Here, clearly, it is the elimination of notions of purity/pollution which lie at the heart of the menace of untouchability.
Examining the statute without looking at its broader moral purpose is problematic given the different social context at the framing of the statute. Thus, turning to the Hartian theory of strict interpretation statutes could be counterproductive to transformative constitutionalism that is necessary to overcome the iniquities of the past. Adopting Prof. Fuller’s position would be the most beneficial approach, in this regard.
Prof. Hart admits of the possibility of only a ‘minimum content’ theory of natural law. That is, the legal systems and laws coincide with morality only to the extent that these rules of morality are so fundamental that without them, other rules would be irrelevant. Such a bare-minimum overlap with principles of morality and moral standards would not be welcoming to the idea of a different conception of “untouchability” based on the moral aims sought to be achieved. Given such a limited refer to moral standards under Prof. Hart’s conservative theory, it is important to espouse Prof. Fuller’s method of statutory interpretation. Applying Hartian theory here would only lead to a further entrenchment of relatively obsolete social and moral consciousness, thereby providing scarce room to make socially necessary corrections to the same.
Prof. Hart’s penumbra looks at the restrictive notion of an obvious, regulatory purpose behind the law. As against this, as Frederick Schauer states, Prof. Fuller’s expansive interpretive theory is open to diverse sources to ascertain the moral purpose of law. Thus, Prof. Fuller’s conception of the penumbra seems more apt than the Hartian theory. The courts must, therefore, not conduct themselves as messengers applying the law based on mere plain meaning, but must exercise agency and partnership with the legislature. Thus, as David Shapiro states, it would achieve a fine-tuning of legislative intent and its general commands and intentions.
Through this piece, I have attempted to provide a fresh take on the interpretation behind Art. 17, using Justice Chandrachud’s arguments to supplement my analysis. Using CADs, other legal scholars’ opinions, and cases, I tried pointing out certain probable inconsistencies in the judgement, thereby lending credence to the view that the applicability of ‘untouchability’ in Art.17 to women may not be as easy as Justice Chandrachud might have imagined it to be.
Next, I looked at arguments from a feminist perspective, given that this is an issue significantly impacting women. I sought to prove, by virtue of the analyses, that the decision rendered by Justice Chandrachud is a positive step in feminist constitutional jurisprudence. Finally, I analysed the issue at hand using Prof. Hart and Prof. Fuller’s viewpoints on statutory interpretation. Juxtaposing this with the fact that the prevailing law is male-centred and with approaches used to understand how and why women must be provided their bodily integrity, I tried to prove why it is important that Prof. Fuller’s conception be favored over Prof. Hart’s theory when it comes to interpreting Art. 17.
Notwithstanding the legally correct outcome of this question, the Sabarimala case is certainly a positive leap in transformative constitutionalism, and the transformative intent behind the expanding horizons of Art. 17 should definitely be upheld while the Apex Court hears the questions on the freedom of religion, in the days to come.
* Karthik Rai is a 2nd year undergraduate at the National Law School of India University, Bengaluru. He would like to thank the editors of the National Law School of India Review for their invaluable comments and suggestions on the previous drafts of this article.
 Christine Littleton, ‘Reconstructing Sexual Equality’ (1987) 75(4) Cal. L. R. 1279, 1285.
 Harriet Taylor Mill, ‘Enfranchisement of Women’, in Essays on Sexual Equality (A. Rossi ed. 1970) 91, 103-04.
 Catharine MacKinnon, Sexual Harassment of Working Women (Yale University Press 1979) 106-116.
 Littleton (n 3) 1295.
 E. Wolgast, Equality and the Rights of Women (Cornell Univ. Press. 1980) 61-63.
 Littleton (n 3) 1296.
 Catharine Mackinnon, Feminist Discourse (HUP 1987) 27.
 R Pemell, ‘Empowerment and social group work’ in Innovations in social group work: Feedback from practice to theory (M. Parenes ed., Haworth 1985) 107, 107-117.
 Hart, The Concept of Law (Clarendon Law Series 1961) 124.
 Ibid 126.
 Ibid 125.
 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977) 34.
 H.L.A. Hart, ‘Introduction’, in Essays in Jurisprudence and Philosophy (1st edn, OUP 1983) 8.
 Prof. Anthony D’Amato uses the park-vehicle example to show that a positivist interpretation may prevent even a ‘book’ from being allowed into the park, given that it is a ‘vehicle’ for ideas.
 Refer to the first two paragraphs under the section ‘A Feminist Viewpoint on Justice Chandrachud’s stance’ on pages 6-7.