Justice G.R. Swaminathan of the Madurai bench of the Madras high court, on May 17, granted permission for the ceremony of Angapradakshinam to take place the next day.
The ceremony involves people rolling on plantain leaves on which a sacred offering of food, Annathanam, has been made and from which other devotees have eaten. This took place on the eve of the Jeeva Samadhi day of Sri Sadasiva Brahmendral, a well-known holy man, at Nerur village of Tamil Nadu.
The ritual, 120 years old, was discontinued in 2015. A devotee who failed to get a favourable response from the authorities to his plea to revive it, filed a writ petition in the high court seeking the same relief, in defence of his fundamental rights.
The district administration and the police submitted to the high court that the practice could not be revived because of the high court’s previous order in 2015.
In his judgment, Justice Swaminathan noted that Article 25(1) of the constitution – which declares that all persons are equally entitled to freedom of conscience and the right to freely profess and practise religion – is not absolute. It is subject to public order, morality, and health and the other provisions of Part III of the constitution.
Justice Swaminathan held that if the right to privacy includes sexual and gender orientation, it certainly includes one’s spiritual orientation also. “It is open to a person to express this orientation in the manner he deems fit,” but it should not affect the rights and freedoms belonging to others, he wrote in his judgment.
So long as this rubicon is not crossed, it is not open to the state or the courts to impinge on one’s action, he added.
The judge took judicial notice of the fact that rolling on the ground is an established religious practice resorted to by devotees. He then suggested that it is not open to the court to challenge the belief entertained by the petitioner on the spiritual efficacy of the practice.
He said that even during the days of Mahabharata – an epic – the practice of rolling over leftover food was considered as one that brought some spiritual benefit. He then held that Angapradakshinam on banana leaves after the guests have eaten is an act of high religious worship by Sri Sadasiva Brahmendral’s devotees. This right, he held, is protected by Part III of the constitution, through Articles 14, 19(1)(a), 19(1)(d), 21, and 25(1).
The 2015 ruling
However, a division bench of the Madras high court, Justice S. Manikumar, had in 2015, described the practice of rolling over on used plantain leaves left by Brahmins, after their meals, as inhuman and denied permission to conduct it at the same Nerur Sathasiva Brammendiral Temple, Nerur during its 101st annual function.
The petitioner in that case alleged that Dalits and non-Brahmins rolled over the plantain leaves left by Brahmins after they took their meals, and this amounted to race and caste discrimination. However, a Special Government Pleader appearing for the respondents denied the allegation of caste discrimination, saying even Brahmins rolled over on plantain leaves, and that members belonging to all communities were offered free meals. The petitioner, nevertheless, stuck to his allegation.
Justice Manikumar had held that religious practice and custom should not affect the dignity of life, which is guaranteed under Article 21 of the constitution. “No human being can be allowed to be degraded, by following any practice or custom in the name of religion, which may infringe Articles 14 and 21 of the Constitution of India. Right to live, with dignity, is the paramount object of the constitution,” he had held.
“Even if there is any slightest infringement to the said rights, the Court owes a duty to enforce the constitutional values and the same should not be allowed to continue,” he wrote in the order.
Justice Manikumar also relied on the Supreme Court’s stay on similar practice in State of Karnataka and others vs Adivasi Budakattu Hitarakshana Vedike, pronounced on December 12, 2014, and directed the respondents not to allow anyone to roll on the leftovers on the plantain leaves.
The Supreme Court case and Justice Swaminathan’s take
In a case before the Supreme Court, which is still pending, the similar practices of ‘urulu seve‘ and ‘madesnana”’performed at Kukke Subramanaya temple in Sullia Taluk of Dakshina Kannada District, is under challenge. It is alleged that people rolled over on plantain leaves left by Brahmins after their meal during the annual festival at the temple.
Justice Swaminathan, who considered Justice Manikumar’s order, found that the petitioner (Dalit Pandian) did not make Nerur Adhishtanam, represented by its trustees, one of the respondents. The writ petition suffered from the “fatal vice” of non-joinder of necessary parties, the devotees and the trustees, he held. As they were not put on notice, they were not heard, Justice Swaminathan noted, saying there was an “egregious breach of the principles of natural justice”.
Justice Swaminathan reasoned that even a judicial order can be held as nullity if the principles of natural justice have not been complied with.
But Justice Swaminathan overlooked the fact that Justice Manikumar’s order was pronounced on the day when the event was to take place, that is, April 27, 2015, and the Special Government Pleader was directed to communicate the order in the writ petition, through email or phone to the respondents.
Justice Swaminathan also noted in his order that Justice Manikumar’s order went by a news item on the Supreme Court’s pending case in which it had issued a stay and that no order of the Supreme Court was produced. In the paragraph 8 of the order, (which was reproduced by Justice Swaminathan himself), Justice Manikumar had given the relevant citation of the case, making it accessible.
Justice Swaminathan also held that the facts of the case before the Supreme Court and the one before him are not comparable.
In the case before the Supreme Court, the practice, Justice Swaminathan pointed out, was that after the Brahmins had taken their meals, persons belonging to other communities would roll over on the leftover leaves. However, Justice Swaminathan underlined that in the case before him, Article 17 of the Constitution (which prohibits untouchability) was not at all applicable, as even the District Administration had said that devotees participate irrespective of their community. “In fact, the custom on hand points to communal amity and social integration,” he emphasised.
A nullified order
Justice Swaminathan then took the unprecedented step of declaring Justice Manikumar’s 2015 order null. If an administrative order or a quasi judicial order can be ignored as nullity on the ground of violation of principles of natural justice, the sequitur is that judicial order will also meet the same fate, he declared. These are debatable contentions.
Justice Swaminathan conceded that the judiciary could have intervened only if there was violation of constitutional morality or an aggrieved individual was before it. In the 2015 case, Justice Manikumar’s order assumes the violation of constitutional morality, and the petitioner was an aggrieved individual who wanted to end a practice which is viewed as unfair by many.
Justice Swaminathan appears to have erroneously interpreted the facts in the pending case before the Supreme Court.
When the case – an appeal from the Karnataka high court – reached the Supreme Court in 2015, the bench comprising Justices Madan B. Lokur and R. Banumathi, was aware that untouchability was not an issue in this case. The Karnataka high court bench comprising its then Chief Justice, Vikramajit Sen (who was later elevated as a judge of the Supreme Court) and Justice B.V. Nagarathna (who is now a judge of the Supreme Court) had noted in its order, dated November 8, 2012, the voluntary submission of the respondents on the fact that the ceremony would be open to all persons regardless of religion, caste, creed or gender.
The respondents also assured the high court bench that the practice of a particular community (Brahmins) partially eating the food which has been offered to the deity as an oblation would be discontinued. Also, the temple trust had assured that the food offered to the deity as ‘naivedyam’ would be placed on plantain leaves in the outer yard of the temple over which willing devotees would be allowed to perform the ritual of the ‘made made snana’. This food would not have been tasted or partially eaten by the members of any community, the respondents had made it clear to the high court.
The high court order had further directed the respondents not to encourage, sponsor or permit any form of division on the basis of religion, caste, creed or gender.
The petitioner in the case also submitted to the high court that if the new form of religious practice is adhered to, it would remove whatever is perceived as discrimination.
It is on the basis of these modifications and assurances that they would be meticulously followed, that the high court expressed its satisfaction and disposed of the petition. Therefore, the Supreme Court’s December 2014 stay on the order, when the state government came on an appeal, must be understood as a result of its concerns that the practice was bereft of rationality. The late senior counsel, T.R. Andhyarujina, on behalf of the state of Karnataka, argued that the rituals were against public order, morality and health, legitimate restrictions on exercise of right to worship under Article 25 of the constitution. It is reasonable to infer that the bench prima facie found merit in his contention.
The counsel for one of the respondents pleaded with the Supreme Court to continue the practice, contending that it was being observed for over 500 years. Justice Lokur retorted that even untouchability was practised for over 500 years and it had now been abolished.
Justice Swaminathan’s judgment has nothing to say on whether the Supreme Court prima facie found that the practice was against public order, morality and health, when it issued the stay in 2015, pending the hearing of the case. Instead, it says it is for the person who alleges violation of constitutional morality to discharge the burden of proving it to the court. He declared Justice Manikumar’s order null precisely because he did not ask the petitioner in the case to discharge that burden.
“No private individual can prevent the petitioner or any devotee from exercising his fundamental right. If there is any such obstruction, it is the duty of the police to aid the petitioner to exercise his fundamental right and remove the obstructors from the scene,” Justice Swaminathan directed in his order.
The Karnataka case was last listed before the Supreme Court bench of Justice D.Y. Chandrachud (as he then was) and Justice M.R. Shah on February 26, 2021. The bench considered an Interlocutory Application filed in 2015 for vacating the stay in order to conduct the rituals in December 2015. The bench dismissed the Interlocutory Application as infructuous, as its basis no longer survived. Finding no urgency, the bench directed the listing of the Civil Appeal for final disposal in accordance with its turn.
The Supreme Court may have to fast-track the hearing of the case at least in view of the fresh impetus which the rituals have earned from Justice Swaminathan’s order.
