By Abhishek Jha:
The bench has also ruled that “that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 (Right to Equality) so long as such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.” However, in the process of delivering the judgement, it appears from the material and the language used by the judges, they may have created a precedent that can help perpetuate the system through which the modern India practices casteism.
The matter in question was a Government Order of Tamil Nadu from 2006 that allowed “any person who is a Hindu and possessing the requisite qualification and training” to be appointed as a priest in Hindu temples. The petitioners (Adi Saiva Sivacharyargal Nala Sangam and others) had argued that this would violate what had already been adjudicated in Seshammal and others Vs. State of Tamil Nadu, where hereditary appointments were prohibited but appointment of priests from particular denominations (for instance, a particular tradition of Vaishnavism) were allowed. To be sure this earlier judgement as well as the current one is in accordance with Article 16(5) of the Constitution, which while mandating the “equality of opportunity in matters of public employment” allows “the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof” to be appointed from a particular religion or a particular denomination.
However, the appearance of constitutional validity does not necessarily mean that the judgement agreed with the spirit of the Constitution. (Didn’t the Delhi High Court bench just give “expanded meaning to the law” in the recent National Herald Case?) In fact, the reasons given for the judgement are indeed problematic.
For instance, after beginning their judgement with the invocation of Article 13, where they state that “Article 13, in clear and unequivocal terms, lays down that all laws including pre-constitution laws which are inconsistent with or in derogation of the fundamental rights guaranteed by Part III are void,” it is surprising that they spend a lot of time citing precedents to establish that the treatises are an “essential religious practice” of the Hindus. It is a slightly misleading assertion by them that the “Article 17 of the Constitution strikes at caste based practices built on superstitions and beliefs that have no rationale or logic.” If Article 17 prohibited untouchability simply because it is illogical, our Constitution could have prohibited almost all of religion. They fail to note that it is not just irrationality but also the oppression that casteism has inherent in it that necessitates rights laid down in the Constitution.
It is perhaps in not paying due attention to this argument about oppression that the judges refer to the idea of the ‘pollution’ of the temple idol as an important aspect that needs to be protected under Article 25. And it is not the vandalistation or deliberate defacing of idols that is meant by them. It is precisely the Brahminical idea of ‘purity’ that they invoke.
Thus they cite from a Constitution Bench order: “pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper”; a Madras High Court judgement in Gopala Mooppanar and Others Vs. Subramania Iyer and others: “As the temple priests have got the special saivite initiation or dheeksha which entitles them to touch the inner most image, and as the touch of the persons who have got no such initiation, even though they be Brahmins, was supposed to pollute the image;” thus establishing the idea of “purity” and “pollution” as an important aspect of Hinduism (here too they rely on Sarvapalli Radhakrishnan’s work on Hinduism, who remained “enthralled by the philosophical grandeur of brahmanical Hinduism” according to author Braj Ranjan Mani) that needs protection under Article 25. Surprisingly, several rules about ‘touchability’ and ‘purity’ does not make the judges inform or question how that would not be a violation of Article 17. Doesn’t Article 17 say that the “enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law”?
Here is also where a third contention arises. In their unilateral pursuit of a logical reasoning, the idea that even Brahmins could be barred from touching an idol immediately makes the judges conclude that allowing the Agamas to be the rulebook for appointment would not lead to casteist appointments. Isn’t this the manner in which the forces against reservation argue? That since “merit” is the criteria that can exclude upper caste students too from admissions, it must be the sole criterion in selection. Aren’t both “purity” and “merit” both the modern inheritance of caste?
Truth to be told, many Dalits have already converted to other religions, become Atheists, and continue to do so. Temples aren’t where they will be going to or will need to seek their rights anymore. However, a temple is also a public place and the impugned Government Order was about public employment. That the judgement today might become a precedent for “meritorious” appointments elsewhere is what screams “dangerous” about it.