1. #Sabarimala hearings have commenced. Mr. K. Radhakrishnan appears for Respondent No. 19, the Pandalam Royal family, the family of Lord Ayyappa
2. Mr. Radhakrishnan is analysing Article 25 and submits that the provision has no equal anywhere in the world. #Sabarimala
3. Mr. Radhakrishnan submits that women of child bearing age restrain themselves from entering the Temple, they are giving effect to and respecting the will of the Deity. #Sabarimala
4. Mr. Radhakrishnan explains the significance of the 18 steps at the #Sabarimala Temple.
5. Mr. Radhakrishnan explains the significance of the irumudi which Ayyappa devotees carry on their heads to the #Sabarimala Temple.
6. Mr. Radhakrishnan is reading out extracts relating to Dhyaan Yog from the Bhagavad Gita. #Sabarimala
7. Dr. Radhakrishnan submits that Article 25(2) does not relate to religious aspects of religious institutions, but only secular aspects. #Sabarimala
8. Mr. Radhakrishnan submits that while the impugned rule came into existence only since 1965, the practice has been in existence since the inception of the Temple. #Sabarimala
9. Mr. Radhakrishnan submits that the Petitioner does not represent devotees of Ayyappa, they have no faith in the Deity and their motive is to destroy one facet of the Hindu faith. #Sabarimala
10. Mr. Radhakrishnan submits that the Petition is mischievous since they seem to be targeting only the practices of the Hindu faith. #Sabarimala
11. Mr. Radhakrishnan submits that the Court should not interfere with religious practices which have been practiced for generations togethers. #Sabarimala
12. The CJI asks Mr. Radhakrishnan why Brahma, Vishnu and Mahesh approach Devi Anusuya as infants? The CJI observes that somethings are best not gone into because they require a different level of understanding.
13. The CJI observes that it would help to stick to the legal issues at hand in the case. #Sabarimala
14. Mr. Radhakrishnan concludes his submissions. #Sabarimala
15. Mr. Giri begins submissions for the Thanthri, Respondent No. 4
16. Mr. Giri submits that the Deity should be worshipped in accordance with the Shastras. He relies upon extracts from Tagore law lectures in this regard. #Sabarimala
17. Mr. Giri submits that life is infused in the sculpture by prana pratishtana. That life is kept alive by the preserving the unique character of the Deity. #Sabarimala
18. Mr Giri is walking the Court through the affidavit filed by the Thanthri of the Temple in 2016 to explain the character of the Deity and the rituals followed to preserve the character of the Deity. #Sabarimala
19. Mr Giri argued that only those who have faith in the practices and rituals of the temple deity can claim right to worship under Art 25(1). One cannot use social justice argument to change essential characteristics of a temple
20. Mr. Giri concluded his submissions by stating that characteristic of the deity cannot be changed on the plea of people who are not even asking for right to worship
21. @jsaideepak started his submissions behalf of P4D, Respondent no 18 and Chetana (an NGO associated with NCW)
@jsaideepak 22. @jsaideepak submitted that he will be continuing from the arguments of Adv Parasaran and Adv Giri
@jsaideepak 23. @jsaideepak stated that deity as a legal person is entitled to fundamental rights under article 25 and 21
@jsaideepak 24. @jsaideepak shall continue after lunch break
25. Post lunch, @jsaideepak 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
26. @jsaideepak 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
27. @jsaideepak submitted that therefore a worshipper cannot claim to have better rights than a religious institution citing Article 25(1).#Sabarimala
28. @jsaideepak 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.
29. @jsaideepak 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
30. @jsaideepak 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
31. @jsaideepak 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.
32. @jsaideepak 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
33. @jsaideepak 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
34. @jsaideepak 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
35. @jsaideepak 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.
36. @jsaideepak 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).
37. @jsaideepak 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
38. @jsaideepak 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
39. @jsaideepak 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.
40. @jsaideepak 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.
41. @jsaideepak 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
42. @jsaideepak 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.
43. @jsaideepak submitted that rights of religious institutions under Article 26 were not contingent on the institution having a private character. #Sabarimala
44. @jsaideepak 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
45. At this point, the CJI enquired from @jsaideepak as to how does the #Sabarimala Temple qualify for rights as a denominational Temple under Article 26.
46. In response to the query, @jsaideepak 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
47. The CJI asked @jsaideepak to apply the definition to Ayyappa devotees to establish that they constituted a denomination since there no specific "Ayyappa sect"
48. @jsaideepak 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
49. @jsaideepak 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
50. The CJI then asked @jsaideepak that since Ayyappa devotees come from other faiths, would it still be possible to call them a religious denomination. #Sabarimala
51. To this, @jsaideepak submitted that this is where Hinduism differs from other faiths, especially from the rigid definition of denomination as observed by Christians. #Sabarimala
52. @jsaideepak 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
53. @jsaideepak 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
54. @jsaideepak 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.
55. 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
56. 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
57. To this, @jsaideepak 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
58. @jsaideepak 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
59. @jsaideepak 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
60. Justice Nariman pointed out that the Chishti Dargah is administered entirely by the Chishtiya Sufis which could not be said of the #Sabarimala Temple.
61. @jsaideepak 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
62. @jsaideepak submitted that the #Sabarimala Temple satisfied each of the above requirements and would therefore qualify as a religious denomination. #Sabarimala
63. @jsaideepak 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.
64. @jsaideepak 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
65. @jsaideepak 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
66. @jsaideepak 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.
67. At this stage, the CJI observed that he agrees with the reliance on Article 25(1) to protect the nature of the Deity. @jsaideepak seeks permission to proceed to the next limb of his submissions. #Sabarimala
68. @jsaideepak 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
69. @jsaideepak 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
70. @jsaideepak 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
71. @jsaideepak 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
72. @jsaideepak 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.
73. @jsaideepak 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
@jsaideepak 74. @jsaideepak 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
@jsaideepak 75. @jsaideepak 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
@jsaideepak 76. @jsaideepak submitted that in view of the clear basis of the practice, the use of the term "discrimination" by the Petitioner was extremely loose. #Sabarimala
@jsaideepak 77. @jsaideepak 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.
@jsaideepak 78. @jsaideepak 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
@jsaideepak 79. @jsaideepak 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
@jsaideepak 80. @jsaideepak 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
@jsaideepak 81. @jsaideepak 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
@jsaideepak 82. 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.
@jsaideepak 83. @jsaideepak 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.
@jsaideepak 84. @jsaideepak 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
@jsaideepak 85. because the Petitioner doesn't strike a distinction between diversity and discrimination.
@jsaideepak 86. At this stage, the CJI and Justice Nariman asked @jsaideepak as to how does the Court strike a balance between competing rights under the Constitutional framework. #Sabarimala
@jsaideepak 87. @jsaideepak 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
@jsaideepak 88. @jsaideepak submitted that the essentiality test is a consequence of a social contract between a State governed by the Constitution and religion. #Sabarimala
@jsaideepak 89. 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
@jsaideepak 90. Justice Chandrachud further observed that the essentiality test requires courts to wear the hat of a theologian which it should not be.
@jsaideepak 91. @jsaideepak submitted two-fold responses to these observations of Justice Chandrachud.
@jsaideepak 92. @jsaideepak 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).
@jsaideepak 93. @jsaideepak 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
@jsaideepak 94. @jsaideepak 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.
@jsaideepak 95. @jsaideepak 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
@jsaideepak 96. After this, Justice Nariman and the CJI asked @jsaideepak to proceed to the next limb of his submissions. #Sabarimala
@jsaideepak 97. @jsaideepak 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.
@jsaideepak 98. @jsaideepak 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
@jsaideepak 99. @jsaideepak 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
@jsaideepak 100. @jsaideepak 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.
@jsaideepak 101. 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.
@jsaideepak 102. @jsaideepak, 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.
@jsaideepak 103. @jsaideepak 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
@jsaideepak 104. @jsaideepak 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
@jsaideepak 105. Justice Indu Malhotra asked @jsaideepak for similar examples, to which @jsaideepak pointed out Sections 66/67 of the Kerala Land Reforms Act and Section 6 of the Shree Pandaravaka Lands Act, 1971
@jsaideepak 106. After this, Justice Nariman and the CJI asked @jsaideepak to proceed to the next limb of his submissions. #Sabarimala
@jsaideepak 107. @jsaideepak then proceeded to address the issue of validity of the notification regarding age restriction and the challenge to Rule 3(b).
@jsaideepak 108. @jsaideepak 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
@jsaideepak 109. @jsaideepak submitted that he would nevertheless address challenge to the notification as well as the Rule.
@jsaideepak 110. @jsaideepak 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.
@jsaideepak 111. @jsaideepak 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
@jsaideepak 112. @jsaideepak submitted that since the Petitioner's fundamental challenge was to Rule, it becomes imperative to understand the problem with the challenge
@jsaideepak 113. @jsaideepak 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.
@jsaideepak 114. Therefore, striking down the Rule would have consequences for other Temples as well. In this regard, @jsaideepak submitted that the Rule was in fact a codification of existing customs and practices in Kerala Temples.
@jsaideepak 115. To support this, @jsaideepak 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
@jsaideepak 116. @jsaideepak 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.
@jsaideepak 117. @jsaideepak 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.
@jsaideepak 118. 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.
@jsaideepak 119. To a question from Justice Nariman on the validity of the State passing Rule 3 on the anvils of Article 14 & 15, @jsaideepak submitted that since the Rule was a codification of existing practices, striking down the Rule would lead to abolition of the custom itself.
@jsaideepak 120. @jsaideepak 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
@jsaideepak 121. @jsaideepak 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
@jsaideepak 122. Therefore, @jsaideepak 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.
@jsaideepak 123. At this stage, on enquiry by Justice Indu Malhotra, @jsaideepak pointed out extracts from the Tamil Translation of Bhoothanatha Upakhyanam, the Sthalapuranam of Sabarimala, to prove the celibate nature of the Deity.
@jsaideepak 124. @jsaideepak submitted that the extract from Bhoothanatha Upakhyanam is a statement from the Deity Himself about His eternal vow of Brahmacharya.
@jsaideepak 125. Justice Nariman observed that @jsaideepak's submissions were instructive and thanked him for his assistance to the Court.
@jsaideepak 126. THE CJI observed that not only was it instructive but was also an impressive articulation with both rhetoric and logic.
@jsaideepak 127. The Bench asked @jsaideepak if he had anything more to submit. @jsaideepak 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"
@jsaideepak 128. Finally, @jsaideepak thanked the Bench for the opportunity and for a patient hearing. @jsaideepak concluded his submissions.
@jsaideepak 129. After @jsaideepak, 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 @jsaideepak and wanted to build on his submissions.
@jsaideepak 130. Shri Kailashanatha Pillai too argued on preserving the celibate nature of the Deity. He was followed by Counsels for two other intervenors. After that, the matter was adjourned to July 31,2018 for one more intervenor and rejoinder submissions by the Petitioner. #Sabarimala
131. During the course of his submissions, @jsaideepak 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
132. Which would be the effect of ignoring the celibate character of the Deity or to claim that the Temple is of Buddhist origins. #Sabarimala
133. Please find the PDF copy of our written submissions made in #sabarimala case below: google.co.in/url?sa=t&sourc…
134. P.S. @jsaideepak also submitted that even if the Kerala State Government or the Temple Board agree to lift the restriction, devotees have the right to oppose it under Article 25(1) as recognised by several judgments of the Supreme Court. #Sabarimala
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