Tuesday, September 27, 2022

Leave the Decision to the Gods?

In 2002, the apex court decided that in almost all temples, “non-Brahmins” could be considered as head priests. But even the judiciary has to accept that all “religious” practices should not be viewed from the prism of a constitutional right.

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By Narasimhan Vijayaraghavan

The Sabarimala Temple is again in the news. Why is it on the table again and again for all the “wrong” reasons, wondered a practising advocate, a friend who has been religiously visiting Sabarimala for the past 25 years. But the moot point is—“Wrong” from whose perspective, and “wrong” from which point of view.

Non-Brahmin priests who had applied for the post of Sabarimala melshanthi (head priest) this year found their applications rejected. The Travancore Devaswom Board (TDB) had called for applications “for the appointment of priests in the hill shrine”, the primary condition being that the applicant must be a “Malayala Brahmin”.

A careful reading of the practices, on both the factual and legal plane, in this territory would suggest that even in Kerala, temples other than the Sabarimala shrine have accommodated “non-Brahmin priests” in the wake of the judgment of Supreme Court in N Adityan vs TDB dated Oct, 3, 2002.

The question then posed was—whether the appointment of a person who is not a Malayala Brahmin as “Santhikaran” or poojari (priest) of the temple in question—Kongorpilly Neerikode Siva Temple at Alangad Village in Ernakulam district, Kerala—was violative of the constitutional and statutory rights of the appellant, a Malayala Brahmin. The main grievance and ground of challenge in the writ petition filed in the Kerala High Court was that the appointment of a non-Brahmin Santhikaran for the temple offended and violated the long-followed mandatory custom and usage of having only Malayala Brahmins for performing poojas in temples and the right of the worshippers to practise and profess their religion and manage their religious affairs as secured under Articles 25 and 26 of the Constitution.

The Thanthri of the Temple was stated to be the final arbiter in such matters and the appointment was not only without his consultation or approval but against his wish too. The issue was escalated to a full bench of the Kerala High Court in good time. And it travelled to the Supreme Court, as the “Malayala Brahmin” lost. And the apex court affirmed the Kerala High Court by saying: “………as long any one well versed and properly trained and qualified to perform the puja in a manner conducive and appropriate to the worship of the particular deity, is appointed as Santhikaran dehors his pedigree based on caste, no valid or legally justifiable grievance can be made in a Court of Law. There has been no proper plea or sufficient proof also in this case of any specific custom or usage specially created by the Founder of the Temple or those who have the exclusive right to administer the affairs religious or secular of the Temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialized form of worship peculiar to such denomination or to its credit.

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“In the present case, it is on record and to which we have also made specific reference to the details of facts showing that an Institution has been started to impart training to students joining the Institution in all relevant Vedic texts, rites, religious observances and modes of worship by engaging reputed scholars and Thanthris and the students, who ultimately pass through the tests, are being initiated by performing the investiture of sacred thread and gayatri. That apart, even among such qualified persons, selections based upon merit are made by the Committee, which includes among other scholars a reputed Thanthri also and the quality of candidate as well as the eligibility to perform the rites, religious observances and modes of worship are once again tested before appointment. While that be the position to insist that the person concerned should be a member of a particular caste born of particular parents of his caste can neither be said to be an insistence upon an essential religious practice, rite, ritual, observance or mode of worship nor any proper or sufficient basis for asserting such a claim has been made out either on facts or in law, in the case before us, also.”

Refusing to place reliance on Shirur Mutt or Seshammal verdicts upholding the full bench of Kerala High Court, the Supreme Court ruled, “any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the country.”

As of October, 2002, all temples, sans say Sabarimala, Guruvayur and Padmanabhaswamy, have come within the imprimatur of the Supreme Court in Adityan’s case, and as such “non-Brahmins” are also in the zone of consideration. A careful scrutiny would tell us that the recent verdict of the apex court in Sri Padmanabhaswamy Temple and pending litigation in Sabarimala temple, entry issue (after the review petition gave it a new lease of life) may have a huge bearing. The Adityan verdict may come under the scanner all over again.

The multiple issues in the Sabarimala Shrine entry case stand re-opened. The reasons and findings in Adityan would be confined to Kongorpilly Neerikode Siva Temple at Alangad Village in Ernakulam alone. In fact, the orders of the Supreme Court in Adityan case are eminently distinguishable. As to whether only “Malayala Brahmin” priests were in place in the Sabarimala Shrine from time immemorial, including pre- Constitution days, and whether “eligibility” vis a vis community was an “essential religious practice” in vogue, may take this challenge in a different direction. There can be no inferences drawn that Adityan verdict covered the field. It did not and does not is my submission.

Coming to the merits of the challenge itself, practical, pragmatic, logical and legal sense would suggest that it may be a fit case for “proper pleadings and factual position” to be brought on record, unlike in Adityan. And oral/documentary evidence may need to be entertained to give a clinching verdict on the factual matrix of “religious and essential practice”. Writ jurisdiction is not a bar for it.

And more importantly, whether the issue flagged of  was “secular” in nature or it must come within the ambit of chief thantri of the Sabarimala shrine may need to be addressed. This is a tricky question to resolve and would depend on whether the “existence of the religious practices was pre constitutional and time immemorial and an ‘essential’ one relatable to the shrine”.

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The decision in the Sri Padmanabhaswamy Temple giving primacy to the chief thantri in “all rituals and religious practices” may come to the fore in the challenge to the TDB notification. Read this critical clincher in Padmanabhaswamy case: “c) Ensure that all rituals and religious practices are performed in accordance with the instructions and guidance of the Chief Thantri of the Temple and according to custom and traditions. In temporal matters, the Committees shall be guided by the advice given by the Chief Thanthri. The designation of the Chief Thanthri shall be done in accordance with the customs and traditions”.
If one is to take a call, one is willing to stick one’s neck out to suggest that the challenge should not be viewed from a “communal angle”. It must be seen as to whether the holiest of holy Sabarimala Temple and its unique position to protect its “religious practices” were dictated to and determined by its chief thantri as its sole repository.
Truth is that even the judiciary may well have to accept that not every “ritual or religious” practice can or should be viewed from the prism of a constitutional right. The unwritten “Constitution” of Sabarimala Shrine, with the chief thantri as the “final arbiter” and not the secular Constitution with  the Supreme Court, as its final arbiter, would surely not be unconstitutional.

As for the final verdict: A few priests who chose to remain anonymous, for obvious reasons, were quoted saying: “It is Sabarimala today. Tomorrow, there will be clamour to appoint non-Brahmins as priests in Guruvayur and Sree Padmanabhaswamy Temple where priests are appointed only from certain families.” They also offered a solution. “Let there be a fair and transparent decision. Conduct a “Devaprashnam” and leave the decision to the gods.” And mind you, as believers, both non-Brahmins and Brahmins would/should agree. Would you agree?

The writer is an advocate in the Madras High Court and author of “Constitution and its Making- Musings, Anecdotes and Episodes”, OakBridge

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