Karan Kumar

| @CouldBeKaran | July 26,2018

Senior Advocate K Radhakrishnan commenced arguments on behalf of the Pandalam Royal Family, the Respondents who established the Sabarimala Temple in front of a five-judge constitutional bench of the Supreme Court.

Stating that morality is inbuilt within Article 25(1), he claimed that it needs to be suffixed with “public”, to maintain social harmony. Addressing the 41-day penance requirement, he called it God’s will, and equated Lord Ayyapa and Brahmacharya. He further stated that the Court was not paying heed to the majority which performs the 41-day penance.

This was followed by the bench refusing to look at articles presented by Radhakrishnan about women’s physiology to substantiate his claims of women being unable to perform the requisite 41-day penance.

Radhakrishnan then claimed religion to be a bundle containing both secular and non-secular aspects, and requested the Court to not tinker with practices, stressing upon the end for the Court to give importance to the nature of the temple’s deity. This was met by an observation from CJI Dipak Misra who said that the Court will only go by the Constitution’s language and nothing else.

Radhakrishnan was followed by Senior Advocate V Giri who argued on behalf of the the Tantrik of Sabarimala Temple. Giri commenced by claiming idol worship to be the essence of Hindu religion. Further, he stated that each deity had a distinct character and customs, rituals and practices followed were unique to the Temple.

Claiming the Tantrik to be the de facto guardian of the deity, Giri cited the Tantrik stating that it would be prudent on the part of women to hold themselves back from the deity. He also argued that the Tanatrik’s word was final with regards to the rituals and practices followed within the Temple. He also questioned the correctness of the petition’s pleadings.

Giri then stated that multiple generations of women had accepted the custom of not going to the Temple. This custom is at the core of the Temple as it is based upon the deity’s celibate character. Citing the Mahendra Nath case, Giri concluded his arguments.

Giri was followed by Advocate Sai Deepak who argued that the deity had rights under Articles 21 and 25(1), and stated that the will of the deity to remain a “brahmachari” needs to be respected.

Post lunch, Deepak argued that Lord Ayyapa was a juristic person with the rights to privacy and to preserve his celibate character. Claiming the case at hand was not a men-versus-women issue, he stated that women had respected the tradition in question.

He then argued that public character under Article 25(2) does not dilute denominational rights, and claimed that Ayyapa devotees constitute a religious denomination. He then read out passages from the Shirur Mutt verdict to establish what constitutes a religious denomination.

Deepak’s submissions were met with remarks from the bench, with the CJI asking him to identify the groups of Ayyapa and whether the drafters of the Constitution thought of extending the privileges of Article 21 to a deity. Justice Nariman then called attention to the affidavit filed the Tantrik which stated that women cannot observe 41 days of penance due to menstruation. Sai Deepak replied by not equating menstruation with impurity.

Justice Nariman then held that the question at hand pertained to a balancing of different rights. This was followed by the CJI stating that though Deepak’s submissions were persuasive, the Court could not remain oblivious to the exclusion of a class of women on physiological grounds.

The aforementioned judges were followed by Justice Chandrachud who stated that the core of the issue was the question of whether the Constitution overrode all other aspects. If the answer was in the affirmative, then nobody can exclude a class of women from visiting the Temple. He then proceeded to question the essentiality test.

Justice Nariman then asked Deepak about the applicability of Articles 14 & 15(1) to the facts of the case at hand, and stated that a “rule” is a State action. In response, Deepak contended them to be a codification of customs, hence striking down of the impugned Rule would be akin to striking down the custom itself. Urging the Court to call for evidence from both sides regarding the existence of a custom, he concluded his arguments.

Deepak was followed by Senior Advocate Kailasanatha Pillai arguing on behalf of the Ayappa Seva Sangham. Claiming the custom to be pre-constitutional, he stated that it cannot be viewed in isolation. Accusing the State government of hiding and changing its stand, he argued that pure theory of law was not applicable in the Indian context, before concluding.

Pillai was followed by two other advocates, with one contending the petition’s maintainability under Article 32, and the other claiming that revenue from the Sabarimala Temple going towards the maintenance of other temples.

With this the Bench rose for the day, with arguments to resume next week.

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