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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.
- 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. - 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to all Hindu religious public institutions and endowments in the State of Tamil Nadu and repealed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. - 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. - 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. - 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….” - 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. - 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.
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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. - 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. - 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. - 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. - 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.” - 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. - 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. - 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.” - 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. - 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). - 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. - 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
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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. - 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. - 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. - 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. - In the result these petitions fail.
