The Madras High Court on Thursday reserved its verdict on appeals challenging a single-judge's decision to allow devotees of the Arulmigu Subramania Swamy temple to light a Karthigai Deepam at a stone pillar on the lower of two peaks atop the Thiruparankundram hillock, which also houses the Sikkandar Badhusha Dargah.
A Bench of Justices G Jayachandran and KK Ramakrishnan reserved its verdict this afternoon after hearing rejoinder arguments by the State authorities, represented by Advocate General PS Raman.
The case raises the following questions:
- Whether the stone pillar is a Deepathoon (designed to hold lamps) for the Hindus so that they can claim a right to light a lamp on it to mark Karthigai Deepam;
- Whether allowing lighting of lamp could affect the rights of the nearby Muslim shrine.
Justice GR Swaminathan had earlier ruled that the stone pillar is a Deepathoon and that the Hindu temple should restore the tradition of lighting the Karthigai Deepam atop the hill (in addition to lighting the lamp at an existing site at the Ucchi Pillayar temple).
Raman today contended,
"There is no empirical data or proof available regarding the origin and the use of the structure, which is called the Deepathoon, and whether it is Deepathoon at all. There is an allegation that it is a Jain monument. Dargah says it is part of dargah property. I cannot support what they say. As far as State is concerned, we have not formed any opinion about the Deepathoon," he argued.
He contended that there is no proven tradition of lighting the said pillar at the hillock for Karthigai Deepam. He questioned whether Justice Swaminathan could have ordered the restoration of a practice which was not a usual one in Thiruparankundram.
"Can the writ court have decided 'what ought to be?' That is completely beyond Article 226. It would have been a completely different cup of tea if this is what it was always," the AG said.
He also maintained that the only avenue to settle this dispute is for the Hindu devotees to send a representation under Section 63 of the Hindu Rights and Charitable Endowments Act (HR&CE Act) for an inquiry, where the authority can examine if there is an established religious usage involved.
"Section 63, HR&CE Act is not only the correct remedy in the case, but also the only remedy," he said, while urging the Court to allow appeals against Justice Swaminathan's judgment.
He further questioned how Justice Swaminathan touched upon questions of property rights in a case involving questions of customs.
"Whether the court could have converted what was a customary claim into saying this is a very good way to protect the property? Title of temple devasthanam has already been decided in earlier judgment. Saying by creating new custom, I am protecting the (temple's) property may not be the correct approach," the AG said.
Notably, in the ruling passed earlier this month, Justice Swaminathan held that the lamp can be lit by the temple at the Deepathoon atop the hill, adding that such activity would not affect the dargah's rights.
The single-judge reasoned that going by a civil court judgment from the 1920s, only some parts of the hill belonged to the dargah while the remaining areas - including the place where the Deepathoon lay - belonged to the temple.
However, the authorities reportedly blocked the attempt of the devotees to go up the hill to light the lamp at the stone pillar, citing public order risks. This year's Karthigai Deepam festival passed without the lamp being lit atop the hill.
This led to a contempt of court case being filed, which remains pending before Justice Swaminathan.
Meanwhile, the State authorities (including the Madurai magistrate and police commissioner), the Tamil Nadu Waqf Board and the dargah filed appeals challenging Justice Swaminathan's directives.
Hearing in these appeals began last week before the Division Bench.
Among other arguments, counsel representing the authorities in Madurai contended that there is no basis to call the stone pillar a Deepathoon and even termed its use to be a reflection of the single-judge's imagination.
The hearings also saw the Waqf Board suggest that the dispute could be settled by mediation, a request endorsed by the State.
However, the Hindu devotees expressed strong reservations against such a course of action, noting that mediation could unnecessarily delay the matter.
They also contended that it was the Hindu side that had to retreat and give up some of their rights each time such an alternative dispute mechanism, such as peace meets, was held.
They added that the State's idea of coexistence comes at the cost of surrendering the rights of Hindus, in arguments made yesterday.
As the hearing drew to a close today, Senior Advocate S Sriram, representing a Hindu devotee, contested the AG's submission that the matter should be settled through an inquiry under Section 63, HRCE Act.
"There is nothing for matters to be remanded to HRCE authorities. Their opinions are already there in the form of pleadings before this Court," he said.
Senior Advocate P Valliappan, for another Hindu devotee, added,
"The AG says he is not taking a stance, but AG has appeared for the district collector. How much a secular government can say on religious matters?...In this very dargah, they light villakku (lamps). Sufi culture allows that, they are very secular. So yesterday also, I said, after all it is only a villakku. It is not belittling, it is a very humble thing."
Advocate Mohan, representing the dargah, maintained,
"It is their (Hindu petitioners') duty to demonstrate (that stone pillar is a Deepathoon) and not before a writ court (but elsewhere)."
Senior Advocate Palanivel Rajan, for a Hindu devotee, argued,
"It is not as if Deepathoon is a new concept."
Having heard all the arguments, the Court proceeded to reserve its verdict today.
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