‘We take inspiration from what Justice Indu Malhotra said’: J Sai Deepak, advocate in the Sabarimala Temple case

The verdict is out on the Sabarimala Temple case and the Supreme Court Bench, by a 4-1 majority verdict has decided that women of all ages should be allowed in the Kerala temple.

And by this majority verdict, the apex court has struck down the Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricted the entry of women between the ages of 10 and 50 into the Sabarimala Temple.

The sole dissenting voice was that of Justice Indu Malhotra. Her Ladyship Malhotra observed that matters of deep religious sentiment should not be interfered by the court. She said that the shrine and the deity are protected by Article 25 of the constitution and hence, the court should not interfere unless there is an aggrieved person from that religion or section.

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She observed that the subject of rationality should not be seen in religious beliefs and that there are clear attributes that there exists a section with identifiable characteristics, they constitute religious denomination.

She observed that the people worshipping in Sabarimala have attributes of a religious denomination and that Sabarimala gets funds from Devaswam Board, not from CFI.

J Sai Deepak said:

While we are disappointed with the majority view, we draw huge inspiration from the dissenting view of Justice Indu Malhotra and considering that dissent is the flavour of the season, in a matter which concerns women’s right, two things have actually supported our position and can be considered shots in our arm.

One, on 1st of August which was the last day for arguments in the petition, out of the 5 female petitioners, 2 withdrew saying that they now understand the practice of the temple and that they no longer see it as discrimination.

Secondly, we are so happy that her Ladyship Justice Indu Malhotra has understood the point of view that we were placed before the court, has looked at the evidence and has accepted and endorsed our position. In fact, she went to the extent of saying that in such matters, Judges should keep their personal views aside. That Judges should apply constitutional morality but not an individual or personal morality. That is a powerful statement in a matter such as this. And I think it offsets to a very large extent the position taken by the majority view. Most importantly, she has struck a beautiful distinction between diversity and discrimination, citing the plurality and the diversity of this country, the various practices that exist and their reasons.

Thirdly, she has clearly supported the position that right to equality and individual right to equality cannot prevail over the rights of the devotees and the rights of the institutions when it comes to religious places, until and unless the practice is so egregious that it shocks the conscience of any reasonable person. She has clearly recognised that this case is not where the practice shakes the conscience because this practice is not based on menstruation but the character of the diety, the celibate nature of the diety.

She has also categorically recognised that the Sabarimala temple is not state-funded and therefore, fall under the definition of the arm of the state. This was something that was touted very heavily. In her conclusion, she categorically said that the petition deserves to be dismissed for the lack of standing and eligibility. Because those who do not put faith in the tradition or do not believe in the place of worship they seek to enter into, cannot seek a right to access citing the right of equality. The position which was taken by Justice Indu Malhotra, therefore, clearly reflects the position taken by us on behalf of women devotees and the People For Dharma.

In his conversation with OpIndia.com, J Sai Deepak added that People For Dharma and him would explore all possible legal options in this matter.

During the hearing, J Sai Deepak had argued before the bench that if the deity of the Sabarimala shrine can be taxed as a juristic person, he also has rights under articles 21, 25 and 26. He added that the deity’s right to remain a ‘Naisthika Bramhachari’ comes under article 25. Deepak further added that the case is not men vs women, but it is men vs men and women vs women. Sai Deepak asserted that if they allow dismissal of age-restrictions for women, tomorrow even men can seek exemptions from the 41-day ritual.

He further added that the denominational character of the temple as per article 26 is independent of the right of the temple to allow entry. Ayyappa devotes constitute the denomination. He asserted that denomination is not decided based on the background of the devotees’ faith but on whether the devotee believes in what is an essential characteristic of the temple deity and the status of the denomination is not bestowed by the court. Sai Deepak also stated that the public character of an institution does not take away the very identity of an institution. He also added that ‘Naisthika Brahmacharya is, not a men-only practice and hence the rituals associated cannot be regarded as patriarchal.


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