Thread by @People4Dharma

1. Here are the updates in yesterday's hearing in the #PadmanabhaswamyTemple case

2. Mr. @jsaideepak resumed his arguments by submitting that he would slot the remainder of his submissions into 3 baskets- limits imposed by judgments of SC on State interference with Temple Administration, denominational status of Padmanabhaswamy Temple & law on rights of Deity.

3. Mr. @jsaideepak walked the Court through Paragraphs 8 and 9 of the Impugned Judgement of the Kerala High Court to demonstrate the glaring inconsistencies, factual inaccuracies and legal infirmities in the fundamental assumptions of the High Court.

4. Mr. @jsaideepak submitted that he agreed with the finding of Kerala High Court that Deity is a perpetual minor & Padmanabhaswamy Temple is a public Temple

5. Mr. @jsaideepak submitted that Padmanabhaswamy temple's status as a public Temple did not translate to carte blanche for State interference or alternation of the identity of the Temple through a judicial pronouncement.

6. Mr. @jsaideepak submitted that he disagreed with High Court's assumption that all public temples in Kerala fell under the administration of TDB since #PadmanabhaswamyTemple is an exception & has always enjoyed that special treatment owing to its unique history.

7. Mr. @jsaideepak also disagreed with assumption of High Court that #PadmanabhaswamyTemple is a "State-funded Temple" since the State is merely paying an annual compensation for the Temple lands taken over by the erstwhile Princely State which devolved on the Indian State.

8. Mr. @jsaideepak submitted that he disagreed with High Court's conclusion that upon the death of previous Ruler of Travancore, all properties of the Temple had devolved on the Indian State since there is no basis for the application of Articles 295 & 296 of the Constitution.

9. To demonstrate how the Travancore Family's special relationship with the Temple was recognised even after independence, Mr. @jsaideepak placed reliance on the proviso to Section of the Travancore Cochin Temple Entry Removal of Disabilities Act 1950

10. Mr. @jsaideepak stated that the act clearly provided that the Ruler of Travancore would have the exclusive right to frame Rules to preserve the religious traditions of the Temple.

11. Mr. @jsaideepak drew attention to Article 4 of Travancore interim Constitution dated March 24, 1948 which clearly established special treatment of #PadmanabhaswamyTemple as well as control exercised by Travancore State on rest of the Temples governed by Travancore Devaswom

12. Mr. @jsaideepak submitted that Article 4 of the Constitution clearly showed that even the rest of the Devaswoms were meant to be under the exclusive control of the Travancore Family, which is a position that is carried forward in the Covenant of Merger.

13. Mr. @jsaideepak then drew attention to Articles 7, 8 & 14 of the Covenant of Merger to demonstrate that the Travancore Family was meant to exercise control even with respect to the Temples administered by the Travancore Devaswom Board.

14. Mr. @jsaideepak submitted that under Article 7 of the Covenant, the Council of Ministers would serve at the pleasure of the Ruler who would enjoy the status of Rajpramukh.

15. Mr. @jsaideepak submitted that under Article 8(e), Travancore Devaswom Board would consist of three people, all Hindus, one nominated by the Ruler, one nominated by Hindus in the council of Ministers and one elected by Hindu members of the Legislative assembly of the State.

16. Mr. @jsaideepak submitted that from a reading of Articles 7 & 8, it is evident that out of three members who comprise Travancore Devaswom Board, two were meant to be under the Control of the Ruler and the third was a Hindu elected by Hindu members of the Legislative Assembly.

17. Mr. @jsaideepak submitted that Dr. Subramanian Swamy's challenge to subsequent amendments carried out to TCHRI Act 1950 with respect to composition of the Board is that said amendments violate the mandate and spirit of the Covenant by diluting the control of Travancore Family

18. Therefore, Mr. @jsaideepak submitted that if it is ultimately established in the SLP filed by Dr. Swamy that these amendments to the structure of the TDB violate the Covenant, the Board's ability to take over or run any Temple in Kerala is seriously circumspect and suspect.

19. Mr. @jsaideepak further submitted that not only could the High Court have not gone beyond the framework of the TCHRI Act to propose an alternative mechanism, even the Board as it exists today cannot take over #Padmanabhaswamytemple since its structure violates the Covenant.

20. Mr. @jsaideepak submitted that he candidly submits that the Board cannot take over the #Padmanabhaswamytemple or run any Temple for that matter in light of the challenge to its composition in the SLP filed by Dr. Subramanian Swamy.

21. Mr. @jsaideepak drew attention to Article 14 of Covenant which speaks of grant of privy purse to Travancore & Cochin Families to demonstrate that 26th amendment to Constitution affected only Article 14 of Covenant and no other provision including rights wrt Temples

22. Mr. @jsaideepak then proceeded to continue reading out Paragraph 8 of the Kerala High Court's Impugned Judgement to point out its errors.

23. Mr. @jsaideepak pointed out that the High Court expressly states that the Indian State being a secular state cannot run a Temple, and then proceeded to direct the State to take over the Temple, which was a glaring contradiction.

24. Mr. @jsaideepak submitted that in directing the State to take over the Temple, there is no reference made whatsoever by the High Court to Section 37 of the TCHRI Act 1950 which prescribes the conditions for such a take over.

25. Mr. @jsaideepak pointed out that before the Kerala High Court, the Kerala State Government had taken the position that it had no role to play in the running of the Padmanabhaswamy Temple. Therefore, the State Government is bound by that position and cannot alter it.

26. Mr. @jsaideepak submitted that he hoped the Kerala State Government would not change its position before the Supreme Court, unlike the flip flops made in other matters.

27. Mr. @jsaideepak further pointed that the Kerala State Government had taken the position that the Padmanabhaswamy Temple was fairly well run, which position he hoped the Government would not resile from.

28. Mr. @jsaideepak submitted that despite the said position taken by the State Government, the Kerala High Court had disagreed with the position without explaining the factual basis for the disagreement.

29. Mr. @jsaideepak submitted that several SC judgements have laid down that a speaking order must be passed to arrive at conclusion that exists a case of mismanagement. Despite the law, High Court had not explained the basis of its assumption that Temple was not managed well.

30. Mr. @jsaideepak submitted that the High Court had failed to explain its application of the doctrine of escheat to the Padmanabhaswamy Temple since the circumstances for the application of the said doctrine were not attracted in the case.

31. Mr. @jsaideepak submitted that the doctrine of escheat, like the doctrine of lapse introduced by Dalhousie, would apply only when the Ruler had not heir to succeed him, which was not the case in the facts of the Padmanabhaswamy Temple case.

32. Mr. @jsaideepak submitted despite the presence of an heir to the last Ruler, the High Court refused to recognise the right of the heir on the ground that the right was abolished by the 26th amendment and then proceeded to invoke the doctrine of escheat without basis.

33. Mr. @jsaideepak pointed that the High Court started with the premise that a secular state cannot run a Temple and then erroneously invoked the doctrine of escheat to justify the takeover of the Temple by the State.

34. Mr. @jsaideepak submitted that Articles 295 & 296 could not be invoked to violate rights under Articles 25 & 26 since that would violate the fundamental premise of secularism.

35. Mr. @jsaideepak submitted that HC observed that faith must not be converted into commercial activity & proceeded to hold that treasures of Temple must be exhibited. In other words, what was meant for darshan to devotees has been directed to use for pradarshan to tourists.

36. Mr. @jsaideepak submitted that the treasures are the property of the Deity, not the Travancore Family, and are articles of faith, but not exhibition. The role of Travancore Family is to protect the treasures as trustees and guardians of the Temple.

37. Mr. @jsaideepak submitted that over the last decade, India has lost over at least 10000 artifacts to organised idol theft. In light of this, Kerala HC's direction to exhibit treasures of Temple would attract every possible idol smuggler & create security issues for the Temple

38. Mr. @jsaideepak drew the Court's attention to the judgement of the Madras High Court wherein Justice Mahadevan of the High Court had found the HRCE official and TN State police officials hand in glove with idol theives and smugglers.

39. Given this state of affairs, Mr. @jsaideepak submitted that High Court's direction to the State Government to take over the Temple and its treasures would amount to an invitation to the fence to eat the crops.

40. Mr. @jsaideepak submitted that all directions of Kerala HC are premised on legal assumption that 26th amendment takes away the right of Travancore Family to manage the Temple. If that erroneous premise is set aside by SC, none of the directions of HC would have any relevance

41. Mr. @jsaideepak then proceeded to place reliance on the judgements of the Supreme Court to enumerate the limits on State interference with Temples. Mr. @jsaideepak first placed reliance on the judgement of Subramanian Swamy v. Union of India (2014).

42. @jsaideepak placed reliance on judgement of Privy Council in Pramatha Natha Mullick v. Pradyumna Kumar Mullick (1925) & Ram Jankijee Deities v State of Bihar (1999) to point out that Deities are capable of holding property. The treasures are therefore property of Padmanabha

43. Mr. @jsaideepak then placed reliance on Madras HC's judgement in Shirur Mutt case & SC's judgment in the same case along with definitions of religious denomination in Oxford and Webster dictionaries from 1828-1913 to show that Padmanabhaswamy Temple is a denominational Temple

44. Mr. @jsaideepak placed reliance on a book on the Padmanabhaswamy Temple which expressly stated that only 7 Temples in the world followed the Parashurama Padhati and the Padmanabhaswamy Temple was the foremost among them, thereby making it a denominational Temple.

45. Mr. @jsaideepak submitted that even if the Temple did not qualify as a denominational Temple, the Travancore Family and Devotees have rights under Article 25 which they cannot be deprived of either by the State or through judicial pronouncement.

46. Finally, Mr. @jsaideepak placed reliance on the judgement of a nine Judge Bench in State Trading Corporation Of India Ltd v Commercial Tax Officer (1962) wherein 7 of the nine judges held that even juristic persons have rights under Article 25(1).

47. Mr. @jsaideepak submitted that notwithstanding any other judgment of SC 7 out of 9 Judges in STC had categorically held that juristic person can enjoy fundamental rights. Consequently, Deity is capable of enjoying rights of Article 25(1) & Deity's Will must be protected.

48. Mr. @jsaideepak concluded his submissions. Post lunch, counsel for a few Namboodiri families made submissions with respect to their rights to perform rituals in the Temple.

49. This was followed by brief submissions by Mr. Krishnan Venugopal with respect to the manner of succession which applies to the Travancore Family.

50. Mr. Venugopal then submitted that Section 37 does not apply to the Padmanabhaswamy Temple.

51. Mr. Venugopal then placed a proposal before the Court with respect to the administration of the Temple.

52. Following Mr. Venugopal, Mr. Jaideep Gupta, Counsel for the State Government of Kerala, commenced his submissions.

53. Mr. Jaideep Gupta started by placing reliance on the Amicus Report. At this point, Justice Indu Malhotra observed that idol theft has become common, especially from Hindu Temples.

54. Justice Lalit observed that inventorizing the treasure could facilitate idol theft.

55. Mr. Jaideep Gupta then raised an objection to the material placed on record by Mr. @jsaideepak. However, Justice Lalit observed that the material placed by Mr. @jsaideepak merits consideration and Mr. Gupta must deal with the material and the submissions of Mr. @jsaideepak.

56. Mr. Jaideep Gupta then proceeded to address the Court on interpretation of the term Ruler as used in Article 366(22).

57. Mr. Jaideep Gupta submitted that the method of succession within the Travancore Family is not in dispute in the case. What is in dispute is the interpretation of Article 366(22). Arguments concluded for the day. Mr. Jaideep Gupta will continue on February 13, 2018.