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.
Radhhakrishnan says will of God requires “tapasya” that is 41 days of penance in case of Sabrimala temple.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Bench refuses to look into some articles regarding physiology of women. Radhhakrishnan wants the court to see them as to why can’t women do 41 days of penance.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
CJI says court will go by the language of the Constitution nothing else.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Essence of Hindu religion is worship of idols says Giri.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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 says that Thantrik is a de facto guardian of the deity.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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- it is because of Brahmacharya character of deity, restrictions on the entry of women is there. And this character is core to Sabrimala temple.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Sai Deepak says deity has right under 21 and 25(1) of the Constitution. He is refering to some privy council Judgments.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Lord Ayyapa is a juristic person. He has right to preserve his brahmacharya character. He has right to privacy says Sai Deepak.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Public character under Article 25(2) doesn’t dilute denominational right, says Sai Deepak.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
CJI says though submissions by Sai Deepak are persuasive, court can’t be oblivious of the fact that there is an exclusion of a class of women on physiological ground.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Core of issue is whether constitution overrides all other aspects. If yes nobody can exclude a class of women from visiting temple says D Y Chandrachud J.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Sai Deepak says striking down the Rule 3(b) is akin to striking down of the custom itself
— The Leaflet (@TheLeaflet_in) July 26, 2018
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- we have a state government which is hiding & changing stand.
— The Leaflet (@TheLeaflet_in) July 26, 2018
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.
Pillai concludes. Another lawyer is making argument that Writ petition isn’t maintenable under Article 32. Kerala HC order has attained finality. He too concludes. CJI gives permission to other Advocate to argue his point.
— The Leaflet (@TheLeaflet_in) July 26, 2018
With this the Bench rose for the day, with arguments to resume next week.
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