'Not Untouchability' : Kerala High Court Upholds Condition That Sabarimala Melshanthi(Chief Priest) Must Be Malayali Brahmin

The Kerala High Court today dismissed a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayali Bhramins for appointment as Melshanthi(chief priest) of Sabarimala-Malikappuram temples.The Division Bench comprising Justice Anil K Narendran and Justice P. G. Ajithkumar rejected the petitioners' argument that the conditions stipulated in the notification would not amount to "untouchability" and violated Article 17 of the Constitution. Justice Anil Narendran read out the operative portion as follows :"As held by the Constitution Bench of the Apex Court in Sri Venkataramana Devaru [AIR 1985 SC 255] the right protected by Article 25(2)(b) of the Constitution is the right to enter into a temple for the purpose of worship. It does not follow from this that, this right is not absolute and unlimited in character. No member of Hindu public could claim as part of the rights protected under Article 25(2)(b) that a temple must be kept open for worship at all hours of the day and night or that they could perform the services which the archakas alone could perform. Therefore, we find absolutely no merit in the contention of the learned counsel for the petitioners that the conditions stipulated in the notification issued by the Devaswom Commissioner that the applicant for appointment as Melshanthis at Sabarimala Devaswom and Malikappuram Devaswom shall be a Malayali Brahmin would amount to untouchability abolished under Article 17 of the Constitution."The Court did not pronounce on the arguments raised by the petitioners on the interplay between fundamental rights and religious rights since proper pleadings were lacking in the petitions. Also, the Court noted that these issues are awaiting adjudication in the Sabarimala reference pending before the Supreme Court."In the absence of proper pleadings on Articles 25 and 26, we are of the view that there is no need to keep these writ petitions open for the larger bench of the Supreme Court to decide on the issue. However we make it clear that the contentions of both sides in this respect are kept open to be raised in an appropriate proceedings at an appropriate time," the Court said.It stated that the duties of the Travancore Devaswom Board and its members are purely administrative in character to ensure that regular traditional rites and ceremonies according to the practise prevalent in the religious institutions in accordance with recognized usages. It stated that Tantris are responsible for proper conduct of the poojas and religious ceremonies in accordance with shashtras. In terms of eligibility criteria issued by the Devaswom Commissioner for eligibility of Melshanthis, it stated that there is total lack of grounds and cannot be entertained due to lack of pleadings. It stated unless statutory rules are framed by the Travancore Devaswom Board, the matter of appointment of Melsanthis would be governed by guidelines framed by the High Court and Apex Court.BACKGROUND The case of the petitioners were that they were eligible to be appointed as Priests as per the notification issued by the Travancore Devaswom Board except for the condition imposed by the Board that the applicant shall belong to Malayala Brahmin hailing from Kerala. The writ petition stated that the State could not fix a criteria for making appointments to the post of Melshanthi based on caste. The notification was thus challenged on the ground that it is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India.PREVIOUS HEARINGSAdvocate B G Harindranath, appearing for the petitioners contended that a qualified person, who is a Hindu and an idol worshiper, well versed in the mantras for performing poojas should be appointed as the Melshanthi irrespective of caste.Renowned academician and former Director of the National Judicial Academy, Advocate Professor (Dr) Mohan Gopal, who appeared for the petitioners submitted that the criteria that Malayala Brahmins were only eligible to be appointed as Melshantis showcases casteism and untouchability. It was stated that core constitutional values were at stake and that Article 17 of the Constitution not only prohibits but also criminalizes untouchability. On the other hand, Advocate J Sai Deepak submitted that the petition was filed on a false premise that appointment of an individuals as Melsanthis were a secular activity. Referring to Article 26 of the Constitution of India, it was argued that Sabarimala temple is a tantric temple with diverse traditions and peculiar practices. It was thus stated that insisting on selection of Malayala Brahmins alone amongst other Brahmins to the position of Melsanthis is not a caste based reservation, but a religious requirement. Advocate Damodaran Namboothiri had submitted that the petition was not maintainable and has to be dismissed since this is a sampradaya followed since times immemorial. He further argued that...

'Not Untouchability' : Kerala High Court Upholds Condition That Sabarimala Melshanthi(Chief Priest) Must Be Malayali Brahmin

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