Padmanabha Swamy Temple Issue: Legal Angle

Reading time: 8-10 minutes.

The Supreme Court bench comprising of Justice UU Lalit and Justice Indu Malhotra, delivered the final judgement in the case concerning the management of Sree Padmanabhaswamy Temple on July 13, 2020. The judgement is being hailed as a victory for the Travancore Royal Family which was involved in a long-drawn legal battle with the state of Kerala. The present case arose from an appeal preferred by the Royal family and its members, from the judgement of the Kerala High Court on January 31, 2011. In the following paragraphs we will discuss the various issues which were dealt with by the Supreme Court.

Facts of the Issue

Sree Padmanabhaswamy Temple is located in the modern-day city of Thiruvananthapuram and finds mention in many historical texts, but its exact origin is lost in antiquity. In the 18th Century, Marthanda Varma became the king of Travancore and carried renovations to the temple and declared himself as the vice regent of the Deity. After India gained independence, the Travancore and Cochin princely states signed the Instrument of Accession and also entered into a covenant with the Indian Union which laid down various terms of agreement in exchange of relinquishment of its sovereign status. Article VIII of the said covenant granted the management rights over the Padmanabhaswamy Temple to the ‘Ruler’ of the Travancore State, which got reproduced in a separate Chapter III of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as “TCHRI Act”). Under the Act, the ‘Ruler’ has been given the authority to administer the Temple with the aid of an Executive Officer and advice of a three-member Advisory Committee, both nominated by the Ruler.

The signatory to the original covenant passed away in 1991, after which the rights were inherited by his brother, who has died during the pendency of the proceedings before the Supreme Court. The genesis of the present legal dispute goes back to 2009, when the ouster of a tenant led to a suit challenging the executive authority, which was appointed by the Royal Family.

The tenant, a practicing advocate, questioned the legitimacy of the royal family as administrators of the temple post the death of the original ‘Ruler’ in 1991. This suit was followed by multiple civil suits in various Districts Courts of Kerala, following which the Royal Family moved to the Kerala High Court to get a decision on the common question of whether the successors of the original signatory king claim the rights bestowed on the ‘Ruler’ under the TCHRI Act, 1950. The High Court answered the question in the negative, and granted the State Government complete rights over the temple’s management and ordered for opening of the sacred treasure vaults within the temple’s structure. Aggrieved by the decision, the ‘Ruler’ and the Temple Trust preferred appeals against the High Court’s decision, and later the Chief Thantri of the Temple and some other organisations joined as Intervenors to present their grievances.

 Critical analysis of legal provisions involved

The critical question for consideration was whether the successors of the original signatory can avail the rights bestowed upon the ‘Ruler’ rooted in the 26th Constitutional Amendment of 1971. The 1971 Amendment put an end to the Privy Purses and further inserted Article 366(22) which confined the definition the term ‘Ruler’ to only the person recognised prior to the Amendment. The State argued that owing to the Constitutional Amendment, the title of ‘Ruler’ under the TCHRI Act ceases to hold relevance and any successor of the original signatory is not empowered by law to claim the title.

The Supreme Court, in its wisdom, has sided with the Royal Family and has opined that the Kerala High Court’s judgement was erroneous, incorrect and violative of the historical spirit of the original covenant (signed in 1949). The Supreme Court held that Article VIII of the covenant establishes the special connection of the royal family with the temple which has further been given statutory backing by the TCHRI Act. The ‘special relation’ of the royal family with the temple is explained by the Supreme Court to be in the nature of “Shebait”- which effectively places the royal family as the earthly custodian of the deity and gives them financial and administrative rights in connection to the deity. The Apex Court further remarked that the Shebait rights exists in a historical context and are rooted in the Hindu tradition and customary law of the region and as such, cannot be abridged by an act of the Parliament. Holding this reasoning, the Court ordered that the rights of the royal family remain unaffected by the Constitutional Amendment and extends to all the successors of the original signatory, in perpetuity, and will be passed on and devolved only as per established customs. The Court also decided that the association of the royal family with the temple is independent of the title of being the ruler of the State and it purely exists in Shebaitship. Unless the Shebaitship ceases to be operative in consonance with established customs, no escheat will lie in favour of the State Government.

The Supreme Court, realising the public nature of the temple and the large amounts of wealth it holds, ordered the constitution of two committees- an Advisory Committee and an Administrative Committee. These committees will have members nominated by both the Union and the State Governments, in addition to the members appointed by the royal family. The major responsibilities of the committees will be to aid and advise the day-to-day functioning of the temple. The committees were finalised by the Supreme Court by making minute alterations to the structure proposed by the royal family. The Court has further recognised the rights of the Chief Thantri of the temple and has directed that all rituals and religious practices should be performed in accordance with his instructions and guidance. The Court has further granted Chief Thantri rights over the temporal matters concerning the temple.

Conclusion

The Supreme Court’s verdict in the Temple case reverses the perceived injustices on the Royal Family and devotees of the Temple, following the Kerala High Court’s decision in 2011. By restoring the age-old tradition, the Supreme Court has upheld the religious rights of a community of people who wish to be governed by their traditions without interference from the State Governments. The Kerala High Court, in its decision, ordered for the opening of vaults of the temples which are said to house innumerable treasures. Opening of one such vaults was strongly protested against by the Royal Family and the local population, as it is believed to house an ancient curse which would invite divine calamity on Earth. With the restoration of rights to the Royal Family and the setting up of the two committees, all decisions with regards to the treasures of the vault also rest with them. The decision, apart from holding historical relevance for the Royal Family, is also being touted as a positive step in the direction of freeing Hindu temples and institutions from excessive State control.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Coronavirus: Legal angle

Reading time: 6-8 minutes.

“No epidemic is local” is one of the most thought provoking remarks once made by Belgian Microbiologist Pitor Piot and now the milieu is such that the virus, popularly known as the Coronavirus or 2019-nCoV,  first discovered in the 1960s and named after the Latin word ‘corona’ (meaning crown) due to its shape, is spreading exponentially. As of February 6, 2020, the total number of persons who are suspected to be infected stands at 28,344 with 565 deaths around the globe.

The virus spreading trans-border has already affected 26 Countries, making it the third most sprawled contagion after SARs & MERs. India too, is witnessing the adversity of the outbreak as till date, 3 positive cases – all from Kerala – have been reported along with 5123 people being kept under surveillance and 1 under isolation.

What is coronavirus?

The outbreak was first zeroed down when, on the 31st December of 2019, the government of China informed the WHO about the plethora of pneumonia cases particularly in the city of Wuhan in Hubei province. The WHO on the 9th of January, 2020 reported the cause of the contagion to be a virus called Coronavirus.  

Scientists tracked the inception of the virus to be bat,making it cognate of SARs (Severe acute respiratory syndrome) & MERs (Middle East respiratory syndrome), which too originated from mammals. However, the situation gets more critical with nCoV as in case of SARs and MERs, the virus, to develop the ability to infect humans, first had to attack an intermediary host such as camel or civet cats, but the Coronavirus is capable of infecting humans directly from the respiratory tract of Bats.

How it affects the body

The coronaviruses belong to the group of RNA (ribonucleic acid) viruses responsible for bodily proteins. However, RNA lacks the capability of filtering the hostiles due to its rapid mutative process. The outbreak leading to the sixth World Health Emergency is alleged to be an airborne contagion spreading through ‘close contacts’ such as through cough or sneezes. The symptoms are common cough, fever, and difficulty in breathing, etc. Tough till now there have been no signs of vaccines, scientists at the National Institutes of Health along with several companies are striving for an antidote.

Steps taken by the Indian government

The government, post-detection of the third infected person in Kerala, has set up a task force to counter the outbreak. The State government of Kerala declared the 2019-nCoV to be a “state-calamity” as all the positive cases in India hail from Kerala. Moreover, the Indian government airlifted 645 people from China which includes 7 Maldivians, and all of them tested negative for the virus. The government sought to expand the thermal screening of passengers from 7airports to 20, along with an increase in the number of laboratories where the virus can be tested. The check is not only limited to aerodrome; the Mumbai Port Trust been directed to disallow shore permits to vessel setting in from China until health clearance. Following the Central government guidelines, a 24×7 call centre has been made operational along with rapid response teams deployed at key points such as Airports.

Laws in India regarding such epidemics

The legal framework in India is dicey when it comes to the prevention of infectious diseases. It is conceded that though the country has several tattered legal measures to counter epidemic, it is bereft of comprehensive legislation barring the archaic Epidemic Act, 1897.

The plague epidemic in Bombay led to the enactment of the 1897 legislation. The Act with its four sections, empowers the government to adopt transient measures & regulations to preclude the spread of the diseases along with imposing a penalty for disobedience of the regulations.

Additionally, Section 188 of the Indian Penal Code (IPC) also warrants for punishment when a person contravenes an order promulgated by a public servant, thereby inculpating any person who contravenes any order which prescribes for non-spreading of infectious diseases.

On the other hand, The New Delhi Municipal Council Act, 1994 is a more broad-gauged Act when it comes to the prevention of communicable diseases & infections. Chapter XV of the Act which covers Sanitation & Public Heath provides for measures to prevent ‘dangerous diseases’, which is further defined under section 2(10)(b) of the Act empowering the Chairperson to declare a particular disease as dangerous via notification. The Act puts an obligation to inform about any dangerous disease along with measures such as removal of patients suffering from infectious diseases, disinfection & destruction of infected structures. The legislation empowers the Chairperson to impose special measures in case of an outbreak beyond the contemplation of the Act and hence makes it sufficient for exigencies.

The 1994 Act also provides measures which are to be taken to preclude any contagion such as disinfection of building before letting, an obligation to dispose of infected articles only after disinfection, and also empowers the Chairperson to restrict the sale of food & drinks.

Scope of improvement in medical laws

In India, there is immense scope of improvement in medical laws. At the rudimentary level, it is sine qua non to enact a comprehensive central legislation which not only comes into effect when there is an outbreak but also provides sufficiently for forestalling such outbreaks. Moreover, the complexity demands a balance between intellectual property rights and the rights of poor persons to have access to high priced antidotes.

Further, it is required that improvement in medical laws would also seek to fill the institutional voids as a result of which illiterate persons squander their monies on the services which are free of cost and also stand in a vulnerable position due to dearth of knowledge. It has also been evidenced that India holds a poor record regarding communication of risks of outbreaks and information to the World Health Organization which it is legally bound to do under the WHA54.14. Hence, it must be made compulsory for the government to disclose information at the first instance of detection.

It is a fact that while countering an epidemic, public health must be given primacy. However, legislation should also protect the data which is collected from the patients, which if not done, would infringe the right to privacy and hence a proper guideline as to the collection, dissemination, protection, and usages of data must be laid down to preserve confidentiality.

The development in the legal framework must also reflect the changes that were made in International Health Regulations, 2005 with regard to building a system where local governments hold the authority to respond rapidly without falling into the dicey floor of red-tapism. Compulsory disposition by patients should be brought into effect, which may go to the extent of forceful examination and if found positive, the person is to be hospitalized. Hence, what is required is that there must be a proper balance between the rights of individuals and endeavour of the State in securing public health.

Conclusion

At present, it is difficult to contemplate the anti-dote to 2019-nCoV. However, the government, with immediate effect, must enact a legislation to counter such exigencies more efficiently. The legislation is required to define the contours within which the officials should exercise their powers while dealing with an outbreak. It is a fact that archaic legislation like The Epidemic Act, 1897 can no longer be effective.

Thus, instead of relying on contingency measures, a permanent legal backing must be created which not only addresses the exigencies faced during an outbreak but also prevents and provides for measures which prevent such contagion.

Author: Ishan Mazumder from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Analysis: States challenging Central Acts

Reading time: 6-8 minutes.

The Legislature of State of Kerala passed a resolution at the State Assembly against the Citizenship (Amendment) Act, 2019 (“CAA”) on December 31, 2019. The official stance of the State was never unclear. They have since the beginning opposed the CAA.

However, their stance on the Central Act was further made crystal clear when on January 14, 2020, the State through Adv. G. Prakash invoked the original jurisdiction of the Supreme Court under Article 131 of the Indian Constitution, to file a suit challenging the constitutional validity of the CAA.

The State of Kerala prayed not only for the CAA to be scrapped, but also that the amendments brought to the Passport (Entry to India) Rules and Foreigner’s Order, 2015, be held invalid on the grounds of being ultra vires the Indian Constitution.

The state also expressed its amazement at the way in which the word “persecution”, which appears in the text of the CAA’s “statement of objects and reasons”, does not reach the main body of the law.

Now, the SC stands head-on with not only multiple private suits filed against CAA, but also the suits so initiated against the Act by various states of the country.

On 22nd January, 2020, the Supreme Court said that the petitions challenging the constitutional validity of the CAA will be heard by a five-judge constitutional bench. The court also gave the Centre 4 weeks to respond to the petitions and further stated that it will not grant any stay on the CAA and the exercise of the National Population Register (NPR), till the Centre replies.

This article analyses precedents and the current scenario to deliberate upon the situation wherein states challenge central acts, which according to the Constitution, they mandatorily have to abide by.

Article 131 – Original jurisdiction of the Supreme Court of India

Article 131 of the Indian Constitution enshrines the original jurisdiction of the SC. It lays down that in case of any ‘dispute’ between the Government of India, and State(s) or between two or more States, wherein, no other court has jurisdiction, the SC shall hear and decide upon the said matter. Therefore, in cases of any dispute between the above parties, the SC has the authority by law to adjudicate upon the matter first-hand.

It is necessary to understand the difference between the authority of the SC to adjudicate under Article 32 and 131. Article 32 is the ‘writ jurisdiction’ of the SC, by which it has the authority to pass orders of the five writs. However, under Article 131, the SC follows a civil suit procedure and has the authority to pass a decree and not a writ.  

Where, Article 32 is a fundamental right and no maintainability of a suit is required to be argued upon, Article 131 is not a fundamental right and the parties in dispute must plead maintainability before the Court for the suit to be admitted/disposed.

Therefore, Article 131 is a remedy available for any ‘dispute’ to be decided upon, between the Government of India and the State(s). However, the point of interpretation is the scope of the term ‘dispute’. Since the Indian Constitution does not explain the same, it is left for evolution and interpretation at the hands of the SC.

State of Madhya Pradesh v. Union of India (2012)

Usually, the State Legislatures do not differ in opinion w.r.t. need of laws, from the Parliament. This is because ultimately the objective of both the institutions is welfare of the people. Therefore, in the case of State of Karnataka v. Union of India (1977), the SC opined that whenever the state(s) or the Union differ on a question of interpretation of the constitutionality of a law, the said dispute can be brought forth to the SC under Article 131.

However, in the case of State of Madhya Pradesh v. Union of India (2012), the term ‘dispute’ was brought to extensive discussion to understand whether the states had the authority by law to challenge a central act, if in its own opinion, the said act violated the Constitution.

The SC in the 2012 case held that since, constitutionality of a law can be challenged by the state under Article 32 and 226 of the Constitution, there was no requirement to interpret the same within the scope of ‘dispute’ under exclusive original jurisdiction of the SC within Article 131. Hence, the SC overruled the 1977 precedent to establish the new position of law.

However, in the case of State of Jharkhand v. State of Bihar (2015), a two-judges bench of the SC opined in their order that it was unable to accept the view wherein a dispute upon constitutional validity of a law between the Centre and the State could not be raised in a suit under Article 131. Thus, the bench referred the said issue to a five-judges constitutional bench of the SC.

Therefore, as of now, the issue of whether challenge to constitutional validity of a law comes within the scope of Article 131 or not, is unclear and yet to be decided by the SC of India.

Significance of the current petition

The significance of the current petition lies w.r.t. the urgency of the restoration of the basic tenets of our Constitution: secularism and democracy.

Several states, politicians, NGOs, advocates and law students have filed petitions challenging the constitutional validity of the CAA. The petitioners argue that the law selectively welcomes “illegal immigrants” to India based on their religion and expressly excludes Muslims.

The CAA shares an “impure link” with the National Citizens Register (NRC) and is contrary to the principles of secularism, the right to equality and dignity of life enshrined in the basic structure of the Constitution.

Arguments presented by Kerala

The State of Kerala has submitted in their plaint that the CAA and the amendments so brought to the Passport (Entry to India) Rules, 2015 and the Foreigner’s Order, 2015 are violative of Article 14 (Right to Equality), 21 (Right to Life) and 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution.

According to the petition, the amendment also violates India’s international obligations based on:

        Article 14 of the Universal Declaration of Human Rights (which states that everyone has the right to seek and enjoy asylum of persecution in other countries).

        Article 15 of the Universal Declaration of Human Rights (which states that everyone has the right to a nationality and that nobody will be arbitrarily deprived of their nationality or denied the right to change their nationality) and

        Article 26 of the International Covenant on Civil and Political Rights (which establishes that all people are equal before the law, that all people have the right without discrimination to equal protection of the law and that the law prohibits any discrimination and guarantees all protection equal and effective of people against discrimination for any reason, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other state).

They state that the said amendments are ‘unreasonable, having no rational nexus with the object sought, apparently and manifestly discriminatory’ to a minority class of individuals which follow Muslim religion. Such a discriminatory law is against the very basic structure of the Indian Constitution as well as the International law.

The Central Government in no time submitted that there has been no ‘legal right’ violation of the State of Kerala and therefore the suit does not stand on merits. However, Kerala stands firm on their argument that since it shall be compelled by the Central Government under Article 256 of the Indian Constitution to comply and implement the CAA, which is inherently an arbitrary and discriminatory law, the State does not support the same.

The State has argued that the dispute under Article 131 includes not only the legal rights of the states but also the fundamental rights of the individuals to be protected by the state and thus, consequently it has filed the present suit.

Conclusion

Therefore, it is concluded that the constitutional validity of States challenging Central Acts under Article 131 is yet to be decided by the SC. However, this jurisdictional issue of the SC might become a major delay-causer in deciding the suit filed by the State of Kerala against the CAA and the other amendments made by the Parliament.

Authors: Harshita Kapoor from Symbiosis Law School, Pune and Aman Srivastava from ICFAI Law School, Hyderabad.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

Sabarimala issue: The question of law involved

Reading time: 6-8 minutes.

On 20 November 2019, the Supreme Court of India ordered the Kerala government to come up with a separate law to govern and administer the Sabarimala Sree Ayyappa Swami Temple. The Kerala government is to make the law by the third week of January 2020.

The temple is presently being governed by the Travancore-Cochin Religious Institutions Act of 1950 which governs over 100 other temples. The three-judge Bench led by Justice N.V. Ramana reminded the promise which the Kerala government had made in August 2019, regarding passing separate legislation with respect to the administration of the Sabarimala Temple.

The bench further substantiated their decision by stating that a temple which receives lakhs of pilgrims annually must have separate legislation. The matter has hence been adjourned to the third week of January 2020.

Background of the issue in brief:

Although it is widely claimed that a ban on entry of women has always existed, it was not until 1972 that women were legally banned from entering the temple. Successive to this decision, the Kerala High Court in 1991 upheld the ban of women between the age of 10 and 50 after a Public Interest Litigation was put across to the High Court.

“The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial”, were the words of the High Court in the 1991 judgment.

The Indian Young Lawyers Association in 2006 filed a petition in the Supreme Court seeking the entry of women between the age of 10 and 50 to the temple. The matter was referred to a three-judge bench two years later in 2008. There was a lot of delay in this judgment and eventually in 2017, the matter was referred to a constitution bench.

After several hearings, in September 2018, the five-judge bench allowed the entry of women of all ages to the Sabarimala temple. Although this order was passed, a large number of devotees and followers camped outside the temple to prevent women of all ages from entering the temple.

In February 2019, the 2018 order was reserved and was to await the final judgment of the court. As mentioned above, on November 20, 2019, the court adjourned the matter to the third week of January 2020.

The issue: Right to equality v. Religious belief/faith

The Constitution of India guarantees the right to equality under article 14 and at the same time guarantees the right to religion which essentially means that one’s religious beliefs and faiths are protected by the constitution with reasonable restrictions.

Ever since the constituent assembly debates, there has been a conflict between these two rights; for instance, the triple Talaq judgment, which also ruled in favor of the victims of an outdated religious practice. As seen in this judgment the court has termed such a restriction “derogatory to women” and “discriminatory”.

In the present scenario, the two parties fighting the case base their arguments on these two fundamental rights respectively. Four out of the five judges ruled in favor of the right to equality, claiming that such a restriction may be equated to a form of untouchability, which was abolished in India decades ago, hence suggesting unequal treatment.

Indu Malhotra, who was the only judge who dissented to the majoritarian opinion, felt that the right to religion was being violated and that such a restriction is protected under article 25 of the constitution. She believed that it is not a matter of equality or about logic or rationale but simply a matter of liberty of faith, belief, and worship.

Arguments of both sides

Respondents:

The reasoning behind restricting women between the age of 10 and 50 is because most women between these two ages are menstruating, which according to the defendants violates the right to privacy of the idol under article 21, as the deity, Lord Ayyapan, does not wish to visit women between those two ages.

The deity apparently has chosen the life of celibacy and being worshipped by menstruating women may distract him from his path of celibacy. Arguments regarding menstruation being impure and that such a restriction would only preserve the sanctity were also made. 

It was also argued that there are temples that restrict the entry of men too like the Brahma Temple in Pushkar. Other arguments made revolved around the practice is a 500-year-old tradition and must hence be continued.

Petitioners:

The petitioners claimed that there are many other temples of this particular deity in which no woman is denied entry, which thus makes the respondent’s argument inconsistent and unusual. The argument with regards to purity is a direct violation of the right to equality and there is no valid record which proves that women of the said age are impure.

The physiological process of menstruation hence cannot be grounds for impurity thus making the argument gender discriminatory. The petitioners also made claims that there are multiple reports of women entering the temple until the 1980s in pursuance of invalidating the argument of the tradition lasting for over 5 centuries.

Public reaction:

Although most social media users around the country welcomed the Supreme Court judgment with open arms, the state of Kerala witnessed some unrest until the order was reserved in February 2019. Multiple politically fuelled hartals were conducted between October and February as a result of which a lot of arrests were made and Section 144 of the CrPC had to be imposed in several districts during the pilgrimage season of November 2018.

Protests were held and there main objective was to achieve a review petition on the September 2018 order of the Supreme Court. During one of the hartals in January 2019, there were many cases of violence and arson. Fed up of the number of hartals, many organizations in Kerala decided to observe 2019 as an anti-Hartal year and to defy all hartals called upon in the future.

As a result of the hartals and protests over a 100 buses of the Kerela Road Transport Corporation were damaged. A large portion of the politically incited public went against the government for supporting the decision and damaged offices, libraries and businesses owned by members of the ruling party.

Conclusion: Probable way forward

The Sabarimala issue has turned into a highly political conflict rather than just being a disagreement between religion and equality. Acts of violence and endangerment of women attempting to enter the temple have virtually driven the Supreme Court to reserve its order.

It has now been left in the hands of the ruling government of the state of Kerala to make a separate law to govern the Sabarimala temple. It is probably a wise decision to lay some hard and fast rules and regulation on entry into the temple and the consequences of disobedience of the new law.

–This article is brought to you in collaboration with Aditya Sekhar from Symbiosis Law School, Hyderabad.