Brilliant submissions by Sr. Advocate Shri K Parasaran today before the Hon'ble Supreme Court in Sabarimala matter
(Source :People for Dharma @People4Dharma)
1. Arguments in the Petition resume. Mr. Parasaran now argues for the Nair Service Society.
2. Mr. Parasaran submits that Kerala is an educated society
3. Mr. Parasaran submits that 96% of the women in Kerala are educated. They are independent. It is a matrilineal society. Therefore to assume that the practice of the Temple is based on patriarchy is fundamentally incorrect
4. Mr. Parasaran submits that the practice of the Temple is not comparable to Sati. In fact, Sati itself has not connection to the Hindu faith.
5. Mr. Parasaran cites the examples of the wives of Dasaratha and Kunti to prove that they did not commit Sati after their husbands' death.
6. Therefore Mr. Parasaran submits that we should not approach the issue of with notions of patriarchy
7. *Mr. Parasaran says that a right question will lead to the right answer, a wrong question will lead to the wrong answer*.
8. Mr. Parasaran submits that *if a person asks "can I smoke when I pray?" he will get a slap. But if he asks "can I pray as I smoke?" he will be appreciated*.
9. Therefore, Mr. Parasaran says the *right questions must be asked in this case for the Court to get the right answers*.
10. Mr. Parasaran further submits that in this case he has to be even more careful and prepared because he is answerable not just to the Lordships but also the Lord above.
11. Mr. Parasaran is now reading out portions from the Shirur Mutt decision of the Supreme Court.
12. Mr. Parasaran submits that even democracies, especially democracies, must protect religion and tradition.
13. Mr. Parasaran submits that Hindu religion respects merit and wisdom wherever it comes from. He says for neeti, it is still Vidura neeti which is cited. That is the greatness of the faith.
14. Mr. Parasaran submits that while the court must listen to activist voices, it must equally listen to voices which seek to protect tradition.
15. Mr. Parasaran submits that the Legislature is Brahma, Executive is Vishnu and Shiva is judiciary because only Shiva's ardhanarishwara form epifies Article 14, equal treatment of both sexes.
16. Mr. Parasaran submits that Shiva is no Brahmachari, but even when his meditative state was sought to be disturbed by Kama Deva, he was reduced to ash because he failed to respect that state of Shiva.
17. Mr. Parasaran submits that we must not proceed with the presumption that the ancients knew nothing and that we know better in all aspects of life.
18. Mr. Parasaran that Lord Ayyappa's character as a Naishtika Brahmachari is protected by the Constitution.
19. Mr. Parasaran is placing reliance on the judgment of the Court in Tilkayat Govindaji Maharaj (1964).
20. Mr. Parasaran refutes the argument of the Petitioner that some women may die before they reach the age of 50, Mr. Parasaran says that a person carries her or his fate with him. That's not a legal consideration to reverse the tradition
21. Mr. Parasaran points out that there are thousands of ppl who register for Padi Pooja at , the consequence being that the pooja will be conducted in their name only long after their deaths.
22. Mr. Parasaran therefore submits that using death as an argument to upset the tradition is neither here nor there.
23. Mr. Parasaran submits that the basis of the practice is the celibate nature of the Deity, not misogyny. Devotees who visit the Temple too are expected to observe celibacy in letter and spirit. Hence, during the journey, company of women must be avoided.
24. Mr. Parasaran is reading out portions from the Sundarakanda of the Ramayana to explain the concept of Naishtika Brahmacharya.
25. Mr. Parasaran submits that Lord Ayyappa is a yogi. To define who a Yogi is, Mr. Parasaran is quoting Adi Sankara.
26. *Mr. Parasaran submits that misogyny is not supported by Hindu Shastras nor is chastity the sole obligation of the woman. In fact, chastity is a greater obligation on the man and he is duty bound under the Shastras to give a pride of place to the woman*
27. Mr. Parasaran submits that the practice in Sabarimala by no stretch of imagination is informed by misogyny. The only consideration is the nature of the Deity.
28. Mr. Parasaran now proceeds to address Article 25.
29. Mr. Parasaran submits that Article 25(2)(b) applies only to social reform, it still does not apply to matters of religion covered by Article 26 (b).
30. Justice Chandrachud wonders if Article 25(2)(b) applies to only Hindu institutions. Mr. Parasaran responds that the practice sought to be addressed by the said Article is peculiar only to Hindu institutions.
32. Mr. Parasaran resumes submissions post lunch. Mr. Parasaran submits that women do not fall under the protection of Article 25(2)
33. Justice Nariman asks- will not scheduled caste women be protected by Article 25(2)? Mr. Parasaran disagrees and says 25(2) treats the community as a class, not on the basis of gender.
34. Mr. Parasaran submits that even Article 15 does not apply to religious institutions which is evident from the language of the Article itself. This was a conscious exclusion since an amendment to include religious institutions was rejected.
35. *Justice Chandrachud observes that perhaps Article 25(2) may not apply to the rule under challenge*. But asks what provision acts as a limitation on the rights of religious denominations under Article 26.
36. Mr. Parasaran submits that Article 25(2) deals only with secular aspects and right of entry of classes or sections. It does not therefore apply to religious aspects or right of entry based on gender.
37. The CJI asks Mr. Parasaran to shed light on the Constituent Assembly debates on the relevant Articles of the Constitution. Mr. Parasaran is now walking the Court through the debates.
38. Justice Nariman asks - "Therefore Mr. Parasaran, are you saying that the core object of Article 25(2)(b) is connected to the object of Article 17?" Mr. Parasaran answers in the affirmative.
39. Justice Nariman asks - "why do we need two provisions for the same object?" *Mr. Parasaran submits that while Article 17 applies generally, Article 25(2) applies specifically to Temples.*
40. Mr. Parasaran further submits that Article 25(2) reiterates the object of Article 17 in the specific context of Temples and Hindus to send a loud and clear message.
41. Mr. Parasaran submits that if the intention of the Constituent Assembly was to include religion in Article 15, they would have.
42. *Justice Nariman agrees with Mr. Parasaran's interpretation of Articles 15(2) and 25(2)*
43. Justice Nariman agrees that the object of Article 25(2) and Article 17 are the same i.e. *To address caste based untouchability and not gender*.
44. Mr. Parasaran says that he does not even need to make his case under Article 26 because he has a solid case under Article 25 itself.
45. Justice Nariman says - "assume that we agree with your submissions, then pls explain to us why can't the state fall back on 25(2) citing religious reform? Also what about the rights of women under Article 25(1)?"
46. Mr Parasaran submits that the present case does not involve a social issue but a religious issue. By using 25(2), u will reform a religion out of its identity.
47. *Justice Nariman AGREES with the submission of Mr. Parasaran on the inapplicability of Article 25(2) to the issue at hand*
48. Mr. Parasaran is now taking the Court through judgements on rights of religious denominations.
49. Mr. Parasaran submits that by abolishing the practice, the very character of the religious institution will be irreparably altered which affects the rights of devotees under Article 25(1).
50. Mr. Parasaran digresses and *submits that Constitutional law is his first love and that it is his privilege to argue in this matter when he has otherwise stopped taking up matters*.
51. Mr. Parasaran is placing reliance on the Jantia Hills District case.
52. The citation of the judgement is 2006(4) SCC 748
53. Mr. Parasaran is citing the creation of another heaven for Trishanku by Vishwamitra as an example of the consequence of over activism. And submits that the Petition at hand is a case in point.
54. Mr. Parasaran is now taking the Bench through the Travancore Cochin Hindu Religious Institutions Act, 1951.
55. Mr. Parasaran is citing Section 15A(1) of the 1951 Act which deals with duties of the Travancore Devaswom Board.
56. Mr. Parasaran points out that the said provision requires the Board to observe and maintain the practices of Temples under its administration.
57. Mr. Parasaran is now going through the Constituent Assembly debates to show the history of Articles 14, 15 & 25.
58. Mr. Parasaran is reading portions of the debates which relate to Article 17, which clearly show that the Article deals only with caste-based untouchability.
59. Mr. Parasaran is reading out extracts from the Interim Report on Fundamental Rights with respect to Articles 15, 17 and 25(2)(b).
60. *Mr. Parasaran specifically shows the REJECTION of the amendment of Article 15 by the Constituent Assembly with respect to inclusion of religious places*.
61. Mr. Parasaran is reading out portions from debate of November 29,1948 to support his position on Article 17 that it relates only to religion and caste based untouchability
62. Mr. Parasaran submits that even if Article 25(2) applies to women, it is only with respect to social issues but not religious issues.
63. Mr. Parasaran further submits that Article 25(2)(b) *is at best an enabling provision for the Legislature, it doesn't enable the judiciary*.
64. Mr. Parasaran submits that there are several other famous Ayyappa Temples in Kerala itself which allow entry of women without age restrictions. Therefore, the Temple is not a case of discrimination.
65. Mr. Parasaran is thanking the Bench for a patient hearing.He has concluded his submissions.
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