Libertatem Magazine

Justice Indu Malhotra Asks, “Is There A Change In The Stands Of Devaswom Board”?

Contents of this Page

Justice Indu Malhotra sought to ask from the Senior Advocate Rakesh Dwivedi that “is there a change in the stands of Devaswom Board”?  The query came from the senior counsel urged to review petitioners to accept that the change in the society that the judgement wishes to bring about. Relying on the impugned judgment, Senior Advocate Rakesh Dwivedi contended that none of the ancient texts or scriptures produced before the apex court qualified the restriction as an essential religious practice. “On Article 25(1), there is complete unanimity- it says ‘all persons are equally entitled’. A religious practice has to be consistent with this dominant theme“, he continued and in the context of Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules being declared ultra vires, he submitted, that it was argued that the Ayyappa devotees constitute a separate denomination and hence, they have the benefit of the Proviso to section 3 (of the parent Act of 1965). But they were held to not be a religious denomination in the constitutional sense”. In so far as the review petitioners canvassed the constitutional morality as applied, the morality of the nation versus the morality of a section of the society, Mr. Rakesh Dwivedi argued that it is clear “Your Lordships don’t see it as a subjective concept. Constitutional morality is the nomenclature for the mandatory provisions of the Constitution and the ideals of the Preamble- Articles 14, 15, 17, 21, 25, the principle of dignity“. Amidst opposition from Mr. Dwivedi, Senior Counsel Abhishek Manu Singhvi had advanced arguments on behalf of Prayar Gopala Kishnan, the former chairman of the Devaswom Board. Although Dr. Singhvi had represented the Board in the original matter, he assured that there is no conflict of interests. He placed reliance on the Venkataramana Devaruand case where the Court had observed that Gods are worshipped in India not generally, but in particular manifestations- “The conduct of worship, where to stand and worship, and who are entitled to worship were all recognized as ‘matters of religion”. Dr. Singhvi also insisted that untouchability for the purpose of Article 17 has to be read as caste-based or religion-based exclusion- “There is no exclusion of women or men or of a class of men or women based on religion or caste. The Civil Rights Act (of 1955) will have to be read harmoniously with Articles 25 and 26. If it was out of the way and I have protection under Article 25 and 26, the Civil Rights Act cannot come in the way.” Dr. Singhvi contended that in a pluralistic society, an external standard of rationality based on constitutional morality, particularly where 25 and 26 allow the subjectivity of the belief-holder, cannot be permitted. Finally, Dr. Singhvi attacked the assumption that there must be the universality of practice across the Hindu religion for it to be an essential practice- “Hinduism, unlike the more recent religions, is a highly diverse religious system. India is the most diverse country in the world and within India, Hinduism is the most diverse.

About the Author