Nair & Anr Vs. State of Kerala & Ors  Insc 265 (20 April 2005)
Sema & S.B. Sinha
W I T
H CIVIL APPEAL NO. 6674 OF 1999 S.B. SINHA, J :
Sri Krishna Temple situated at Guruvayoor is one of
the most famous temples in the world. The history and legends of the temple are
intimately linked with great saints like Villwamangalam Swamiyar, Melpathur, the
author of Narayaneeyam, Poonthanam and Kururamma. The temple attracts millions
of devotees from all over the world. Zamorin Raja and the Karanavan of the Mallissery
Illom were the hereditary trustees of the temple.
and differences arose between the Zamorin Raja and the Karanavan of the Illom
mainly about Orrayma rights which were ultimately determined by a judgment of
the Madras High Court in A.S. No. 35/1887 on 1-11-1880.
the Madras Hindu Religious and Charitable Endowments Act, 1926 came into force,
a scheme for administration of the Temple and its properties was framed in terms whereof the Zamorin Raja was
entrusted with the management of the Temple under the supervision of the officers of the Board. The Karanavan of
the Mallissery Illom thereupon filed O.S. No. 1 of 1929 before the District
Court of South-Malabar.
worshippers of the Temple also filed O.S. No. 2 of 1929 in
the same court praying for framing up of a proper scheme which would give
appropriate representation to the non-hereditary trustees from among the
devotees. The District Court by a judgment and decree dated 25-10-1929 upheld the claim of the Karanavan of the Mallissery Illom
to be made a joint trustee along with Zamorin Raja as a result whereof the
scheme was amended. The Zamorin Raja preferred an appeal thereagainst before
the High Court of Madras which were marked as A.S. No. 211 and 212 of 1930.
High Court of Madras disposed of the appeals by a common judgment dated 21-11-1930 confirming the decision of the District Court
rejecting the prayer for appointment of non-hereditary trustees. Some
modifications in the said scheme were made later on.
Devaswom Act, 1971, Act 6 of 1971 was framed after the Government established a
Commission to enquire into the cause of the fire, which destroyed the temple in
1970. The validity of the Act was challenged before the Kerala High Court by
the hereditary trustees in O.P. No. 812 of 1971, claiming infringement of their
fundamental rights under Articles 19, 25 and 26 of Constitution of India. A
Full Bench of the Kerala High Court dismissed the said writ petition. The Act was
thereafter amended by Act 12 of 1972, which again came to be challenged in O.P.
No. 314 of 1973 in a writ petition filed on behalf of the denomination of the
temple. A Bench of Five Judges of the Kerala High Court struck down the
Committee [since reported in 1979 KLT 350]. The Governor of Kerala promulgated
an ordinance known as Guruvayur Devaswom Ordinance, No. 25 of 1977.
Legislature of the State of Kerala
thereafter enacted Guruvayoor Devaswom Act, 1978 (the 1978 Act) with a view to
make provision for the proper administration of the Guruvayoor Devaswom. The
1978 Act was enacted having regard to the decision of the 5-Judge Bench of Kerala
High Court in Krishnan (supra).
BEFORE THE HIGH COURT:
First Appellant herein is President, Kerala Kshethra Samrakshina Samithi and
the Second Appellant herein is the General Secretary, Vishwa Hindu Parishad, Kerala State. They filed a writ petition before the High Court praying
for the following reliefs:
declare that the Hindus in the Council of Ministers of the Leftist Democratic
Front, respondents 4 to 14 herein, have no manner of authority to nominate
Members to the Guruvayoor Devaswom Managing Committee in the light of the
pronouncement of this Honourable Court in 1985 KLT 629 and other ruling of the Kerala
High Court and that any move initiated by them to so nominate and constitute
the Managing Committee will be illegal and unconstitutional and violative of
the petitioners Fundamental Rights under Articles 14, 21, 25 & 26 of the
Constitution of India;
issue a writ of mandamus or any other appropriate writ, order or direction
directing respondents 4 to 14 to refrain from nominating any members to the Guruvayoor
Devaswom Managing Committee in pursuance of the provisions of Section 4 of the Guruvayoor
Devaswom Act 1978;
issue an interim order of stay of all steps initiated by respondents 1 & 4
to 14 to nominate any member/ members to the Guruvayoor Devaswom Managing
Committee pending disposal of the above original petition before this Honourable
Court;" A Division Bench of the said Court having regard to the importance
of the question involved in the writ petition by an order dated 9th July, 1999
referred the matter to a larger bench. By reason of the impugned judgment, a
5-Judge Bench of the Kerala High Court dismissed the said writ petition.
Appellants herein are, thus, before us.
M.K.S. Menon, learned counsel appearing on behalf of the Appellants would
contend that the expression 'Hindu' having not been defined either in the 1978
Act or Travancore Cochin Hindu Religious Institutions Act must be construed in
the light of the series of decisions rendered by the Kerala High Court, as a
person who believes in god and temple worship and professes Hindu faith. A person
belonging to the denomination in relation to a temple, according to Appellants,
must not only be entitled to attend at the performance of the worship or
service but also must be in the habit of attending such performance. As the
Hindu members of the then Council of Ministers (Respondent Nos. 4 to 14) did
not satisfy such requirements having regard to their political affiliation as
they owe their allegiance to the leftist (Marxist) ideology and as they were
against such religious practice; any nomination made by them as members of the
Committee is ultra vires Articles 25 and 26 of the Constitution of India.
reliance in this behalf has been placed on Krishnan (supra), K.
T.L.V. Iyer, learned senior counsel appearing on behalf of the Respondents, on
the other hand, would support the impugned judgment of the High Court
contending that the management of a temple or religious endowment is a secular
aspect which can always be subject matter of control by a State. Reliance in
this behalf has been placed on A.S. Narayana U.P. and Others [(1997) 4 SCC
would urge that the worshippers never enjoyed any right in the denomination to
have a person in the Management Committee and in any event, the Appellants
herein have failed to establish that there had been a religious practice which
had been existing as on the date of coming into force of the Constitution, the
writ petition was not maintainable.
submitted that the expression "Hindu" having not been defined in the
1978 Act, the High Court rightly did not extend the meaning thereof to a person
having a faith in the temple worship and other rituals connected therewith. It
was pointed out that keeping in view the decision of the Kerala High Court in
Krishnan (supra), the power of nomination is vested in a smaller body and not
in the Government. It is the smaller body of Hindus amongst the members of the
Council of Ministers who would nominate persons who must fulfill the
qualifications laid down in Sub- sections (2) and (4) of Section 4 of the 1978
BEFORE THE HIGH COURT:
High Court framed the following questions for its determination:
Whether the Hindu Ministers in the Council of Ministers should have faith in
God and Temple worship while nominating the
members to the Managing Committee of the Guruvayoor Devaswom under Section 4 of
the Guruvayoor Devaswom Act? and
Whether Hindu Ministers who are not believers in God and Temple Worship can, by
reason of their not having faith in Hindu God and Temple worship, are
disqualified from nominating the members of the Managing Committee of the Guruvayoor
Devaswom, who should have faith in God and Temple worship, and must also make
and subscribe an oath affirming their faith in God and Hindu Religion and
believe in Temple worship.
The High Court noticed that in Krishnan (supra), the 5-Judge Bench upheld the
validity of the 1978 Act holding that the Committee did not represent the
Article 25 merely secures to every citizen, subject to public order, morality
and health, a freedom specified therein but the State has the requisite power
to make laws regulating economic, financial, political or other secular
activity which may be associated with religious practice.
Furthermore, the State has reserved unto itself the power to make laws
providing for social reform and social welfare even though they might interfere
with religious practices.
The Bench in Krishnan (supra) merely directed for consideration of the
Government whether the nomination could be given to a statutory body other than
the State Government with sufficient guidelines furnished to it for ensuring
that such nominations would be effected in such a way so as to make the
committee a truly representative of the denomination consisting of the
Section 4(1) of the 1978 Act was declared invalid as by reason thereof the
State had been conferred with a naked and arbitrary power without any safeguard
being provided for ensuring that the Committee will be a body representing the
The observations made by a 3-Judge Bench in Narayanan Namboodiri (supra) to the
effect that the requirements of Article 26 (d) would be satisfied only if those
in charge of Devaswom represent denomination are not in consonance with the
observations and findings of Krishnan (supra).
What is necessary is that the Managing Committee should be the representative
of the religious denomination and it is not necessary that the persons
nominating should form part of it.
The Bench in Narayanan Namboodiri (supra) having been called upon to determine
the lis as to whether Section 4 was ultra vires Article 14 of the Constitution
was not correct in making the observations that the requirement of Article 26
would be satisfied only if the Hindu Ministers among the Council of Ministers
should also have belief in God and temple worship and, thus, it was not
The management and administration of a temple being a secular matter, the State
can control and administer the management thereof.
The concession made by the Additional Advocate General and the Special Counsel
appearing for the Devaswom to the effect that the persons nominating the
members to the Managing Committee should also belong to the denomination as a
result whereof Section 4(1) of the Act was not struck down by the Kerala High
Court. It was held, that such a concession was not binding upon the State.
Having regard to the concept of secularism and tolerance as reflected in our
constitutional scheme as would appear from Clause (3) of Article 164 of the
Constitution of India, Section 4(1) cannot be read in the manner as was
submitted by the Appellants in view of the fact that the administration of the
property of a religious institution is not a matter of religion.
The Appellants herein have failed to establish that there had been a religious
practice which was subsisting on the date of the coming into force of the
Constitution of India to the effect that the denomination of the temple worshipers
had a right to be in the Management Committee and members of the Management
Committee were to be elected or nominated by an electoral college consisting of
members of such denomination.
The 1978 Act is not violative of Articles 25 and 26 of the Constitution of
Before parting with this case, we want to make it clear that it is a very
important function or duty that is assigned to the nominating persons, namely,
the duty of constituting a Committee for the efficient management and
administration of Guruvayur Temple. It is true that the Act prescribed that persons who are
elected as members of the Managing Committee should be persons who have faith
in Temple Worship and they have also to give a declaration to that effect.
every man who believes in God and Temple worship may not be a good or efficient administrator or may not be
aware of the formalities of temple management. It is our earnest hope and
desire that the persons nominated by the Hindu Ministers should be of high
integrity and honesty and should discharge the functions of management and
administer with care, sincerity and in the interests of the religious
denomination and in public interest. With a view to avoid politics among the
members of the Committee, it is desirable that no politician from any party
should be nominated to the Committee."
2(c) of the 1978 Act defines "committee" to mean the Guruvayoor Devaswom
Managing Committee constituted under Section 3 thereof. 'Devaswom' has been
defined in Section 2(e) to mean the Temple and includes its properties and endowments and the subordinate temples
attached to it. The expression "person having interest in the Temple"
has been defined to mean a person who is entitled to attend at, or is in the
habit of attending, the performance of worship or service in the temple or who
is entitled to partake, or is in the habit of partaking, in the benefit of the
distribution of gifts thereat.
reason of Section 3 of the 1978 Act, the administrative control and management
of the Devaswom is vested in a committee constituted in the manner provided for
under Section 4 thereof. The said committee is a body corporate and has
perpetual succession having a common seal and shall by the said name sue and be
sued through the Administrator. In terms of Section 4 of the 1978 Act, the
Management Committee is to consist of nine members as provided for in Clauses
(a) to (e) of Sub-section (1) thereof.
(2) of Section 4 of the 1978 Act provides for disqualification for being
nominated under clause (e) of Sub-section (1) of Section 4 if:
he believes in the practice of untouchability or does not profess the Hindu
Religion or believe in temple worship; or
is an employee under the Government or the Devaswom; or
is below thirty years of age; or
is engaged in any subsisting contract with the Devaswom; or
is subject to any of the disqualifications mentioned in clauses (a), (b) and
(c) of sub-section (3) of section 5." Sub-section (3) of Section 4 of the
1978 Act provides for election of one of its members by the members of the
Committee as its Chairman at its first meeting. Sub-section (4) of Section 4
enjoins every member of the Committee to make and subscribe an oath in the
presence of the Commissioner in the following form, that is to say "I, A
B, do swear in the name of God that I profess the Hindu Religion and believe in
temple worship and that I do not believe in the practice of untouchability."
RIGHT OF THE APPELLANTS:
adverting to the questions raised at the Bar, we must place on record that the
Appellants herein did not question the constitutionality of Section 4 of the
1978 Act. The provisions of the Act merely were required to be read in the
light of the different judgments rendered by the Kerala High Court. While it
may be true that in certain cases a statute in the nature of the 1978 Act may
have to be read in the light of the provisions contained in Articles 25 and 26
of the Constitution of India, but the same would not mean while doing so the
Court shall extend the protection granted thereby.
25 and 26 of the Constitution of India read, thus:
FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE AND PROPAGATION OF
Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.
Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law-
or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the
II In sub-clause
(b) of clause (2), the reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.
FREEDOM TO MANAGE RELIGIOUS AFFAIRS Subject to public order, morality and
health, every religious denomination or any section thereof shall have the
establish and maintain institutions for religious and charitable purposes;
manage its own affairs in matters of religion;
own and acquire movable and immovable property; and
administer such property in accordance with law."
25 guarantees that every person in India shall have the freedom of conscience and shall have the right to
profess, practice and propagate religion subject to the restrictions imposed by
the State on the following grounds, viz.:
Public order, morality and health;
provisions of the Constitution;
of non-religious activity associated with religious practice;
welfare and reform; and
open of Hindu religious institutions of a public character to all classes of
India is a secular country. Secularism
has been inserted in the Preamble by reason of the Constitution 42nd Amendment
Act, 1976. The object of inserting the said word was to spell out expressly the
high ideas of secularism and the integrity of the nation on the ground that
these institutions are subjected to considerable stresses and strains and
vested interests have been trying to promote their selfish ends to the great
detriment of the public good.
3 SCC 1] observed:
Rise of fundamentalism and communalisation of politics are anti-secularism.
encourage separatist and divisive forces and become breeding grounds for
national disintegration and fail the parliamentary democratic system and the
Constitution. Judicial process must promote citizens' active participation in
electoral process uninfluenced by any corrupt practice to exercise their free
and fair franchise.
interpretation in proper perspective would be in the defence of the democracy
and to maintain the democratic process on an even keel even in the face of
possible friction, it is but the duty of the court to interpret the
Constitution to bring the political parties within the purview of
constitutional parameters for accountability and to abide by the Constitution,
the laws for their strict adherence.
The Constitution prohibits the establishment of a theocratic State.
The Constitution is not only prohibited to establish any religion of its own
but is also prohibited to identify itself with or favouring any particular
The secularism under the Indian Constitution does not mean constitution of an
atheist society but it merely means equal status of all religions without any
preference in favour of or discrimination against any one of them.
or administration of a temple partakes to a secular character as opposed to the
religious aspect of the matter. The 1978 Act segregates the religious matters
with secular matters. So far as, religious matters are concerned, the same have
entirely been left in the hands of the 'Thanthri'. He is the alter ego of the
deity. He gives mool mantra to the priests. He holds a special status. He
prescribes the rituals. He is the only person who can touch the deity and enter
the sanctum sanctorum. He is the final authority in religious matters wherefor
a legal fiction has been created in Section 35 of the Act in terms whereof the
Committee or the Commissioner or the Government is expressly prohibited from
interfering with the religious or spiritual matters pertaining to Devaswom. His
decision on all religious, spiritual, ritual or ceremonial matters pertaining
to Devaswom is final unless the same violates any provision contained in any
law for the time being in force. The impugned provisions of the Act must be
construed having regard to the said factor in mind. By reason of Section 4(1)
of the 1978 Act, the Committee will consist of nine members. The nomination of
one person from the Council of Ministers as a representative of the employees
of the Devaswom and five persons, one of whom shall be a member of a Scheduled
Caste, are required to be nominated by the Hindus among the Council of
Ministers from amongst the persons having interest in the temple. The area
within which such nomination can be made by the Hindus amongst the Council of
Minister is, thus, limited.
OF The word 'Hindu' is not defined. A Hindu admittedly may or may not be a
person professing Hindu religion or a believer in temple worship. A Hindu has a
right to choose his own method of worship. He may or may not visit a temple. He
may have a political compulsion not to openly proclaim that he believes in
temple worship but if the submission of the Appellants is accepted in a given
situation, the 1978 Act itself would be rendered unworkable. Idol worships,
rituals and ceremonials may not be practised by a person although he may
profess Hindu religion.
5-Judge Bench of the Kerala High Court in Krishnan (supra) in paragraph 40 of
its judgment noticed:
is well known that there are sections of Hindus whose schools of thought and
philosophy do not consider idol worship, rituals and ceremonials as necessary
or even conducive to the spiritual progress of man. There are also political
creeds or social theories which openly condemn such forms of worship as being
based on mere superstition and ignorance. Many persons, who are born Hindus and
who may be said to profess Hinduism solely because they have not openly
renounced the Hindu faith by any recognized process, may ardently believe in such
political or social ideologies which do not view temple worship with favour."
The legislature has not chosen to qualify the word "Hindu" in any
manner. The meaning of word is plain and who is a Hindu is well known.
legislature was well aware that "Hindu" is a comprehensive expression
(as the religion itself is) giving the widest freedom to people of all hues
opinion, philosophies and beliefs to come within its fold. [See Shastri Others,
(2003) 2 SCC 593, para 37] The legislature was also well aware of the
conglomeration/ diversity of thought that prevailed in the Hindu religion but
it did not choose to limit 'Hindus' to the category propounded by the
appellants namely those who believe in temple worship. There is no absurdity
or ambiguity which compels a departure from the plain language and to read
section 4 as meaning something more than what is expressed, and, thus there is
no reason to construe the expression 'Hindu' in the manner sought to be done by
the Appellants. To debar all 'Hindu' Ministers of leftist Government, from
nominating members to the Managing Committee of the Guruvayoor Devaswom will
lead to stalemate in the Management of the Devaswom.
Bench in Krishnan (supra) upheld the right of the Executive Government to
oversee control and management of a temple, but merely made the following
may, however, observe that in the light of the recent amendment of the preamble
to the Constitution emphasizing the secular character of the State it is
desirable that the legislature should consider whether the power to nominate
the members of the Committee should not be conferred on an independent
statutory body other than the State Government with sufficient guidelines
furnished to it for ensuring that the nominations will be effected in such a
way as to be truly representative of the denomination consisting of the
only ground, which weighed with the Bench declaring Section 4(1) of the 1978 as
unconstitutional, is confirmation of naked and arbitrary power upon the
Government without any safeguard being provided for ensuring that the Committee
would be a body representing the denomination. The 1978 Act was, as noticed
hereinbefore, enacted to overcome the same. The composition of the body which
would have the power of nomination in terms of Sections 4(1)(d) and 4(1)(e)
would consist of the Hindu Ministers professing Hindu religion only. While
making such nominations, they are statutorily bound to nominate such persons
who would fulfill the criteria laid down therein. Section 4, therefore, lays
down guidelines for ensuring that the Committee would be a body representing
its provisions it is clear that the Act has ensured that only persons who
believe in temple worship are to be in the management of the temple. The Act
has further ensured that none except the Thanthri gets any voice in the
spiritual administration of the temple and that his voice alone will prevail in
such matters. The practice of religion by the denomination including customs,
practices and rituals is, therefore, preserved in its entirety and there is no
tampering therewith in any manner whatsoever.
not clear how vesting of such a right on the Hindus in the Council of Ministers
can effect their denominational rights when the members of the Managing
Committee, the Commissioner and the Administrator have all got to be believers
in temple worship. To insist on such a qualification in the electorate will be
as bad saying that when the law relating to a temple is under consideration in
the legislature, only Hindu legislators can vote and they must further be
qualified as believers in temple worship.
expected that the action of such a body would be bona fide and reasonable. Once
a committee is constituted which would be representing the denomination, in our
opinion, it would be not be correct to contend that even the authority
empowered to nominate must also be representative of the denomination.
the State has the requisite jurisdiction to oversee the administration of a
temple subject to Articles 25 and 26 of the Constitution of India. The
grievance as regard the violation of the constitutional right as enshrined
under Articles 25 and 26 of the Constitution of India must be considered having
regard to the object and purport of the Act. For fulfilling the said
requirements, the denomination must have been enjoying the right to manage the
properties endowed in favour of the institutions. If the right to administer
the properties never vested in the denomination, the protection under Article
26 of the Constitution of India is not available.
such a denomination exist, the question which is required to be posed is, what
is the right that is sought to be protected. The right sought to be preserved
is that under clauses (d) and (e) of Section 4(1). It does not depend upon the persons
who nominates the members of the Managing Committee. The crux of the matter is who
are the persons who are qualified to be in the Managing Committee. To fulfill
the said object, the statute has taken particular care to see that only those
who believe in temple worship among the Hindus can be nominated under clauses
(d) and (e) of Section 4.
High Court in its impugned judgment has arrived at a finding as regard
categorical existence of a subsisting religious practice that as on the date of
coming into force of the Constitution of India it has not been established that
the denomination of temple worshippers had any right to be on the management
committee or the members of such a committee were being elected / nominated by
an electoral college consisting exclusively of members of such denomination.
Nothing has been pointed out before us to show that such a finding is contrary
to the materials on records.
freedom guaranteed under Article 25 of the Constitution is not an unconditional
one. A distinction exists between the matters of religion, on the one hand, and
holding and management of properties by religious institutions, on the other.
What is necessary to be considered for determining the issue is as to whether
by reason of the impugned Act the administration of the institution had been
taken from the hands of the religious denomination and vested in another body.
If the answer to the said question is rendered in the negative, attack to the
constitutionality of the Act would not survive.
it is permissible for a legislature to take over the management of the temple
from the control of a person and vest the same in a Committee of which he would
remain the Chairman. [See Raja Bira Kishore Deb, hereditary Superintendent, Jagannath
Temple, P.O. and It is also now trite that although State cannot interfere with
the freedom of a person to profess, practise and propagate his religion, the
secular matters connected therewith can be the subject matter of control by the
State. The management of the temple primarily is a secular act. The temple
authority controls the activities of various servants of the temple. It manages
several institutions including educational institutions pertaining to it. The
disciplinary power over the servants of the temple, including the priest may
vest in a committee. The payment of remuneration to the temple servants was
also not a religious act but was of purely secular in nature. [See Shri Jagannath
Temple Puri Management Committee of J&K and Others, (1997) 2 SCC 745].
1 SCC 500] relied upon by Mr. Menon was also a case where the statute enabled
the Government to appoint a committee of management.
provision was upheld. When the Government in terms of a statute is entitled to
appoint a management committee for the temple, without violating the
constitutional provisions, the more remote aspect of the mode of nomination of
the members of the Managing Committee cannot be said to constitute violation of
any constitutional mandate.
again in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra), this
It is a well-settled law that administration, management and governance of the
religious institution or endowment are secular activities and the State could
regulate them by appropriate legislation" (2002) 8 SCC 106, para 6)
Recently in Guruvayoor Devaswom Managing Committee and Court of which one of us
(S.B. Sinha, J.) was a member observed:
It is possible to contend that the Hindus in general and the devotees visiting
the temple in particular are interested in proper management of the temple at
the hands of the statutory functionaries. That may be so but the Act is a self-
contained code. Duties and functions are prescribed in the Act and the Rules
framed thereunder. Forums have been created thereunder for ventilation of the
grievances of the affected persons. Ordinarily, therefore, such forums should
be moved at the first instance. The State should be asked to look into the
grievances of the aggrieved devotees, both as parens patriae as also in
discharge of its statutory duties." The decision of the Kerala High Court
in Krishnan (supra) did not lay down any proposition of law that the person
authorized to nominate the persons of the Managing Committee should also form
part of the denomination. With respect, the Full Bench in Narayanan Namboodiri
(supra) misread and misinterpreted Krishnan (supra). Even assuming that the
decision in Narayanan Namboodiri (supra) is correct (which it is not) it is not
proper or correct to brand all Ministers of leftist Government as persons not
believing in temple worship. There is no presumption that a Communist or
Socialist (who may normally form part of a leftist Council of Ministers) are
ipso facto non believers in god or in temple worship. Such a sweeping
allegation or premise on which the prayer is based need not be correct. It
depends on each individual approach. The observations in a judgment should not
be, it is trite, read as a ratio. A decision, as is well-known, is an authority
of what it decides and not what can logically be deduced & Anr. para 42 -
(2005) 1 SCALE 385 and Haryana State Coop. Land So far as the decision of
Narayanan Namboodiri (supra) is concerned, we are of the opinion that the High
Court in its impugned judgment has rightly held the same to be not applicable
to the fact of the present case.
Nair (supra), whereuon Mr. Menon has placed strong reliance, the Bench was
concerned with the interpretation of Sections 4 and 6 of the Hindu Religious
Institutions Act, 1950. In that case for the purpose of contesting election,
the candidate in the nomination paper itself was required to comply with Rule
3(b) mentioned in the Scheduled II which reads, thus:
The person nominated shall affix his signature to the nomination paper before
it is delivered to the Chairman, stating that he believes in God and professes
the Hindu Religion and believes in temple worship and that he is willing to
serve as a member of the Board, if elected." The Court rightly proceeded
on the basis that the function of the court is to apply the law as it stands.
It is whilst analyzing the provisions of the Act and the Rules, the Bench referred
to the dictionary meaning of temple and observed:
only persons who have faith in God or in temple worship, will be taken in by
the word "Hindu", occurring in Act XV of 1950. It is implicit that
only such of those who have faith in God and in temple worship, will be aware
of its efficacy, necessity and importance and can be entrusted with the
administration, supervision and control of the Devaswoms and other Hindu
Religious Endowments. However wide the meaning of the word 'Hindu' may be under
the general law, under Act XV of 1950, only those Hindus who believe in God and
in temple worship, will fulfill the requirement of the word 'Hindu' occurring
in the Act. Our conclusion aforesaid necessarily flows from the title and
preamble of the Act as also the definition contained in S.2(b) of the Act"
The High Court for the aforementioned purpose considered the history of the
provisions as was understood at the relevant time. It noticed the Full Bench
decision of Krishnan (supra) and while doing so fell into an error as was done
in Krishnankutty (supra) that therein a proposition of law has been laid down
in the fact that the person who professes Hindu religion but not a believer in
temple worship and may even be opposed to the practice of idol worship cannot
be considered a representative of the public having believed in God and temple
decision cannot, thus, be said to be an authority for the proposition that the
"electoral college" should also be believers in temple worship.
crucial question may now be addressed whether the vesting of power in the
"Hindus" in the Council of Ministers to nominate the members of the
Managing Committee could be held to violate Articles 25 and 26. The temple is
visited by millions every year. Apart from proper management of the funds
flowing from these devotees, the Devaswom also owns other properties, runs a
college, a guest house, choultries etc., all of which require efficient and
prompt management. This is quiet apart from the spiritual management dealing
with religious side which is under the sole control management and guidance of
the Thanthri. It is the secular aspect of the management that is vested in the
have noticed hereinbefore that it is one thing to say that prejudice may be caused
if the management of temple is entrusted to a person who has no faith in temple
worship but it is another thing to say that such persons are nominated by those
who may not have any such faith but those nominated would not only be believers
in God but also in temple worship. The function of a statutory and
constitutional authority while exercising its power of nomination cannot be
equated with the power of management of a temple, particularly, in relation to
the religious aspects involved therein.
further question which may arise is as to whether Articles 25 or 26 can be
invoked on the facts of the present case. There is no case for the Appellant
that Section 4 insofar as it provides for the constitution of the Managing
Committee is violative of any rights. If this be the position, the claim that
the right of nomination has not been vested in a proper body is beside the
point. The right to manage the Devaswom was at the inception of the
Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of Calicut
and the Karnavam (Manager) of the Malliseery Illom (A Namboodri Family). The
denomination of devotees at large had no say in the administration, except to
watch the counting of the contents, the Bhandarams of the hundies of sealed locks
where the devotees deposit their offerings to prevent any defalcation or
pilferage. [See Krishnan (supra), para 3] The denomination of devotees had no
say or right in the administration secular or religious of the temple.
Article 26 does not create any rights in any denomination which it never had.
It only safeguards and guarantees existing rights, which such a denomination
had. [See Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)]
Since the denomination had no right prior to January 26, 1950, they cannot
claim any such rights after the enactment of the impugned Act. If it had no
such right even in the matter of management of the temple, it is all most so in
the matter of the constitution of the "electorate".
said decision, therefore, also has no application to the fact of the present
submission of the learned counsel to the effect that in Narayanan Namboodiri
(supra) Section 4(1) was read down on the basis of the concession made by the
Additional Advocate General and Special Counsel appearing for the Devaswom, in
our opinion, with respect, have rightly been held to be not binding on the
State by the High Court.
Limited and Another [(1983) 1 SCC 147 : AIR 1983 SC 239], this Court held:
No Act of Parliament may be struck down because of the understanding or
misunderstanding of parliamentary intention by the executive Government or
because their (the Government's) spokesmen do not bring out relevant
circumstances but indulge in empty and self-defeating affidavits.
do not and they cannot bind Parliament.
of legislation is not to be judged merely by affidavits filed on behalf of the
State, but by all the relevant circumstances which the court may ultimately
find and more especially by what may be gathered from what the legislature has
itself said." Police [(1999) 6 SCC 559 : JT 1999 (5) SC 410], this Court
The volte-face of the Union of India cannot be frowned at, for, it is open to
the State or Union of India or even a private party to retrace or even resile
from a concession once made in the court on a legal proposition. Firstly,
because the party concerned, on a reconsideration of the proposition could
comprehend a different construction as more appropriate. Secondly, the
construction of statutory provision cannot rest entirely on the stand adopted
by any party in the lis. Thirdly, the parties must be left free to aid the
court in reaching the correct construction to be placed on a statutory
cannot be nailed to a position on the legal interpretation which they adopted
at a particular point of time because saner thoughts can throw more light on
the same subject at a later stage." The High Court, therefore, in our
opinion, did not commit any error whatsoever in allowing the State to file a
supplementary affidavit resiling from such concession made in the earlier case
as had been noticed in paragraph 5 of the impugned judgment.
wrong concession of law cannot bind the parties, particularly when the
constitutionality of a statue is in question.
contention by the Appellant that the "electorate" should be
representative of the denomination of believers in temple worship (assuming
such a denomination exists) also cannot be accepted, who will determine the
electorate from amongst the millions of devotees of Lord Krishna visiting the
temple? It will be impossible and impracticable to select such a College of
"electors" from among them. The whole exercise will be arbitrary and
time consuming and will be open to further challenge. The present mode has the
advantage of being precise as the same has the advantage that only believers in
temple worship are put incharge of the administration.
statute, it is trite, should not be interpreted in such a manner as Municipal
Corporation of Kalyan & Dombivali and Ors, JT 2004 (9) SC 242 JT 2005 (4)
SC 123] It is necessary to bear in mind the principle 'ut res magis valeat quam
pereat' in terms whereof a statute must be read in such a manner which State of
Jharkhand and Anr., JT 2005 (2) SC 271, para 82].
the reasons aforementioned, we do not find any infirmity in the impugned
judgment which is hereby affirmed. These Appeals are dismissed. No costs.