Justice Sundar, a former judge of the Madras High Court, has raised fundamental objections to Justice GR Swaminathan’s Thiruparankundram order holding that a writ petition could not be sustained to decide whether a petitioner had the right to light the Karthigai Deepam at a particular place. He noted that while Article 25 of the Constitution guarantees the freedom to practice religion, including the right to express beliefs through sanctioned religious acts, this right is subject to restrictions.
He pointed out that in the present case it was admitted and found that there had been no previous custom, practice or custom of lighting the Karthigai Deepam on the top of the hill which could have been recognized by a court of law. Justice Sundar noted that constitutional courts, while exercising judicial review under Article 226, must remain cognizant of their institutional limitations, especially in cases involving disputed questions of fact.
Continuing the order, Justice Sundar wondered how a court could allow the creation of a new practice when the Devasthanam itself had opposed lighting the lamp anywhere other than its usual location. He said this was particularly worrying as law and order issues had already been highlighted by the state and its machinery, with such concerns clearly confirmed by official documents.
He added that previous decisions of Constitutional Courts were in accordance with settled principles as to what constituted an essential religious practice deserving protection under Article 25. However, he said the learned judge had gone beyond this scope by observing that even if lighting the Deepam was not a matter of custom, it was imperative to assert the title of the temple over the lower peak by lighting the lamp on the Deepathoon.
Justice Sundar further criticized the reasoning that lighting the Deepam was not a religious tradition but a necessary act to protect the temple’s property, stating that such conclusions went far beyond the permissible limits of judicial intervention. He noted that when similar prayers had been dismissed by the Supreme Court on three previous occasions and public order concerns persisted, the matter should have been referred to proceedings under Section 63(e) of the Hindu Religious and Charitable Endowments Act.
He warned that a rushed court order in such a sensitive matter was likely to pave the way for communal disharmony and breach of peace in the entire state. Justice Sundar noted that some judges, rather than identifying problems and offering meaningful solutions, seemed inclined to offer what he described as “brilliant ideas” that lacked wisdom.
The controversy centers on Thiruparankundram Hill in Madurai, where both the Arulmigu Subramania Swamy Temple and the Hazrat Sultan Sikandar Badshah Dargah are located. The case stemmed from demands by Hindutva outfits, including Hindu Makkal Katchi and Hindu Munnani, to light the Karthigai Deepam on a stone lamp pillar known as the Deepathoon, about 15 meters from the dargah.
Justice GR Swaminathan passed the order while hearing a contempt petition filed by Ram Ravikumar, founder of the Hindu Makkal Katchi, against the Madurai District Collector, the Police Commissioner and the executive officer of the temple. The plea alleged non-compliance with an earlier directive that allowed lighting of the ceremonial lamp at the Deepathoon during the Karthigai Deepam festival.
The DMK-led Tamil Nadu government refused to implement the order, citing serious law and order concerns following violent clashes between police and Hindutva groups on the hill. The state also sought to impeach the Union Home Ministry as a defendant in the case.
Last month, the State informed the court that the Deepathoon pillar at the temple and dargah did not belong to Hindus and was not meant for illuminating the Karthigai Deepam. Senior advocate N Jothi appeared before the Hindu Religious and Charitable Endowments Department and argued that the pillar was historically associated with Digambara Jain sages living in nearby hills. He quoted an ancient archaeological text to argue that the pillar was only used as a source of light at night for sages to gather and not for any Hindu religious ritual.
The state reiterated that the Deepathoon had long-standing links with Jain traditions and its nature could not be investigated at this stage as such investigation was prohibited by law. Supporting the government’s stand, the Dargah side alleged before the division bench that Justice Swaminathan had not allowed them to present their case and had effectively excluded them from the hearing.
These allegations surfaced when MPs from the INDIA bloc filed an impeachment motion against Justice Swaminathan. The counsel for the dargah argued that allowing lighting of a lamp so close to the dargah would lead to a large influx of devotees and inconvenience to the minority community. The land, he said, had been granted to the dargah in 1920 and the community had repeatedly faced difficulties in enjoying the property.
The counsel for the dargah emphasized that the dispute related to property rights and not merely religious sentiments and submitted that any alleged Hindu customary practice should be settled in a civil court. He stated that temple devotees were claiming ownership of the pillar and the dargah was trying to protect his land.
Justice Swaminathan’s order had directed that the lamp should be lit on December 4 at the Deepathoon and a small group of devotees, accompanied by security personnel, could perform the ritual. While the ruling overruled the objections of both the temple authorities and the Dargah management, the state’s refusal to implement it has led to protests and clashes between the police and has made the issue a major political, religious and legal flashpoint in Tamil Nadu.
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