Malayala Brahmin Appointment As Sabarimala Melshanthi Part Of Tradition, Court Should Not Interfere : Intervenors Tell Kerala HC

The Kerala High Court in its Special sitting on Saturday continued its hearing on the batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi(chief priest) of Sabarimala-Malikappuram temples.

The matter is pending before the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajith Kumar. 

The notifications herein were challenged on the ground that the same is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India.

During the hearing today, it was submitted by Advocate Damodaran Namboothiri in an intervening petition by Yoga Kshema Sabha(an organization of Brahmins), that the petitioners had not arrayed  the necessary parties in this case. The counsel contended that when the petitioners have questioned the sampradaya which has been followed since time immemorial, it is a matter that has to be considered by the Tantri. Hence the Tantri had to be impleaded as a party. Apart from this, the counsel further contended that in any question regarding the sampradaya in Sabarimala temple, the opinion of the Pandalam Royal family also had to be obtained, and the petition was also not maintainable due to the non-joinder of the royal family. The counsel added that just as a Guru can choose his shishya, the Tantri also has to be given the right to select the Melshanthi. He submitted further that Article 26(b) protects the Travancore Board in its decision to appoint Melshanthi. 

Advocate Namboothiri added that since the issue relating to essential religious practices is pending before the Supreme Court in the Sabarimala reference, the High Court should defer its decision on these questions now. He further pointed out that in different places, different sampradayas were being followed. Due to these reasons, Advocate Namboothiri urged the Court that, "these petitions are not maintainable and are liable to be dismissed". 

Advocate PB Krishnan, appearing in another intervening application, submitted that one of the prayers in the petitions was to seek a declaration that all Hindus with requisite experience can be appointed as Melshanthi of Sabarimala. Yet another argument was that the State could not fix a criteria based on caste. "On an overview, one thing is clear, we are not dealing with a public interest litigation but certain individual grievances", the counsel submitted. He argued that since the Malayala Brahmin community would be affected by the decision in the instant case, they had a right to be heard. "The exclusive right or privilege of the community may not be taken away without affording them an opportunity to be heard", the counsel emphasized. Secondly, he pointed out that since the matters pertained to the custom of the temples, the Tantri also ought to be heard. The 3rd and 4th category of persons who were to be heard as per the counsel included the larger body of worshippers, and the other Devasoms in Kerala. 

After bringing the attention of the Court to certain statutes enacted by the State, the counsel pointed out that, "the totality of these statutory enactments and rules do not attempt to permit entry into sanctum or rituals within the sanctum; whatever other rituals can be done, all can do".  

The counsel added that the laws which restricted entry into the inner areas in Temples had also been recognized by Courts. He thus submitted that the State itself had chosen not to make any laws regarding unrestricted entry into restricted areas such as the sanctum sanctorum. 

The counsel thus pointed out that in such circumstances, the question which arose was what law would regulate the issue, in the absence of any statutory law or Constitutional provision. He therefore submitted that it is the uncodified personal law which would regulate the entry in such circumstances. "So when the State has not chosen to throw open, and law is uncodified, according to me, a Constitutional court would find it difficult to interfere and difficult in this matter", the Counsel argued. 

Advocate Krishnan further argued that the notification issued by the Devasom could not have been issued in any other manner, and they were only complying with the Mandamus issued by the Apex Court not to deviate from the guidelines until a statute is enacted. In such circumstances, the counsel argued that it did not violate any Fundamental Rights. 

The counsel added that in the matter of appointment to Travancore Devasom Board, provision for reservation had already been provided for in the Act and rules. He pointed out that the post was already reserved for Hindus, and the issue herein is regarding further reservation being made in favour of Malayala Brahmins.

The counsel also brought the attention of the Court to the decision in N. Adithyan v. The Travancore Devaswom Board, on which great reliance had been placed by the petitioners in the previous hearing. 

"The right which has devolved on Malayala Brahmins is protected by Articles 25 and also 26. It can be regulated by law, but till law is made, it is absolute", Advocate Krishnan argued. 

The counsel further pointed out that any reservation would have an exclusion. "In this case, all other Brahmins are excluded. This case is a matter of reservation which has been in existence since the beginning, and which, if has to be taken away, would require a legislative exercise". 

He submitted that since the questions regarding the interplay of Articles 25,26, essential religious practices and so on were all virtually in the air, it may not be most apt to decide the issue based on existing laws.

"Things are so complicated now and the way in which we are to run these institutions. Hence, my respectable submission is, when all these questions are in the air, it may be better to wait for the Supreme Court to decide these issues finally, and then decide this case", Advocate Krishnan submitted. 

The matter has been posted for further hearing on January 28, 2023. 

Report of the previous hearing - 'To Say That Sabarimala Melshanthi Can Only Be A Malayala Brahmin Is Practice Of Untouchability' : Mohan Gopal Argues Before Kerala High Court

Case Title: Vishnunarayanan v. The Secretary and Connected Cases