President Cannot Refer Hindu Deities Case To SC With Sabarimala Case Under Review

Devotees are aware that, the Sabarimala Judgement of Sept 28, 2018 is under review and legal questions arising out of this judgement have been referred to a larger Nine-Judge Bench. It has been brought to the notice of our President His Excellency Sri Ramnath Kovind ji that the Nine-Judge Bench of the Supreme Court had dismissed the petition of Lord Chilkur Balaji Deity which was filed on behalf of all Deities. The question on the Constitutional Rights of Hindu Deities that arises from Sabarimala Judgement through orders dated Feb 10th 2020 was also not added in the list of questions.

The Constitutional points raised in People for Dharma letter dated 29th Nov 2020 to the President clearly raises a dispute within Art 363 with regards to Art 26 the Rights of Lord Shri Padmanabha Swamy Ruler Deity, Sabarimala Deity etc. as a result of the decision given by the Supreme Court without referring to the bar under Art 363 to state that Hindu Deities have no constitutional rights in Sabarimala Judgement of 28th Sept 2018.

Normally the President has the power to refer such question of law under Art 143 to the Supreme Court for its advisory opinion for resolving dispute under Art 363. But definitely not in this special case. The President cannot make such reference to the Supreme Court as the dispute under Art 363 has arisen due to the adjudication of Supreme Court in the Sabarimala case as per below ratio.

The said clause empowers the President to refer for this Court's opinion a question of law or fact which has arisen or is likely to arise. When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is.

 The decision of this Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order 40 of the Supreme Court Rules, 1966 and on the conditions mentioned therein.

The President can refer to the July 13th judgement of Lord Shri Padmanabha Swamy Temple case but he cannot seek any further advise of the Supreme Court under Art 143. Further, in the same judgement it has been mentioned that: “Subsequently, in Pramatha Nath Mullick v. Pradhyumna Kumar Mullick the Judicial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself.”

As per the Sabarimala Judgement Lord Shri Padmanabha Swamy Ruler Deity, to whom entire Travancore Kingdom was donated, today has no constitutional rights in Independent India.  This observation paves the way for extinction of the pious purpose of the Deity and in fact would make the entire merger process of the Kingdom with India unconstitutional and hence Art 363 is invoked.

Hence, the Hon’ble President has to exercise his powers under Art 78 read with Art 60 and advice the Council of Ministers on resolving the Art 363 dispute that has arisen from the Sabarimala Judgement and restore the Art 26 constitutional rights of Lord Shri Padmanabha Swamy Ruler Deity, Lord Ayyappa Sabarimala Deity etc through a suitable executive notification under Art 363.