Brilliant submissions by Advocate Shri J Saideepak Aiyer before the Hon'ble Supreme Court in Sabarimala matter.
(Source :People for Dharma @People4Dharma)
1. J Sai Deepak started his submissions behalf of People for Dharma, Respondent no 18 and Chetana (an NGO associated with NCW)
2. JSD submitted that he will be continuing from the arguments of Adv Parasaran and Adv Giri
3. JSD stated that deity as a legal person is entitled to fundamental rights under article 25 and 21
4. JSD shall continue after lunch break
5. Post lunch, JSD recapped his pre-lunch submissions. He submitted that the rights of any worshipper under Article 25(1) is subject to other provisions of Part III of the Constitution as expressly provided by the language of Article 25(1). #Sabarimala
6. JSD submitted that it was therefore evident from the language of Article 25(1) that rights under the said Article are subject to the rights of religious institutions under Article 26, among other things. #Sabarimala
7. JSD submitted that therefore a worshipper cannot claim to have better rights than a religious institution citing Article 25(1).#Sabarimala
8. JSD then submitted that while Petitioner has been asserting rights under Article 25 (1), Temple has asserting rights under Article 26 & other devotees are asserting rights under Article 25(1) none has thus far mentioned the Deity's rights under Article 25 (1),21 & 26.
9. JSD submitted that judgements of the Privy Council and several judgements of the Supreme Court have recognised that the Deity has a juristic character and is therefore a legal person. #Sabarimala
10. JSD placed reliance on the 1925 judgement in Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) 27 BomLR 1064, Yogendra Kumar v Commissioner of Income Tax 1969 AIR 1089
11. JSD also placed reliance on Ram Jankijee Deities v State of Bihar 1999 AIR SCW 1878 to prove that the Deity at #Sabarimala has legal personage.
12. JSD submitted that applying the spirit of the Boston Tea Party, if the Deity's property can be taxed, it can also enjoy rights under Article 25(1),21 & 26. #Sabarimala
13. JSD submitted that the Deity has rights to practice and preserve its Dharma, including its vow of Naishtika Brahmacharya under Article 25(1) and has the right to expect the privacy of that character under Article 21. #Sabarimala
14. JSD submitted that it is the vow of Deity that is implemented as the tradition of the #Sabarimala Temple, which therefore brings into the picture Article 26(b).#Sabarimala
15. JSD submitted that when all these rights of the Deity are stacked on the one hand along with the rights of devotees, men & women who observe the tradition, the Petitioner surely cannot claim that its rights under Article 25(1) must prevail over everyone else's rights.
16. JSD submitted that even without having to resort to Article 26(b), as submitted by Shri Parasaran, it is possible to establish based solely on Article 25(1) that Petitioner does not have a case under Article 25(1).
17. JSD submitted that legally a worshipper cannot claim to have greater rights to worship than the rights of the Deity who he or she claims to worship and whose traditions he or she has no respect for. #Sabarimala
18. JSD submitted that the issue in Petition was not about Temple v women or men or women but men v men and women v women. #Sabarimala
19. JSD submitted that if the Petitioner's contentions were allowed, it would be possible for men who don't observe the 41-day vow to also claim right of entry into the #Sabarimala Temple citing Article 25(1), similar to the Petitioner.
20. JSD submitted that if the Petitioner's contentions were accepted, a Hindu might say that he wants to offer chicken to Lord Ganesha citing Article 25(1), a Muslim may want to offer non-Halal food as Tabarrukh, a Sikh may want to offer something which is prohibited.
21. JSD wondered where would such assertions end and what would they lead to if not erosion of the practices and traditions of places of worship. #Sabarimala
22. JSD then proceeded to address the issue of Public character of the #Sabarimala Temple. He submitted that the public character of the Temple only reflects its access to the public, but does not in any way take away its denominational identity and its rights Article 26.
23. JSD submitted that rights of religious institutions under Article 26 were not contingent on the institution having a private character. #Sabarimala
24. JSD submitted that infact the right to preserve the denominational identity is available to the religious institution regardless of whether it is a public institution or a private institution. #Sabarimala
25. At this point, the CJI enquired from JSD as to how does the #Sabarimala Temple qualify for rights as a denominational Temple under Article 26.
26. In response to the query, JSD placed reliance upon the definition of a religious denomination as distilled by the 7-judge Bench of the Supreme Court in the Shirur Mutt case. #Sabarimala
27. The CJI asked JSD to apply the definition to Ayyappa devotees to establish that they constituted a denomination since there no specific "Ayyappa sect"
28. JSD pointed out that during the course of hearings in the matter, the CJI himself had observed that the status of a religious denomination is not bestowed by the Court but is something that comes from within the community itself. #Sabarimala
29. JSD submitted that applying the same logic, since Ayyappa devotees share a common faith in Lord Ayyappa, respect the practices associated with the worship of Lord Ayyappa, they would qualify as a religious denomination. #Sabarimala
30. The CJI then asked JSD that since Ayyappa devotees come from other faiths, would it still be possible to call them a religious denomination. #Sabarimala
31. To this, JSD submitted that this is where Hinduism differs from other faiths, especially from the rigid definition of denomination as observed by Christians. #Sabarimala
32. JSD submitted that the definition or understanding of religious denomination cannot be applied uniformly to different faiths and certainly not by applying the Anglican/Christian meaning to Hinduism. #Sabarimala
33. JSD submitted that definition of religious denomination as far as Hinduism is concerned must be applied from the standpoint of whether the devotee puts faith in the Deity, and the beliefs and practices associated with the Deity, regardless of the background of devotee
34. JSD submitted that those who observed the practices associated with the worship of Lord Ayyappa would constitute a denomination regardless of the background they come from.
35. The CJI then asked if the Chief Priests of the Temple were chosen from a certain backdrop or sect in order for the Temple to have a denominational character. #Sabarimala
36. The CJI further enquired if the administration of the Temple is in the hands of a particular sect for it to have a denominational character. #Sabarimala
37. To this, JSD responded that the Chief Priests follow a specific tradition which is informed by the nature of the Deity and the attendant restrictions. This lends the character of a denomination to the Temple #Sabarimala
38. JSD further submitted that denominational character of a Temple is certainly not undermined or diluted by fact that members outside denomination are employed in administration of the Temple since that would mean taking a narrow approach to denominational institutions
39. JSD further submitted that if such a rigid test were to be applied, even the Chishti Dargah in Ajmer wouldn't be entitled to treatment as a denominational institution. #Sabarimala
40. Justice Nariman pointed out that the Chishti Dargah is administered entirely by the Chishtiya Sufis which could not be said of the #Sabarimala Temple.
41. JSD submitted that test of whether a group falls within definition of religious denomination is whether it has specifically identified tenets which gives birth to practices & traditions which are informed by & consistent with tenets & which affects its administration
42. JSD submitted that the #Sabarimala Temple satisfied each of the above requirements and would therefore qualify as a religious denomination. #Sabarimala
43. JSD then pointed out that to compare the #Sabarimala Temple with any other institution to vest it with or to deny it a denominational identity would not be correct given the peculiar history of the Temple.
44. JSD pointed out to the Court that what the Court had not been informed thus far was the existence of the Vavar tomb which is related to the history of #Sabarimala
45. JSD submitted that if rigid test of religious denomination suggested by Justice Nariman were to be applied mere presence of Vavar in history of #Sabarimala would disentitle it frm being treated as religious denomination thereby ignoring diversity in Hindu tradition
46. JSD submitted that in any case, even without Article 26, it is possible to protect and preserve the nature of the Deity through Article 25(1) which obviates the need to fall back on Article 26.
47. At this stage, the CJI observed that he agrees with the reliance on Article 25(1) to protect the nature of the Deity. JSD seeks permission to proceed to the next limb of his submissions. #Sabarimala
48. JSD submitted that while the Petition has given the impression that discrimination based on menstruation is the very basis and object of the restriction placed on women, it is a distortion of the actual position. #Sabarimala
49. JSD submitted that the primary object of the religious practice was not exclusion of menstruating women. The primary object was to preserve the celibate form of the Deity. #Sabarimala
50. JSD submitted that the observance of the vow of Naishtika Brahmacharya itself translates to imposition of a few conditions, one of which is to avoid contact with the opposite gender. #Sabarimala
51. JSD submitted that the rules proscribing contact with the opposite gender applies to a Brahmachari as well as a Brahmacharini. This can't be given the hue of misogyny or misandry. #Sabarimala
52. JSD submitted that, as observed by Justice Nariman himself during Dr. Singhvi's arguments, nowhere has the Temple or the Thanthri taken the view that the restriction is based on "impurity of menstruation", unlike the Haji Ali Dargah case.
53. JSD pointed out that the trustees of the Haji Ali Dargah had taken the position that the presence of a menstruating woman near the Dargah of a Muslim Saint was sinful in Islam. No such position has been taken by the Temple or the Thanthri. #Sabarimala
54. JSD submitted that the Petitioner chooses to distort the very basis and object of the practice and expects the Temple to answer for a position it has never held, which is unfair to the Temple. #Sabarimala
55. JSD pointed out that the practice has two sides,where one flows from the other. Preservation of the Brahmachari character of the Deity is the primary object from which the restriction on women flows. #Sabarimala
56. JSD submitted that in view of the clear basis of the practice, the use of the term "discrimination" by the Petitioner was extremely loose. #Sabarimala
57. JSD submitted that the term discrimination could be used only if the entire focus of Temple and its practices was to keep "all women" out without there being a nexus to Deity's character.
58. JSD submitted that all exclusion is not discrimination especially when the object of the rule has nothing to do with misogyny or impurity of menstruation. #Sabarimala
59. JSD submitted that if the Petitioner's approach to discrimination were to be accepted, it would result in destruction of diversity of religious traditions in India. #Sabarimala
60. JSD pointed out the existence of prominent Ayyappa Temples in Kerala where the Deity is not a celibate and where there is no restriction on entry of women. Clearly, this was proof of diversity and not discrimination. #Sabarimala
61. JSD also pointed out the example of the Chengannur Mahadeva Temple as well as the Panchubarahi Temple in Odisha where 5 Dalit priestesses worship the Deity
62. and no man has been allowed to enter in the last 400 years except this year when men where needed to shift the idols in view of the rising level of the sea.
63. JSD pointed out that the prayer sought by the Petitioner, as noted by the Court in its order of reference, clearly called for law to be laid down on gender equality for all places of worship, which would require the Court to interfere with every place of worship.
64. JSD submitted that if the blunt approach of the Petitioner to gender equality and discrimination were applied across the board, not one place of worship would be able to preserve its practices
65. because the Petitioner doesn't strike a distinction between diversity and discrimination.
66. At this stage, the CJI and Justice Nariman asked JSD as to how does the Court strike a balance between competing rights under the Constitutional framework. #Sabarimala
67. JSD submitted that balance is indeed the guiding principle and the churn for balance between competing rights led to the formulation of the essential and integral part of the religious practice test, in short the essentiality test. #Sabarimala
68. JSD submitted that the essentiality test is a consequence of a social contract between a State governed by the Constitution and religion. #Sabarimala
69. At this stage, Justice Chandrachud observed that the essentiality test applied only to Article 25(2)(a) in context of HRCE legislations and to an analysis of competing rights under Article 25(1).#Sabarimala
70. Justice Chandrachud further observed that the essentiality test requires courts to wear the hat of a theologian which it should not be.
71. JSD submitted two-fold responses to these observations of Justice Chandrachud.
72. JSD firstly submitted that if the Court ought not to wear the hat of the theologian at all, it ought not to for both Articles 25(1) & 25(2)(a).
73. JSD also pointed that if Justice Chandrachud's position were to be accepted, the entire catena of judgments, including of a seven Judge Bench, would need to be reversed by a larger Bench. #Sabarimala
74. JSD also pointed that the Court had been wearing the hat of a theologian in every case which concerns a religious practice, most recently the Haji Ali Dargah case and the Triple Talaq case, both of which required the Court to go through the Quran and the Hadiths.
75. JSD secondly pointed out that the essentiality test was equally applicable, useful and relevant to an analysis of competing rights under Article 25(1) since the essentiality test strikes the right balance between constitutional morality and religion. #Sabarimalacase
76. After this, Justice Nariman and the CJI asked JSD to proceed to the next limb of his submissions. #Sabarimala
77. JSD then proceeded to submit the position with respect to Article 290-A on the issue of whether the #Sabarimala Temple was being maintained out of the funds drawn from the Consolidated Fund of India.
78. JSD placed before the Court the history behind Article 290-A, which he traced to Merger Covenants between the Indian Union and the Princely State of Travancore. #Sabarimala
79. JSD pointed out to the Court that the Indian State had inherited the obligations and liabilities of the erstwhile Princely State of Travancore, including the obligation to pay annuities to Devaswom Boards for lands taken over by the Princely State
80. JSD placed before the Court 1922 proclamation of the erstwhile Maharaja of Travancore where in return for taking over the lands of the Temples in Travancore, he had declared to pay an annuity of INR 16 lakhs for the running of the Temples in the Travancore Devaswom.
81. In other words, the Travancore State was paying annuities in lieu of Temple lands it had taken over. This obligation was inherited by the Indian State since it took over the Temple lands from the Princely State.
82. JSD, therefore, pointed out that it was incorrect to give the impression that the Travancore Devaswom Board and the Sabarimala Temple were being run by State funds and therefore were State bodies. were being run by State funds and therefore were State bodies.
83. JSD further submitted that the Petitioner's interpretation of Article 290-A was not only based on ignorance of the true history of the provision but also contrary to Article 27
84. JSD pointed out Article 27 prohibits use of tax payer money for the promotion of a certain faith. Therefore 290A couldn't have gone directly against Article 27. Clearly, the money being given to the Devaswom Board was its right and not state largesse
85. Justice Indu Malhotra asked JSD for similar examples, to which JSD pointed out Sections 66/67 of the Kerala Land Reforms Act and Section 6 of the Shree Pandaravaka Lands Act, 1971
86. After this, Justice Nariman and the CJI asked JSD to proceed to the next limb of his submissions. #Sabarimala
87. JSD then proceeded to address the issue of validity of the notification regarding age restriction and the challenge to Rule 3(b).
88. JSD pointed out that the Petitioner had first of all failed to challenge the notification in their Petition and had challenged only Rule 3(b) of the Kerala Places of Public Worship Rules, 1965 which restricts entry of women in accordance with prevalent customs
89. JSD submitted that he would nevertheless address challenge to the notification as well as the Rule.
90. JSD submitted that while he agreed with Justice Nariman's observations earlier in the hearings regarding the arbitrariness of the age prescription in the notification, it would not affect the validity of the Rule in any manner.
91. JSD submitted that the if the challenge is only to the notification, it can simply be reworded to make it consistent with the Rule and with the object of restriction of women with reproductive capabilities instead of prescribing an age limit
92. JSD submitted that since the Petitioner's fundamental challenge was to Rule, it becomes imperative to understand the problem with the challenge
93. JSD submitted that the Rule regarding entry of women in accordance with custom was first of all applicable to all Temples which fall under the Kerala Places of Public Worship Act 1965 and not just the #Sabarimala Temple.
94. Therefore, striking down the Rule would have consequences for other Temples as well. In this regard, JSD submitted that the Rule was in fact a codification of existing customs and practices in Kerala Temples.
95. To support this, JSD drew attention to Rule 3(c) which the Petitioner had not challenged, which relates to prevention of entry of ppl on account of pollution caused by birth or death
96. JSD submitted that if the challenge to Rule 3(b) was allowed, nothing would stop the Petitioner from seeking to strike down Rule 3(c) as well on the grounds that the said provision too was discriminatory.
97. JSD pointed out that restrictions associated with birth and death too were part of the existing customs and Petitioner's blunt approach to discrimination would see discrimination even in such cases without any regard to custom.
98. Further, since the Petitioner had failed to demonstrate through clear evidence that Rule 3(b) was based on misogyny, no interference by the Court was warranted.
99. To a question from Justice Nariman on the validity of the State passing Rule 3 on the anvils of Article 14 & 15, JSD submitted that since the Rule was a codification of existing practices, striking down the Rule would lead to abolition of the custom itself.
100. JSD submitted that in order for the Court to strike down the Rule and thereby abolish the custom, it must first satisfy itself that Rule is indeed based on misogyny, on which no evidence has been led by the Petitioner thus far except for an assertion
101. JSD submitted that while the Respondents had led a mountain of evidence to show that the practice is based on the celibate nature of the Deity, no evidence had been led by the Petitioner to prove misogyny as the basis except for unwarranted conclusions
102. Therefore, JSD submitted that the best way forward to call the bluff of both parties is to direct them to lead evidence on the issue so that it can be thrashed out objectively.
103. At this stage, on enquiry by Justice Indu Malhotra, JSD pointed out extracts from the Tamil Translation of Bhoothanatha Upakhyanam, the Sthalapuranam of Sabarimala, to prove the celibate nature of the Deity.
104. JSD submitted that the extract from Bhoothanatha Upakhyanam is a statement from the Deity Himself about His eternal vow of Brahmacharya.
105. Justice Nariman observed that JSD's submissions were instructive and thanked him for his assistance to the Court.
106. THE CJI observed that not only was it instructive but was also an impressive articulation with both rhetoric and logic.
107. The Bench asked JSD if he had anything more to submit. JSD submitted that the issues in the matter could be better resolved through evidence and through reference to a 15th century treatise on the practices of Kerala Temples by the name "Tantrasamuccaya"
108. During the course of his submissions, JSD also placed reliance on Sections 3 & 4 of the Places of Worship (Special Provisions) Act, 1991 to contend that legally the religious character or denomination of the Temple cannot be changed #sabarimala
109. Which would be the effect of ignoring the celibate character of the Deity or to claim that the Temple is of Buddhist origins. #Sabarimala
110. Finally, JSD thanked the Bench for the opportunity and for a patient hearing. JSD concluded his submissions.
111. After JSD, Shri Kailashanatha Pillai, Senior Advocate for other intervenors commenced his submissions with the statement that he himself had learned a lot from the submissions of J Saideepak and wanted to build on his submissions.
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To day is Aadi Perruku and also Aadi 3rd Friday. My best Wishes and Blessings to everyone of you Blessings GS
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