KOCHI: At a time when a row over alleged discrimination and casteism in the appointment of Sabarimala 'melsanthi' (head priest) has erupted in Kerala for the last few months, the Kerala High Court on Saturday heard a batch of petitions challenging the Dewaswom Board notification inviting applications only from Malayala Brahmins for appointment as Melshanthi of Sabarimala.
A Division Bench of the Kerala High Court consisting of Justice Anil K Narendran and Justice PG Ajithkumar heard the petitions in a special sitting.
The counsel for the petitioner asked the High Court if the High Court can endorse a system of appointment which is casteist.
The Court further posted the matter to December 17th which will also be a special sitting.
During the hearing, the counsel for the petitioner, Advocate Professor (Dr) Mohan Gopal, who was the Director of the National Judicial Academy contended, "There is a clash between Constitutional values and the provision which restricts Melshanthi posts only to Malayala Brahmins. The core Constitutional value at stake is untouchability. Article 17 not only prohibits but also criminalises untouchability. It is a constitutional crime. Can High Court endorse a system of appointment which is casteist? can the High Court allow abrogation of Article 17?"
The court further stated, "Underneath the crime of untouchability is the belief that by birth some human beings are pure and some are less pure. The petitioners belong to non-Brahmin castes. Why are they prevented from applying to Melshanthi posts? It is not the Constitution. It is the belief that they are impure by birth. When you are saying Brahmin, you are saying a group that is pure by birth? In that case, we are abrogating the Constitution."
The court further said that according to Article 25 (2) of the Constitution, which enables the state to make laws for throwing open of Hindu religious institutions of a public character to all classes of Hindus.
"This throwing open is not just an opportunity to stand outside and pray but also an opportunity to be a Melshanthi. Article 15 prohibits discrimination on the basis of caste. Constitution allows discrimination only for the purposes of affirmative action. For that, there should be an intelligible differentia and also a nexus with the objective to be achieved. The criteria of Malayala Brahmins were not intelligible criteria as there are many categories and subcategories. It is not possible to get a community certificate to that effect. How will you implement it? How will you prevent fraud?" it further said.
The above writ petition was filed by Sijith TL and Vijeesh PR who are qualified Priests/Archakas as per the notification issued by the Travancore Devaswom Board except the condition that the applicant shall belong to Malayal Brahmin born in Kerala.
The notification issued by the Travancore Devaswom Board is being challenged in the writ petition filed by the petitioners on the ground that it is violative of their fundamental right guaranteed under Articles 14, 15(1) and 16 (2) of the Constitution of India.