25 Feb 2023 4:14 PM GMT
The Kerala High Court on Saturday, in a special sitting, continued to hear a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples. A Division Bench consisting of Justice Anil K. Narendran and Justice P G Ajith Kumar has been hearing...
The Kerala High Court on Saturday, in a special sitting, continued to hear a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples.
A Division Bench consisting of Justice Anil K. Narendran and Justice P G Ajith Kumar has been hearing petitions challenging the notification 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.
During the hearing today, Adv J Sai Deepak, appearing for the People for Dharma Trust, the Additional 10th Respondent in one of the writ petitions, argued that the petition is not vertically maintainable as against the state, as the "flawed premise" of the petition is that the appointment of an individual to the position of melshanti is a secular activity.
“The act of appointment is secular, but the considerations that go into the appointment are not secular, they are patently religious and they are patently unsecular but not anti secular”
He also contended that is fundamentally incorrect to say that the temple is fully controlled by the state of Kerala, or is an extension of the state, which is the basis of the petition. Such a presumption goes against the express provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950, according to the counsel.
While arguing that the religious traditions of the Sabarimala Temple need to be preserved and protected, the counsel stated that any assertion of any right under Articles Art. 14 or Art 21 at the expense of the Articles 25 and 26 affects the deity, the institution, and the devotees. “No class of individuals can claim rights better than the community itself”, this was also at the heart of the Sabarimala temple entry issue he pointed out.
Referring to Article 26, the counsel pointed out that every temple that is a tantric temple, has its own diverse traditions. Article 26 is critical because it is meant to protect these diverse traditions.
“no other religion requires Art. 26 as much as the Hindu religion, or Hindu Dharma in that sense. It is an ocean that has several seas and lakes and rivers within it, each of which needs to be protected.”
The counsel further submitted that the Sabarimala Temple has very peculiar practices and “when this particular temple is considered it needs to be appreciated that this is a class in itself, even within the tantric denomination, therefore there are rights of Article 26 here.”.
The counsel argued that insisting on selection of Malayala brahmins for the post is not a caste based reservation. It is only a part of the requirements “that go into the preservation of the spiritual energy of the place”, he stated.
“There is no caste consideration involved here, it doesn’t even say Brahmins from anywhere. That would’ve been a caste based consideration directly. It doesn’t say Brahmins from anywhere. Even the so called purest of Chitambaram Brahmins cannot apply, Uttarakhandi Brahmins cannot apply, Kashmiri Brahmins cannot apply”.
Adv Sai Deepak stated that there are many temples in India where the priests are non-Brahmins, which is the nature of the practice there. In such practices caste has no role he argued. “If this particular petition were to succeed, it translates to weaponization of the noble principles of affirmative action, which is for a very different purpose altogether”.
The counsel also submitted that the application of the essential religious practice test is in a state of limbo currently as the question of whether the court can interfere in such matters is being revisited by the Supreme Court. According to Adv Sai Deepak, the questions that have been identified for reference in the order of the Supreme Court on 10 Feb 2020 in Sabarimala, directly impacts the facts of the case in the matter. Therefore, he submitted that the court defer its decision to a later point, after the decision of the Supreme Court. There is currently an introspection by the apex court on how much courts can interfere in the matters of religion, Adv Sai Deepak pointed out.
The court cannot interfere with a core religious element such as the eligibility of the Temple priest, he argued. “Any attempt through a judicial intervention to change this would amount to rewriting the history of the temple. That cannot be permitted. It has massive ramifications for everyone.”
The petition is not horizontally maintainable either according to the counsel as the stakeholders such as the Pandalam royal family and the tantri of the Temple have not been impleaded. They are bound by the traditions of the temple and have high stakes in the matter and hence the petition is not maintainable for non-joinder of necessary parties, he averred.
“Tomorrow if a person born in a Muslim family says I believe in this deity, I am well versed in the vedas, I know Sanskrit, I know tantra, make me a priest in this temple. Why can’t they make that argument? After all the temple is open to everyone.”
“Tomorrow a Russian can apply. What if he becomes an Indian citizen and says I wish to become a priest here. This is not beyond the realm of possibility because that is the consequence of this petition. It opens the flood gates for everyone.” He continued.
The counsel also argued that the Travancore Devasom Board and the Sabarimala Temple when it comes to matters of religion cannot be said to be state under Article 12 and hence Article 14 cannot be invoked against it in this context.
“to reduce the religious prescriptions of the post of melshanti to secular activity is to completely miss the point. If you believe that such a central aspect of the temple is a secular activity, then what remains religious of a religious temple? A temple is not a secular institution. Let us not beat around the bush on this point.It is a religious institution, every consideration is a religious institution. Crowd management is not religious, payment of salaries is not religious. Those are different aspects. But this is going into the heart of the identity of the temple and if I may say so, this petition is much more serious and graver in consequences than the temple entry issue.”
The matter has been posted for further hearing on 1st April at 10:30 AM.
Case Title: Vishnunarayanan v. The Secretary and Connected Cases
Reports of previous hearings :
'To Say That Sabarimala Melshanthi Can Only Be A Malayala Brahmin Is Practice Of Untouchability' : Mohan Gopal Argues Before Kerala High Court
Malayala Brahmin Appointment As Sabarimala Melshanthi Part Of Tradition, Court Should Not Interfere : Intervenors Tell Kerala HC