November 7, 2024
Constitutional law 2DU LLBSemester 4

FUNDAMENTAL RIGHT TO FREEDOM OF RELIGIONSeshammal v. State of Tamil Nadu(1972) 2 SCC 11[SM Sikri, CJ and AN Grover, AN Ray, DG Palekar and MH Beg, JJ]

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D.G. 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
(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.

  1. The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil
    Nadu. Writ Petitions… are filed by the Archakas and Writ Petitions … 1971, are filed by the
    Mathadhipatis to whose Math some temples are attached.
  2. The State Legislature of Tamil Nadu enacted the Tamil Nadu Hindu Religious and
    Charitable Endowments Act, 1959, (Principal 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 and Charitable Institutions and Endowments in the State of Tamil Nadu. I applied
    to all Hindu religious public institutions and endowments in the State of Tamil Nadu and repealed
    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.
  3. Section 55 of that Act provided for the appointment of officeholders and servants in such
    temples and Section 56 provided for the punishment of office-holders and 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 exceptional cases the trustee was
    entitled to depart from the principle 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.
  4. 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
    defined 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,
    prabandams, thevarams and similar invocations and the performance of duties connected with
    such performance of recitation. Rule 12 provided that every ‘Ulthurai servant’, whether hereditary
    or non-hereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams,
    thevarams and other invocations shall, before succeeding, or appointment to an office, obtain a
    certificate of fitness for performing his office, from the head of an institution imparting
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    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.
  5. The principal Act of 1959 was amended came into force on January 8, 1971. Amendments
    were made to Sections 55, 56 and 116 of the Principal Act. 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 Untouchability, Economic and Educational
    Development of the Scheduled Castes has suggested in its report that the hereditary
    priesthood in the Hindu Society should be abolished, that the system can be replaced by
    an ecclesiastical organisation of men possessing the requisite educational qualifications
    who may be trained in recognised institutions in priesthood and that the line should be
    open to all candidates irrespective of caste, creed or race. In Tamil Nadu Archakas,
    Gurukkals and Poojaries are all Ulthurai servants in Hindu temples. The duties of
    Ulthurai servants relate mainly to the performance of poojas rituals and other services to
    the deity, the recitation of mantras, vedas, prabandas, thevarams and similar invocations
    and the performance of duties connected with such performance and recitations. Sections
    55 and 56 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,
    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….”
  6. 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 [(1961) 2 SCR 931] 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.
  7. 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
    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.
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    Original and amended Sections 55, 56 and 116 of the Principal Act
    Unamended Section Amended Section
    Section 55. Appointment of officeholders
    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 cases where the
    office or service is not hereditary.
    Section 55. Appointment of officeholders
    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 ‘officeholders or servants shall include Archakas
    and Poojaris’.
    (2) In cases where the office or service is
    hereditary, the person next in the line of
    succession shall be entitled to succeed.
    (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.
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    (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.
    Explanation.– In making any
    appointment under this sub-section, the
    trustee shall have due regard to the claims
    of members of the family, if any, entitled
    to the succession.
    (3) Omitted.
    (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.
    (4) Any person aggrieved by an order of
    trustee under subsection (i) may within one
    month from the date of receipt of the order
    by him appeal against the order of the
    Deputy Commissioner.
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    Section 56. Punishment of officeholders
    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, 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 order, neglect of duty,
    misconduct or other sufficient cause.
    Section 56. Punishment of officeholders
    and servants in religious institution.– (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. 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.
    (2) Any office-holder or servant punished
    by a trustee under subsection (1) may
    within one month from the date of receipt
    of order by him appeal against the order
    to the Deputy Commissioner.
    (2) Any office-holder or servant punished
    by a trustee under subsection (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 office-holder 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.
    (3) Omitted.
    319
    Section 116 – (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 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.
    Section 116 –
    (xxiii).– The qualifications to be possessed
    by the officers and servants for
    appointment to offices in religious
    institutions and the conditions of service of
    all such officers and servants.
  8. It is clear from a perusal of the above provisions that the Amendment Act 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 override the exclusive right of the
    denomination to manage their own affairs in the matter of religion by appointing
    Archakas belonging to a specific denomination for the purpose of worship.
    (c) The Amendment Act gives the right of appointment for the first time to
    the trustee who is under the control of the Government under the provision! of the
    Principal Act and this is the very negation of freedom of religion and the principle of
    non-interference by the State as regards the practice of religion and the right of a
    denomination to manage its own affairs in the matter of religion.
  9. 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.
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    The institution 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. 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 there can be
    no doubt that in the tunes of the Mahabharata these cults were separately developed and there
    was keen rivalry 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. 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. State of Mysore [1958 SCR 895]. 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
    Agamas relating to the Saiva temples, the most 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 the 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 which every devotee or worshipper
    looks upon with horror. Pollution or defilement may take place in a variety of ways.
    According to the Agamas, 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 SCR 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 Kocil Kelvi Appan Thiruvenkata Ramanuja
    Pedda Jyywgarlu Varlu v. Prathivathi Bhavankaram Venkatacharlu [73 IA 156], 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 benedictory verses. This
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    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 Garbhagriha or the sanctum
    sanctorum. In all these temples in which the images are consecrated, the Agamas insist that
    only the qualified Archaka or Pujari shall 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 eke 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.
  10. 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 subgroup 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 prohibit 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 (Reconsecration 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 deities 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. Parthasarathy 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 Vaikhanasa 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 Vaishnavites. 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
    circumstance, the Archaka undoubtedly occupies an 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
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    and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie
    invalid under Article 25(1) of the Constitution.
  11. This Court in Sardar Syedna Taker Saifuddin Saheb v. State of Bombay [1962 Supp
    2 SCR 496], has summarised the position in law as follows:
    “The content of Articles 25 and 26 of the Constitution came up for consideration
    before this Court in the Commissioner, Hindu Religious Endowments, Madras v.
    Sri LakshmIndira Thirta Swamiar of Sri Shirvr Matt [1954 SCR 1005], Mahant
    Jagannath Ramanuj Das v. State of Orissa [1954 SCR 1046] Sri Venkataramana
    Deoaru v. State of Mysore [1958 SCR 895] Durgah Committee, Ajmer v. Syed
    Hussain Ali [(1962) 1 SCR 383] 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.”
  12. 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 sect or
    denomination as laid down in the Agamas. By Rule 12 it also ensured that the Archaka would
    be proficient in the mantras, vedas, prabandams, thevaramas, etc., and thus be fit for the
    performance 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 authorised to appoint anybody as an Archaka in 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
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    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 27 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.
  13. 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. 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
    Vallabli Archarya 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’ submission, to prevent the Government from prescribing a standardised 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.
  14. 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 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 he 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 Authorisation Act,
    1947, the trustee of every religious institution is bound to administer its affairs and to
    apply its funds and properties in accordance with the terms of the trust, the usage of
    the institution and all lawful directions which a competent authority may issue in
    respect thereof and as carefully as a man of ordinary prudence would deal with such
    affairs, funds and properties if they were his own.”
  15. 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
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    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 practice that would be also amenable to legislation under
    Article 25(2)(6) which permits legislation for the purpose of social welfare and reform. He
    invited attention to the Report of the Hindu Religious Endowments Commission (1960-
    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.
  16. We have found no any 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 the 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 so would not only be contrary to Section 28(1) which
    requires the trustee to follow the usage of the temple, 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
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    a 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 sub-section 25(l)(b).
  17. 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 25 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 right 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 chosing 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.
  18. 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 Shankaracharya 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 him mantradeeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he
    contended, extraordinary 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 intrusion in the matter of religion. But we are afraid such an illustration is inapt when we
    are considering the appointment of an Archaka of a temple. The Archaka has 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 Shebait makes the
    appointment and the Archaka is a servant of the temple. It has been held in K. Seshadri
    Aiyangar v. Ranga Bhattar [ILR 35 Mad 631] 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
    326
    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. 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.
  19. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the
    trustee in the matter of appointment of an Archaka is no longer limited by the operation of the
    rule of next-in-line of succession in temples where the usage was to 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.
  20. 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 non-hereditary 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.
  21. 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
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    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 Agamic injunctions. 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
    matters. 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
    specialise 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 traditional pujas and rituals followed in those temples. In our opinion the
    apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field
    and there is no good reason to think that the State Government wants to revolutionize temple
    worship by introducing methods of worship not current in the several temples. The rulemaking 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 Act is to effect a change in the rituals and
    ceremonies followed in the temples. 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 the 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 thereunder, 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 our opinion, therefore, the
    apprehensions now expressed by the petitioners are groundless and premature.
  22. In the result these petitions fail.

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