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1. Mr. Gupta has resumed his submissions in the #PadmanabhaswamyTemple case. Mr. Gupta is taking the Court through the orders passed by the Supreme Court in matter.
2. Mr. @jsaideepak drew attention to the orders passed by the Court on April 27,2018 and November 14,2018 wherein he had appeared on behalf of intervenors to highlight the damage to heritage structures in the #PadmanabhaswamyTemple during the restoration work.
3. Mr. Jaideep Gupta has completed going through the orders of the Court and has now commenced his submissions with respect to Mr. @jsaideepak's submissions.
4. Mr. Gupta submitted that IAs filed by parties represented by Mr. @jsaideepak are yet to be allowed by Court. He also submitted that even otherwise an intervenor can, at best, support submissions of either of parties but cannot go beyond the submissions of parties.
5. Mr. Gupta submitted that several submissions have been made by Mr. @jsaideepak which go beyond the submissions of the Petitioner, which is beyond the permissible scope of an intervenor.
6. At this point, Justice Lalit observed that what started off as a dispute initiated by a lawyer who was the tenant of the Temple, ended up acquiring the status of a PIL before the Kerala High Court.
7. Therefore, Justice Lalit submitted that it would not be proper to shut out the arguments being advanced by Mr. @jsaideepak on behalf of devotees of the Padmanabhaswamy Temple since any outcome in the case is bound to affect the right of devotees.
8. Justice Lalit observed that even if devotees were not represented before the Kerala High Court, they have a right to be heard by the Surpreme Court because the scope of issues before the Supreme Court has only increased.
9. Mr. Gupta agreed with the observations of Justice Lalit and proceeded to make his submissions in respect of the contentions made by Mr. @jsaideepak.
10. Mr. Gupta submitted that not enough material had been placed on record to consider arguments with respect to rights under Article 26. Further, he contended that there was no need to get into Articles 25 & 26 in the case.
11. Mr. Gupta submitted that the only point for consideration before the Court was the effect of the 26th amendment on Section 18(2) of the TCHRI Act 1950 which uses the phrase Ruler of Travancore.
12. Mr. Gupta submitted that any grievances with respect to infraction of rights under Articles 25 & 26 may be raised only after the State Government of Kerala has constituted a body in accordance with the directions of the Kerala High Court.
13. According to Mr. Gupta, rights under Articles 25 and 26 have not been violated by the judgement and directions of the Kerala High Court.
14. Mr. Gupta submitted that it was unclear as to whose rights under Article 25(1) had been violated by the judgement of the Kerala High Court.
15. Mr. Gupta submitted that in so far as Mr. @jsaideepak's arguments on the rights of the Deity are concerned, according to the Shirur Mutt, a body corporate cannot enjoy rights under Article 25(1) and therefore a Deity as a body corporate has no rights under Article 25(1).
16. Mr. Gupta submitted that there is no basis to assert that the relationship of the Travancore Family to the Padmanabhaswamy Temple is essential and integral to the Temple.
17. Mr. Gupta further submitted that mere uniqueness of a Temple or its traditions does not lend it the character of a religious denomination.
18. Mr. Gupta submitted that the State Government has the right to intervene in the administration of the Temple since it is a secular activity.
19. Justice Malhotra observed that the question of which activity falls under the secular basket and which falls under the religious basket is a vexed question of theology which Courts are not equipped to adjudicate on.
20. Mr. Gupta then submitted that the scope of the 26th amendment was not restricted to the abolition of privy purses alone but to do away with the concept of rulership and all allied privileges.
21. Mr. Gupta submitted that in framing a scheme of management for the Padmanabhaswamy Temple, the Court is not limited by Section 37 of the TCHRI Act 1950 since it is merely an enabling provision
22. With respect to Mr. @jsaideepak's argument on non-amendment of Sections 18-23 of the TCHRI Act 1950 post the 26th amendment, Mr. Gupta submitted that until the demise of the erstwhile Ruler in 1991, no amendment was necessary since his rights were unaffected by 26th amendment
23. With this, Mr. Gupta concluded his submissions. Mr. P. B. Suresh commenced arguments on behalf of the original Petitioner before the Kerala High Court, who is the second Respondent before the Supreme Court.
24. Mr. Suresh submitted that the Covenant has no existence after the repealment of Articles 291 & 362 by the 26th amendment.
25. Therefore, Mr. Suresh submitted that the Petitioners cannot establish their case by placing reliance on the Covenant.
26. Mr. Suresh further submitted that the Padmanabhaswamy Temple being a public Temple, the concept of private management of a public Temple by the Travancore Family was antithetical.
27. Mr. Suresh submitted that accession instruments were not agreements with Rulers of Princely States but with the people of those States. Further, he submitted that guarantees in the Covenant could be revoked in public interest.
28. Mr. Suresh then placed reliance on Paragraphs 74 & 75 of RAGHUNATHRAO GANPATRAO
vs UNION OF INDIA to contend that covenants were merely political in nature and did not have any legally binding character.
29. Mr. Suresh argued that guarantees given to Princely States were independent of the covenants and rights, if any, of erstwhile Rulers must be sourced only to the Constitution.
30. Justice Lalit observed that the discussion in the RAGHUNATHRAO judgment was more about the basic structure of the Constitution in light of Keshavananda Bharati.
31. Justice Lalit asked Mr. Suresh to show which part of the Raghunath Rao judgement addresses the issue of Rulership post the 26th amendment. At this point, Mr. Suresh pointed out Paragraphs 112 & 149 of the Judgement.
32. Mr. Suresh submitted that Sections 18-23 of the TCHRI Act 1950 were void for being repugnant to Article 363A.
33. Mr. Suresh submitted that the Kerala High Court never directed the State Government to take over the Temple but merely directed the State to manage properties of the Temple.
34. Mr. Suresh submitted that only those customs and customary laws which were not in conflict with public policy could be upheld. Therefore, according to him, a public Temple being managed privately was inconsistent with public policy.
35. Mr. Suresh continued his arguments on February 28,2019.
36. Mr. Suresh relied on Article 254 to argue that laws made by the Parliament prevailed only colourable State legislations. To this, Justice Lalit pointed out that the Covenant was not a State legislation and therefore Article 254 had no applicability to the case.
37. Mr. Suresh then submitted that Section 18(2) of the TCHRI Act 1950 does not prescribe any qualifications and vests the Travancore Family with unfettered power. He submitted that Sections 18 & 20 of the TCHRI Act 1950 fail on the anvils of Article 14.
38. Upon enquiry by the Bench, Mr. Suresh informed the Court that the State was going to promulgate a new law which was in line with the judgement of the Kerala High Court.
39. Mr. Suresh submitted that ever since the order of May 2,2011 wherein the Supreme Court had appointed an administrative Committee to administer the Temple, Sections 18 & 20 have been in suspension.
40. Therefore, according to Mr. Suresh, it was possible for the Temple to be administered by a committee outside the Travancore Family. With this, Mr. Suresh concluded his submissions.
41. Mr. Datar commenced his rejoinder submissions. Mr. Datar submitted that Article 363 never came up for discussion in the RAGHUNATH RAO judgement since it was not part of the 26th amendment.
42. Mr. Datar submitted that deletion of Articles 291 & 362 affected only privy purses and privileges.
43. Mr. Datar submitted that while Article 291 protected privy purses, Article 362 protected the other obligations which flowed from the Covenant.
44. Mr. Datar submitted that in Madhav Rao Scindia case the Supreme Court directed that other obligations flowing from the Covenant and protected by Article 362 shall be enacted as laws under List 1 or List 2 of the Constitution.
45. Mr. Datar submitted that the TCHRI Act 1950 is nothing but an implementation of obligations flowing from Article 362. At this point, Justice Lalit enquires as to what is the effect of deletion of Article 362 by the 26th amendment on Sections 18-23 of the TCHRI Act 1950?
46. Justice Lalit enquires if after the deletion of Article 362, the TCHRI Act 1950 can be evaluated as any other legislation.
47. To this, Mr. Datar submitted that the deletion of Articles 291 and 362 have not affected the exemptions given to the Rulers under the Income Tax Act and Wealth Tax Act.
48. Similarly, according to Mr. Datar, the deletion of Articles 291 and 362 does not affect Sections 18-23 of the TCHRI Act 1950.
49. At this point, Justice Lalit enquires from Mr. Datar as to how does one construe the nature of the power exercised by the Travancore Family in relation to the Temple? Is it in the capacity of a Ruler or as a private citizen?
50. To this, Mr. Datar submitted that the TCHRI Act 1950 recognises mutilpe facets of the relationship, both religious and administrative.
51. At this point, Mr. Venugopal clarified that he is not relying on Article 363 nor is he relying on Covenant as the legal source of the rights of the Travancore Family. Justice Lalit observed that he understood Mr. Venugopal's position.
52. Mr. Datar submitted it was submitted before the Kerala High Court on behalf of the Travancore Family that the position as a Padmanabha Dasa existed before the Covenant, which has been recognised by the Covenant
53. Therefore, it was submitted before the Kerala High Court that if the High Court disputes the Ruler's position as a Padmanabha Dasa, this was a dispute within the meaning of the Covenant which cannot be decided by Courts by virtue of Article 363.
54. Mr. Datar then proceeded to address Raghunath RAO judgement. Justice Lalit asked Mr. Datar to specifically address Paragraphs 74 & 75 of the Judgement.
55. Mr. Datar first drew the Court's attention to Paragraphs 32 & 33 of the Raghunath RAO judgement to show that V. P. Menon's book on integration of States was not referred to.
56. Mr. Datar submitted that he disagreed with the Raghunath Rao judgement to the extent that it takes the view that Covenants had no relevance anymore or that they were limited only to the issue of Privy Purses.
57. At this point, Mr. @jsaideepak drew Court's attention to Para 36 of Raghunath Rao judgement which clearly stated that judgement was not concerned with the Covenants entered into with Rulers of other States.
58. Therefore, the Raghunath RAO judgement cannot be used to interpret the Covenant entered into with the Travancore Cochin Princely State.
59. Mr. Datar resumed arguments on March 7, 2019.
60. Mr. Datar submitted that Article 366(22) read with Article 291 was expressly concerned only with the abolition of Privy purses, and no other rights.
61. Mr. Datar then drew attention to Paragraph 36 of the Raghunath Rao judgement which was pointed out by Mr. @jsaideepak. The said paragraph clearly states that judgement relates only to two Covenants, neither of them are about Covenant with the Travancore Cochin Princely State.
62. Mr. Datar submitted that the Raghunath Rao judgement was concerned about whether the 26th amendment violated the basic structure. This is evident from Paragraph 48 of the Judgement.
63. Mr. Datar submitted that the judgement which upheld the validity of the 26th amendment is not under challenge. But neither the judgement nor the amendment extend to anything other than privy purses. Nor does the judgement extend to other Covenants which were not discussed.
64. Mr. Datar submitted that the conclusion in Paras 75 & 76 of Raghunath RAO that the covenants have no force after the Constitution is incorrect since Covenants were recognised by the provisions of the Constitution.
65. Further Mr. Datar submitted that Madhav Rao Scindia proved that rights under the Covenant could be taken away only by a Constitutional amendment and not even by a Presidential order.
66. Mr. Datar submitted that Article 366(22) did not affect the concept of Rulership in all manners since Article 363 has been retained, including the definition of Ruler under Article 363(2)(b).
67. At this point, Bench enquired how much more time would Mr. Datar need to conclude his submissions. Mr. Datar informed that he would need another 45 minutes.
68. Mr. Venugopal submitted that he would at least 2 hours to address the Amicus report subsequent to which Mr. Jaideep Gupta could respond to Mr. Venugopal's arguments on the report.
69. Mr. @jsaideepak submitted that since his rejoinder submissions would largely relate to the legal issues, he would need about 45 minutes to an hour. Accordingly the Bench indicated that it would try to conclude hearings before the Holi recess.
70. Mr. Venugopal submitted that since Mr. @jsaideepak would be addressing legal issues, he would prefer to commence arguments on the Amicus Report and the Vinod Rai report after Mr. @jsaideepak's rejoinder.
71. The Bench agreed with this sequence and Mr. Datar resumed his submissions. Mr. Datar read out the repealed Article 362 which referred to personal rights, privileges and dignities.
72. Mr. Datar referred to Paragraphs 185 & 186 of the Madhav Rao Scindia which dealt with Travancore and Cochin Princely States. The said Paragraphs clearly recognise the rights of the Travancore Family in addition to privy purses.
73. Therefore Mr. Datar submitted that such rights falls under personal rights as referred to in Article 362.
74. Mr. Datar drew the Court's attention to Article 363A which clearly abolishes only rights with respect to privy purses. Mr. Datar then addressed what constitute privileges. He submitted that these are special rights granted by the State or the Sovereign.
75. Mr. Datar submitted that he agreed with Mr. @jsaideepak's position that the position of a Padmanabha Dasa is not a privilege since it was not granted by the Crown or any Sovereign.
76. Mr. Datar then resumed his submissions on March 12, 2019 i.e. Today.
77. Mr. Datar started addressing the Court on the Vinod Rai report. Mr. Datar submitted that on one hand the Report states that records and registers of the Temple were not shared with Mr. Rai and then goes on to quote statistics and accounts from the registers.
78. Mr. Datar submitted that there were many such glaring loopholes in the report submitted by Vinod Rai.
79. Mr. Datar submitted that the mandate of the Auditor was not to audit records of the past 25 years but was merely limited to inventorize existing assets.
80. Mr. Datar submitted that it was also not the mandate of the Auditor to comment on the administrative processes of the Temple.
81. Mr. Datar submitted that there was no question of gold items going missing since no gold item was allowed to be taken out of Temple. In fact, such items were melted for purposes of making new items.
82. Mr. Datar submitted that the Auditor never enquired as to whether the so-called missing gold items had been reused.
83. Mr. Datar then proceeded to deal with other aspects of the Auditor's report. He pointed out that the Auditor had made inexplicable leaps in his findings.
84. For instance, merely because one of the pots used for abhishekam had the number 1988 engraved on it, the Auditor concluded that 1987 pots were missing.
85. Mr. Datar pointed out that the Auditor never met anyone from the Travancore Family to seek their inputs during the process of preparation of the audit report.
86. Mr. Datar submitted that despite never having sought the assistance of the Travancore Family, the Auditor recorded that he never received any cooperation from the Travancore Family.
87. Mr. Datar then explained that the Auditor failed to appreciate that the Temple maintained 27 different accounts to cater to different ceremonies and rituals so that devotees could accordingly make their contributions.
88. Mr. Datar dealt with a few more aspects of the Auditor's report and concluded his submissions on the Auditor's report. He then proceeded to make his final points on legal issues.
89. Mr. Datar placed before the Court Basu's silver jubilee edition commentary on the Constitution to make his submissions on Article 363.
90. Mr. Datar relied on the commentary to explain the Constitution's treatment of Covenants. According to the commentary, Covenants entered into with Princely States were effectively in the nature of binding treaties.
91. Mr. Datar then submitted that the bar on Jurisdiction of Court's which is present in Article 363 is also present in the proviso to Article 131.
92. Mr. Datar submitted that the proviso to Article 131 was inserted by the Seventh amendment and not interfered with by the 26th amendment.
93. Mr. Datar submitted that the dispute referred to in Article 363(1) is in relation to the Covenant.
94. Mr. Datar submitted that the effect of the Kerala High Court's judgment is that it affects Royal families across the country. Given the bar under Article 363, the High Court ought to have referred it to the Supreme Court.
95. Mr. Datar submitted that what makes matter worse is that apart from taking away rights of Travancore Family, the High Court has recommended creation of a museum and Auditor has recommended that Temple be run on the lines of the Guruvayur Temple which was beyond his mandate.
96. With this, Mr. Datar concluded his rejoinder submissions. Mr. @jsaideepak commenced his rejoinder submissions.
97. Mr. @jsaideepak submitted that he originally had a script in mind for his rejoinder, but would like to begin from where Mr. Datar concluded.
98. Mr. @jsaideepak requested the Bench to look at the language of Article 363. Mr. @jsaideepak submitted that the first thing to be noted is that the 26th amendment did not interfere with the existence of Article 363 since it continues to exist in the Constitution.
99. Mr. @jsaideepak submitted that if the object of Article 363 was meant to be rendered redundant by the repealment of Articles 291 and 362, then the 26th amendment would have repealed Article 363 as well, which it did not.
100. Mr. @jsaideepak then read out Article 363(1) to explain its implications. Mr. @jsaideepak submitted that the provision started with a non-obstante clause and was subject only to Article 143.
101. Mr. @jsaideepak submitted that Article 363(1) bars the jurisdiction of Courts, including the Supreme Court, in relation to disputes "arising out of" any provision of a treaty, Covenant etc which was entered into by the Ruler.
102. Mr. @jsaideepak submitted that the definition of Ruler under Article 363(2)(b) was meant for interpreting Article 363(1) since it refers to the Ruler who entered into the Covenant with the Indian Union.
103. Mr. @jsaideepak submitted that while Mr. Jaideep Gupta argued that the definition of Ruler under Article 363(2)(b) was detrimental to the case of the Travancore Family, Mr. @jsaideepak would demonstrate that it in fact strengthened the case of the Family.
104. Mr. @jsaideepak pointed out that Article 363(1) had two parts and both parts barred the jurisdiction of Courts including the Supreme Court in respect of disputes "arising out of" Covenants.
105. Mr. @jsaideepak submitted that the following conclusions flow from the language of Article 363 (1). First, that despite the 26th amendment the Article exists and it expressly refers to Covenants.
106. Mr. @jsaideepak that therefore it is clear that Covenants as instruments continue to enjoy Constitutional recognition. Therefore, Covenants were not mere political documents but were in fact legal instruments.
107. Mr. @jsaideepak then placed reliance on a judgment of the Supreme Court in Renu Sagar v General Electric wherein the Court had undertaken an interpretation of the phrase "arising out of" in the context of arbitration.
108. Mr. @jsaideepak submitted that the english meaning of a phrase cannot change merely because it has been used in the context of arbitration and the same meaning must apply even in the context of the Constitution.
109. Mr. @jsaideepak further submitted that the use of the phrase "arising out of" must in fact be given a broader interpretation in the context of the Constitution.
110. Mr. @jsaideepak drew the Court's attention to Paragraphs 12-26 of the Renu Sagar judgement. Mr. @jsaideepak read out Paragraph 15 wherein the Supreme Court agreed that the words "arising out of a contract" were wider than "under the contract".
111. Mr. @jsaideepak submitted that the said judgment clearly laid down that phrases similar to "arising out of" such as "in relation to" or "in connection with" had the widest possible amplitude.
112. Mr. @jsaideepak submitted that such phrases clearly indicated the widest possible content as well as intent, which was the position laid down by the Supreme Court in the Renu Sagar judgement.
113. Mr. @jsaideepak then drew the Court's attention to the principles laid down by the Supreme Court in Paragraph 26(2) of the said judgment.
114. Mr. @jsaideepak pointed out that in the said paragraph, the Supreme Court had laid down that phrases such as "arising out of" have the widest possible amplitude which includes issues relating to existence, validity, effect and scope.
115. Mr. @jsaideepak submitted that it is the admitted positon of all the parties that the case before the Court has some nexus to the Covenant.
116. Mr. @jsaideepak submitted that whether Covenant applies, whether it is source of the Family's rights or whether Covenant too is recognition of a pre-existing right which was carried forward in Sections 18-23 of the TCHRI Act 1950, are issues which "arise out of Covenant".
117. Mr. @jsaideepak submitted that the present dispute before the Court attracts both limbs of Article 363(1). Therefore, contrary to Mr. Gupta's submission, the definition of Article 363(2)(b) applies since the bar under Article 363(1) applies to the case.
118. Mr. @jsaideepak submitted that this aspect of Article 363(1) has not been dealt with the Kerala High Court at all in its judgment despite discussing Article 363 in the judgement.
119. Mr. @jsaideepak submitted that the High Court's mechanical reading of Article 363(1) has resulted in the High Court not appreciating the true scope of the bar under Article 363.
120. Mr. @jsaideepak submitted that independent of the merits of the case, the issue of Jurisdiction fundamentally affects the power of the forum to preside over an issue and therefore this issue goes to the root of the High Court's Jurisdiction.
121. Mr. @jsaideepak submitted that he agrees with Mr. Datar that the proviso to Article 131 is in pari materia with Article 363(1). Importantly, the said proviso also uses the phrase "arising out of".
122. Mr. @jsaideepak submitted that in fact surprisingly there has been no reference to the proviso to Article 131 in the arguments of the State Government.
123. Mr. @jsaideepak submitted that as a consequence of the scope of Article 363(1), if he were to park the merits of the case for the time being and only focus on the issue of jurisdiction, Article 363 is a bar that applies on the jurisdiction of all Courts including Hon'ble SC
124. At this point, Justice Lalit observed that if the Court were to accept Mr. @jsaideepak's position on Article 363(1), a dispute which arises out Covenant including the issue of the applicability of the Covenant squarely attracts Article 363(1)
125. Justice Lalit also observed that it is well beyond the jurisdiction of any Court including the Supreme Court's original jurisdiction under Article 131 thanks to the proviso to the said Article.
126. Mr. @jsaideepak submitted that this was indeed his position. Justice Lalit further observed that this would mean that the only window available as an exception to Article 363(1) would be Article 143 in which the Supreme Court tenders advice on a Presidential reference.
127. Mr. @jsaideepak agreed and submitted that this was indeed his position that the Supreme Court merely plays an advisory role as opposed to an adjudicator role in disputes to which Article 363(1) applies as in this case.
128. Justice Lalit therefore observed that the Constitutional scheme is that the High Courts and Supreme Court are not meant to adjudicate on such disputes.
129. Mr. @jsaideepak submitted that underlying reason behind bar under Article 363 was that relationship under Covenant, which is B2B arrangement or principal-to-principal arrangement, must not be decided by Courts since covenant is effectively treaty between two states.
130. Mr. @jsaideepak submitted that only the head of the State, namely the President, can look into disputes under Article 363 and may seek the advice of the Supreme Court under Article 143 in adjudicating such disputes.
131. At this juncture, Mr. Jaideep Gupta submitted that he had dealt with Article 363 by placing reliance on Madhav Rao Scindia judgement. Mr. @jsaideepak responded saying that to the extent judgements cited by Mr. Gupta have not dealt with issue of scope of Article 363.
132. Mr. @jsaideepak submitted that at the very least it is clear that the Kerala High Court has not applied its mind to these aspects of Article 363 and therefore its judgment is liable to be set aside on the issue of jurisdiction without even getting into the merits of case.
133. Mr. @jsaideepak submitted that since the High Court had not even considered these issues, it falls upon the Hon'ble Supreme Court to ask if the High Court have proceeded to make such sweeping observations relying solely on Article 366(22).
134. Justice Lalit then enquired from Mr. @jsaideepak as to what is his positon with respect to the definition of Ruler under Article 366(22). To this Mr. @jsaideepak submitted that he had three answers to this question.
135. Mr. @jsaideepak submitted that the one document which ought to have been placed before the Court so far but have not been placed, are the Legislative debates on the 26th amendment.
136. Mr. @jsaideepak submitted that the Legislative debates shed light on what was the discussion and cogitation in the Parliament when the 26th amendment was passed.
137. Mr. @jsaideepak placed before the Court Lok Sabha & Rajya Sabha debates on 26th amendment. Mr. @jsaideepak submitted that thus far attempte to decipher the intent behind 26th amendment were based on all other sources except the primary document, namely Legislative debates.
138. Mr. @jsaideepak drew the Court's attention to Page 139 of the Lok Sabha debate wherein the question of what constitutes a privilege within the meaning of the 26th amendment has been clearly captured.
139. Mr. @jsaideepak submitted that his attempt will be to demonstrate that even if it assumed that by repealment of Articles 291 and 362 privileges too have been abolished, it still does not affect his position with respect to relationship between Travancore Family & the Temple.
140. Mr. @jsaideepak submitted that the Legislative debates will show that the term privilege had a specific meaning when it was used in the 26th amendment.
141. Mr. @jsaideepak pointed out from the debate that the term privilege was specifically used in the context of an inherited special status bestowed upon Rulers of Princely States by the British Crown, which were unrelated to current social functions.
142. Mr. @jsaideepak pointed that this exact language was also used in the statement of objects and reasons of the 26th amendment.
143. Mr. @jsaideepak submitted that clearly the term privilege was used in the context of privileges and titles such as Rao Bahadur and Khan Bahadur.
144. Mr. @jsaideepak submitted that these kinds of privileges which were bestowed by the Crown were the privileges that could deemed as having been abolished by the 26th amendment.
145. Mr. @jsaideepak submitted that if a Ruler enjoyed a relationship which existed way before entry of British into India & that relationship is in nature of a religious relationship, how can that be treated as a privilege bestowed by Crown within the meaning of 26th amendment?
146. Mr. @jsaideepak submitted that he went a step further. The act of dedication of Travancore State by Raja Marthanda Varma occurred in 1750, however the concept of a Padmanabha Dasa existed even prior to that dedication as established by documents produced by Mr. @jsaideepak
147. Mr. @jsaideepak submitted that relationship of Padmanabha Dasa existed even before 1750 & what happened in 1750 was dedication of State. This being the case where was the question of status of Padmanabha Dasa being bestowed on Travancore King as a privilege by British Crown?
148. Mr. @jsaideepak submitted that concept of Padmanabha Dasa was independent of the relationship between Travancore State and British Crown. As a consequence of this, repealment of Articles 291 and 362 or the 26th do not even remotely affect the rights of the Travancore Family.
149. Mr. @jsaideepak submitted that neither in the Madhav Rao Scindia judgement nor the Raghunath Rao there is any discussion on the impact of the 26th amendment on the rights and relationships which existed before the British came into India.
150. Mr. @jsaideepak submitted that there was no discussion in either of the Judgements on the impact of the 26th amendment on rights not bestowed or created by the British.
151. Mr. @jsaideepak submitted that in fact that there was no discussion in either of Judgements on religious rights of Royal families with respect to Temples. Therefore, these judgements which merely discuss privy purses & privileges, have no relevance to facts of this case.
152. Mr. @jsaideepak submitted that the 26th amendment was never intended to affect religious relationships since that would impact rights under Article 25(1) and this was never even envisaged in the legislative debates.
153. Therefore, Mr. @jsaideepak submitted that the 26th amendment is being extrapolated by the State Government beyond its original intent and original intent is everything.
154. Mr. @jsaideepak submitted that when it comes these kind of amendments which have a specific historical context, it is not possible for anyone to say that their original intent will be revisited and recrafted to suit current sensibilities.
155. Mr. @jsaideepak submitted that if the State Government of Kerala wishes to completely divorce the 26th amendment from its history and its intent, it must at least take that position openly and honestly instead of distorting history to suit its own positon and intent.
156. Mr. @jsaideepak then placed reliance on two documents - one is a seminal article published in Harvard Law Review in May 1968 on the distinction between rights and privileges and the changing nature of the State's position with respect to them in a constitutional framework
157. The second document which Mr. @jsaideepak placed reliance on was the judgement of the Supreme Court in Ramana Dayaram Shetty vs The International Airport wherein the distinction between right and privilege had been discussed.
158. Relying on these two documents, Mr. @jsaideepak submitted that any student of jurisprudence understands the distinction between right & privilege. What has only changed over time is the position of law on Constitutional state's accountability even in context of privileges.
159. In other words, Mr. @jsaideepak submitted that while Courts have held that even with respect to privileges the State cannot act arbitrarily, Courts have continued to acknowledge and preserve the distinction between a right and a privilege.
160. Applying this logic, Mr. @jsaideepak submitted that the Travancore Family's relationship is a religious right and not a privilege bestowed upon them by the British. The relationship is recognised in tradition which is borne out from the Kerala Mahatmyam.
161. Mr. @jsaideepak pointed out there is a crowning ceremony which takes place at the Padmanabhaswamy Temple whenever a new member of the Travancore Family takes charge of his duty as the protector of the Temple.
162. Mr. @jsaideepak submitted that whether that person is a Ruler for the rest of the world or not does not make a difference to that ceremony because the tradition recognises him as the Ruler in so far as the Temple is concerned.
163. Mr. @jsaideepak submitted that Ruler occupies position of Yajaman as far as Temple is concerned. Mr. @jsaideepak submitted that each of his submissions on traditions of Temple are endorsed by Tanthri of Temple who has reached out to his team to share his views on the case.
164. Mr. @jsaideepak submitted that the Tantri has endorsed the position taken by Mr. @jsaideepak on the basis of the Kerala Mahatmyam and that an impleadment application would be filed tomorrow on behalf of the Tantri.
165. At this point, Justice Lalit asked Mr. @jsaideepak to show the shlokas from his Written submissions and documents. Mr. @jsaideepak pointed out the relevant Shlokas from Chapter 88 of the Kerala Mahatmyam.
166. Mr. @jsaideepak submitted that these shlokas establish the relationship between the Travancore Family and the Temple. Therefore, when Article 8 of the Covenant is interpreted, the term Ruler must be understood in so far as the Temple is concerned, and not the State.
167. Mr. @jsaideepak submitted that on January 26, 1950 the Ruler had lost any control over the State and by 1971, he has lost only the Privy purse and any other privilege bestowed by the British Crown but not the religious relationship with the Temple.
168. Mr. @jsaideepak submitted that the position of the Travancore Family with the Temple remains undiminished and undiluted notwithstanding the 26th amendment.
169. Mr. @jsaideepak submitted that therefore the definition of Ruler under Article 366(22) does nothing to the relationship between the Travancore Family and the Temple.
170. At this point, Justice Indu Malhotra asked Mr. @jsaideepak to point out the relevant pages of the Harvard Law Review article. Mr. @jsaideepak pointed out the opening paragraphs of the article which quote Justice Oliver Wendell Holmes' position on privilege.
171. Mr. @jsaideepak then submitted if there is a ceremony which recognizes Senior male member of Travancore Family as Ruler for purposes of Temple which is independent of his position as a Ruler, there is no question of Article 366(22) having a bearing on that relationship.
172. Mr. @jsaideepak submitted that the Ruler is a Ruler for the purposes of the Temple as far as the stakeholders of the Temple are concerned, namely the Tantri, the Ettarayogam and the devotees. None else has the right to object to it or interfere with it.
173. At this point, Justice Lalit asked Mr. @jsaideepak his position on the need for recognition of a successor to the Ruler. Mr. @jsaideepak submitted that the answer to this question is to be found in the Covenant itself which is crystal clear on the issue.
174. Mr. @jsaideepak submitted that in addressing the question, he would also respond to Mr. Gupta's arguments on the issue especially since Mr. Gupta has referred to Mr. @jsaideepak's arguments in Paragraphs 68-91 of his Written Submissions.
175. Mr. @jsaideepak submitted that Mr. Gupta has relied on Articles 4, 14,15, 16, 17 & 21 of the Covenant to show that the term Ruler was used only in the context of the erstwhile Ruler and not his successors.
176. Mr. @jsaideepak drew the Court's attention to Article 4(2) of the Covenant which expressly states the provision applies to the lifetime of the Ruler.
177. Mr. @jsaideepak then referred to the proviso to Article 14(1) of the Covenant to show that it referred to the then Ruler and not his successors.
178. Mr. @jsaideepak then referred to Article 17 of the Covenant which referred to succession to the gaddi/throne, dignities, titles and privileges.
179. Mr. @jsaideepak submitted that even if the 26th amendment kills Article 17 of the Covenant, it still does not affect Article 8 since the latter is a stand alone provision which protects the relationship between the Travancore Family and the Temple.
180. Mr. @jsaideepak pointed that Article 8 was the consequence of a specific negotiation between the Travancore Princely State and the Indian Union. Therefore, it is independent of Article 17 of the Covenant since Article 8 is not a title, dignity or privilege.
181. Mr. @jsaideepak submitted that the 26th amendment affects only Article 15 of the Covenant which specifically deals with privy purses, and not Article 8 which protects the relationship between the Travancore Family and the Temple.
182. Mr. @jsaideepak compared the language of Article 8 of the Covenant with the language of Articles 4,14 and 15 to establish that the right under Article 8 did not require recognition of a successor by the President since that provision did not apply only to the erswhile Ruler.
183. Mr. @jsaideepak then drew Court's attention to last page of Covenant which expressly states that the Covenant was signed by the Rulers of Travancore and Cochin on behalf of themselves, their heirs and their successors.
184. Mr. @jsaideepak submitted that this was not a mere formality and applies to Article 8 as well.
185. Mr. @jsaideepak will continue his submissions tomorrow.
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