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1- Here are the updates in today's (March 27, 2019) hearing in the #PadmanabhaswamyTemple case.
2- Mr. @jsaideepak began with a recap of his submissions of March 12, 2019.
3- Mr. @jsaideepak recapped his submissions on the bar under Article 363 on the jurisdiction of the High Court and Supreme Court in relation to any dispute arising out of a right that flows from the Covenant or from the Constitution of which has a nexus to the Covenant.
4- Mr. @jsaideepak also drew attention to the relevance of the definition of Ruler under Article 363(2)(b) and its application to Article 363(1).
5- Mr. @jsaideepak briefly recapped his submissions on Articles 366(22), 131, 143, 291 & 362 of the Constitution, as well as the distinction between right and privilege.
6a- Mr. @jsaideepak also recapped his submissions on the standalone nature and centrality of Article 8 of the Covenant which protects the relationship between the Travancore Family and the #PadmanabhaswamyTemple for all time to come,...
6b- ...and which can only be interfered with by the President given the B2B nature of the Covenant.
7a- Mr. @jsaideepak recapped the distinction in the language of Article 8 of the Covenant and the other Articles of the Covenant which were relied upon by Mr. Jaideep Gupta, the Counsel for the State Government of Kerala.
7b- Mr. @jsaideepak submitted that it was clear that Article 8 was not limited to the lifetime of the erstwhile Ruler.
8- Mr. @jsaideepak also walked the Court again thru the Lok Sabha debates prior to the 26th amendment to show that the term privilege was used in context of special privileges bestowed by the British Crown, and did not extend to rights which existed prior to entry of the British.
9- At this point, Justice Lalit asked Mr. @jsaideepak to point out the specific paragraph from the Lok Sabha debate which Mr. @jsaideepak relied upon. Mr. @jsaideepak drew the Court's attention to Page 139 of the Lok Sabha debate.
10- Mr. @jsaideepak submitted that it was clear from the Lok Sabha debate that the repealment of Articles 291 and 362 does not have a bearing on the relationship between the Travancore Family and the Temple.
11- Mr. @jsaideepak then recapped his submission that the status of a Padmanabha Dasa existed even before 1750 and it was only the additional fact of dedication of the State which took place in 1750.
12- Mr. @jsaideepak recapped the reason why he had placed reliance on history and scripture to establish the prior existence of the position of Padmanabha Dasa. Mr. @jsaideepak submitted that Mr. Gupta had not dealt with any of the documents filed by him.
13a- Mr. @jsaideepak then submitted that Mr. Gupta's submission that since the relationship between the Travancore Family and the Temple...
13b- ...has not been protected as a private right in the schedule to the Covenant, it was not treated as a private right, is incorrect and flies in the face of common sense and logic.
14- Mr. @jsaideepak submitted that Mr. Gupta's submission amounts to placing the schedule at a position higher than Article 8, which is a specific standalone provision that protects the relationship between the Travancore Family and the Temple.
15- Mr @jsaideepak submitted that existence of Article 8 is proof of the express recognition of the need for special treatment of the relationship between Travancore Family & the Temple, and its absence in the schedule to the Covenant makes no difference to the special treatment.
16- Mr. @jsaideepak then recapped his submission that even in interpreting the term "dispute" in Article 363, an expansive approach must be taken since the provision limits the scope of the judiciary and identifies the exclusive domain of the President of India.
17a- Mr. @jsaideepak also recapped his submission that neither the Madhav Rao Scindia judgement nor the Raghunath Rao judgement have any application to the facts of this case...
17b- ...since those judgements never dealt with the impact of the 26th amendment on religious rights, nor did they discuss the peculiar provisions of the Travancore Cochin Covenant.
18a- Mr. @jsaideepak then drew attention to the impleadment application filed on behalf of the Thanthri of the Padmanabhaswamy Temple wherein there is...
18b- ...a clear exposition of a crowning ceremony that takes place in the Temple whenever the Senior Male member of the Travancore Family takes charge of his position.
19- Mr. @jsaideepak submitted that the crowning ceremony assumes particular significance since it is unaffected by the position of the Ruler outside the Temple and regardless of whether the State recognises him as a Ruler.
20a- Mr. @jsaideepak then recapped his submissions with respect to the limited effect of the 26th amendment on Article 15 of the Covenant...
20b- ...which deals with Privy Purse and perhaps the privileges and dignities under Article 17 of the Covenant, but does not in any manner impact Article 8 of the Covenant.
21- Mr. @jsaideepak then compared the language of Article 17 of the Covenant and Article 362 of the Constitution to show that personal rights and privileges are mentioned in both, but neither affect Article 8 of the Covenant since Article 8 is independent of Article 17.
22- Mr. @jsaideepak submitted that the Covenant must be treated as a document which is inherently severable, therefore each provision of the Covenant must be interpreted on its own merits.
23- Mr. @jsaideepak then recapped his submission with respect to the last page of the Covenant wherein the Rulers had appended signatures on behalf of themselves, their heirs and their successors. This made Article 8 applicable and relevant even today.
24- Mr. @jsaideepak completed the recap of his submissions of March 12, 2019 and began his submissions of the day.
25- Mr. @jsaideepak referred to Section 6 of the Government of India Act, 1935, including its amended version post-1947.
26- Mr. @jsaideepak submitted that it was indeed unfortunate that the State Government, which has access to all the Legislative documents which are relevant to the case, did not place them on record.
27- Mr. @jsaideepak pointed out that the State Government had chosen not to place the Legislative debates relating to the 26th amendment, despite the Court's efforts to cull out the intention of the 26th amendment from various documents.
28- Mr @jsaideepak submitted that as a consequence of the failure of the State Government to place the relevant legislative history, it had fallen on him and the parties he represents to place all the relevant documents that shed light on the intent & scope of the 26th amendment.
29- Mr. @jsaideepak submitted that while Mr. Gupta placed reliance on the Government of India Act 1935, he had failed to point out Section 6 of said Act and the amendments which were effected to the said provision.
30- Mr. @jsaideepak pointed out that Article 9 of the Covenant refers to Section 6 of Government of India Act 1935, which is relevant to the issue of Padmanabha Dasa.
31- Mr. @jsaideepak then handed over to the Bench the original Section 6 as well as its amended version. Mr. @jsaideepak pointed out that Section 6 expressly deals with Accession of Indian States.
32- Mr. @jsaideepak then drew the Court's attention specifically to sub-Section 6 of Section 6 which specifically deals with who can sign the Instruments of Accession.
33- Mr. @jsaideepak pointed that the said provision expressly recognises that a person other than the Ruler may sign on behalf of the Ruler if he is duly authorised to do so, in situations where the Ruler is a minor or cannot sign for other reasons.
34a- Mr. @jsaideepak submitted that in the case of the Travancore Princely State, the Ruler was merely representing the Deity, who is a minor in law...
34b- In other words, Section 6(6) of the GoI Act 1935 legally recognises the fact that the Ruler signed on behalf of the Deity due to the Deity's minorhood.
35- Mr. @jsaideepak then drew the Court's attention to the Section 6 which was amended in 1947, wherein sub-Section 4 effectively reiterated the original Section 6(6) and still accounted for the Deity's minorhood and the Ruler's representative capacity on behalf of the Deity.
36- Mr. @jsaideepak submitted that this submission of his will be corroborated by another important document which the State Government had failed to place before the Court, namely the Instrument of Accession signed by the Travancore Cochin Princely State in July 1949.
37- Before dealing with the instrument of accession, Mr. @jsaideepak drew the Court's attention to the Book, 'Lives of the Indian Princes' by Charles Allen, wherein the erstwhile Maharaja's predicament in signing the Instrument of Accession as the Ruler has been clearly captured.
38- Mr. @jsaideepak submitted that the original Section 6(6) & amended Section 6(4) were meant to precisely address such situations where the Ruler was, in fact, signing the Instrument on behalf of the Deity or persons who were legally minors for other reasons.
39a- Mr. @jsaideepak then referred to the Instrument of Accession of July 1949 wherein the Ruler of Travancore expressly introduced himself as the Padmanabha Dasa...
39b- ...Mr. @jsaideepak submitted that this was not a mere honorific title given the history of the relationship between the Travancore Family and the Temple, but was, in fact, a legal reality for centuries even before 1750.
40a- Mr. @jsaideepak submitted that the extent of importance attached by the Travancore Family to its relationship with the Temple cannot be understood through a secular rational prism because it is unflinching faith...
40b- ...Mr. @jsaideepak submitted that the Family has sacrificed a lot thanks to the Accession as well as the 26th amendment.
41- Mr. @jsaideepak submitted that the one surviving relationship which they hold dear is also on the verge of extinction thanks to the motivated litigation of a tenant who refuses to vacate the premises of the Temple.
42- At this point, Justice Indu Malhotra enquired from Mr. @jsaideepak as to when Section 6 of the Government of India Act 1935 was amended. Mr. @jsaideepak submitted that it was amended in 1947.
43- Mr. @jsaideepak submitted that each of these facts only reiterates the centrality of Article 8 of the Covenant, which in turn triggers the bar on the jurisdiction of Courts under Article 363.
44- Mr. @jsaideepak then placed before the Court the amendments undertaken post-1991 to the TCHRI Act 1950 to demonstrate that no amendments were undertaken whatsoever to Sections 18-23 of the TCHRI Act 1950 even after the demise of the erstwhile Ruler in 1991.
45- Mr. @jsaideepak recollected the argument of Mr. Gupta that the reason why Sections 18-23 were not amended in 1958 & 1974 when the TCHRI Act 1950 was amended, was because the erstwhile Ruler who remained Ruler under the amended Article 366(22), was alive until 1991.
46a- Mr. @jsaideepak submitted that this submission of Mr. Gupta was completely factually erroneous and flawed since multiple amendments were made to the TCHRI Act 1950 even after 1991,...
46b- ...in none of which Sections 18-23 were amended by the State Government of Kerala to reflect its current position that after the death of the erstwhile Ruler, there was no Ruler thanks to the 26th amendment.
47- Mr @jsaideepak placed before the Court the amendments undertaken to the TCHRI Act 1950 in 1991, 94, 95, 99 & 2007 to show that the State Govt did not amend Sections 18-23 because they were aware of the fact that the Covenant and the Constitution protected the said provisions.
48a- Mr. @jsaideepak submitted that it cannot be the argument of the State Government that they purposively achieved the object of repealing or amending Sections 18-23 of the TCHRI Act by...
48b- ...amending every other provision of the TCHRI Act 1950 except Sections 18-23. He submitted that such an argument would be contrived and a stretch of logic.
49- At this point, Justice Lalit enquired from Mr. @jsaideepak that while factually the State Government did not amend Articles 18-23 of Act, is it the legal position according to Mr. @jsaideepak that the State Government cannot amend these provisions owing to the Covenant?
50a- Mr. @jsaideepak submitted that this was precisely the sum and substance of his submissions - that Article 8 of the Covenant acted as a positive bar on the power of the State Assembly to remove or amend or repeal Sections 18-23...
50b- ...because that would directly affect rights under Article 8 of the Covenant, which would require Presidential interference.
51- Mr. @jsaideepak submitted that he would demonstrate this legal position from the debates in the Travancore Cochin Assembly which took place before the coming into force of the Indian Constitution.
52a- Mr. @jsaideepak submitted that the Travancore Cochin State was one of the few States which had an Assembly, and that there was a handshake between the said Assembly and the Constituent Assembly...
52b- ...As a consequence of the said handshake, provisions of the Covenant, in particular Article 8, became part of the Constitution of India.
53. Mr. @jsaideepak submitted that if it was position of the State Government today that it could amend or repeal Sections 18-23, that position would fly in the face of the debates in the predecessor State, namely the Travancore Cochin State.
54a- Mr. @jsaideepak placed before the Court extracts from the debate of the Travancore Cochin Assembly dated August 6,1949. The said debate clearly showed that the Covenant was treated as the Constitution of the Travancore Cochin State pending...
54b- ...the adoption of the Indian Constitution. Mr. @jsaideepak submitted that it was clear that the Covenant was not a mere political document as contended by Mr. Jaideep Gupta.
55a- Mr. @jsaideepak therefore submitted that if the State Government were to resort to summary abrogation or abridgement of Sections 18-23 of the TCHRI Act 1950 through a legislative action,...
55b- ...that action would be directly in contravention of Article 363 and would warrant direct intervention by the Hon'ble President who could in turn seek the advice of the Supreme Court under Article 143.
56a- Mr. @jsaideepak then placed before the Court extracts from the debate of the Travancore Cochin Assembly dated October 6, 1949. Mr. @jsaideepak submitted that...
56b- ...this extract shed light on how Article 8 of the Covenant also led to the insertion of Article 290A of the Constitution, which relates to the payment of 50 lakhs to the Travancore Devaswom Board and the Padmanabhaswamy Temple.
57a- Mr. @jsaideepak highlighted the fact that when the issue of payment from the consolidated fund of India was being discussed, in order to ensure that it was not challenged as a violation of the secular character of the Indian Constitution, it was included as...
57b- ...a separate provision, namely Article 290A, so that it could act as a charge on the consolidated fund as opposed to being treated as a dole or largesse from the fund.
58. Mr. @jsaideepak highlighted the express reference to Article 8 in the promulgation of Article 290A, which demonstrated its centrality to the discussion at hand.
59a- Mr. @jsaideepak then placed before the Court the proclamation of the Travancore Maharaja in August 1947. Mr. @jsaideepak pointed out that the opening lines of the proclamation specifically state that the Travancore Family has been a devotee...
59b- ...of Lord Padmanabhaswamy for centuries, pointing to the immense importance attached by the Travancore Family to the relationship with the Temple that it finds reference in every document.
60a- Mr. @jsaideepak then placed before the Court the report of the Select Committee which was considering the Travancore Cochin Hindu Religious Institutions Bill,...
60b- ...whose central object was to prevent politicisation of the Devaswom Board and to ensure that the Ruler continued to have exclusive control over the Padmanabhaswamy Temple.
61- Mr. @jsaideepak then placed before the Court the judgement of the Kerala High Court in Mujeeba Rehman v State of Kerala wherein the counter affidavit filed by the State Government of Kerala has been extracted in detail.
62a- Mr. @jsaideepak read out extracts from the judgement which showed that in its counter affidavit filed in that case, the State Government had taken the categorical position that Article 366(22) post the 26th amendment affected only the Privy purse...
62b- ...but not the personal rights, titles and dignities of Rulers. Mr. @jsaideepak submitted that the State Government's position today was diametrically opposite to the one taken in the affidavit filed earlier.
63- Mr. @jsaideepak then proceeded to address Mr. Gupta's arguments on the judgement delivered in Pannalal Bansilal Pitti (1996) in the context of the Legislative amendments undertaken to the AP HRCE Act.
64a- Mr. @jsaideepak submitted that Mr. Gupta's argument that the said judgment is proof that even the power of a hereditary trustee can be validly abolished misses two facts-...
64b- ...that such abolition may be undertaken only by the Legislature under Article 25(2) and not through a judicial pronouncement as was done by the Kerala High Court in this case.
65- Mr. @jsaideepak further submitted that in view of Article 8 of the Covenant and Article 363, the Kerala State Legislature cannot even undertake any amendment which affects Sections 18-23 without violating the Covenant.
66a- Mr. @jsaideepak then proceeded to address Mr. Gupta's reliance on the Venkataramana Devaru judgement. Mr. @jsaideepak argued that the said judgment laid down the law that...
66b- ...even a denominational religious institution which is protected by Article 26 can be interfered with through the Legislative levers under Article 25(2).
67a- Mr. @jsaideepak submitted that it follows from the judgement that, denominational or otherwise, the State has the power to interfere with religious institutions only within the four corners of Article 25(2)...
67b- In other words, even if it is assumed but not conceded that the Padmanabhaswamy Temple is a non-denominational religious institution, the State cannot transgress its limits under Article 25(2).
68a- Mr. @jsaideepak then submitted that Mr. Gupta's submission also misses the point that a religious denomination of a particular religion is also part of the religion. It is not a separate religion...
68b- Therefore, to say that one subset of a religion, namely religious denomination, is more secure from the State's intervention compared to another subset which is not a religious denomination, would be a violation of equality under Article 14.
69- Mr. @jsaideepak argued that the long and short of his submission is that, in so far as as the State's interference is concerned, its power and scope are limited to Article 25(2), whether or not a religious institution enjoys a denominational status under Article 26.
70- Mr. @jsaideepak then narrated his visit to Israel last October wherein he observed that every community has Courts of its own to address issues of religious import. He submitted that in stark contrast, all such issues end up before secular courts in India.
71- Mr @jsaideepak submitted that since complex issues of religion land before secular courts in India, the mandate is much more difficult, complex & sensitive because a secular Court is expected to sift between what constitutes a religious practice & what is a secular activity.
72- Mr. @jsaideepak submitted that while in Israel, people who are specifically trained in the religion and religious practices of their faith preside over issues of their faith, in India, such qualification is not mandatory when such issues arise for judicial consideration.
73- Mr. @jsaideepak submitted that this is why the essential religious practices test was evolved in the Shirur Math case, primarily to limit the scope of the secular State's interference with religious practices.
74a- Mr. @jsaideepak submitted that in adjudicating this case, it must borne that regardless of the denominational status of the Temple, the Court must consider the impact of...
74b- ... the High Court's judgement on the ability of the State Government of Kerala to rewrite the identity of the Temple and to interfere with its administration.
75a- Mr. @jsaideepak then addressed Mr. Gupta's argument on the locus of the parties represented by Mr. @jsaideepak...
75b- Mr. @jsaideepak submitted that the State Government of Kerala had absolutely no qualms or objections to the locus of the women Petitioners in the Sabarimala case who did not even profess faith in Lord Ayyappa to justify their claim of entry into the Temple...
75c- In stark contrast, the State Government was questioning the locus of the Devotees in this case who wish to protect the identity, sanctity and the traditions of the Temple. Mr. @jsaideepak submitted that clearly the State Government's position was one of convenience.
76a- Mr. @jsaideepak submitted that he had even overcome this objection of Mr. Gupta by filing the impleadment application of the Thanthri of the Padmanabhaswamy Temple, whose locus surely cannot be denied by the State Government...
76b- Mr. @jsaideepak submitted that the Thanthri's impleadment application clearly shows that every submission made by Mr. @jsaideepak on the history of the Temple and its traditions has been categorically endorsed by the Thanthri.
77- Mr. @jsaideepak then submitted that if the High Court's judgement is set aside by this Hon’ble Court, then Sections 18-23 survive and therefore the administrative set up under Article 20 survives, which cannot be amended or altered by the Court.
78a- Finally, Mr. @jsaideepak submitted that the reason he chose not to deal with the Amicus Report or the CAG report in detail was because the Amicus Report suffers from serious fatal defects which render it unreliable in any manner...
78b- Mr. @jsaideepak submitted that this submission was being made by him with due respect to the Amicus Report and without making any personal allegations. He submitted that this submissions were limited to the contents of the Report.
79- Mr. @jsaideepak submitted that it was beyond the mandate of the Amicus to comment on religious practices of Temple or the integrity of the Travancore Family since the clear and limited mandate was to undertake inventorization of the assets of the Temple and nothing more.
80- Mr. @jsaideepak submitted that the Travancore Family is an integral part of the religious identity of the Temple. Therefore, the devotees of the Temple have a right to object to any baseless aspersions which are cast on the stakeholders of the Temple.
81- Mr @jsaideepak further submitted that the Amicus Report expressly mentions that some of its contents are the product of "divine inspiration". Mr @jsaideepak submitted that the Amicus Report ought to have limited itself to earthly issues through worldly inspirations & sources.
82a- Mr. @jsaideepak submitted that similarly the former CAG's report goes beyond its mandate in recommending a complete revamp of the structure of the Temple, which was not even directed by the Court...
82b- Mr. @jsaideepak submitted that this why both reports are fatally defective and incapable of being relied upon.
83. With this, Mr. @jsaideepak concluded his submissions and thanked the Court for a patient hearing. He submitted that he would be filing detailed Written Submissions capturing his arguments along with references to the documents relied upon by him.
84- Mr. Krishnan Venugopal commenced his submissions on the Amicus Report. Mr. Venugopal agreed with Mr. @jsaideepak's submissions on the problem of divine inspiration affecting the Amicus Report in multiple places.
85- Mr. Venugopal will continue his submissions on March 28, 2019.
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