Sabarimala #5: Respondents Argue Every Instance of Exclusion Not Akin to Discrimination

July 26th 2018

The second half of the day’s proceedings was commenced by Mr. Sai Deepak on behalf of Respondent No. 18, Mr. K.K. Sabu. The Bench had heard arguments about the special nature of the deity earlier in the day.

He argued that the deity Ayyappa is a juristic person who enjoys fundamental rights under the Constitution. He based this claim on two arguments: first under Hindu religion,  an idol acquires life after installation, and secondly, as the Sabarimala temple pays taxes, the deity has rights under the Constitution.

Mr. Deepak: Celibate status of the deity is protected by Fundamental Rights

Mr. Deepak also submitted that the rights of women under Article 25(1) are subject to right of religious denomination to manage internal affairs under Article 26 (b) of the Indian Constitution. He then adopted a new argument—Lord Ayyappa is a living entity with a Fundamental Right under Article 25(1) to practice ‘Brahmcharya’. This right is violated by the entry of menstruating women inside the temple. Mr. Deepak contended that the deity has the right to privacy under Article 21.  Accordingly, his celibate status needs to be given constitutional protection.

Mr. Deepak then said that core belief of the devotees has to be given due consideration. He reformulated the question before the bench as not between temple v. woman but between women v. women and men v. men. Justice Misra inquired into if it was possible to discriminate if a temple falls under the Public Worship Act, 1991. Mr. Deepak argued that the denominational right is not contingent on public character of a place of worship.

Moving on to the argument of a denominational right, he asserted that it is fundamentally the traditions of the temple that determines a religious denomination. Justice Chandrachud asked whether it was possible to have denominational rights across all religions, since people from all religions visit the temple. Mr. Deepak argued that it is possible since it is a primarily a denomination of Ayyappa devotees  – who can be from different religion.

Mr. Deepak: Identity of a denomination flows from the deity; indicated by spiritual communality

Mr. Deepak then alluded to the unique history of the temple  where devotees have to first visit a mosque before entering the temple. Justice Nariman observed that it has to be a religious denomination. Justice Misra praised the arguments of Mr. Deepak as “impressive”.

Mr. Deepak referred to  Shirur Mutt  case to argue that it is “spiritual communality” that indicates the character of a religious denomination. Justice Misra observed that one may attend to the ceremonies of temple but not belong to the group of Ayyappa devotees. Mr. Deepak argued identity ultimately flows from the deity.

Justice Misra asked if the drafters of the constitution had envisaged rights for the deity under the Indian Constitution. Mr. Deepak responded that it is necessary to construe Article 25 and Article 26 as a social contract between nation state and faith.

Justice Nariman added that an affidavit has been submitted stating that religious practices cannot take place when a woman menstruates. Mr. Deepak argued that menstruation is not impure and persons under pollution are not allowed inside the temple. He submitted that in case of death in a Hindu family, there are prohibitions on entry to a temple which will also apply with regard to entry inside Sabarimala temple. Furthermore, he argued that every instance of exclusion is not necessarily discrimination.

Mr. Deepak: Restriction on entry is a codification of custom, not state made law

Justice Chandrachud acknowledged the problem with the ‘Essential Religious Practices’ test in the court’s jurisprudence. He observed that it forces the court to assess an issue from a theological perspective as opposed to from constitutional values perspective. Mr. Deepak countered that the essentiality test is borne out of the spirit of balance in the Indian Constitution. He submitted that it would also apply with respect to Article 25(1) as opposed to only Article 25(2)(b) of the Indian Constitution.

Justice Nariman enquired about Mr. Raju Ramchandran’s argument that the Devaswom Board was a ‘state’ because it received grants from the state and sought a response to that argument. Mr. Deepak countered that the lands belonging to the temple had been sold off to the state, in lieu of an annual annuity. Accordingly, it was not a state aid strictly speaking.

However, Mr. Deepak acknowledged that Rule 3(b) of the Kerala Hindu Places of Public Worship Rules which prohibits entry of women is an action by the state. He explained that the rule is essentially a codification of the custom prevalent since time immemorial and thus can’t be seen strictly as a state made law.

On the charge of the petitioners that it was a Buddhist religious place at one point of time, Mr. Deepak requested the court that evidence be brought in to prove the claim. Accordingly, he argued that he was willing to bring forth evidence that the custom on restricted entry has been prevalent since time immemorial. With this final argument, Mr. Deepak closed his submissions.

Mr. Kailashnath Pillai, representing the Ayyappa Seva Sangham, argued that prohibition on entry is a pre-constitutional custom which cannot be seen independently of other customs. He urged the Court to not interpret the Indian Constitution merely as a legal text. Instead, Indian realism demands that the court must respect India’s social realities.

Mr. Abhilash M.R., representing All Kerala Brahmin Federation, added that in Kerala, menstrual cloth is given to the devotees since it is a bleeding deity. With this, the day ended and the court will resume hearing the arguments on July 31st 2018.