The Madras High Court on Tuesday asked the Hindu devotees who are litigating the Thirupankundram Karthigai deepam case whether they would agree to a suggestion made by the Tamil Nadu waqf board to refer the dispute to mediation.

A Bench of Justices G Jayachandran and KK Ramakrishnan posed the question this evening to Senior Advocate Guru Krishnakumar who represented a Hindu devotee.

“What is your instruction regarding suggestion put by Waqf Board that instead of adjudicating the matter, we’ll have dialogue and decide. The litigation started in 1862. Every ten years or so, this issue crops up, particularly during deepam festival some writ petition is filed, observations made and at that time, there is some order. But this cannot perpetually go on. Whether it (mediation) will give quietus?" the Court asked.

Krishnakumar replied that while mediation is usually welcome, his client was not readily agreeable to such a course in this case. The senior lawyer explained that his client had apprehensions that mediation would end up becoming a platform to further delay the proceedings.

He, however, assured the Court that he would inform the Bench if his client changes his mind.

Advocate General PS Raman pointed out that the next Karthigai Deepam festival is about a year away, addressing the concern about further delays.

The Court then told Krishnakumar,

"There is another 360 days for next Karthigai Deepam festival, going by calendar year. If there is any possibility for (mediation), you can also do that."

The Division Bench was hearing appeals challenging single-judge Justice GR Swaminathan's decision to allow Hindu devotees to light a Karthigai deepam (lamp to mark the Hindu festival of lights) on a stone pillar atop the sacred Thirupankundram hillock in Madurai, which houses both a temple as well as a Muslim Dargah.

Besides State, the Dargah has also challenged this directive since the pillar lies near the Dargah.

The single-judge had concluded that the stone pillar, which he observed was a Deepathon (or a pillar used to light deepams or lamps), lay in an area that belongs to the temple and not the Dargah.

Representing the district magistrate and police commissioner, Senior Advocate Vikas Singh today contested this finding and argued that the single-judge's ruling is likely to lead to religious clashes and public order issues.

He further alleged that Justice Swaminathan had exceeded his powers and violated his oath of office. He argued that there is no basis to call the stone pillar a Deepathoon, terming this finding a figment of the single-judge's imagination.

"I have great respect for judge, but deepathoon is a figment of his imagination or the petitioner's imagination that he latches on to ... Where is single judge getting this word 'deepathoon' from? There should be evidence of that, can writ court go into all this? There is no evidence, except for using the word "deepathoon." Does (Justice Swaminathan) subscribe to his oath when he creates a deepathoon on his own? Is this something constitutionally permitted? Court has to run on law. It can't be run by whims and fancies of a particular judge. Suddenly vision comes to him that there is deepathoon and he should ensure lighting of lamp?" he argued.

He argued that if the lighting of the lamp is allowed at the stone pillar, lakhs of Hindu devotees are likely to want to witness it which could lead to clashes with those visiting the nearby Dargah. The steps leading to this area is owned by the Dargah, he said.

"I don't understand where has the judge gone, what all he is doing in this process. If he wants to contest elections," he went on to remark.

The said submission was immediately objected to by another counsel in court.

"This is very unfortunate," he said.

"Very soon you will see, why is it said it is unfortunate and all, he will be contesting elections also. This is a case where he (judge) has gone way beyond what his remit is completely contrary to his oath," Singh replied.

Senior Advocate Krishnakumar, for a Hindu devotee, also joined in objecting to this line of argument.

"Certain submissions made are completely unjustified. We are taught to canvass correctness of judgment, not about judges. What has been submitted is wholly exceptionable," he said.

He further questioned how the State is now opposing the nature of the stone pillar only by way of oral arguments before the Division Bench, without supporting it by way of an affidavit or official records.

He referred to Justice Swaminathan's observation that the temple had placed a covering on the pillar and that the dargah would have opposed the move if the pillar actually stood on a site that belonged to the Muslim shrine.

He went on to argue that the State has to show supporting documents if it now wants to say that the pillar is not a Deepathoon.

He also questioned the argument the Places of Worship Act, which places restrictions on changing in the religious nature of a site after August 15, 1947, could be applied to this case.

The Bench remarked that this Act may be relevant if the nature of the pillar is sought to be changed.

"But where is the state record to say it is not a deepathoon?" he asked.

"15.8.1947 till date, there is no lighting of lamp," the Bench then observed, referring to the appellants' argument on this aspect.

"That is not established. Earlier judgment says lamp was lit elsewhere.. State has to place records. This is like supplying reasons after passing order," Krishnakumar replied.

He argued that the State's argument that the lighting of the lamp at the pillar could lead to law and order issues is also liable to be rejected. These are merely apprehensions, he said. Religious freedom cannot be stifled merely on the basis of apprehensions, he argued.

"Are we looking at lakhs of people going up the hill? Even in Thiruvanmalai, only few people go up with devasthanam to light the lamp. This is not something where there is going to be a problem," he maintained.

He added that earlier court rulings have already recognised a right for Hindu devotees to light a lamp in a second place, after noting that there has been a practice of lighting the lamp in places other than the existing site.

He has also questioned how the police commissioner has made arguments on the merits of the case, when the police is only entrusted with security functions.

Earlier in the day, Advocate Abdul Mubeen made arguments for the State Waqf Board and raised concerns that allowing Hindu devotees to light the lamp at the pillar near the dargah could lead to clashes, as going to the pillar would require a person to use steps that belong to the dargah.

"Thirupparankundram is a symbol of religious co-existence. It should not be shattered," he added.

He also informed the Court that he stands by an earlier suggestion made by the Board before the single judge, even if it is not reflected in the single-judge's order, that the matter could be referred to mediation.

"I still stand by that there could be a mediation. I am ready to sit with mediators to come with amicable solution," he said.

"If your offer is still option, we can explore that", the Division Bench replied.

"Still open, and I don't think my brothers would object to that," Mubeen said.

Senior Advocate S Sriram is expected to resume his arguments for a Hindu devotee tomorrow. During brief submissions today, he too joined Senior Advocate Krishna Kumar in condemning Senior Advocate Singh's comments on Justice Swaminathan.

In this regard, Sriram remarked that it was the first time he had come across an appeal where such arguments were being made on the ground that a judge "violated his oath."

[Live Coverage]