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

The Kerala High Court on Saturday, in a special sitting, heard a 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. 

A Division Bench consisting of Justice Anil K. Narendran and Justice Ajith Kumar heard the petitions which challenge the notification on the ground that it is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India. 

When the matter was taken up, Advocate B.G. Haridranath, appearing in one petition, contended that a qualified person, who is a Hindu and an idol worshiper and who is well versed in the mantras for performing everyday poojas should be appointed as the Melshanthi irrespective of his caste. The Counsel placed reliance on a number of Apex Court decisions in this regard to substantiate his arguments including the case of Seshammal v. State of Tamil Nadu. The Counsel further contended that so far as the age limit prescribed in the notification is concerned there is no prescribed age limit as per the provisions of the Kerala Devaswom Recruitment Board Act or the KSSR Rules.

Renowned academician and former Director of the National Judicial Academy, Advocate Professor (Dr) Mohan Gopal appeared for petitioners in one of the Writ Petitions that were taken up today. The petitioners' case is that they're qualified to be appointed as Priests as per the notification issued by the Devaswom Board except for the condition imposed by the Board that the applicant shall belong to Malayala Brahmin hailing from Kerala.  

"There is a clash between Constitutional values and the provision which restricts Melshanthi posts only to Malayala Brahmins. The core Constitutional value at stake is untouchability .Article 17 not only prohibits but also criminalizes untouchability. It is a Constitutional crime. Underneath the crime of untouchability is the belief that by birth some human beings are pure and some are less pure", he submitted.

"The petitioners belong to non-Brahmin castes. Why are they prevented from applying to Melshanthi posts? It is not the Constitution. It is the belief that they are impure by birth. When you are saying "Brahmin", you are saying a group which is pure by birth. Can we uphold such a belief that some humans are impure by birth? In that case, we are abrogating the Constitution", Dr.Gopal submitted.

Referring to Article 25(2) of the Constitution, which enables the State to make laws for throwing open of Hindu religious institutions of a public character to all classes of Hindus, the Counsel submitted that this "throwing open" is not just an opportunity to stand outside and pray but also an opportunity to be a Melshanthi.  

The Counsel placed reliance on the Apex Court decision in N. Adithyan v. The Travancore Devaswom Board, which struck down the condition that only Malayala Brahmins could be appointed as shantikkaran in a temple.

"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", he quoted from N.Adithyan. He said that the Supreme Court had laid down a general principle and that the same was applicable to Sabarimala temple as well.

Even apart from the Adithyan judgment, the condition imposed by the Board is not sustainable as per Constitutional principles. Article 15 prohibits discrimination on the basis of caste. Constitution allows discrimination only for the purposes of affirmative action. For that, there should be an intelligible differentia and also a nexus with the objective to be achieved. He contended that the criteria of "Malayala Brahmins" was not an intelligible criteria as there are many categories and sub-categories. It is not possible to get a community certificate to that effect. "How will you implement? How will you prevent fraud?", he asked.

He also pointed out that in the proceedings before the High Court in the Adithyan case, the TDB had submitted that there was no tradition of appointing only Malayala Brahmins as temple shanthis.

"Sabarimala temple is not above the law & is not entitled to practice untouchability. To say that melshanthi can only be a Malayala Brahmin is a practice of untouchability. People of all castes & creeds go to Sabarimala. We have to liberate that temple from untouchability.This is an evil social practise disguised as traditional practice. Great thinker Narayana Guru said evil and good come in the same costume. What we have here is pure caste prejudice and untouchability being presented as traditional religious practice", he submitted.

By allowing such a condition, the State was actually practising casteism and untouchability, he asserted.

"Can High Court endorse a system of appointment which is casteist? Can HC allow abrogation of Article 17?"

The Counsel appearing for Travancore Devaswom Board, however, submitted that it is for the petitioners to prove that this is not a practice that is being followed in the Sabarimala temple. The declaration sought by the petitioners cannot be granted in a writ petition as the matter has to be agitated in a civil suit by showing evidence regarding the customary practice. He further said that the N.Adithyan case was pertaining to regular appointments of shanthis in a particular temple and it is not applicable to Sabarimala.

The TDB's counsel also referred to a judgment of the High Court in Krishnan Namboothiri vs Travancore Devaswom Board 2015(5) KHC 829, where it was held that appointment of melshanthi in Sabarimala cannot be regarded as a regular appointment.

The matter has been posted for further hearing on 17th December.

Case Title: Vishnunarayanan v. The Secretary and Connected Cases