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India Sabarimala lawyer makes compelling constitutional arguments in favour of...

Sabarimala lawyer makes compelling constitutional arguments in favour of Ayyappan tradition

While counsel Parasaran cited the scriptures once in a while in the course of his arguments, the mainstay of his submissions was the applicability of Articles 15(2), 17 and 25(2)(b)

New Delhi: 25 July was the fifth day of hearing arguments of the defendants of the Sabarimala’s Ayyappan tradition at the Supreme Court. Senior counsel K Parasaran on Wednesday told the court women do not fall under the protection of Article 25(2)(b) as the apex court heard the case relating to the entry of women into Sabarimala Temple in Kerala consecutively for the fifth day.

Rubbishing the comparison with Sati in a list of what the plaintiffs called evil practices in Hinduism, Parasaran submitted that Sati had no basis in Hindu faith.

The advocate added that the issue of Sabarimala should not be approached with notions of patriarchy. The point of view of the deity, he said, who had its own legal personality as per law, should be addressed. He also mentioned that women in Kerala were educated, and had followed matrilineal practises.

By and large, Hindu religion is tolerant and not discriminatory, though aberrations could be there, submitted Parasaran. While the court must listen to the voices of activists too, Parasaran said, it should also listen to voices of those seeking to protect tradition.

Parasaran compared the legislature to Brahma, executive to Vishnu and judiciary to Shiva. Shiva, in its Ardhanarishwara form, symbolises Article 14, by giving equal treatment to both sexes, the advocate reasoned.

The character of Lord Ayyappa in Sabarimala as a “Naishtika Brahmachari” has constitutional protection, Parasaran said. Parasaran referred to portions of the Ramayana to explain the concept of “Naishtika Brahmachari”. He refuted the argument that the practice was based on misogyny. He submitted that the practice was founded on the celibate nature of the deity.

Observance of brahmacharya is a must for devotees, he said, and they should not undertake the pilgrimage in the company of women. The hearing resumed after lunch. Parasaran and the court debated whether Article 25(2)(b) included ‘women’.

Parasaran argued that the temple could not be thrown open to women invoking Article 25(2)(b). Why women should be excluded from Article 25(2)(b), asked the bench. Parasaran argued that the scope of Article 25(2)(b) was limited to the lower castes who were denied entry into the temple and that it could not be extended to ‘women’.

J Nariman asked whether Scheduled Caste women would come under Article 25(2)(b). Parasaran responded that the basis of Article 25(2)(b) was class and not gender. Parasaran further added that Article 15 did not apply to religious institutions. The advocate took the Court through Constituent Assembly debates to show the real intent behind Article 25(2)(b). Art 17 addresses caste-based exclusion, so what is the need to reiterate the same in Art 25(2)(b), remarked J Nariman.

Parasaran responded that Art 17 is of general application, Art 25(2)(b) was an instance of the specific application of Art 17 with respect to Hindu temples. “The core of Article 25(2)(b) is Article 17,” responded Parasaran to the query of J Nariman. Parasaran pointed out the absence of “religious institutions” in Article 15(2), which enlists public places where access should not be denied on grounds of caste, religion, gender etc.

The defence lawyer also mentioned that a constitutional amendment attempted to include ‘religious institutions’ in Article 15(2) did not succeed. J Nariman approved of Parasaran’s submissions based on Articles 15(2), 17 and Article 25(2)(b). J Nariman stated that the object of Article 17 & 25(2)(b) was one and the same: to address caste-based discrimination. J Nariman asked why the State couldn’t invoke Article 25(2)(b) to give access to women.

Parasaran replied by saying Article 25(2)(b) could not be applied here, as there was no issue of “social welfare and reform” in Sabarimala. Sabarimala, the lawyer fighting for the tradition of Ayyappan said, was a case of religious belief; no social welfare issue involved to enable state to fall back on Article 25(2)(b). A religious belief cannot be reformed out of its existence, Parasaran argued.

Abolition of the practice will alter the core character of the religious institution, which will affect the rights of devotees under Article 25(1), said Parasaran. Parasaran referred to Jantia Hill District Council case (2006) 4 SCC 748, where the SC upheld the validity of an Assam Act, which had excluded a Christian from performing administrative functions in a tribal area.

“Over-activism will create a ‘trishanku heaven’,” quips Parasaran, referring to the present petition. Parasaran referred to the Constituent Assembly debates to show the intent behind Articles 17 and 25(2)(b). “Article 25(2)(b), at best, is only an enabling provision, which enables State to enact laws to throw open Hindu religious institutions.

“Judiciary cannot act on the basis of Article 25(2)(b),” submitted Parasaran. He argued that there were other Ayyappa temples in Kerala where women of all ages had access; so it was wrong to characterise Sabarimala as a case of discrimination.

Parasaran concluded after a long day of gripping arguments on constitutional law. Indira Jaising and Raju Ramachandran expressed their appreciation for the veteran’s arguments.

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