Redux: Ayyappa on the anvil

The brutal hammer of individualistic interpretation of the Constitution, armed with public interest litigation jurisprudence, is inviting the Court to venture into uncharted territories.
Sabarimala Temple
Sabarimala Temple

George Orwell, in his timeless essay entitled Politics and the English Language in 1946, criticised the "ugly and inaccurate" written English of his time. One aspect he highlighted was of dying metaphors.

Orwell theorised that any newly invented metaphor assists thought by evoking a visual image, while on the other hand, a metaphor which is technically ‘dead’ has in effect reverted to being an ordinary word and can generally be used invoking any vividness. An example could be the word – ‘deadline,’ which originally referred to the physical line around a prison which, if crossed by a prisoner, would result in that prisoner being shot. An example that Orwell gave was the ‘hammer and the anvil’, which was now used with the implication that the anvil gets the worst of it. Orwell stated that “in real life it is always the anvil that breaks the hammer, never the other way about.

When the Constitution Bench was hearing the Sabarimala matter which culminated in the judgment of Indian Young Lawyers Assn. v. State of Kerala, the anvil imagery was sought to be used to caution against an interventionist approach. The review petitions against the first-round judgment were heard soon thereafter, which culminated in the verdict in Kantaru Rajeevaru v. Indian Young Lawyers Assn, which referred certain questions to a larger bench.

Thereafter, a Bench of nine judges was constituted to answer the reference, which reframed the issues and repelled the charge against reference to larger bench in Kantaru Rajeevaru.

While this remains pending, another interesting question has prompted the courts to foray into the governance of religious institutions. The Travancore Dewaswom Board published a notification inviting applications only from Malayala Brahmins for appointment as Melshanthi (chief priest) of the Sabarimala-Malikappuram temples.

The petitions pending before the Kerala High Court challenge the notification on the ground that it is violative of fundamental rights guaranteed under Articles 14, 15, 16, 17 and 21. The preliminary arguments in the case even seem to have linked the limitation in the notification to the practice of untouchability.  

Shorn of rhetoric, the petition raises a ticklish legal issue. A common nonchalant approach would lead one to conclude that any practice protected by the law cannot limit access to such “posts” to one community. A more thorough approach although may lead one towards a more nuanced and constitutionally tenable answer. The answers, as always, require a dispassionate reading and understanding of the existing law and precedents, devoid of any grandiose starry-eyed notions of reform of the unwashed natives.

Previously, in the judgment in Seshammal and Others v. State of Tamil Nadu, on which heavy reliance is being placed by the petitioners before the Kerala High Court, the Tamil Nadu Religious and Charitable Endowments Act, 1959 was challenged. The said Act abolished the entitlement of a person to the post of Archaka based on hereditary succession. The said change was upheld by the Supreme Court by adding a caveat that the abolition of hereditary succession would not mean that the conditions in the Agamas have been ignored.

The Supreme Court affirmed this intervention by the State, which sought to change the existing system through legislation. The critical thing to note is that the change in tradition was not brought through judicial mandamus, but through the State’s constitutionally vested mandate for reform/intervention.

Subsequently, in Adi Saiva Siva Chariyargal Nala Sangam and Others v. Govt. of Tamil Nadu and Anr, the Court tested a Government Order issued by the State of Tamil Nadu providing for a general fiat, over and above the limitations in the Agamas, that any person who is a Hindu and possesses the requisite qualification and training can be appointed as an Archaka in Hindu temples.

Similar to the present case, placing reliance on the Articles 14, 16, 17 and 21, it was argued that the judgment in the Seshammal case has opened the avenue to all qualified Hindus irrespective of caste, denomination, etc. to be appointed as Archakas. The other side urged that neither all Shaivas nor all Vaishnavas are ipso facto denominational, which was later accepted by the Court. It was contended that the Agamas are supreme and a person who is a member of such denomination alone, and satisfies the conditions of the Agamas, can be appointed as an Archaka of a Shaiva or a Vaishnava temple, as the case may be.

In deciding the issue, the Court noted the history surrounding image worship in Hindu culture and the fact that it is a predominant feature of the religion. The Court noted that with the passage of time, rules regulating worship in temples came up and were laid down in the treatises known as the Agamas and the Thantras. The Court highlighted the observations in the Gopala Moopanar case from 1914, which had noticed that the Agamas prescribed rules and the breach of such rules would breach mandatory religious customs.

The Court, for the first time, noted the provision of Article 16(5) of the Constitution, which provides an exception for any law which provides that only a person professing a particular religion or belonging to a particular denomination can be appointed to the office of a particular religion or religious denomination.

It noted that Article 16(5), along with the debates that had taken place in the Constituent Assembly, protects and fortifies the appointment of Archakas from a particular denomination by the Agamas holding the field. The Court also noted that the Constituent Assembly debates disclose that the operation of Article 16(5) would not be restricted to appointment in offices connected with administration of a religious institution and would include an office in a temple which entails performance of religious functions.

The Court repelled the challenge on the ground of Article 17, holding that the exclusion from the sanctum sanctorum and duties of performance of pujas extends even to other Brahmins not permitted as per the Agamas. It was held that so long as the procedure or qualification of appointment in the Agamas is not contrary to any constitutional mandate, the Government Order - by its blanket fiat allowing all Hindus over and above the categories mentioned in the Agamas - has the potential of falling foul of the dictum laid down in the Seshammal case.

Each case of appointment of Archakas would have to be on the said basis and the exercise of studying the Agamas and their applicability to the extent provided for in the judgment in each particular case is inevitable and unavoidable, the judgment stated.

The Court further ruled that the prescription by one particular Agama or a set of Agamas for a solitary or group of temples, would be determinative of the issue. It was held that the Agamas and their prescriptions are based on far more sharply defined and restrictive basis rather than the broad classification of caste, religion or birth mentioned in the Constitution. Therefore, the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long as such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.

In this way, the Court held that the provisions of Article 17 and the Protection of Civil Rights Act, 1955 would not be applicable in such situations. The Court ingeniously balanced the rights of the temple authorities and the power of the State to regulate. In conclusion, it was held that the Agamas mandating the appointment as Archakas only from a sharply defined and limited sect out of the Brahmins would not be impermissible. It disposed of all the writ petitions, holding that the appointments of Archakas will have to be made in accordance with the Agamas.

The Court in effect held that if the Agamashastras limit the appointment as Archakas to a particular community within a larger caste sub-group like a particular type of Brahmin or a particular sect of Vaishnavites, or any such sharply defined sub-sect, then following and implementing the same is a constitutional mandate.

Contrary to the same, the private petitioners argue before the Kerala High Court, that following of such Agamic traditions by the Travancore Dewaswom Board, which limit appointment to a sharply defined group and does not discriminate on the basis of broader constitutionally unacceptable parameters of caste, birth, etc. is against the constitutional goals.

Over the past decade, the gaze of the Court has been reversed - from the classic challenge by a religious institution against intervention by the State through legislation, to a ‘public spirited’ challenge by private individuals to entrenched religious practices against the religious institution, the believers and the State. The brutal hammer of individualistic interpretation of the Constitution, armed with public interest litigation jurisprudence, is inviting the Court to venture into uncharted territories. The hammer is swinging again; it remains to be seen if the anvil will outlast it.

Kanu Agrawal is an Advocate at the Supreme Court of India.

Disclaimer: The writer is a Central Government counsel. The views of the writer do not express the views of the Government of India.

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