Important submissions/ oral arguments of Mr V K Biju, Advocate on Record (AOR) in Sabarimala case on 31.07.2018.
Mr V K Biju, with the permission of the Constitutional Bench of the Chief Justice of India and companion judges argued on behalf of Aiyappa devotees (not for Rahul Ishwar, whose vakalath he relinquished due to derogatory remarks Rahul Ishwar, made against Chief Justice and Apex Court).
Mr V K Biju was given only 5 minutes time, by the Bench to argue the matter. But his arguments impressed the Bench, that he was allowed to continue with his arguments till he completed his arguments, without interruption by the Bench and he argued for 47 minutes, earning appreciation from all the members of the Bench and senior lawyers present in the Court.
Mr V K Biju's main arguments were the following :
1. Writ Petition itself is baseless and disparaging as there are no materials or evidence for the petitioner, except relying on Burka Dutt’s article about Sabarimala ladies entry issue, which is insufficient for a Writ Petition under Article 32.
2. Burka Dutt herself agreed in the article that she did not have any personal or religious information. Therefore, relying on the said article itself shows that the Writ Petition is baseless;
3. If a Christian lady wanted to become a priest in a Church or if a Muslim lady wanted to be an Imam in a Mosque or if a Sikh lady wanted to do Seva in Golden Temple and they file a Writ Petition, can this Hon'ble court entertain and allow the same ? Mr V K Biju asked the Court and then submitted that our society has not reached a stage to think upto that level.
4. Deity’s interest is extremely important which is as per tantric order. It's a distinct juristic personality. So the deity will decide who can come to his premises. It is not like.... if he can go, then she can also go;
5. In all the countries, there are Aiyappa temples and Aiyappa devotees, who are keenly looking at these proceedings and it will be painful, if there are any adverse observations and accordingly their pain also to be considered, Mr V K Biju contended.
6. If the earlier affidavit of the State Government filed when Shri V S Achuthanandan was Chief Minister is considered, as requested by the Kerala State, then the entire contentions in the affidavit should be considered, argued Mr V K Biju. The state Government pleaded in para 4 of the said affidavit that they do not know anything about the custom and therefore a Commission is to be appointed to analyze the facts. In this serious issue, the State Government further stated in the affidavit that they consulted only one novelist and one professor. Mr V K Biju stated that their knowledge is not sufficient to deal with the present case.
7. Mr V K Biju further submitted that as per the 7 judges bench decision in 1962, against a decision of the High Court under Article 226, only an appeal will be maintainable before the Supreme Court and not a writ under Art. 32 and therefore, when that 7 judges bench decision is there, this 5 judges bench cannot go beyond that.
8. Mr V K Biju further stated that under Art. 26(a), religious institutions can be established and maintained and the meaning of the word "maintain" is 'to continue' and not 'to administer' or 'manage' since the word "administer" is already used in Art. 26(d). Therefore, Mr V K Biju argued that what we are having in Sabarimala, we will continue as it is, relying on Justice Wanchoo’s decision interpreting the word "maintain".
9. He further stated that the complete works of Swami Vivekananda clearly says what is "Naisthik Brahmachari" and how to observe it. None can disturb a "Naisthik Brahmachari" and therefore, Aiyappa do not want to see young women. Mr V K Biju further referred to Chapter 6 Verse 14 of Bhagwath Gita where Krishna says what is "Brahmachari" and “think about him only”.
10. Mr V K Biju further submitted about the Commonwealth Australia debates in 1898, where the Tasmanian member suggested that if anything is to be controlled in religious freedom, that should be one which is extremely cruel and completely against the constitution. According to Mr. Biju cruelty is Sati, Devdasi system, Triple Talaq etc. and not this type of belief of the devotees about the diety.
11. Mr V K Biju brought to the notice of the Court how the Supreme Court dealt with the Devdasi case and he submitted that as it was cruel, the Supreme Court issued notice by fax, as suggested by Mr. Biju himself, while he argued that case against the Devadasi system.
12. Mr V K Biju showed photograph of ladies, malikapurathammas, who are coming to Sabarimala and submitted that lakhs of ladies therefore are coming to sabarimala as there are no restrictions, except a regulation based on age.
13. Mr V K Biju further submitted that the certain facts are to be ascertained from the Forest Department since the temple is in the heart of a dense forest with rich biodiversity, with limited carrying capacity and therefore the present carrying capacity of the temple premises and as per the Sabarimala master plan also to be enquired into.
14. Mr V K Biju further submitted that this is the only temple in the World where a Muslim deity/ Baver and a Scheduled tribe deity are also worshipped along with the main deity and therefore, Sabarimala is an unique temple showing the secularistic character in a pluralistic society.
15. Mr V K Biju strongly objected that menstruation or menopause or any biological issues of ladies are the basis for the age regulation of ladies in the temple, but the interest of the "Naisthik Brahmachari" Aiyappa, the deity, which juristic personality is not interested in seeing young women.
16. Mr V K Biju submitted that “Your Lordships should go beyond the four walls of law and ascertain what are the ecclesiastical foundations of the particular community and religion; otherwise there will be serious repercussions and legal consequences and he cited several issues relating to ecclesiastical law and interpretation, which stands on a different footing.
After Mr. V K Biju, Mr. Gopal Sankaranarayan started his arguments.
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