Exclusive Interview With Keshav Parasaran: The Man Who Represented Ram Lalla In Supreme Court And Won

Keshav Parasaran is referred to as the ‘Pitamah“ of the Indian bar in legal circles. He earned this reputation because he is known to cite verses from Hindu scriptures to back up his arguments in the courts.

When he turned 85, Parasaran decided to devote more time towards his spiritual and literary pursuits. He cut back on his workload drastically after a decades-long successful legal career that only a few dream of.

Parasaran’s journey in the central government started when he became Solicitor General in Indira Gandhi‘s administration in 1980. Gandhi later appointed him as the Attorney General of India in 1983, a post he held till the end of Rajiv Gandhi’s term as prime minister.

Prime Minister Atal Bihari Vajpayee nominated him to the Venkatachaliah Commission which was instituted to review the working of the constitution. Vajpayee’s administration awarded him with third-highest civilian honour Padma Bhushan in 2003. In 2011, he was honoured with Padma Vibhushan by Manmohan Singh government, which also appointed him to the Rajya Sabha a year later.

Parasaran, a staunch devotee of Shri Ram, returned to the court after a long gap to fight the Ram Janmabhoomi temple case on behalf of the Hindu side. and is also fighting the Sabarimala case to preserve the centuries old tradition of this unique temple. He believes it was the will of the Lord that he was chosen to appear in these causes.

He was the first trustee to be nominated by Modi government to the Ram Mandir Teertha Kshetra Trust which is overseeing the construction of the grand temple.

On the eve of Bhoomi pujan of the Ram Mandir in Ayodhya, Swarajya interviewed Shri Parasaran on the Ram temple case in addition to soliciting his views on other important matters.

Q. What made you come out of retirement and if you did so for the Ram Janmabhoomi case and Sabarimala case, why did you consider them so important to fight these in your 90s?

A. There is no retirement for a lawyer. Though I had not retired, I had consciously started drastically reducing my professional work once I turned 85 in order to devote more time towards my spiritual and literary pursuits.

However, the decision I took to spend more time at Chennai, which was principally in order to be physically near the Temple of Lord Parthasarathy at Triplicane in Chennai - the Lord to whom I owe everything in life; coincided with my nomination to the Rajya Sabha as a Member. I therefore had to fulfil my duties as a Member of the Rajya Sabha and continued to divide my time between Parliament and the Hon’ble Supreme Court. It was only in the middle of 2018, after my Rajya Sabha term, that I could finally act upon my desire to shift to Chennai.

I have been a staunch devotee of Lord Ram since 1957. In my daily puja, I read a few sargas of the Valmiki Ramayana, which I continue to do till date. I have not stopped this practise even for a single day since I had begun reading the Valmiki Ramayana. I have not only appeared in Ram Janmabhoomi case, but I have also appeared in the Ram Setu case against the proposed project.

As regards Sabarimala case, I am personally aware of the established custom at Sabarimala Temple since the age of about 12-13 years. The established custom and usage in matters of worship of Lord Ayyappa at Sabarimala is a matter of religious faith, and is not to be ignored. The religious faith and the temple legend, has to be respected, it is not a practice which is obnoxious.

In relation to worship of a deity manifested in the form of idols in public temples, there is an object of worship, a worshipper and the manner of worship. The deity at Sabarimala is a manifestation of Lord Ayyappa as a Naishtika Brahmachari. There are different kinds of Brahmacharya Ashramas. Lord Ayyappa at Sabarimala practices asceticism in the form of complete abstinence. It is based on such belief, without in any manner affecting the dignity of any person of either sex, that the practice in this particular temple has been established over a long period of time.

It is my personal view that in such cases, the Courts should generally refrain from exercising jurisdiction. To test such matters of faith and religious belief, the Constitution has not established ecclesiastical courts to go into questions of religious practices including worship based on belief or faith.

In fact, while dealing with an argument of one of the counsels in the Ayodhya case that Babri Masjid lacked the essential features of a valid mosque under Islamic jurisprudence, the Hon’ble Supreme Court observed that the submissions require the Court to embark upon a journey into theological doctrine and that “....This Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper”.

It may not be entirely correct to state that I came out of retirement to appear in the Ram Janmabhoomi and Sabarimala cases. I believe that it is the will of the Lord that I was chosen to appear in these causes. As the Lord says in the Bhagavad Gita, I am only a निमित्त मात्र (nimitha-matram).

Q2. The Hindu side won the Ram Janmabhoomi title suit but one of its key arguments - that Janmasthan itself should be treated as a juristic person apart from the Ram Lalla Virajman - was rejected by the Supreme Court. What do you make of the court’s reasons for refusing to confer legal rights on the special immovable properties like the Ram Janmasthan?

A. These are questions of law that have engaged the minds of the greatest legal scholars and philosophers. A straight answer to this question has eluded them. There are broadly two theories of legal rights that have evolved over the years which are known as the Will Theory and Interest Theory. While the Will Theory recognises legal rights bestowed only on “moral beings” who are capable of holding and enforcing such rights, the focus of the Interest Theory is on the preservation of well-being rather than the exercise of choice of the right holder. This may not be the occasion to dilate on these esoteric concepts.

However, when it comes to judicial determination, such matters have more often been decided on the basis of the history, necessity and expediency.

For instance, in the Ayodhya verdict itself, the Hon’ble Judges have considered the issue of juristic personality in various contexts such as the artificial legal personality conferred by law upon Companies and Ships. Needless to say, both are non- human and inanimate things. Strictly speaking, the former is not even tangible but has been conferred rights under law.

In the Ayodhya case, I had contended for the position that both the deity (Ram Lalla) and the birthplace (Janmasthan) had attained such a high religious significance, as to legitimately claim the status of legal personality. The Hon’ble Supreme Court after an elaborate consideration of the jurisprudence and judicial precedents in this regard, expressed that the concept of juristic personality or entity, in some cases, may even extend beyond the “idol”. However, as far as the Janmasthan is concerned, the Hon’ble Supreme Court observed that recognition of the Janmasthan as a juristic person would result in the extinguishment of all competing proprietary claims to the land in question and would in effect render the very concept of title meaningless. The Court further observed that conferral of legal personality by courts is an innovation arising out of necessity and convenience.

The conferral of legal personality on Hindu idols arose due to the fundamental question of who the property was dedicated to and in whom the dedicated land vested.

In other words, the two clear interests that the law necessitated protection of, were the interests of the devotees and the protection of the properties from mismanagement.

In other words, since the Hon‘ble Court seemed to have perceived deity and the Janmasthan as the “owner” and the “owned” respectively, thereby establishing a subject and object relationship, the question of whom the property was dedicated to would not arise.

Q3: In your opinion, should deities also enjoy fundamental rights in addition to simple legal rights as juristic entities?

A. Deities are juristic persons. Juristic persons have not been conferred with all Fundamental Rights. For instance, see the judgment in State Trading Corporation of India v. Commercial Tax Officer, Visakhapatnam [1964 (4) SCR 89] where the Hon’ble Supreme Court of India ruled that Corporations cannot exercise Fundamental Rights under Article 19 (which applies to 'citizens’) but may avail of the Fundamental Right enshrined under Article 14 of the Constitution of India. Therefore, there may be such restrictions on exercise of Fundamental Rights by deities as juristic persons. However, it is arguable that once the deity is conferred legal personality, such a fiction ought to permeate even in respect of rights in a Constitutional setting.

Q4. In its judgment on Ram Janmabhoomi title suit, to the surprise of many, the Supreme Court repeatedly invoked The Places of Worship Act of 1991. What do you make of the court’s observations in this regard? Are those binding in nature or can the government amend it given there are many long pending disputes over religious sites throughout the country? In your opinion, is The Places of Worship Act of 1991 constitutionally vulnerable to challenge?

A. The Places of Worship (Special Provisions) Act, 1991 specifically excludes Ram Janmabhoomi at Ayodhya under Section 5 thereof. It was not strictly necessary to consider the said Act of 1991 in the Ayodhya case. As the question, in my view, did not directly arise in that case, the Court‘s observations, are therefore obiter dicta. However, even the obiter dicta of the Hon’ble Supreme Court binds all (courts and authorities in the country).

The Supreme Court alone is not bound by its own obiter dicta and if this question directly arises in any future case, it can go into the same without being bound by those observations.

As a judgment of a Constitution Bench, the Ayodhya judgment will be given due respect and consideration if and when such issue is taken up for consideration.

It should also be noted that the power of Parliament to amend any Act enacted by it including the Act in question is untrammelled, but however subject to judicial review as to its constitutional validity. It is difficult to hazard a guess on how the Courts would deal with this issue if and when a challenge were to be made to the Act.

Q5. One emerging criticism of the Indian constitution is that it is pitted against the Hindu belief system. The reasons given for such criticisms are because of the articles 25-30 which have enabled government takeover of only Hindu places of worship, religious minorities enjoying more rights than the majority as far as establishing and administering education institutions is concerned, etc. What is your opinion on this?

A. I firmly believe in egalitarian equality and equal protection to all persons. The State can neither disown nor discriminate any citizen and shall treat every person with respect and human dignity. The rationale behind minority rights in the Constitution can be fully appreciated only upon bearing in mind history as well as the debates of the Constituent Assembly.

In matters of religious faith, in our Constitutional scheme, the judiciary is also assigned a counter-majoritarian role to check any violation of individual rights by the State. The said Constitutional provisions are only meant to counter majoritarian transgression on minority rights, and not to turn into an anti-majoritarian weapon.

Q6: Of late, the judiciary has started intervening in domain of the executive and even the legislature. Absence of government action is provided as reasoning for such interventions. What do you think of this trend? Does such actions have constitutional sanction?

A. The question assumes that there is judicial overreach in Courts intervening in the domain of Executive and Legislature, in a hypothetical way.

It is not desirable to deny to the highest Court of the land, a jurisdiction in any matter. It would be in public interest to presume in favour of Courts’ jurisdiction. However, Courts should act with judicial statesmanship and put on judicial fetters in certain matters which ought to be left completely within the jurisdiction of the Legislature and/or the Executive.

The Courts have to maintain adherence to the principle of separation of powers as envisaged by the Constitution of India. The Court’s intervention in the domain of matters designed exclusively for Executive and Legislature would have the effect of diluting or doing away with the doctrine of separation of powers. The members of Executive and Legislature are representatives of the people either directly elected by the people to the House of the People in the Parliament and State Legislative Assembly or indirectly elected by the people through the representatives of people to the Council of States and the State Legislative Council (in states with bicameral legislature) respectively.

In areas which are exclusively for Executive or Legislature, those persons are accountable to the people at the time of the elections. Accountability even in matters of such nature to the judiciary would undermine such accountability of the elected members of the Legislature and Executive. The principle of judicial restraint and judiciary resorting to self-imposed fetters are therefore important and require to be adhered to.

Q7. At present, what are the most important judicial reforms you would recommend?

A. The question of judicial reforms require more elaborate consideration and discussion. However, for the immediate purpose, one of the reforms that I personally feel is important, is the reintroduction of NJAC with such modifications as will remove the defects pointed out in the judgment of the Hon’ble Supreme Court.

Q8. As a staunch dharmic practitioner and believer in Shri Ram, how do you reconcile your religious beliefs with the stances of Congress party which nominated you to Rajya Sabha, the party which submitted to the Supreme Court in 2007 that there was no historical proof of Ram, the party that was opposed to construction of Ram temple in Ayodhya, wanted to demolish Ram Setu and which tried hard to stall proceedings of the SC in the Janmabhoomi case as well.

A. This appears to be more a political question and I have, in my entire career, been apolitical. I am also not certain if the stances attributed to the Congress as a party are correct in terms of the records.

But I can say this - I have appeared in my professional capacity for different political parties and also members of different political parties. I have had the privilege of serving as the Attorney General for India during the Prime Ninisterships of Smt. Indira Gandhi and Shri Rajiv Gandhi, as also appeared in cases before the Hon’ble Supreme Court of India on behalf of the Union Government when Shri. P.V. Narasimha Rao was the Prime Minister of India.

I was conferred the Padma Bhushan and also nominated to the ’National Commission to Review the working of the Constitution’ with Hon’ble Mr. Justice M.N. Venkatachaliah (former Chief Justice of India) as its Chairman, when Shri Atal Bihari Vajpayee was the Prime Minister of India.

I was nominated to the Rajya Sabha when Dr. Manmohan Singh was the Prime Minister of India and saw the first four years of Shri Narendra Nodi as Prime Minister of India while I was a nominated member of the Rajya Sabha. In my experience I have always found the prime ministers of our country with whom I have worked or interacted with, to have acted with statesmanship and solely in terms of national interest and in a bipartisan manner.

The mere fact that I had been a Law Officer for a considerable time when a particular political party was at the helm, does not make me a member of that party. In fact a nominated member has the option of joining a political party within 6 months of his nomination. Otherwise, he/she will continue to be an Independent Member not belonging to any political party, as in my case.

The history of our country would show the role played by successive leaders and the various political parties on the issues that you have cited.

The final result in the Ram Janmabhoomi issue as well as the position with respect to the Ram Setu are a culmination of events over decades, if not centuries, and the result of decisions, sacrifices and efforts by innumerable people who have each played a role in reaching the happy position that we now find ourselves in.