Seshammal & Ors Vs. State of Tamil
Nadu [1972] INSC 75 (14 March 1972)
ACT:
The Tamil Nadu Hindu Religious and Charitable
Endowments Act (Tamil Nadu 12 of 1959) as amended by Amending Act of 1970, ss.
28 55, 56 and 116--Hereditary right of
succession to office of Archaka abolished--If violative of Arts. 25 and 26 of
Constitution.
HEADNOTE:
Section 55 of the Tamil Nadu Hindu Religious.
and Charitable Endowments Act, 1959, gave the trustee of a temple the power to
appoint the officer holders or servants of the temple and also provided that
where the office or service is hereditary, the person next in the line of
succession shall be entitled to succeed. In only exceptional cases the trustee
was entitled to depart from the principle of next-in-the line of succesion, but
even so, the trustee was under an obligation to appoint a fit person to perform
the service after having due regard to the claims of the members of the family.
Section II 6 (2) (xxiii) of the Act gave power to the Government to make rules
providing for the qualifications to be possessed by the officers and servants
and their conditions of service. The State Government framed the Madras Hindu
Religious Institutions (Officers and Servants) Service Rules, 1964. Rule 12
provided that an Archaka, whether hereditary or nonhereditary whose duty it is
to perform Pujas, shall, before succeeding to the office or appointment to the
Office, obtain a certificate of fitness for performing the duties of his office
from the head of an institution imparting, instructions in Agamas or from the'
head of a math recognised by the 'Commissioner or front such other personas may
be designated by the Commissioner.
The Act was amended by the Amending Act of
1970. The Amending Act did away with the hereditary right of succession to the
office of Archaka. The petitioners who were Archakas of saivite and Vaishnavite
temples and Mathadhipatis to whose Maths temples are attached firm writ
petitions in this Court contending that the amendments violated Arts. 25 and 26
of the Constitution.
Dismissing the petition
HELD : (1) The protection of Arts, 25 and 26
of the Constitution is not limited to matters of, doctrine or believe, they
extend also to' 'acts done in pursuance of religion and therefore contain a
guarantee for rituals and observances etc. which are the integral parts of
religion. What constitutes aft essential part of a religion or religious
practice has to be decided by the Courts with reference to the doctrine of at
particular teli including practices which are regarded by the community as a
part of its religion. [8271] Sardar Syedna Taher Saifuddin Saheb v. The State
of Bombay, [1962] *pp. 2 S.C.P. 490, referred to.
(2) With the establishment of temples and
the, institution of Archakas in the temples, treatises on rituals were compiled
known as Agamas . The rituals have a twofold aspect, to attract the lay
worshippers and to 816 preserve the image of the Deity from pollution,
defilement or desecration. Pollution or desecration may take place in a variety
of ways and according to the Agamas, an image becomes defiled if there is any
departure or violation of the rules relating to worship. Further, in all the
temples in which images are consecrated the Agamas insisted that only the
qualified Archaka shall step inside the sanctum sanctorum after observing
certain disciplines imposed by the Agamas. Hence the Archaka of such a temple,
besides being proficient in the rituals appropriate to the worship of the
particular Deity, must also belong to a particular denomination; because, an
Archaka of a different denomination would defile the image by his touch. [825
F-H; 826 E-G] Sri Venkataramana Devaru v. The State of Mysore, [1958] S.C.R.
895, His Holiness Peria Kovil Kelvi Appean
Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram
Venkatacharlu, 73 I.A. 156 and Mohan Lalji v. Gordhan Lalji Maharaj, 35
Allahabad P.C. 283, referred to.
(3) The hereditary principle in the
appointment of an Archaka had been adopted and accepted from antiquity and had
also been fully recognised in the unamended s. 55. But the change effected by
the amendment to s. 55, namely, the, abolition of the principle of
next-in-the-line of succession is however, not invalid, because, the usage is a
secular and not a religious usage. [833 A-C] (a) An archaka has never been
regarded as a spiritual head however accomplished and well-versed in the agamas
and rituals he may be. He is a servant of the temple subject to the discipline
and control of the trustee as recognised by the unamended s. '56 of the Act.
That being his position the act of his appointment by the trustee is
essentially secular, 'though after appointment he performs some religious
functions. That after his appointment he performs worship is no ground for
holding that his appointment is either a religious Practice or a matter of
religion. He owes his appointment to a secular authority. Any lay founder of a
temple may appoint him and the She baits and Managers of temples .exercise an
essentially secular function in choosing and appointing the Archaka. The fact
that in some temples the hereditary principle was followed in making the
appointment would not make the successive appointments anything but secular.
[832 A-G] K. Syedna Taher Saifuddin Saheb v. Ranga Bhattar, I.L.R. 35 Mad. 631,
Kali Krishna Ray v. Makhan Lal Mookerjee, I.L.R. 50 Cal. 233, Nanabhai
Narotamdas v. Trimbak Balwant Bhandare, (187880) Vol. 4 (Unreported printed
judgments of the Bombay High Court p. 169) and Maharanee Indurjeet Koer v.
Chundemun Misser, XVI Weekly Reporter, :89, referred to.
(b) The power given to the trustee under the
amended section to appoint any body as an Archaka so long as he possessed a
fitness certificate under r. 12 was not an unqualified power, because the power
had to be read with S. 28 of the Act which controlled it. Section 28 directs
the trustee to administer the affairs of the temple, in accordance with the
terms of the trust or usage of the institution. Therefore, the appointment of
the Archaka' will have to be made from the specified denomination, sect or
group in accordance with the directions of the Agamas governing the temple. In
view of. the amended s. 55(2)., the choice of the trustee in .the matter of
appointment of an archaka is no longer limited by the Operation of next-in-line
of succession in temples where the usage was 817 to appoint the Archaka on the
hereditary principle. To that extent the trustee is released from the
obligation imposed on him by s. 28 to administer the affairs in accordance with
that part of the usage of a temple which enjoined hereditary appointments.
But the legislation in this fact does not
interfere with any religious practice. [832 H-833 C] (4) The other changes
effected in the other provisions of the Act are merely consequential, and
therefore, the Amendment Act as a whole must be regarded as valid. [833 F] (5)
The rule-making power is conferred by s. 116 on the Government with a view to
carry out the purposes of the Act which are essentially secular. The Act
nowhere gives the indication that one of its purposes is to effect a change in
the rituals and ceremonies followed in the temples. Section 105 and 107, on the
contrary, emphasize that there shall not be any contravention of the rights
conferred on any religious denominations of any section thereof, by Art. 26 of
the Constitution. Rule 12 still holds the field and there is no reason to think
that the State Government would frame rules to revolutionise temple worship by
introducing methods of worship not current in the several temples. If any such
rule is framed by Government which purports to interfere with the rituals and
ceremonies of the temples, it will be liable to be challenged by those who are
interested in the temple worship. [834 C-G]
ORIGINAL JURISDICTION: Writ Petitions Nos.
13, 14, 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444 of 1971.
Under Article 32 of the Constitution of India
for the enforce, ment of the Fundamental Rights.
R. Gopalakrishnan, for the petitioners (in
W.Ps. Nos. 13 and 14 of 1971).
K. Parasaran and K. Jayaram, for the petitioners
(in W.P. No. 70.of 1971).
M. Natesan and K. Jayaram, for the
petitioners in (W.P. No. 83 of 1971).
K. Parasaran and M. Narasimhan, for the
petitioners (in W.P. No. 437 of 1971).
V. G. Ramchandran and M. S. Narasimhan, for
the petitioners (in W.P. Nos. 438 and 444 of 1971).
M. Natesan and M. S. Narasimhan, for the
petitioners (in W.Ps. Nos. 439 and 443 of 1971).
S. Annadurai Ayyangar and M. S. Narasimhan,
for the petitioners (in W.P. No. 441 of 1971).
N. A. Palkhiwala, A. J. Rana and M. S.
Narasimhan, for the petitioners (in W.P. No. 442 of 1971).
M. S. Narasimhan, for the petitioner (in W.P.
No. 440 of 1971).
818 S Govind Swaminadhan, Advocate,-General
for the State of Tamil Nadu, S. Mohan, N. S. Sivan and A. V. Rangam, for the
respondent (in all the petitions).
The Judgment of the Court was delivered by
Palekar, J. In these 12 petitions under Article 32 of the Constitution filed by
the hereditary Archakas and Mathadhipatis of some ancient Hindu Public temples
in Tamil Nadu the validity of the Tamil Nadu Hindu Religious and Charitable
Endowments (Amendment) Act, 1970 (hereinafter referred to as the Amendment Act,
1970) is called in question, principally, on the ground that it violates their
freedom of religion secured to them under Articles 25 and 26 of the
Constitution. The validity of the Amendment Act had been also impugned on the
ground that it interfered with certain other fundamental rights of the
petitioners but that ease was not pressed at the time of the hearing.
The temples with which we are concerned are
Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, s3, 437, 438,
439, 440 441, 442, 445 and 444/71 are filed by the Archakas, and I Writ
Petitions 13 and 14/1971 are filed by the Mathadhipatis to whose Math some
temples are attached. As, common questions were involved in all these
petitions, arguments were addressed principally in Writ Petitions 13/1971 and
442/ 1971, and we are, assured by counsel for both sides that they cover the
points involved In all the other petitions.
The State Legislature of Tamil Nadu enacted
The Tamil Nadu Hindu religious and Charitable Endowments Act, 1959 being (Tamil
Nadu Act xxii of 1959) hereinafter referred to as the principle Act.
It came into force on December 2, 1959. It
was an Act to amend and consolidate the law relating, to the administration and
governance of Hindu Religious an Charitable Institutions and Endowments in the
State of Tamil Nadu. it applied to all Hindu religious public institutions and
endowments in the we of Tamil Nadu and repeated several Acts which had
previously governed the administration of Hindu Public Religious Institutions.
It is sufficient to say here that the provisions of the Principal Act applied
to the temples in the present Petitions and the petitioners have no complaint
against any of its provisions.
Section 55 of that Act provided for the
appointment of office holders and servants in such temples, and section 56
provided for ;he, punishment of office-holders kind servants. Section 55,
broadly speaking, gave the trustee of the temple the power to appoint the
office-holders or servants of the temple and ;also provided that where the
office or service is hereditary the person next in the line of succession shall
be entitled to succeed. In only 819 exceptional cases the trustee was entitled
to depart from the, principles of next-in-the-line of succession, but even so,
the, trustee was under an obligation to appoint a fit person to perform the
functions of the office or perform the service after having due, regard to the
claims of the members of the family, Power to make rules was given to
Government by section 116 (2) (xxiii) and it was open to the Government to make
rules providing for the qualifications to be possessed by the Officers and
servants for appointment to non-hereditary offices in religious institutions,
the qualifications to be possessed by hereditary 'servants for succession to
office and the conditions of service of all such officers and servants. Under
this rule making power the State Government made the Madras Hindu Religious
Institutions (Officers and Servants) Service Rules, 1964. Under these rules an
Archak or Pujari of the deity came under the definition of 'Ulthurai servant'.
'Ulthurai servant' is define as, a servant whose duties relate mainly to the
performance of rendering assistance in the performance, of pujas, rituals and
other services to the deity, the recitation of mantras, vedas, prabandas, the
varams and similar invocations and the performance of duties connected with
such performance of recitation. Rule 12 provided that every 'ulthurai servant',
whether hereditary or nonhereditary whose duty it is to perform pujas and
recite mantras, vedas, prabandams, thevarams and other invocations shall,
before succeeding, or appoint to an office, obtain a certificate of fitness for
performing his office, from the head of an institution imparting instructions
in Agamas and ritualistic matters and recognised by the Commissioner, by
general or special order or from the head of, a math recognised by the Commissioner,
by general or special order, or such other person as may be designated by the
Commissioner, from time to time, for the purpose. By this rule the proper
worship in the temple, was secured whether the Archaka or Pujari was a
hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that
nothing contained in the Act shall, save as otherwise provided in section 106
and in clause (2) of Article 25 of the Constitution, be deemed to confer any
power or impose any duty in contravention of the rights conferred on any
religious denomination or any section thereof by Article 26 of the
Constitution. Section 106 deals with the removal of discrimination in the
matter of distribution of prasadam or theertham to the Hindu worshippers. That
was a reform in the right direction and there is no challenge to it. The Act as
a whole, it is conceded, did not interfere with the religious usages and
practices of the temples.
The Principal Act of 1959 was amended in
certain respects by the Amendment Act of 1970 which came into, force on January
820 8, 1971. Amendments were made to sections 55, 56 and 116 of the Principal
Act and some consequential provisions were made in view of those amendments.
The Amendment Act was enacted as a step towards social reform on the
recommendation of the Committee on Untouchability, Economic and Educational
Development of the Scheduled Castes. The Statement of Objects and Reasons which
are reiterated in the counter-affidavit filed on behalf of the State of Tamil
Nadu is as follows :
"In the year 1969 the committee on un touch
ability, 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 of mantras, vedas, prabandas, the varams 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........
In the light of the recommendations of the
Committee and in view of the decision of this Court in Gazula Dasaratha Rama
Rao v. State of Andhra Pradesh & Ors.(1) and also as a further step towards
social reform the Government considered that the hereditary principle of
appointment of all office holders in the Hindu temples should be abolished and
accordingly it proposed to amend sections 55, 56 and 116 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of
1959).
It is the complaint of the petitioners that
by purporting to introduce social reform in the matter of appointment of
Archakas and Pujaris, the State has really interfered with the religious (1)
[1961] 2 S.C.R. 931.
821 practices of Saivite and Vaishnavite
temples, and instead of introducing social reform, taken measures which would
inevitably lead to defilement and desecration of the temples.
To appreciate the effect of the Amendment
Act, it would be more convenient to set out the original sections 55, 56 and
116 of the Principal Act and the same sections as they stand after the
amendment.
Un-amended Section Sec. 55 Appointment of
office-holders and servants in religious institutions.
(1) Vacancies, whether permanent or
temporary, among the officeholders or servants of a religious institution shall
be filled up by the trustee in cases where the office or service is not
hereditary.
(2)In cases where the office or service is
hereditary, the person next in the line of succession shall be entitled to
succeed.
(3) Where, however, there is a dispute respecting
the right of succession, or where such vacancy cannot be filled up immediately
or where the person entitled to succeed is a minor without a guardian fit and
willing to act as such or there is a dispute respecting the person who is
entitled to act as guardian, or where the hereditary officeholder or servant is
on account of incapacity illness or otherwise unable to perform the functions
of the office or perform the service, or is suspended from his office under
sub-section (1) of section 56, the trustee may appoint a fit person to perform
the functions of the office or perform the service, until the disability of the
office-holder or servant ceases or another person succeeds to the office or
service, as the case may be.
Amended Section Sec. 55 Appointment of
office-holders and servants in religious institutions.
(1) Vacancies, whether permanent or temporary
among the office holders or servants of a religious institution shall be filled
up by the trustee in all cases.
Explanation: The expression 'Office-holders
or servants shall include archakas and poojaris.' (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.
(3) Omitted.
822 Explanation : In making any appointment
under this subsection, the trustee shall have due regard to the claims of
members of the family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the
trustee under subsection (3) may, within one month from the date of the receipt
of the order by him, appeal against the order to the Deputy Commissioner.
Sec. 56 Punishment of office-holders and
servants in religious institutions.
(1) All Office-holders and servants attached
to a religious institution or in receipt of any emolument or perquisite there
from shall, whether the office or service is hereditary or not, be controlled
by the trustee; and the trustee may, after following the prescribed procedure,
if any, fine, suspend, remove or dismiss any of them for the breach of trust
incapacity, disobedience of orders: neglect of duty, misconduct or other
sufficient cause.
(2) Any office-holder or servant punished by
a trustee under sub-section(1) may, within one month from the date of the receipt
of the order by him, appeal against the order to the Deputy Commissioner.
(3) A hereditary officeholder or servant may,
within one month from the date of the receipt by him of the order of the Deputy
Commissioner under sub-section (2), prefer an appeal to the Commissioner
against such order.
Sec. 116 (xxiii) (1) The Government may, by
notification, make rules to carry out the purposes of this act.
(2) Without prejudice to the generality of
the foregoing power, such rules may provide for(Xxiii) The qualifications to be
possessed by the officers and servants' for appointment to nonhereditary
offices in religious institutions, the qualifications to be possessed by
hereditary servants for succession to office and the conditions of service of
all such officers and servants.
(4) Any person aggrieved by an order of
trustee under section (1) may within one month from the date of receipt of the
order by him appeal against the order of the, Deputy Commissioner.
Sec. 56 Punishment of office-holders and
servants in religious institutions (1) All office holders and servants attached
to a religious institution or in receipt of any emolument or perquisite
therefrom shall be controlled by the Trustee and the trustee may after
following the prescribed procedure, if any, fine, suspend, remove or dismiss
any of them for breach of trust, incapacity, disobedience of orders, neglect of
duty, misconduct or other sufficient cause.
(2) Any office holder or servant Punished by
a trustee under sub-section (1) may within one month from the date of receipt
of order by him appeal against the order to the Deputy Commissioner.
(3) Omitted.
Sec. II 6 (xxiii) (xxiii) The qualifications
to be possessed by the officers and servants for appointment to offices in
religious institution and the conditions of service of all such officers and
servants.
823 It is clear from a perusal of the above
provisions that the Amendment Apt does away with the hereditary right of
succession to the Office of Archaka even if the, Archaka was qualified under
Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants)
Service Rules, 1964. It is claimed on behalf of the petitioners that as a
result of the Amendment Act, their fundamental rights under Article 25(1) and
Article 26(b) are violated since the effect of the amendment is as follows :
(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 over-ride 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 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 noninterferance 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.
Before we turn to these questions, it will be
necessary to refer to certain concepts of Hindu religious faith and practices
to understand and appreciate, the position in law. The temples with which we
are concerned are public religious institutions established in olden times.
Some of them are Saivite temples and the others are Vaishnavite temples, which
means, that in these temples God Shiva and Vishnu in their several
manifestations are Worshipped. The image of Shiva is worshipped by his
worshippers who are called Saivites and the image of Vishnu is worshipped by
his worshippers who are known as Vaishnavites. The institu824 tion of temple
worship has an ancient history and, according to Dr. Kane, temples of deities
had existed even in the 4th or 5th century B.C. (See : History of Dharmasastra
Vol. II Part-II page 710. ) With the construction of temples the institution of
Archakas also came into existence, the Archakas being professional men who made
their livelihood by attending on the images. Just when the cult of worship of
Siva and Vishnu started and developed into two distinct cults is very difficult
to say, but theme can be no doubt that in the times of the Mahabharata these
cults were separately developed and there was keen rivalary between them to
such an extent that the Mahabharata and some of the Puranas endeavoured to
inculcate a spirit of synthesis by impressing that there was no difference
between the two deities.
(See page 725 supra.) With the establishment
of temples and the institution of Archakas, treatises on rituals were compiled
and they are known as 'Agamas'. The authority of these Agamas is recognised in
several decided cases and by this Court in Sri Venkataramana Devaru v. The
State of Mysore(1). Agamas are described in the last case as treatises of
ceremonial law dealing with such matters as the construction of temples,
installation of idols therein and conduct of the worship of the deity. There
are 28 Aganias relating to the Saiva temples, the important of them being the
Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their
own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The
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. Where the temple was constructed as per directions of the Agamas the
idol had to be consecrated in accordance with an elaborate and complicated
ritual accompanied by chanting of mantras and devotional songs appropriate to
the deity. On the consecration of the image in the temple the Hindu worshippers
believe that the Divine Spirit has descended into the image and from then on
the image of deity is fit to be worshipped. Rules with regard to daily and
periodical worship have been laid down for securing the continuance of the
Divine Spirit. The rituals have a two-fold object. One is to attract the lay
worshipper to participate in the worship carried on by the priest or Archaka.
It is believed that when a congregation of worshippers participates in the
worship a particular attitude of aspiration and devotion is developed and
confers great spiritual benefit. The second object is to preserve the image
from pollution, defilement or desecration. It is part of the religious belief
of a Hindu worshipper that when the image is polluted or defiled the Divine
Spirit in the image diminishes or even vanishes. That is a situation (1) [1958]
S.C.R. 895.
825 which every devotee or worshipper looks
upon with horror.
Pollution or defilement may take place in
variety of ways.
According to the Agarnas, an image becomes
defiled if there is any departure or violation of any of the rules relating to
worship. In fact, purificatory ceremonies have to be performed for restoring
the sanctity of the shrine [1958 S.C.R. 895 (910)].
Worshippers lay great, store by the rituals
and whatever other people,. not of the faith, may think about these rituals and
ceremonies, they are a part of the Hindu Religious faith and cannot be
dismissed as either irrational or superstitious. An illustration of the
importance attached to minor details of ritual is found in the case of His
Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu
v.Prathivathi Bhayankaram Venkatachrlu and others(1) which went up to the Privy
Council. The contest was between two denominations of Vaishnava worshippers of
South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple
and the controversy between them involved the question as to how the invocation
was to begin at the time of worship and which should be the concluding
benedictary verses. This gives the measure of the importance attached by the
worshippers to certain modes of worship. The idea most prominent in the mind of
the worshipper is that a departure from the traditional rules would result in
the pollution or defilement of the image which must be avoided at all costs.
That is also the rationale for preserving the sanctity of the Garbhangriha or
the sanctum sanctorum. In all these temples in which the images are
consecrated, the Agamas insist that only the qualified Archaka or Pujari step
inside the sanctum sanctorum and that too after observing the daily disciplines
which are imposed upon him by the Agamas. As an Archaka he has to touch the
image in the course of the worship and it is his sole right and duty to touch
it. The touch of anybody else would defile it. Thus under the ceremonial law
pertaining to temples even the question as to who is to enter the Garbhagriha
or the sanctum sanctorum and who is not entitled to enter it and who can
worship and from which Place in the temple are all matters of religion as shown
in the above decision of this Court.
The Agamas have also rules with regard to the
Archakas. In Saivite temples only a devotee of Siva, and there too, one
belonging to a particular denomination or group or sub-group is entitled to be
the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a
Vaishnavite Agama temple to whatever caste he may belong and however learned he
may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a
Saivite temple. Indeed there is no bar to a Saivite worshipping in a
Vaishnavite temple as a lay worshipper or vice versa. What the Agamas pro(1) 73
Indian Appeals 156.
826 hibit is his appointment as an Archaka in
a temple, of a different denomination' DR. Kane has quoted the Brahmapurana on
the topic of Punah-pratistha (Re-consecration of images in temples) at page 904
of his History of Dharmasastra referred to above. The Brahmapurana says that
"when an image is broken into two or is reduced to particles, is burnt, is
removed from its pedestal, is insulted, has ceased to be worshipped, is touched
by beasts like donkeys or falls on impure ground or is worshipped with mantras
of other detities or is rendered impure by the touch of outcastes and the
like-in these ten contingencies, God ceases to indwell therein." The
Agamas appear to be more severe in this respect. Shri R. Parthasarthy
Bhattacharya, whose authority on Agama literature is unquestioned, has filed
his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit,
with special reference to the Vaikhanasa Sutra to which he belongs, that
according to the texts of the Vaikhansa Shastra (Agama), persons who are the
followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and
born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples
of Vishnavites. They only can touch the idols and perform the ceremonies and
rituals. None others, however, high placed in society as pontiffs or Acharyas,
or even other Brahmins could touch the idol, do puja or even enter the Garbha
Griha. Not even a person belonging to another Agama is competent to do puja in
Vaikhanasa temples. That is the general rule with regard to all these sectarian
denominational temples. It is, therefore, manifest that the Archaka of such a
temple besides being proficient in the rituals appropriate to the worship of
the particular deity, must also belong, according to the Agamas, to a
particular denomination. An Archaka of a different denomination is supposed to
defile the image by his touch and since it is of the essence of the religious faith
of all worshippers that there should be no pollution or defilement of the image
under any circumstances, the Archaka undoubtedly occupies in important place in
the matter of temple worship. 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.
This Court in Sardar Syadna Taher Saifuddin
Saheb v. The State of Bombay(1) has summrised the position in law as follows
(pages 531 and 532).
"The content of Arts. 25 and 26 of the
Constitution came up for consideration before this Court in the Commissioner,
Hindu Religious Endowments Madras (1) [1962] 2 Suppl. S.C.R. 496.
827 v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Matt(1); Mahant Jagannath Ramanuj Das v. The State of Orissa(2); Sri
Venkatmona Devaru v. The State of Mysore(3); Durgah Committee, Ajmer v. Syed
Hussain Ali(4) and several other cases and the main principles underlying these
provisions have by these decisions been placed beyond controversy.
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 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." Bearing these principles in
mind, we have to approach the controversy in the present case.
Section 55 of the Principal Act as it
originally stood and Rule 12 of the Madras Hindu Religious Institutions
(Officers and Servants) Service Rules, 1964 ensured, so far as temples with
hereditary Archakas were concerned, that there would be no defilement of the
image. By providing in sub-section (2) of section 55 that "in cases, where
the office or service is hereditary, the person next in the line of succession
shall be entitled to succeed", it ensured the personal qualification of
the Archaka that he should belong to a particular sector denomination as laid
down in the Agamas. By Rule 12 it also ensured that the Archaka would be
proficient in the mantras, vedas, prabandams, thevarams etc. and thus be fit
for the preformance of the puja, in other words, that he would be a person
sufficiently qualified for performing the rituals and ceremonies. As already
shown an image becomes defiled if there is any departure or violation of any of
the rules relating to worship, and this risk is avoided by insisting that the
Archaka should be an expert in the rituals and the ceremonies. By the Amendment
Act the principle of next-in-the-line of succession is abolished. Indeed it was
the claim made in the statement of Objects and Reasons that the hereditary
principle of appointment of office-holders in the temples should be abolished
and that the office of an Archaka should be thrown open to all candidates
trained in recognised institutions in priesthood irrespective of caste. creed
or race. The trustee, so far as the amended section 55 went, was authorized to
appoint anybody as an Archaka in (1) [1954] S.C.R. 1005. (2) [1954] S.C.R.
1046, (3) [1958] S.C.R. 895. (4) [1962] 1 S.C.R,. 383.
828 any temple whether Saivite or Vaishnavite
as long. as he possessed a fitness certificate from one of the institutions
referred to in rule 12. Rule 12 was a rule made by the Government under the
Principal Act. That rule is always capable of being varied or changed. It was
also open to the Government to make no rule at all or to prescribe a fitness
certificate issued by an institution which did not teach the Agamas or
traditional rituals. The result would, therefore, be that any person, whether
he is a Saivite or Vaishnavite or not, or whether he is proficient in the
rituals appropriate to the temple or not, would be eligible for appointment as
an Archaka and the trustee's discretion in appointing the Archaka without
reference to personal and other qualifications of the Archaka would be
unbridled. The trustee is to function under the control of the State, because
under section 87 of the Principal Act the trustee was bound to obey all lawful
orders issued under the provisions of the Act by the Government, the
Commissioner, the Deputy Commissioner or the Assistant Commissioner. It was
submitted that the innocent looking amendment brought the State right into the
sanctum sanctorum through the agency of the trustee and the Archaka.
It has been recognised for a long time that
where the ritual in a temple cannot be performed except by a person belonging
to a denomination, the purpose of worship will 'be defeated : See Mohan Lalji
v. Gordhan Lalji Maharaj(1). In that case the claimants to the temple and its
worship were Brahmins and the daughter's sons of the founder and his nearest
heirs under the Hindu law. But their claim was rejected on the, ground that the
temple was dedicated to the sect following the principles of Vallabh Acharya in
whose temples only the Gossains, of that sect could perform the rituals and ceremonies
and, therefore, the claimants had no right either to the temple or to perform
the worship. In view of the Amendment Act and its avowed object there was
nothing, in the petitioners submissions to prevent the Government from
prescribing a standardized ritual in all temples ignoring the Agamic
requirements, and Archakas being forced on temples from denominations
unauthorised by the Agamas. Since such a departure, as already shown, would
inevitably lead to the defilement of the image, the powers thus taken by the
Government under the Amendment Act would lead to interference with religious
freedom guaranteed under Articles 25 and 26 of the Constitution.
The force of the above submissions made on
behalf of the petitioners was not lost on the learned Advocate General of Tamil
Nadu who appeared on behalf of the State. He, however, side tracked the issue
by submitting that if we, were to consider in (1) 35 Allahabad (p.c) 283 at
page 289.
829 isolation only the changes introduced in
section, 55 by the Amendment Act the situation as described on behalf of the,
petitioners could conceivably arise. He did not also admit that be was bound by
either the statement of Objects and Reasons or the reiteration of the same in
the counter--affidavit filed on behalf of the State. His submission was that we
have to take the Principal Act as it now stands after the amendment and see
what is the true effect of the same. He contended that the power given to, the
trustee under the amended section 55 was not an unqualified power because, in
his submission, that power had to be read in the context of section 28 which
controlled it.
Section 28(1) provides as follows :
"Subject to the provisions of the Tamil
Nadu Temple Entry Authorization 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." The learned Advocate General argued
that the, trustee was bound under this provision to administer the affairs of
the temple in accordance with the terms of the trust and the usage of the
institution. If the usage of the institution is that the Archaka or Pujari of
the temple must be of a particular denomination then the usage would be binding
upon him and he would be bound to make the appointment under section 55 in
accordance with the usage of appointing one from the particular denomination.
There was nothing in section 55, in his submission, which released him from his
liability to make the appointment in accordance with the said usage. It was
true that the principle of the next-in-line of succession was not binding on
him when making the appointment of a new Archaka, but in his submission, that
principle is no part of the usage, the real usage being to appoint one from the
denomination. Moreover the amended section, according to him, does not require
the trustee to exclude in every case the hereditary principle if a qualified
successor is available and there was no reason why the trustee should not make
the appointment of the next heir, if found competent. He, however, agreed, that
there was no such legal obligation on the trustee under that section.
He further contended that if the next
in-line-of-succession principle is regarded as a usage of any particular temple
it would be merely a secular usage on which legislation was, competent under
Article 25 (2) (a) of the Constitution. Going further, he contended that if the
hereditary principle was regarded as a religious 7-L1061Sup CT/72 830 practice
that would be also amenable to legislation under Article 25 (2) (b) which
permits legislation for the purpose of social welfare and reform. He invited
attention to the report of the Hindu Religious Endowments Commission ( 1
960-1962) headed by Dr.
C. P.Ramaswami Aiyar and submitted that there
was a crying need for reform in this direction since the hereditary principle
of appointment of Archakas had led to grave malpractices Practically destroying
the sanctity of worship in various religious institutions.
We have found no difficulty in agreeing with
the learned Advocate General that section 28( 1 ) of. the Principal Act which
directs the trustee to administer the affairs of the temple in accordance with
terms of the trust or the usage of the institution, would control the
appointment of the Archaka to be made by him under the amended section 55 of
the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka
will have to be made from a specified, denomination, sect or group in
accordance with the directions of the Agamas governing those temples. Failure to
do ski would not only be contrary to section 28 (1) but would also interfere
with a religious practice the inevitable result of which would be to defile the
image. The question, however, remains whether the trustee, while making
appointment from the specified denomination, sect or group in accordance with
the Agamas, will be bound to follow the hereditary principle as a usage
peculiar to the temple. The learned Advocate-General contends that there is no
such invariable usage. It may be that, as a matter of convenience, an Archaka's
son being readily available to perform the worship may have been selected for
appointment as an Archaka from times immemorial. But that, in his submission,
was not a usage. The principle of next-in-line of succession has failed when
the successor was a female or had refused to accept the appointment or was
under some disability.
In all such cases the Archaka was appointed
from the particular denomination, sect or group and the worship was carried on
with the help of such a substitute. It, however, appears to us that it is now
too late in the day to contend that the-hereditary principle in appointment was
not a usage. For whatever reasons, whether of convenience or otherwise, this
hereditary principle might have been adopted, there can be no doubt that the
principle had been accepted from antiquity and had also been fully recognised
in the unamended section 55 of the Principal Act.
Sub-section (2) of section 55 provided that
where the office or service is hereditary, the person next in the line of
succession shall be entitled to succeed and only a limited right was given
under-sub-section (3) to the trustee to appoint a substitute.
Even in such cases the. explanation to
sub-section (3) provided that in making the appointment of the substitute the
trustee should have, due regard to the claims.of the members of the family, if
any. entitled to the succession. Therefore, it cannot be denied as a 831 fact
that there are several temples in Tamil Nadu where the appointment of an
Archaka is governed by the. usage of hereditary succession. The real question,
therefore, is whether such a usage should be regarded either as a secular usage
or a religious usage. If it is a secular usage, it is obvious,legislation would
be permissible under Article 25(1) (a) and if it is a religious usage it would
be, permissible if it falls squarely under subsection 25 (1) (b).
Mr.Palkhivala on behalf of the petitioners
insisted that the appointment of a person to a religious office in accordance
with the hereditary principle is itself a, religious usage and amounted to a
vital religious practice, and, hence falls within Articles 2 5 . and 26. In his
submission, priests, who are to perform religious ceremonies may be chosen by a
temple on such basis as the temple chooses to adopt. It may be election,
selection, competition. nomination or hereditary succession. He, therefore,
contended that any law which interferes with the aforesaid basis of appointment
would violate religious freedom guaranteed by Articles 25 and 26 of the
Constitution. . In his submission the right to select a priest has an
immediate, bearing on religious practice and the eight of a denomination to
manage its own affairs in matters of religion. The priest is more important
than the ritual and nothing could be more vital than choosing the priest. Under
the pretext of social reform. he contended, the State cannot reform a religion
out of existence and if any denomination has accepted the hereditary
principle.for chosing its priest that would be a religious practice vital to
the religious faith and cannot be changed on the ground ,that it leads to
social reform. Mere substitution of one method of appointment of the, priest by
another was, in his submission no social reform.
It is true that a priest or an Archaka when
appointed has to perform some religious functions but the question is whether
the appointment of a priest is by, itself a secular function or a religious
practice. Mr. Palkhivala gave the illustration of the spiritual head of a math
belonging to a denomination of a Hindu sect like the Shankaracharaya and
expressed horror at the idea that such a spiritual head could be, chosen by a
method recommended by the State though in conflict with,the usage and the
traditions of the particular institution. Where, for example, a successor of a
Mathadhipati is, chosen by the Mathadhipati by giving hit" mantra-deeksha
or where the Mathadhipati is chosen by his immediate disciples, it would be, he
contended, extra-ordinary for the State to interfere and direct that some other
mode of appointment should be followed on the ground of social reform. Indeed
this may strike one as an instrusion in the matter of religion. But, we are
affraid such an illustration is inapt when we. are considering the appointment
of an Archaka of a temple. The Archaka has 832 never been regarded as a
spiritual head of any institution. He may be, an accomplished person, well
versed in the Agamas and rituals necessary to be performed in a temple but he
does not have the status of a spiritual head. Then again the assumption made
that the Archaka may be chosen in a variety of ways is not correct. The
Dharam-karta or the Shebair makes the appointment and the Archaka is a servant
of the temple. It has been held in K., Seshadri Aiyangar v, Ranga Bhattar(1)
that even the position of the hereditary Archaka of a temple is that of a
servant subject to the disciplinary power of the trustee. The trustee can
enquire into the conduct of such a servant and dismiss him for misconduct. As a
servant he is subject to the discipline and control of the trustee as
recognised by the unamended section 56 of the Principal Act which provides
"all office-holders and servants attached to a religious institution or in
receipt of any emolument or perquisite therefrom shall, whether the office or
service is hereditary or not, be. controlled by the trustee, and the trustee
may, after following the prescribed procedure, if any, fine, suspend, remove or
dismiss any of them for breach of trust, incapacity, disobedience of orders,
neglect of duty, misconduct or other sufficient cause." That being the
position of an Archaka, the act of his appointment by the trustee is
essentially secular. He owes his appointment to a secular authority. Any lay
founder of a temple may appoint the Archaka.
The Shebaits and Managers of temples exercise
essentially a secular function in choosing and appointing, the Archaka. That
the son of an Archaka or the son's son has been continued in the office from
generation to generation does not make any difference to the principle of
appointment and no such hereditary Archaka can claim any right to-the office.
See : Kali Krishna Ray v.
Makhan Lal Mookerjee(2); Nanabhai Narotamdas
v. Trimbak Balwant Bhandare(3) and Maharanee Indurjeet Keoer v. Chundemun
Misser(4).
Thus the appointment of an Archaka is a
secular act and the fact that in some temples the hereditary principle was
followed in making the appointment would not make the successive appointments
anything but secular. It would only mean that in making the appointment the
trustee is limited in respect of the sources of recruitment. Instead of casting
his net wide for selecting a proper candidate, he appoints the next heir Of the
last holder of the office. . That after his appointment the Archaka performs worship
is no ground for holding that the appointment is either a religious Practice or
a matter of religion.
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 (1) I.L.R. 35 Madras 631.
(2) I.L.R. 50 Cal. 233.
(3) 87 80) Vol. 4 Unreported Printed
Judgments of the Bombay High Court page 169.
(4) XVI Weekly Reporter, 99.
833 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 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.
We shall now take separately the several
amendments which were challenged as invalid. Section 2 of the Amendment Act
amended section 55 of the Principal Act and the important change which was
impugned on behalf of the petitioners related to the abolition of the
hereditary principle in the appointment of the Archaka. We have shown for
reasons already mentioned that the change effected by the Amendment is not
invalid. The other changes effected in the other provisions of the Principal
Act appear to us to be merely consequential. Since the hereditary principle was
done away with the words "whether the office or service is hereditary or
not" found in section 56 of the Principal Act have been omitted by section
3 of the Amendment Act. By section 4 of the latter Act clause (xxiii) of
subsection (2) in section 116 is suitably amended with a view to deleting the
reference to 'the qualifications of hereditary and nonhereditary offices which
was there in clause (xxiii) of the Principal Act. The change is only
consequential on the amendment of section 55 of the Principal Act. Sections 5
and 6 of the Amendment Act are also consequential on the amendment of sections 55
and 56. These are all the sections in the Amendment Act and in our view the
Amendment Act as a whole must be regarded as valid. .
It was, however. submitted before us that the
State had taken power under section 116(2) clause (xxiii) to prescribe qualifications
to be possessed by the Archakas and, in view of the avowed object of the State
Government to create a class of Archakas irrespective of caste, creed or race,
it would be open to the Government to prescribe qualifications for the office
of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras
Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper
provision has been made for qualifications of the Archakas and the petitioners
have no objection to that rule. The rule still continues to be in force.
But the petitioners. apprehend that it is
open to the Government to substitute any other rule for rule 12 and prescribe
qualifications which were in conflict with 834 Agamic injunction. For example
at present the Ulthurai servant whose duty it, is to, perform, pujas and recite
vedic mantras etc. has to obtain the fitness certificate for his Office from
the head of, institutions which-impart instructions in Agamas and ritualistic
mattors. The; Government,, however, it is submitted, may hereafter change its
mind, and prescribe qualifications which take no note "of Agamas and
Agamic rituals and direct that the Archaka candidate? should produce a fitness
certificate from an institution which, does not specialize in teaching Agamas
and rituals. It is submitted, that the Act does, not provide guidelines to the
Government in; the matter of prescribing qualifications. with regard to the
fitness of an Archaka for performing the rituals and ceremonies in these
temples and it will be open to the Government to prescribe a simple
standardized curriculum for pujas in the several temples ignoring the tradition
pujas and rituals followed in those temples. . In our opinion the,
apprehensions-;of the petitioners are unfounded;, Rule 12 referred to above
still holdsthe field and there is no good reason to think that the State
Government wants to revolutinise temple worship by introducing methods of
worship not current in the several temples. The rule making power conferred on
the . Government by section 116, is only intended with a view to carry out the
purposes of the Act which are essentially secular.. The Act nowhere gives the
indication that one of the purposes of the Art is to effect change in the
rituals and ceremonies: followed in the terms. On the other hand, section 107
of the Principal Act emphasizes that nothing contained in the Act would be
deemed to confer any power or impose any duty in contravention of 4th rights
conferred on any religious denomination or any section thereof by Article 26 of
the Constitution. Similarly section 105 provides that nothing contained in the
Act shall (a) save as otherwise expressly provided in the Act or the , rules
made there under, affect any honour emolument or perquisite to which any person
is entitled by custom or otherwise in any religious institution, or its
established usage in regard to any other matter. Moreover, if any rule is
framed by the Government which purports to interfere with the rituals and
ceremonies of the temples the same will be liable to be challenged by those who
are interested in the temple worship. In out opinion, therefore, the
apprehensions now expressed by the petitioners are groundless and premature.
In the result these Petitions fail but in the
circumstances of the case there shall be no order as to costs.
V.I.P.S.
Petitions dismissel.
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