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Today’s judgement by Supreme Court has effectively dislodged the 2018 verdict in Sabarimala case: Advocate J Sai Deepak

"Our position is not unconstitutional or extra-constitutional. We are protected by the Constitution, which the minority dissenting opinion has referred to as 'the Holy Book'", said J Sai Deepak

The Supreme Court on Thursday pronounced its verdict on the much anticipated Sabarimala issue. In 2018, the Supreme Court had allowed to the entry of women of menstruating age into Sabarimala Temple. This is strictly against the traditions of Sabarimala since Lord Ayyappa is considered to be a ‘Naishtika Brahmachari’. The 5-judge bench referred the review petitions to a larger 7-judge bench and clubbed a host of issues together.

Reading out the majority judgment, CJI Gogoi mentioned that issues such as the legality of Female Genital Mutilation in Dawoodi Bohra community, Muslim women mosque entry, right of Parsi women who married outside the community to access towers of silence etc, have been referred to a larger bench. The Sabarimala issue has been tagged along with these other issues and referred to a larger bench. The Supreme Court has decided that Sabarimala review petitions to remain pending until the issue is decided by larger Bench.

Read: Sabarimala is NOT about ‘impurity’ being associated with menstruation, stop repeating that lie

Justices Rohinton Nariman and Chandrachud dissented and said that compliance with Supreme Court judgments is not optional.

Justice Nariman, who read out the dissenting opinion, said that the issues of Parsi women and Muslim women were not before the Sabarimala bench and hence the matter could not be tagged with them. The original judgment was based on a bona fide PIL which raised the issue of women being denied entry on the basis of their physiological features, said Justice Nariman. spoke to J Sai Deepak, the advocate representing the Pandalam Royal Family and the group People for Dharma who had initiated the ‘Ready to Wait’ campaign to get more clarity on the judgement delivered by the 5-judge Supreme Court bench and what it means for the Sabarimala traditions.

Following are the questions OpIndia posed to J Sai Deepak and his responses.

The Supreme Court has clubbed the Sabarimala issue along with other issues such as Female Genital Mutilation and the entry of women into Mosques. Since the Supreme Court said that the Sabarimala matter will remain pending until a larger bench determines questions related to essential religious practices? Are you worried about the Supreme Court judging practices related to Hinduism with Abrahamic lenses? 

It is not a setback that the matter has been clubbed with the issue of entry of Muslim women into Mosques and the issue of FGM since I don’t believe the Court seeks to draw parallels between these entirely different issues. I think the Court wants to understand broadly to what extent can secular Court wade into issues of religion and theology and decide for any community what is the essential religious practice of the community.

That, I believe, is the spirit behind the reference to a larger Bench for these issues to be taken up together. I am confident that in light of the specific ground raised in the Review Petitions filed on behalf of the Pandalam Royal Family, People for Dharma and Chetna that the Judgement of September 28, 2018, ends up Abrahamising the Hindu faith, a larger Bench of the Supreme Court will be conscious of this ground and not apply the yardsticks of one faith to another.

The court said that Sabarimala matter will be on hold till the 7 judge bench decides on the question of “essential practice to religion”. What does that mean for the current status? Does 2018 verdict allowing women entry into Sabarimala stay in effect or is that judgement put on hold as well? 

A clear reading of today’s majority opinion from Paragraphs 4-8, according to us, makes it abundantly clear that the questions identified by the majority view directly affect and take away the fundamental factual and legal underpinnings and assumptions of the verdict of September 28, 2018. That coupled with the fact that the Court has referred all review petitions and writ petitions to a larger Bench lead to the clear and reasonable conclusion that the Judgement of September 28, 2018, cannot be enforced pending adjudication of all issues by a larger Bench. Consequently, the judgement that currently holds the field on the issue is the 1991 judgement of a Division Bench of the Kerala High Court in S. Mahendran vs The Secretary, Travancore wherein it was held that the practice of the Sabarimala Ayyappa Temple of not permitting the entry of women of a procreative age group was constitutional and directly relatable to the nature of the Presiding Deity. Following were the operative conclusions of the Kerala High Court which, according to us, bind the State Government of Kerala:

“44. Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.

45. In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”

Sabarimala issue has now been referred to a larger 7-bench. What do you think would be the time frame now?

I am not sure of the time it would take for the next CJI to constitute a seven Judge Bench. These things cannot be predicted. However, in light of the fact that multiple such issues are before the Supreme Court, it may be in public interest to do so expeditiously so that the religious communities and their traditions are accorded the protection guaranteed to them by the Constitution.

An interesting dissenting note was presented. Justices Chandrachud and Nariman said, “Let every person remember that the “holy book” is the Constitution of India. “It is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India”. Your thoughts? 

To my mind, the minority dissenting opinion in today’s verdict fails to address any of the infirmities pointed out in our Review Petitions. What is concerning is that the minority dissenting opinion appears less detached than it perhaps ought to have been and could have attempted to specifically meet the arguments and grounds raised in the Review Petition as opposed to being dismissive of the legitimate concerns and rights of Ayyappa Devotees in particular, and religious practices in general. Be that as it may, the minority view helps us understand what to expect when we address arguments before a larger Bench.

All said and done, we are of the view diversity of opinions, religious and judicial, must be respected. We do not deny at all the Constitution is what we must all measure up to and we believe that the views represented by us are squarely within the four corners of the Constitution, which we believe were not done justice to in accordance with the Constitution by the verdict of September 28, 2018. In short, our position is not unconstitutional or extra-constitutional. We are protected by the Constitution, which the minority dissenting opinion has referred to as “the Holy Book”.

What is your future course of action? 

Our future course of action will depend on the conduct of the State Government of Kerala. If the State Government interprets today’s verdict mischievously and attempts to circumvent it by citing any technicality instead of complying with its substance and spirit, we will explore all remedies available under the law and leave no stone unturned to ensure that today’s verdict is respected in letter and spirit.

In 2018, representing People For Dharma, 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.

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