On 26 July, the Supreme Court resumed hearing the case of women's entry inside the inner sanctum of the Sabarimala temple in Kerala. After senior counsels made their submissions, the bench headed by Chief Justice of India Dipak Misra allowed advocate J Sai Deepak — the counsel appearing for intervener organisation People for Dharma — 10 minutes to present his submissions as the court had to rise for lunch.
A day earlier, Deepak, who was representing two respondents as well as the intervener, had sought just that much time to present his arguments, well aware of the number of other counsels awaiting their turn. At 12.54 pm, just six minutes before the court was to rise, he began his arguments with a simple statement: The temple has asserted its rights, women have asserted their rights, but no one has asserted the rights of the deity inside Sabarimala.
And the "deity's advocate" wanted to assert the rights of his "client" by all means.
In less than five minutes, he made arguments that convinced the bench to give him more time post lunch. With extra time, Deepak also got a nod of appreciation from the Supreme Court justices. Justice Rohinton Fali Nariman said he found the advocate's arguments instructive, while the chief justice reportedly said that Deepak made an impressive articulation with both rhetoric and logic.
When the court resumed the proceedings post lunch, it became evident that the bench was indeed impressed with him, given how Deepak continued with his submissions for nearly two hours before the court rose for the day.
While arguing for the deity's rights as a juristic person, he said Sabarimala's Lord Ayyappa has rights under articles 21, 25 and 26 of the Constitution of India, and his right to remain a "naisthika bramhachari" falls under Article 25 and hence, women's entry inside the temple should continue to be restricted. "The fact that nobody introduced the deity's rights in court or personified the deity's right by giving it a certain flesh-and-blood character, which already exists and is recognised under law, is perhaps why I got a shot in court in terms of an audience," Deepak said.
Deepak submitted a 50-page written submission in court, in which he cited several judgments in this context. "It is evident from the above judgments that Lord Ayyappa, too, has the character of a juristic person under the Hindu law, as recognised by this hon’ble court," the submission says. "Consequently, the deity enjoys rights as a person under article 25(1), 26 and 21. The deity as the 'Owner of His Abode' enjoys the right to privacy under Article 21. This includes the right to preserve his celibate form and... (uphold) his vow of a naisthika brahmacharya."
His submission adds: "It is the will of the deity that is being preserved by the temple through the traditions it observes, which is effectively the object of Article 26. Finally, the deity has the right to follow his dharma like any other person under Article 25(1) and the state is duty-bound to protect his faith. In light of this, clearly the petitioners' rights under Article 25(1) cannot prevail over the deity's rights. In fact, they must be necessarily subservient to the rights of the deity."
A five-judge Constitution bench of the Supreme Court has been hearing petitions filed by the Indian Young Lawyers' Association and others, challenging the ban on women's entry inside the Sabarimala shrine. In a boost to the women's movement on 18 July, the chief justice of India had observed that everyone should be allowed inside the temple in Kerala as there was no concept of a private temple and there would be no third-party control over the entry of women inside the temple's inner sanctum.
Does opposing women's entry inside Sabarimala make one regressive?
The Sabarimala case, which is in the final stage of hearing, has attracted a lot of attention. A much-debated subject, the case has often been anchored to a binary expressed in terms of those supporting the women's cause being seen as "progressive" and "modern", and those calling for the temple's right to restrict women's entry to be upheld being branded as "regressive" and "orthodox".
In this context, did the young lawyer fear being castigated for being on the "regressive" and "wrong" side or being tagged a "right-winger"?
"It would be an extremely unfortunate situation if a lawyer is slandered or libeled for taking up a cause and doing what he is supposed to do in accordance with his professional ethics," Deepak said. "If a terrorist, who has murdered hundreds of people, is entitled to a fair trial and a midnight hearing after multiple convictions at different stages, surely a deity can be represented, as well."
"We pointed out to the court that there is lot of political incorrectness associated with the position we took," the advocate added. "I submitted that political incorrectness is not the prism through which the court can decide on a constitutional matter. If the prism is constitutional morality, then serve justice by analysing the issue through the prism of the Constitution and within the four corners of the Constitution. It is as simple as that."
The advocate voluntarily told the court that he had visited Sabarimala temple as a 13-year-old after observing the 41-day vow of abstinence and is a devotee. However, he made it categorically clear that notwithstanding his devotion, he can still be objective and put forth a legal argument to support his case. "A lot of people are tempted to project this case as an attack on Hindu faith and take it in a different direction. Let's assume for a moment that even if that is the case, we have to convince the court of the legality of the practice," he said."
Deepak also pointed out that while those supporting the temple have been presenting a lot of literature on the customs, traditions and practices of the temple, the other side has only made statements with no supporting documents. He believes that such an approach cannot hold water in any legal discussion.
Expressing his anguish over the manner in which the debate has progressed, he said: "This is one case where the media has taken the discussion to an abysmal level. Something that should have forced us to think about the nuances of the matter was turned into something coarse and crude with rudimentary analysis, which does no justice to gender equality or even to justice."
"This shows that you can wear the hat of a saviour and then hope to get an audience simply because the cause that you have argued for in crude terms has a tinge of political correctness to it, which forces the other side to take a defensive stance," he added. "But we chose not to be defensive and decided to address the elephant in the room. Let's list what is bad about this. I made this point that an issue that requires surgical precision and rigorous examination of evidence (something that was mandated by this court in several judgments) was sadly treated with the sledgehammer approach. Here, gender equality — once a sharp surgical knife — is the blunt sledgehammer. I feel that today, people who refuse to look into the nuances of the matter have reduced this very important subject of gender equality to a façade."
Commenting on how such matters require detailed analysis, Deepak said: "When I mentioned the essential religious practice (of the Sabarimala temple), I remember the court asking how they could be expected to wear the cap of a theologian. I said that the court has been wearing that cap for long now, since 1954 at the very least... So the point here is that if you don't wish to wear the hat of a theologian, how are you going to comment on the practice without understanding its basis?"
The advocate asserted that the entire debate was projected as an issue of gender justice. Instead, he believes that stakeholders should have tried to understand "where the other side was coming from" and then question whether the matter was discriminatory or has "a different position altogether".
"I could have gone further into the metaphysics of what the matter is all about, but I would still not have been answering the question from the constitutional point of view," Deepak said. "The interesting part is that several Supreme Court judgments say that when you are looking into these practices, try to understand their essence, basis and origin. Therefore, even if I had got into the metaphysics of this practice (of keeping women out of the Sabarimala shrine), I would still be speaking within the ambit of the Constitution and its analysis."
All through his conversation, Deepak emphasised on the need to fight the fact that women's entry inside Sabarimala is perceived as a matter of gender equality. He asserted that if the case was fought 100 years ago, or even 50 years ago, it would have held some reason to assume that women needed help and deliverance from subjugation.
"But it is 2018, and to assume that to anybody, even the petitioners, can act as a saviour for women is, to me, patriarchal, condescending and insulting, especially to any independent woman who says she knows what the Sabarimala practice was about and had not been misled about it," Deepak said.
Deepak decided to become a lawyer after his engineering course ended in 2009. He said he made the career change as he was seriously affected, like several others in his age group, by the "political discourse that has taken a sharp turn and has gradually transformed into self-loathing and self-hatred in a very systematic manner". "I felt that a lot of negative things were being drilled into people's minds in the name of ideology," he said. "I thought I could articulate the Indic position effectively."
"One of the main reasons I took up this case was because an impression was being created that this is a fight between the temple and women, and that the temple was a male-dominated bastion," Deepak said. "I wanted to demolish this argument completely... The funny part is that the people who came to the court asking for the right to enter Sabarimala reduced the temple's practice to a superstition, leading us to ask whether they even believed in the deity they wanted the right to worship."
Updated Date: Jul 31, 2018 20:37:27 IST