ADI SAIVA SIVACHARIYARGAL N.SANGAM &ORS. Vs GOVT. OF TAMIL NADU
Bench: RANJAN GOGOI,N.V. RAMANA
Case number: W.P.(C) No.-000354-000354 / 2006
Diary number: 18530 / 2006
Advocates: RAKESH K. SHARMA Vs
V. G. PRAGASAM
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 354 OF 2006
ADI SAIVA SIVACHARIYARGAL NALA SANGAM & ORS. ...PETITIONER (S)
VERSUS
THE GOVERNMENT OF TAMIL NADU & ANR. ...RESPONDENT (S)
WITH W.P. (C) No. 355 of 2006 W.P. (C) No.383 of 2006
AND W.P. (C) No. 384 of 2006
J U D G M E N T
RANJAN GOGOI, J.
1. Religion incorporates the particular belief(s) that a group
of people subscribe to. Hinduism, as a religion, incorporates
all forms of belief without mandating the selection or
elimination of any one single belief. It is a religion that has no
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single founder; no single scripture and no single set of
teachings. It has been described as Sanatan Dharma, namely,
eternal faith, as it is the collective wisdom and inspiration of
the centuries that Hinduism seeks to preach and propagate. It
is keeping in mind the above precepts that we will proceed
further.
2. Before highlighting the issues that confronts the Court in
the present case the relevant Constitutional provisions in Part
III of the Constitution may be taken note of. 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. Sub-Article (3) brings within the fold of laws, all Rules,
Regulations, Notification, custom and usage having the force
of law. While the several provisions of Part III would hardly
need to be re-emphasized, specific notice must be had of, in
the context of the present case, the provisions contained in
Articles 25 and 26 of the Constitution. While Article 25 makes
the freedom of conscience and the right to profess, practice
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and propagate the religion to which a person may subscribe, a
fundamental right, the exercise of such right has been made
subject to public order, morality and health and also to the
other provisions of Part III. Article 25(2)(b) makes it clear that
main part of the provisions contained in Article 25 will not
come in the way of the operation of any existing law or prevent
the State from making any law which provides for social
welfare and reform or for throwing open of Hindu religious
institutions of a public character to all classes and sections of
Hindus. Similarly, Article 26 while conferring the right on
every religious denomination to manage its own affairs makes
it clear that the right to manage the affairs of any religious
denomination is restricted to matters of religion only.
3. The provisions of Part III, as noted above, therefore
makes it amply clear that while the right to freedom of religion
and to manage the religious affairs of any denomination is
undoubtedly a fundamental right, the same is subject to
public order, morality and health and further that the
inclusion of such rights in Part III of the Constitution will not
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prevent the State from acting in an appropriate manner, in the
larger public interest, as mandated by the main part of both
Articles 25 and 26. Besides, the freedom of religion being
subject to the other provisions of Part III, undoubtedly,
Articles 25 and 26 of the Constitution has to be harmoniously
construed with the other provisions contained in Part III.
4. The necessary facts may now be noticed. In order to
amend and consolidate the law relating to administration and
governance of Hindu religious and charitable institutions in
the State of Tamil Nadu, the State Legislature has enacted the
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 (hereinafter referred to as ‘the Tamil Nadu Act’). A
passing reference may be made, at this stage, to Section 55 of
the Tamil Nadu Act which provided that in case where the
office holders or servants of a religious institution are required
to be filled up on the principle of hereditary succession the
person next in line of succession is entitled to succeed. There
were some exceptions to the above rule i.e. where the person
next in line is a minor or suffers from some incapacity. The
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aforesaid provision (Section 55) was amended alongwith other
related provisions by the Amendment Act of 1970 which came
into force on January 8, 1971. By the aforesaid amendment
the principle of next in line of succession was abolished. The
amendment came to be challenged before this Court which
challenge was considered by a Constitution Bench of the
Court. In its judgment in Seshammal and Others, Etc. Etc.
Vs. State of Tamil Nadu1 the Constitution Bench, while
upholding the validity of the amendment, dealt with a further
question, namely, though the principle of next in line was
validly abolished, whether the appointment of office bearers or
servants of the temples are required to be made from a
particular denomination/group/sect as mandated by the
Agamas i.e. treatises pertaining to matters like construction of
temples; installation of idols and conduct of worship of the
Deity. The Constitution Bench after an elaborate
consideration of the matter, details of which will be noticed
subsequently, seems to have answered the aforesaid question
in the affirmative.
1 (1972) 2 SCC 11
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5. No controversy surfaced after the Constitution Bench
judgment in Seshammal (supra) until a G.O. No. 118 dated
23.05.2006 was issued by the Government of Tamil Nadu,
Department of Tamil Development, Cultural and Endowments
to the effect that, “Any person who is a Hindu and
possessing the requisite qualification and training can
be appointed as a Archaka in Hindu temples”. An
Ordinance (No. 5 /2006) dated 14.07.2006 followed the
aforesaid G.O. seeking to further amend sub-section (2) of
Section 55 of the Tamil Nadu Act. The said provision of the Act
i.e. Section 55(2), by virtue of the 1971 amendment referred to
above and the 2006 Ordinance, read as follows.
“(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” [Change brought about by amendment of S.55(2)]
“or on the ground of any custom or usage”. [Change brought about by Ordinance 5/2006)
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6. The Explanatory statement to the Ordinance in para 4
indicated the purpose behind further amendment of Section
55(2) in the following terms.
“Archakas of the Temples are to be appointed without any discrimination of caste and creed. Custom or usage cannot be a hindrance to this. It is considered that the position is clarified in the Act itself and accordingly, it has been decided to amend Section 55 of the said Act suitably”.
7. The Ordinance was replaced by The Tamil Nadu Act No.
15 of 2006 which received the assent of the Governor on
29.08.2006. The Act, however, did not contain the amendment
to Section 55 as was made by the Ordinance. In other words,
the said amendment brought by the Ordinance was dropped
from the Amending Act 15 of 2006.
8. The present writ petitions under Article 32 of the
Constitution have been instituted by an Association of
Archakas and individual Archakas of Sri Meenakshi Amman
Temple of Madurai. The writ petitions were filed challenging
the G.O. No. 118 dated 23.05.2006 and Ordinance No. 5/2006
(at that point of time the Amending Act of 2006 had not come
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into effect). As the amendment of Section 55(2) made by the
Ordinance had not been continued by the Amending Act 15 of
2006 the said part of the challenge (as against the ordinance)
made in the writ petitions became redundant leaving the
legality and validity of the G.O. 23.05.2006 as the sole issue
for consideration in the present writ petitions.
9. Preliminary Objections have been raised to the
maintainability of the writ petitions by Shri P.P. Rao and Shri
Colin Gonsalves, learned senior counsels appearing for
respondents . It has been urged that the present writ petitions
have not been filed as public interest litigations and in the
absence of any specific orders in implementation of the
impugned G.O. dated 23.05.2006 the writ petitions are
premature. It is further contended that even if the writ
petitions are to be considered as PILs the same raise questions
with regard to appointment in public office i.e. Archakas in
public temples and therefore the writ petitions will also not be
maintainable as public interest litigations. It is further urged
that as and when the G.O. is given effect to by actual
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appointment of an Archaka or Archakas, as may be, it will be
open for the petitioners to raise the issue and establish that
there is a usage or custom or customary practice governing
the temple in question which require the appointment of the
Archaka to be made from a particular denomination.
10. It is difficult for us to accept the contentions advanced on
behalf of the respondents with regard to the maintainability of
writ petitions on two counts. Firstly, it is difficult to
appreciate as to why the petitioners should be non-suited at
the threshold merely because the G.O. dated 23.05.2006 has
not been given effect to by actual orders of the State
Government. The institution of a writ proceeding need not
await actual prejudice and adverse effect and consequence. An
apprehension of such harm, if the same is well founded, can
furnish a cause of action for moving the Court. The argument
that the present writ petition is founded on a cause relating to
appointment in a public office and hence not entertainable as
a public interest litigation would be too simplistic a solution to
adopt to answer the issues that have been highlighted which
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concerns the religious faith and practice of a large number of
citizens of the country and raises claims of century old
traditions and usage having the force of law. The above is the
second ground, namely, the gravity of the issues that arise,
that impel us to make an attempt to answer the issues raised
and arising in the writ petitions for determination on the
merits thereof.
11. Shri K. Parasaran, learned senior counsel appearing for
the petitioners has submitted that the issues arising in the
case stand squarely covered by the pronouncement of the
Constitution Bench in Seshammal (supra). In fact, according
to the learned senior counsel, the issues in the present case
are res judicata; the same having been decided inter-partes in
Seshammal (supra); the Archakas of the Agamas Temples and
the respondent-State both being parties to the said decision.
Specifically, Shri Parasaran, has urged that in Seshammal
(supra) the Constitution Bench has unambiguously held that
the appointment of an Archaka has to be as per the Agamas
governing the particular temple and any deviation from the
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said age old custom and usage would be an infringement of
the freedom of religion and the rights of the religious
denomination to manage its own affairs, as guaranteed, by
Article 25 and 26 of the Constitution. The impugned G.O., by
its prescription, as noted, therefore, seeks to override the
declaration of law made by the Constitution Bench in
Seshammal (supra).
12. Shri Parasaran has further urged that curtailment of the
freedoms guaranteed by Articles 25 and 26 of the Constitution
can only be made by the legislature and even a legislative
exercise in this regard is circumscribed by the limitations
contained in both Articles 25 and 26. In the present case the
amendment of Section 55 of the Tamil Nadu Act as made by
Ordinance No.6 of 2005 has not been continued by the
Amendment Act No.15 of 2006 (as already noted). The
impugned G.O. has, therefore, to necessarily lose its efficacy.
Reliance herein is placed on the following passage from the
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report in Sanjeev Coke Manufacturing Vs. M/s Bharat
Coking Coal Limited & Anr.2
“25………..The deponents of the affidavits filed into court may speak for the parties on whose behalf they swear to the statements. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the court. After Parliament has said what it intends to say, only the court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court is the only authentic voice which may echo (interpret) the Parliament……..”
13. It was further contended that the G.O. wrongly relies on
the decision in the case of N. Adhithyan Vs. Travancore
Devasom Board and Others3 to justify its promulgation. The
reliance placed on Adhithyan (supra), in the face of the law
laid down in Seshammal (supra), is wholly misplaced. Shri
Parasaran has further argued that the impugned GO has to be
read on its own terms and the validity thereof cannot be saved
by what appears to be a “concession” made by the State in
Para 51 of the counter affidavit to the effect that the State
would respect the distinction between Saiva and Vaishanava
2 (1983) 1 SCC 147 3 (2002) 8 SCC 106
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temples and the Archakas in each of such temples shall be
appointed from either the Saivas or Vaishanavas, as may be,
taking into account the indoctrination of the concerned
Archakas in the Agamas. According to Shri Parasaran, neither
all Saivas nor all Vaishnavas are ipso facto denominational.
Only a Saiva who satisfies the eligibility under the Sivagama
and a Vaishnava satisfying the eligibility under the
pancharatna or vaikhanasa can be referred to as
denominations. A person who is a member of such
denomination alone can be appointed as a Archaka of a Saiva
or a Vaishnava temple, as the case may be.
14. On the other hand, Shri P.P. Rao and Shri Colin
Gonsalves, learned Senior Counsels appearing for the
respondents have contended that the decision of the
Constitution Bench in Seshammal (supra) upholding the
Constitution validity of the Amendment Act of 1970 had
opened the avenue to all qualified Hindus irrespective of caste,
denominations, etc to be appointed as Archakas. It is
contended that once the hereditary principle was held to be
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flexible, the exclusive right of a particular group to
appointment necessarily stood negated and it is qualification
coupled with merit and eligibility that has to be the crucial test
for appointment, consistent with Articles 14 and 16 of the
Constitution. Learned counsels have specifically referred to
the Government Order No.1 of 2007 and in this regard the
recommendation of the High Powered Committee appointed for
making recommendations for effective implementation of the
impugned GO dated 23.5.2006. It is contended, by referring to
the report of the High Powered Committee, that the same
demonstrates the lack of familiarity of even temple priests with
the Agamas and their lack of knowledge of such Agamas and
the practices of the Temples as may be prescribed by the
Agamas. It is submitted that not only the contents of the
Agamas have become uncertain, even assuming otherwise, the
same cannot be an authority to confer legitimacy to a practice
which is inconsistent with and contrary to the provisions of
the Constitution, specially those contained in Part III thereof.
It is further submitted that the impugned GO is consistent
with and in fact effectuates the Fundamental Right of Equality
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and equal opportunity and no contrary practice overriding the
said provisions of the Constitution would be legally acceptable.
Learned Counsels have further submitted that there is no
conflict between the judgments in Seshammal (supra) and N.
Adithayan (supra) and it is possible to read the law declared
in both the cases in a manner consistent with the
Constitutional requirements and principles.
15. An additional issue has been struck by Shri Gonsalves,
learned Senior Counsel, that the impugned GO needs to be
upheld on the touchstone of the principle enshrined by Article
17 of the Constitution. The exclusive right of a particular
group to enter the sanctum sanctorum of a temple and
perform the rituals on the ground that performance of such
rituals by any other person would defile the image is a thought
and action which is prohibited by Article 17 of the
Constitution. Violation and consequently commission of
offences under the Protection of Civil Rights Act, 1955 has also
been urged.
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16. The issues arising and the arguments made centre around
the true meaning, purport and effect of the Constitution Bench
judgment in Seshammal (supra) and in the above context the
effect of the decision of the numerically smaller Bench in N.
Adithayan (supra). We will therefore proceed to understand
the above position at the outset.
17. The contours of the challenge in Seshammal (supra) has
already been noticed. To repeat, it is the validity of the
Amendment Act of 1970 which sought to amend, inter alia,
Section 55 of the Tamil Nadu Act that was questioned in
Seshammal (supra). The Statement of Objects and Reasons for
the amendment Act of 1970 is stated as follows:
“In the year 1969 the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes has suggested in its report that the hereditary priesthood in the Hindu Society should be abolished, that the system can be replaced by an ecclesiastical organisation of men possessing the requisite educational qualifications who may be trained in recognised institutions in priesthood and that the line should be open to all candidates irrespective of caste, creed or race. In Tamil Nadu Archakas, Gurukkals and Poojaries are all Ulthurai servants in Hindu temples. The duties of ‘Ulthurai servants’ relate mainly to the performance of poojas rituals and other services to the deity, the recitation
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of mantras, vedas, prabandas, thevarams and similar invocations and the performance of duties connected with such performance and recitations. Sections 55 and 56 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959), provide for appointment of office-holders and servants in the religious institutions by the trustees by applying the rule of hereditary succession also. As a step towards social reform Hindu temples have already been thrown open to all Hindus irrespective of caste.…”
18. The arguments in support of the challenge were threefold
namely,
“(a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications as they may choose to adopt for applicants to this religious office while the Act itself gives no indication whatever of the principles on which the qualifications should be based. The statement of objects and reasons which is adopted in the counter-affidavit on behalf of the State makes it clear that not only the scope but the object of the Amendment Act is to override the exclusive right of the denomination to manage their own affairs in the matter of religion by appointing Archakas belonging to a specific denomination for the purpose of worship.
(c) The Amendment Act gives the right of appointment for the first time to the trustee who is under the
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control of the Government under the provisions of the principal Act and this is the very negation of freedom of religion and the principle of non-interference by the State as regards the practice of religion and the right of a denomination to manage its own affairs in the matter of religion.”
19. In the course of a very lengthy discourse and after
considering the works of learned scholars in the field; the law
laid down by this Court in respect of Articles 25 and 26 till date
and particularly the efficacy of the Agamas the Constitution
Bench came to the following conclusion.
“Any State action which permits the defilement or 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 in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”
20. Thereafter, the Constitution Bench by referring to several
earlier pronouncements of this Court specifically mentioned in
para 13 of the Report identified the main principles underlying
the provisions of Article 25 and 26 of the Constitution in the
following manner.
“The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and
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therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.”
21. Applying the aforesaid principles to the facts before it the
Constitution Bench identified the main thrust of the arguments
made in support of the challenge to the amendment to be with
regard to the vesting of powers and authority in the temple
trustee to appoint any person as an Archaka so long as he was
holding a fitness certificate from one of the institutions referred
to in Rule 12 of the Madras Hindu Religious Institutions
(Officers and Servants) Service Rules, 1964. The Said Rule 12
required that an Archaka should be proficient in Mantras,
Vedas, Prabandams etc., namely, that such a person is fit and
qualified for performing puja and having knowledge of the
rituals and other services. The Constitution Bench was told
that the above position admits a situation where the
requirement of Rule 12 can very well be dispensed with (by a
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subsequent amendment of the Rules) thereby resulting in
conferment of virtually unguided and unbridled powers to the
trustee to appoint any person as a Archaka notwithstanding the
fact that worship of the deity by a person other than one
belonging to a particular denomination may have the effect of
defiling the deity. As the temple trustee is to function under the
control of the State under Section 27 of the Tamil Nadu Act the
question highlighted before the Constitution Bench was
whether by virtue of the amendment the State had gained a
right to step into and control the Sanctum Sanctorum of a
temple through the agency of the trustee and the Archaka
thereby transgressing the rights granted to a religious
denomination by Articles 25 and 26 of the Constitution.
22. The Constitution Bench noticed that to counter the above
situation the Advocate General of the State of Tamil Nadu had
contended that the power given to the trustee by virtue of the
amendment to Section 55 was not a unqualified power but was
subject to the provisions of Section 28 of the Act which is in the
following terms.
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“Section 28.- Subject to the provisions of the Tamil Nadu Temple Entry Authorisation Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own.”
In this regard the Advocate General had virtually admitted
that if the usage or practice of the institution required the
Archaka of a temple to be of a particular denomination the said
usage would be binding on the trustee and he would be bound
to make appointment under Section 55 in accordance with such
usage. The usage, practice or custom requiring an Archaka to
be of a particular denomination, according to the Advocate
General, was founded on religious beliefs and practices whereas
the next in line principle, if is to be regarded as a usage, was a
merely secular usage on which a legislation would be competent
under Article 25 (2)(a) of the Constitution. It was, alternatively,
contended that if the hereditary principle is to be understood as
a religious practice, alteration thereof can also be made by a
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legislation under Article 25(2)(b), such legislation being for the
purpose of social welfare and reform.
23. The Constitution Bench in Seshammal (supra) answered
the question by holding that the hereditary principle which was
of long usage was a secular principle and therefore a legislation
to alter the said usage, i.e. the Amendment Act of 1970, was
competent under Article 25(2)(a). However, the Constitution
Bench was quick to add that it is to the limited extent of the
above exception alone, namely, the liberty to make the
appointment from persons beyond next in line to the last holder
that the trustee is released from the obligation imposed on him
by Section 28 of the Tamil Nadu Act which otherwise requires
the trustee to administer the affairs of the temple in accordance
with the usage governing the temple. Para 22 of the
Constitution Bench judgment wherein the aforesaid view finds
mention may be noticed verbatim.
“22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to
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appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.”
24. A reading of the judgment of the Constitution Bench in
Seshammal (supra) shows that the Bench considered the
expanse of the Agamas both in Saivite and Vaishnavite temples
to hold that the said treatises restricted the appointment of
Archakas to a particular religious denomination(s) and further
that worship of the deity by persons who do not belong to the
particular denomination(s) may have the effect of even defiling
the idol requiring purification ceremonies to be performed. The
Constitution Bench further held that while the appointment of
Archakas on the principle of next in line is a secular act the
particular denomination from which Archakas are required to
be appointed as per the Agamas embody a long standing belief
that has come to be firmly embedded in the practices
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immediately surrounding the worship of the image and
therefore such beliefs/practice constitute an essential part of
the religious practice which under Section 28 of the Act
(extracted above) the trustee is bound to follow. The above,
which the petitioners contend to be the true ratio of the law laid
down by the Constitution Bench in Seshammal (supra), has
been questioned by the respondents who argue that
Seshammal (supra) is but the expression of an agreement of
the Constitution Bench to what was a concession made before
it by the Advocate General of the State. According to the
respondent in Seshammal (supra) the Constitution Bench had
no occasion to deal with the issue arising herein, the challenge
before it being confined to the validity of the Amendment Act of
1970.
25. The answers to the above will be dealt with a little later
and for the present what has to engage the attention of the
Court is the true ratio of the law laid down by the numerically
smaller Bench in Adithayan (supra).
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26. The facts confronting the Court in Adithayan (supra) may
now be noticed. The challenge therein was by a Namboodri
Brahmin to the appointment of a non-Namboodri Brahmin who
was otherwise well qualified to be appointed as a priest in the
temple in question. The challenge was sought to be based on
the ground that it has been a long standing practice and usage
in the temple that its priests are appointed exclusively from
Namboodri Brahmins and any departure therefrom is in
violation of the rights of Namboodri Brahmins under Article 25
and 26 of the Constitution. Upon a consideration of the various
earlier decisions of this Court specifically referred to in
Adithayan (supra), details of which need not again be noticed
herein (such details are being separately noticed later, though
in a different context) including the decision in Seshammal
(supra) it was held that rights claimed solely on the basis of
caste cannot enjoy the protection of Article 25 and 26 and no
earlier decision of this Court including Seshammal (supra)
would support the contention that even duly qualified persons
can be barred from performing Poojas on the sole ground that
such a person is not a Brahmin by birth or pedigree. After
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expounding the law in the above manner, it was held in
Adithayan (supra) that even proof of any such practice since
the pre-constitutional days (which in any case was not
forthcoming) cannot sustain such a claim as the same would be
in derogation of constitutional values and opposed to public
policy or social decency. We do not see how the above view of
this Court in any way strikes a discordant note with the views
expressed in any earlier decision including Seshammal(supra).
The issues in Seshammal(supra) were entirely different and the
discussions therein (para 12) proceeds on the basis that entry
to the sanctum sanctorum for a particular denomination is
without any reference to caste or social status. The reference to
the opinion of Sri R. Parthasarathy Bhattacharya who has been
referred to in the above para 12 of the report as an undisputed
scholar on the subject was cited to show that apart from the
followers of the 4 (four) traditions, so far as Vaishnava temples
are concerned “…..none others, however high placed in society
as Pontiffs or Acharyas, or even other Brahmins could touch the
idols, do Pooja or enter the Garba Girha……..” Exclusion solely
on the basis of caste was not an issue in Seshammal(supra) so
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as to understand the decision in Adithayan (supra) to be, in
any way, a departure from what has been held in Seshammal
(supra).
27. Before we go on to deliberate on the validity of the
impugned G.O. dated 23.05.2006 it will be useful to try to
understand what is Hinduism? A broad answer is to be found
in the preface to this report but, perhaps, we should delve a
little deeper into the issue. The subject has received an
indepth consideration of the Country’s philosopher President
Dr. S. Radhakrishnan in the celebrated work “ The Hindu way
of Life”. The said work has been exhaustively considered in
Sastri Yagnapurushadji and Others Vs. Muldas
Bhudradas Vaishya and Another4 in the context of the
question as to whether Swaminarayan sect is a religion
distinguishable and separate from the Hindu religion and
consequently the temples belonging to the said sect fell
outside the scope of Section 3 of the Bombay Hindu Places of
Public Worship (Entry Authorisation) Act, 1956. The aforesaid
4 1966(3) SCR 242
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Section 3 of the Act inter alia provided that every temple to
which the Act applied shall be open to the excluded classes for
worship in the same manner and to the same extent as other
Hindus in general. While the eventual decision of the Court
which answered the question raised is in the negative, namely,
that the sect in question was not a distinguishable and
different religion, it is the very learned discourse that is to be
found in the report with regard to the true tenets of Hinduism
that would be of interest so far the present case is concerned.
The following passages from the report are truly worthy of
reproduction both for the purpose of recapitulation and
illumination.
“…………….. ………….. ………… ………… When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.
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…………….. ………….. ………… …………
The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practiced different rites (Kurma Purana).(Ibid p.12.)
…………….. ………….. ………… …………
“It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes ........ The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds." ("Religious Thought & Life in India" by Monier Williams, P. 57.)
The history of Indian thought emphatically brings out the fact that the development of Hindu religion has always been inspired by an endless quest of the mind for truth based on the consciousness that truth has many facets. Truth is one, but wise men describe if differently. The Indian mind has, consistently through the ages, been exercised over the problem of the nature of godhead the problem
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that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. "If we can abstract from the variety of opinion", says Dr. Radhakrishnan, "and observe the general spirit of Indian thought, we shall find that it has a disposition to interpret life and nature in the way of monistic idealism, though this tendency is so plastic, living and manifold that it takes many forms and expresses itself in even mutually hostile teachings".(Ibid, p.32.)
Though philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many- sided and different views contained different aspects of truth which no one could fully express.
Do the Hindus worship at their temples the same set or number of gods ? That is another question which can be asked in this connection; and the answer to this question again has to be in the negative. Indeed, there are certain sections of the Hindu community which do not believe in the worship of idols; and as regards those sections of the Hindu community which believe in the worship of idols their idols differ from community to community and it cannot be said that one definite idol or a definite number of idols are worshipped by all the Hindu in general. In the Hindu Pantheon the first goods that were worshipped in Vedic times were
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mainly Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna secured a place of pride in the Hindu Pantheon, and gradually as different philosophic concepts held sway in different sects and in different sections of the Hindu community, a large number of gods were added, with the result that today, the Hindu Pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus.
The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha stated Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.
Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working
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formula which may be regarded as fairly adequate and satisfactory. Said Tilak : "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. This definition brings out succinctly the broad distinctive features of Hindu religion. It is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by Toynbee. Says Toynbee : "When we pass from the plane of social practice to the plane of intellectual outlook, Hinduism too comes out well by comparison with the religions an ideologies of the South-West Asian group. In contrast to these Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and philosophies of the Western half of the old world. Like them, Hinduism takes it for granted that there is more than one valid approach to truth and to salvation and that these different approaches are not only compatible with each other, but are complementary".
28. The fact that reference to Hindus in the Constitution
includes persons professing the Sikh, Jain and Buddhist
religions and the statutory enactments like Hindu Marriage
Act, Hindu Succession Act etc. also embraces Sikhs, Jains and
Buddhists within the ambit of the said enactments is another
significant fact that was highlighted and needs to be specially
taken note of.
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29. What is sought to be emphasized is that all the above
would show the wide expanse of beliefs, thoughts and forms of
worship that Hinduism encompasses without any divergence
or friction within itself or amongst its adherents. It is in the
backdrop of the above response to the question posed earlier
“what is Hinduism”? that we have to proceed further in the
matter.
30. Image worship is a predominant feature of Hindu
religion. The origins of image worship is interesting and a
learned discourse on the subject is available in a century old
judgment of the Madras High Court in Gopala Mooppanar
and Others Vs. Subramania Iyer and others5. In the said
report the learned Judge (Sadasiva Aiyar, J.) on the basis of
accepted texts and a study thereof had found that in the “first
stage” of existence of mankind God was worshiped as
immanent in the heart of everything and worship consisted
solely in service to ones fellow creatures. In the second age,
the spirit of universal brotherhood has lost its initial efficacy
and notions of inferiority and superiority amongst men 5 AIR 1915 Madras 363
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surfaced leading to a situation where the inferior man was
asked to worship the superior man who was considered as a
manifestation of God. Disputes arose about the relative
superiority and inferiority which was resolved by the wise
sages by introducing image worship to enable all men to
worship God without squabbles about their relative
superiorities. With passage of time there emerged Rules
regulating worship in temples which came to be laid down in
the treatises known as Agamas and the Thantras. Specifically
in Gopala Moopanar (supra), it was noticed that the Agamas
prescribed rules as regards “what caused pollution to a temple
and as regards the ceremonies for removing pollution when
caused.” In the said judgment it is further mentioned that,
“There are, it is well known Thanthries in Malabar who are
specialists in these matters of pollution. 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, even Brahmins
other than the temple priest were in many temples not allowed
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to go into the garbhagraham. The Agamas also contain other
prescriptions including who is entitled to worship from which
portion of the temple. In one of the Agamas it is said (as freely
translated) thus : “Saivite Brahmin priests are entitled to
worship in the anthrala portion. Brahmins learned in the Vedas
are entitled to worship in the arthamantapa, other Brahmins in
the front Mantapa, Kings and Vaisyas in the dwaramantapa,
initiated Sudras in the Bahir Mantapa” and so on.” The legal
effect of the above prescriptions need not detain us and it is
the portion underlined which is of particular importance as
the discussions that follow would reveal.
31. The Ecclesiastical jurisprudence in India, sans any
specific Ecclesiastical jurisdiction, revolves around the
exposition of the constitutional guarantees under Articles 25
and 26 as made from time to time. The development of this
branch of jurisprudence primarily arises out of claimed rights
of religious groups and denominations to complete autonomy
and the prerogative of exclusive determination of essential
religious practices and principles on the bedrock of the
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constitutional guarantees under Articles 25 and 26 of the
Constitution and the judicial understanding of the inter-play
between Article 25(2)(b) and 26(b) of the Constitution in the
context of such claims. In The Commissioner, Hindu
Religious Endowments, Madras Vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt6 (Shirur Mutt) while
dealing with the issue of autonomy of a religious denomination
to determine what rights and ceremonies are essential
according to the tenets of its religion it has been stated that -
“Under article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” – (Page 1028)
32. Besides the above, recognition of the aforesaid principle
is also to be found in the fact that in Shirur Mutt (supra),
though the eventual conclusion of the Court upholds the
validity of the Act (Madras Hindu Religious and Charitable
Endowments Act, 1951) certain specific provisions i.e. Section
6 1954 SCR 1005
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21 which empowered the Commissioner and his subordinates
to enter the premises of any religious institution at any time
for performance of duties enjoined under the Act has been
struck down indicating consistency with the principle
extracted above. The relevant of the report (page 1030/31) will
require a specific notice and therefore is extracted below.
“We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary "the Holy of Holies" as it is said, the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that
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as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution. Our attention has been drawn in this connection to section 91 of the Act which, it is said, provides a sufficient safeguard against any abuse of power under section 21. We cannot agree with this contention. Clause (a) of section 91 excepts from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, section 21 has been rightly held to be invalid.” - (Page 1030/31)
33. The decision of this Court in Sri Venkataramana
Devaru and Others Vs. State of Mysore and others7 may
now be considered. In the said case this Court was called
upon to answer as to whether Section 3 of the Madras Temple
Entry Authorization Act violated the guarantee under Article
26(b) insofar as Gaura Saraswati Brahmins are concerned by
making provisions to the effect that Shri Venkataramana
Temple at Moolky was to be open to all excluded classes of
7 AIR 1958 SC 255
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Hindus. It was the contention of the aforesaid sect that the
temple in question was founded for the exclusive use and
benefit of Gaura Saraswati Brahmins. This Court in its report
elaborately discussed the practice of idol/image worship;
regulation thereof by the Agamas and the efficacy and
enforceability of such Agamas. Paras 17 and 18 of the Report
which deals with the above aspect may be usefully extracted
below.
“17. The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation. These injunctions have had such a powerful hold over the minds of the people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu. It was during this period that temples were constructed all over the country dedicated to Vishnu, Rudra, Devi, Skanda, Ganesha and so forth, and worship in the temple can be said to have become the practical religion of all sections of the Hindus ever since. With the growth in importance of temples and of worship therein, more and more attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and conduct of worship of the deity, and numerous are the treatises that came to be written for its exposition. These are known as Agamas, and there are as many as 28 of them relating to the Saiva temples, the most important of them being the Kamikagama, the Karanagama and the
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Suprabedagama, while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas. These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship. The following passage from the judgment of Sadasiva Aiyar J. in Gopala Muppanar v. Subramania Aiyar : (1914) 27 MLJ 253, gives a summary of the prescription contained in one of the Agamas :
"In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbargriham, Brahmins from the ante chamber or Sabah Mantabam, Kshatriyas, Vysias and Sudras from the Mahamantabham, the dancer and the musician from the Nrithamantabham east of the Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram."
The other Agamas also contain similar rules.”
18. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokshana) have to be performed for restoring the sanctity of the shrine. Vide judgment of Sadasiva Aiyar J. in Gopala Muppanar v. Subramania Aiyar (supra). In Sankaralinga Nadan v. Raja Rajeswara Dorai, it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to
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the Agamas and the custom of the temple was guilty of breach of trust. Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practice and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must accordingly hold that if the rights of the appellants have to be determined solely with reference to Art. 26(b), then s. 3, of Act V of 1947, should be held to be bad as infringing it.”
Eventually, this Court went on to hold that the provisions
of Article 26(b) are also subject to those contained in Article
25(2)(b) and accordingly dismissed the plea set up by the
Gaura Saraswati Brahmins in the suit out of which the
proceedings arose.
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34. The explicit reiteration of the Court’s power to decide on
what constitutes an essential religious practice in Sri
Venkataramana Devaru (supra) again found manifestation in
Durgah Committee, Ajmer and another Vs. Syed Hussain
Ali and others8. Gajendragadkar, J. (as His Lordship then
was) was of the view,
“……. that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
35. Almost half a century later, we find a reiteration of the
same view in the majority judgment rendered in
8 AIR 1961 SC 1402
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Commissioner of Police and Others Vs. Acharya
Jagadishwarananda Avadhuta and Another9 though the
minority view in the said case preferred to take a contrary
opinion relying, inter alia, on Shirur Mutt (supra) and Jesse
Cantwell Vs. State of Connecticut10 and United States Vs.
Ballard11. Para 57 of the minority opinion containing the
discordant note would be worthy of reproduction.
“57. The exercise of the freedom to act and practise in pursuance of religious beliefs is as much important as the freedom of believing in a religion. In fact to persons believing in religious faith, there are some forms of practising the religion by outward actions which are as much part of religion as the faith itself. The freedom to act and practise can be subject to regulations. In our Constitution, subject to public order, health and morality and to other provisions in Part III of the Constitution. However, in every case the power of regulation must be so exercised with the consciousness that the subject of regulation is the fundamental right of religion, and as not to unduly infringe the protection given by the Constitution. Further, in the exercise of the power to regulate, the authorities cannot sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function. (See Jesse Cantwell v. State of
9 (2004) 12 SCC 770 10 84 L Ed 1213 : 310 US 296 (1939) 11 88 L Ed 1148 : 322 US 78 (1943)
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Connecticut, L Ed at pp. 1213-1218, United States v. Ballard, L Ed at pp. 1153, 1154.)”
36. That the freedom of religion under Articles 25 and 26 of
the Constitution is not only confined to beliefs but extends to
religious practices also would hardly require reiteration. Right
of belief and practice is guaranteed by Article 25 subject to
public order, morality and health and other provisions of Part-
III of the Constitution. Sub-Article (2) is an exception and
makes the right guaranteed by Sub-article (1) subject to any
existing law or to such law as may be enacted to, inter alia,
provide for social welfare and reforms or throwing or proposing
to throw open Hindu religious institutions of a public
character to all classes and sections of Hindus. Article 26(b)
on the other hand guarantees to every religious denomination
or section full freedom to manage its own affairs insofar as
matters of religion are concerned, subject,once again, to public
order, morality and health and as held by this Court subject to
such laws as may be made under Article 25(2)(b). The rights
guaranteed by Articles 25 and 26, therefore, are circumscribed
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and are to be enjoyed within constitutionally permissible
parameters. Often occasions will arise when it may become
necessary to determine whether a belief or a practice claimed
and asserted is a fundamental part of the religious practice of
a group or denomination making such a claim before
embarking upon the required adjudication. A decision on such
claims becomes the duty of the Constitutional Court. It is
neither an easy nor an enviable task that the courts are called
to perform. Performance of such tasks is not enjoined in the
court by virtue of any ecclesiastical jurisdiction conferred on it
but in view of its role as the Constitutional arbiter. Any
apprehension that the determination by the court of an
essential religious practice itself negatives the freedoms
guaranteed by Articles 25 and 26 will have to be dispelled on
the touchstone of constitutional necessity. Without such a
determination there can be no effective adjudication whether
the claimed right it is in conformity with public order, morality
and health and in accord with the undisputable and
unquestionable notions of social welfare and reforms. A just
balance can always be made by holding that the exercise of
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judicial power to determine essential religious practices,
though always available being an inherent power to protect the
guarantees under Articles 25 and 26, the exercise thereof
must always be restricted and restrained.
37. Article 16 (5) which has virtually gone unnoticed till date
and, therefore, may now be seen is in the following terms :
“16(5) - Nothing in this Article shall affect the operation of any law which provides that an incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”
38. A plain reading of the aforesaid provision i.e. Article
16(5), fortified by the debates that had taken place in the
Constituent Assembly, according to us, protects the
appointment of Archakas from a particular denomination, if so
required to be made, by the Agamas holding the field. The
debates in the Constituent Assembly referred to discloses that
the suggestion that the operation of Article 16(5) should be
restricted to appointment in offices connected with
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administration of a religious institution was negatived. The
exception in Article 16(5), therefore, would cover an office in a
temple which also requires performance of religious functions.
In fact, the above though not expressly stated could be one of
the basis for the views expressed by the Constitution Bench in
Sheshammal (supra).
39. The preceding discussion indicates the gravity of the
issues arising and the perceptible magnitude of the impact
thereof on Hindu Society. It would be, therefore, incorrect, if
not self defeating, to take too pedantic an approach at
resolution either by holding the principle of res judicata or
locus to bar an adjudication on merits or to strike down the
impugned G.O. as an executive fiat that does not have
legislative approval, made explicit by the fact that though what
has been brought by the G.O. dated 23.05.2006 was also
sought to be incorporated in the statute by the Ordinance,
eventually, the amending Bill presented before the legislature
specifically omitted the aforesaid inclusion. The significance of
the aforesaid fact, however, cannot be underestimated. What
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is sought to be emphasized is that the same, by itself, cannot
be determinative of the invalidity of the G.O. which will have to
be tested on certain other premises and foundation treating
the same to be an instance of exercise of executive power in an
area not covered by any specific law.
40. The issue of untouchability raised on the anvil of Article
17 of the Constitution stands at the extreme opposite end of
the pendulum. Article 17 of the Constitution strikes at caste
based practices built on superstitions and beliefs that have no
rationale or logic. The exposition of the Agamas made a
Century back by the Madras High Court in Gopala Moopnar
(supra) that exclusion from the sanctum sanctorum and duties
of performance of poojas extends even to Brahmins is
significant. The prescription with regard to the exclusion of
even Brahmins in Gopala Moopnar (supra) has been echoed
in the opinion of Sri Parthasarthy Bhattacharya as noted by
the Constitution Bench in Seshammal (supra). Such
exclusion is not on the basis of caste, birth or pedigree. The
provisions of Article 17 and the Protection of Civil Rights Act,
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1955, therefore, would not be of much significance for the
present case. Similarly, the ‘offer’ of the state in its affidavit to
appoint Shaivite as Archakas in Shiva temples and
Vaishnavas in Vaishanvite Temples is too naïve an
understanding of a denomination which is, to say the least, a
far more sharply indentified subgroup both in case of shaivite
and vaishanvite followers. However, what cannot be ignored is
the ‘admission’ inbuilt in the said offer resulting in some
flexibility in the impugned G.O. that the state itself has
acknowledged.
41. Sheshammal (supra) is not an authority for any
proposition as to what an Agama or a set of Agamas governing
a particular or group of temples lay down with regard to the
question that confronts the court, namely, whether any
particular denomination of worshippers or believers have an
exclusive right to be appointed as Archakas to perform the
poojas. Much less, has the judgment taken note of the
particular class or caste to which the Archakas of a temple
must belong as prescribed by the Agamas. All that it does and
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says is that some of the Agamas do incorporate a fundamental
religious belief of the necessity of performance of the Poojas by
Archakas belonging to a particular and distinct
sect/group/denomination, failing which, there will be
defilement of deity requiring purification ceremonies. Surely, if
the Agamas in question do not proscribe any group of citizens
from being appointed as Archakas on the basis of caste or
class the sanctity of Article 17 or any other provision of Part III
of the Constitution or even the Protection of Civil Rights Act,
1955 will not be violated. What has been said in Sheshammal
(supra) is that if any prescription with regard to appointment
of Archakas is made by the Agamas, Section 28 of the Tamil
Nadu Act mandates the Trustee to conduct the temple affairs
in accordance with such custom or usage. The requirement of
Constitutional conformity is inbuilt and if a custom or usage is
outside the protective umbrella afforded and envisaged by
Articles 25 and 26, the law would certainly take its own
course. The constitutional legitimacy, naturally, must
supersede all religious beliefs or practices.
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42. The difficulty lies not in understanding or restating the
constitutional values. There is not an iota of doubt on what
they are. But to determine whether a claim of state action in
furtherance thereof overrides the constitutional guarantees
under Article 25 and 26 may often involve what has already
been referred to as a delicate and unenviable task of
identifying essential religious beliefs and practices, sans which
the religion itself does not survive. It is in the performance of
this task that the absence of any exclusive ecclesiastical
jurisdiction of this Court, if not other shortcomings and
adequacies, that can be felt. Moreover, there is some amount
of uncertainty with regard to the prescription contained in the
Agamas. Coupled with the above is the lack of easy
availability of established works and the declining numbers of
acknowledged and undisputed scholars on the subject. In
such a situation one is reminded of the observations, if not the
caution note struck by Mukherjea, J. in Shirur Mutt (supra)
with regard to complete autonomy of a denomination to decide
as to what constitutes an essential religious practice, a view
that has also been subsequently echoed by this Court though
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as a “minority view”. But we must hasten to clarify that no
such view of the Court can be understood to an indication of
any bar to judicial determination of the issue as and when it
arises. Any contrary opinion would go rise to large scale
conflicts of claims and usages as to what is an essential
religious practice with no acceptable or adequate forum for
resolution. That apart the “complete autonomy” contemplated
in Shirur Mutt (supra) and the meaning of “outside authority”
must not be torn out of the context in which the views, already
extracted, came to be recorded (page 1028). The exclusion of
all “outside authorities” from deciding what is an essential
religion practice must be viewed in the context of the limited
role of the State in matters relating to religious freedom as
envisaged by Articles 25 and 26 itself and not of the Courts as
the arbiter of Constitutional rights and principles.
43. What then is the eventual result? The answer defies a
straight forward resolution and it is the considered view of the
court that the validity or otherwise of the impugned G.O.
would depend on the facts of each case of appointment. What
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is found and held to be prescribed by one particular or a set of
Agamas for a solitary or a group of temples, as may be, would
be determinative of the issue. In this regard it will be
necessary to re-emphasise what has been already stated with
regard to the purport and effect of Article 16(5) of the
Constitution, namely, that the exclusion of some and inclusion
of a particular segment or denomination for appointment as
Archakas would not violate Article 14 so long such
inclusion/exclusion is not based on the criteria of caste, birth
or any other constitutionally unacceptable parameter. So long
as the prescription(s) under a particular Agama or Agamas is
not contrary to any constitutional mandate as discussed
above, the impugned G.O. dated 23.05.2006 by its blanket fiat
to the effect that, “Any person who is a Hindu and possessing
the requisite qualification and training can be appointed as a
Archaka in Hindu temples” has the potential of falling foul of
the dictum laid down in Seshammal (supra). A determination
of the contours of a claimed custom or usage would be
imperative and it is in that light that the validity of the
impugned G.O. dated 23.05.2006 will have to be decided in
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each case of appointment of Archakas whenever and wherever
the issue is raised. The necessity of seeking specific judicial
verdicts in the future is inevitable and unavoidable; the
contours of the present case and the issues arising being what
has been discussed.
44. Consequently and in the light of the aforesaid discussion,
we dispose of all the writ petitions in terms of our findings,
observations and directions above reiterating that as held in
Seshammal (supra) appointments of Archakas will have to be
made in accordance with the Agamas, subject to their due
identification as well as their conformity with the
Constitutional mandates and principles as discussed above.
………..........…………………J. [RANJAN GOGOI]
…………..........………………J. [N.V. RAMANA]
NEW DELHI, DECEMBER 16, 2015.
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