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RAJU, J. – The question that is sought to be raised in the appeal is as to whether the
appointment of a person, who is not a Malayala Brahmin, as “Santhikaran” or Poojari (priest)
of the Temple in question – Kongorpilly Neerikode Siva Temple at Alangad village in
Ernakulam district, Kerala State, is violative of the constitutional and statutory rights of the
appellant. A proper and effective answer to the same would involve several vital issues of
great constitutional, social and public importance, having, to a certain extent, religious
overtones also.
- The relevant facts, as disclosed from the pleadings, have to be noticed for a proper
understanding and appreciation of the questions raised in this appeal. The appellant claims
himself to be a Malayala Brahmin by community and a worshipper of the Siva Temple in
question. The administration of the Temple vests with Travancore Devaswom Board, a
statutory body created under the Travancore-Cochin Hindu Religious Institutions Act, 1950.
One Shri K.K. Mohanan Poti was working as temporary Santhikaran at this Temple, but due
to complaints with reference to his performance and conduct, his services were not
regularized and came to be dispensed with by an order dated 6-8-1993. In his place, the third
respondent, who figured at Rank No. 31 in the list prepared on 28-4-1993, was ordered to be
appointed as a regular Santhikaran and the Devaswom Commissioner also confirmed the
same on 20-9-1993. The second respondent did not allow him to join in view of a letter said
to have been received from the head of the Vazhaperambu Mana for the reason that the third
respondent was a non-Brahmin. The Devaswom Commissioner replied that since under the
rules regulating the appointment there is no restriction for the appointment of a non-Brahmin
as a Santhikaran, the appointment was in order and directed the second respondent to allow
him to join and perform his duties. Though, on 12-10-1993 the third respondent was
permitted to join by an order passed on the same day, the appointment was stayed by a
learned Single Judge of the Kerala High Court and one Sreenivasan Poti came to be engaged
on duty basis to perform the duties of Santhikaran, pending further orders. The main
grievance and ground of challenge in the writ petition filed in the High Court was that the
appointment of a non-Brahmin Santhikaran for the Temple in question offends and violates
the alleged long-followed mandatory custom and usage of having only Malayala Brahmins
for such jobs of performing poojas in the temples and this denies the right of the worshippers
to practise and profess their religion in accordance with its tenets and manage their religious
affairs as secured under Articles 25 and 26 of the Constitution of India. The Thanthri of a
temple is stated to be the final authority in such matters and the appointment in question was
not only without his consultation or approval but against his wish, too. - The Travancore Devaswom Board had formulated a scheme and opened a Thanthra
Vedantha School at Tiruvalla for the purpose of training Santhikarans and as per the said
Scheme prepared by Swami Vyomakesananda and approved by the Board on 7-5-1969 the
School was opened to impart training to students, irrespective of their caste/community.
While having Swami Vyomakesananda as the Director – late Thanthri Thazhman Kandarooru
Sankaru and Thanthri Maheswara Bhattathiripad, Keezhukattu Illam were committee
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members. On being duly and properly trained and on successfully completing the course, they
were said to have been given “Upanayanam” and “Shodasa Karma” and permitted to wear the
sacred thread. Consequently, from 1969 onwards persons, who were non-Brahmins but
successfully passed out from the Vedantha School, were being appointed and the worshippers
- the public – had no grievance or grouse whatsoever. Instance of such appointments having
been made regularly also have been disclosed. The third respondent was said to have been
trained by some of Kerala’s leading Thanthris in performing archanas, conducting temple
ritual, pooja and all other observances necessary for priesthood in a temple in Kerala and
elsewhere based on Thanthra system. Nothing was brought on record to substantiate the claim
that only Malayala Brahmins would be “Santhikaran” in respect of the Siva Temple or in this
particular temple. In 1992 also, as has been the practice, the Board seems to have published a
notification inviting applications from eligible persons, who among other things possessed
sufficient knowledge of the duties of Santhikaran with knowledge of Sanskrit also, for being
selected for appointment as Santhikaran and inasmuch as there was no reservation for
Brahmins, all eligible could and have actually applied. They were said to have been
interviewed by the Committee of President and two members of the Board, Devaswom
Commissioner and Thanthri viz. Thanthri Vamadevan Parameswaram Thatathiri and that the
third respondent was one among the 54 selected out of 234 interviewed from out of the 299
applicants. Acceptance of claims to confine appointment of Santhikarans in temples or in this
Temple to Malayala Brahmins, would, according to the respondent State, violate Articles 15
and 16 as well as Article 14 of the Constitution of India. As long as appointments of
Santhikarans were of persons well versed, fully qualified and trained in their duties and
mantras, tantras and necessary Vedas, irrespective of their caste, Articles 25 and 26 cannot be
said to have been infringed, according to the respondent State.
- Mr K. Rajendra Chowdhary, learned Senior Counsel for the appellant, while reiterating
the stand before the High Court, contended that only Namboodri Brahmins alone are to
perform poojas or daily rituals by entering into the sanctum sanctorum of temples in Kerala,
particularly the Temple in question, and that has been the religious practice and usage all
along and such a custom cannot be thrown overboard in the teeth of Articles 25 and 26, which
fully protect and preserve them. Section 31 of the 1950 Act was relied upon for the same
purpose. It was also contended for the appellant that merely because such a religious practice,
which was observed from time immemorial, involves the appointment of a Santhikaran or
priest, it would not become a secular aspect to be dealt with by the Devaswom Board dehors
the wishes of the worshippers and the decisions of the Thanthri of the Temple concerned. - Shri R.F. Nariman, learned Senior Counsel contended that the appellant failed to
properly plead or establish any usage as claimed and this being a disputed question of fact
cannot be permitted to be agitated in the teeth of the specific finding of the Kerala High Court
to the contrary. It was also urged that the rights and claims based upon Article 25 have to be
viewed and appreciated in proper and correct perspective in the light of Articles 15, 16 and 17
of the Constitution of India and the provisions contained in the Protection of Civil Rights Act,
1955, enacted pursuant to the constitutional mandate, which also not only prevents and
prohibits but makes it an offence to practise “untouchability” in any form. Accordingly, it is
claimed that no exception could be taken to the decision of the Full Bench of the Kerala High
Court in the case.
330 - This Court in Commr., HRE v. Sri LakshmIndira Thirtha Swamiar of Sri Shirur
Mutt (Shirur Mutt case) observed that Article 25 secures to every person, subject to public
order, health and morality, a freedom not only to entertain such religious belief, as may be
approved of by his judgment and conscience but also to exhibit his belief in such outward acts
as he thinks proper and to propagate or disseminate his ideas for the edification of others. It
was also observed that what is protected is the propagation of belief, no matter whether the
propagation takes place in a church or monastery or in a temple or parlour meeting. While
elaborating the meaning of the words, “its own affairs in matters of religion” in Article 26(b)
it has been observed that in contrast to secular matters relating to administration of its
property the religious denomination or organization enjoys complete autonomy in deciding as
to what rites and ceremonies are essential according to the tenets of the religion they hold and
no outside authority has any jurisdiction to interfere with their decision in such matters. In
Venkataramana Devaru v. State of Mysore it has been held that though Article 25(1) deals
with rights of individuals, Article 25(2) is wider in its contents and has reference to rights of
communities and controls both Articles 25(1) and 26(b) of the Constitution, though the rights
recognized by Article 25(2)(b) must necessarily be subject to some limitations or regulations
and one such would be inherent in the process of harmonizing the right conferred by Article
25(2)(b) with that protected by Article 26(b). - In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan dealing with the nature
and extent of protection ensured under Articles 25(1) and 26(b), the distinction between a
practice which is religious and one which is purely secular, it has been observed as follows:
“In this connection, it cannot be ignored that what is protected under Articles
25(1) and 26(b) respectively are the religious practices and the right to manage
affairs in matters of religion. If the practice in question is purely secular or the affair
which is controlled by the statute is essentially and absolutely secular in character, it
cannot be urged that Article 25(1) or Article 26(b) has been contravened. The
protection is given to the practice of religion and to the denomination’s right to
manage its own affairs in matters of religion. Therefore, whenever a claim is made on
behalf of an individual citizen that the impugned statute contravenes his fundamental
right to practise religion or a claim is made on behalf of the denomination that the
fundamental right guaranteed to it to manage its own affairs in matters of religion is
contravened, it is necessary to consider whether the practice in question is religious
or the affairs in respect of which the right of management is alleged to have been
contravened are affairs in matters of religion. If the practice is a religious practice or
the affairs are the affairs in matters of religion, then, of course, the rights guaranteed
by Article 25(1) and Article 26(b) cannot be contravened.
It is true that the decision of the question as to whether a certain practice is a religious
practice or not, as well as the question as to whether an affair in question is an affair in
matters of religion or not, may present difficulties because sometimes practices, religious
and secular, are inextricably mixed up. This is more particularly so in regard to Hindu
religion because as is well known, under the provisions of ancient Smritis, all human
actions from birth to death and most of the individual actions from day to day are
regarded as religious in character. As an illustration, we may refer to the fact that the
Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging
the secular from the religious may not be easy, it must nevertheless be attempted in
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dealing with the claims for protection under Articles 25(1) and 26(b). If the practice
which is protected under the former is a religious practice, and if the right which is
protected under the latter is the right to manage affairs in matters of religion, it is
necessary that in judging about the merits of the claim made in that behalf the Court must
be satisfied that the practice is religious and the affair is in regard to a matter of religion.
In dealing with this problem under Articles 25(1) and 26(b), Latham, C.J.’s observation in
Adelaide Co. of Jehovah’s Witnesses Incorporated v. Commonwealth [(1943) 67 CLR
116, 123] that ‘what is religion to one is superstition to another’, on which Mr Pathak
relies, is of no relevance. If an obviously secular matter is claimed to be a matter of
religion, or if an obviously secular practice is alleged to be a religious practice, the Court
would be justified in rejecting the claim because the protection guaranteed by Article
25(1) and Article 26(b) cannot be extended to secular practices and affairs in regard to
denominational matters which are not matters of religion, and so, a claim made by a
citizen that a purely secular matter amounts to a religious practice, or a similar claim
made on behalf of the denomination that a purely secular matter is an affair in matters of
religion, may have to be rejected on the ground that it is based on irrational
considerations and cannot attract the provisions of Article 25(1) or Article 26(b). This
aspect of the matter must be borne in mind in dealing with the true scope and effect of
Article 25(1) and Article 26(b).” - This Court, in Seshammal v. State of T.N. again reviewed the principles underlying
the protection engrafted in Articles 25 and 26 in the context of a challenge made to abolition
of hereditary right of Archaka - It has also been held that compilation of treatises on construction of temples,
installation of idols therein, rituals to be performed and conduct of worship therein, known as
“Agamas” came to be made with the establishment of temples and the institution of Archakas,
noticing at the same time the further fact that the authority of such Agamas came to be
judicially recognized. It has been highlighted that:
“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.”
Thereafter for continuing the divine spirit, which is considered to have descended into the
idol on consecration, daily and periodical worship has to be made with twofold object to
attract the lay worshippers and also to preserve the image from pollution, defilement or
desecration, which is believed to take place in ever so many ways. Delving further into the
importance of rituals and Agamas it has been observed as follows:
“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 rituals is found in the case
of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda
Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu [(1946) 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
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to how the invocation was to begin at the time of worship and which should be the
concluding benedictory verses. This gives the measure of the importance attached by
the worshippers to certain modes of worship. The idea most prominent in the mind of
the worshipper is that a departure from the traditional rules would result in the
pollution or defilement of the image which must be avoided at all costs. That is also
the rationale for preserving the sanctity of the 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 discipline which are imposed upon
him by the Agamas. As an Archaka he has to touch the image in the course of the
worship and it is his sole right and duty to touch it. The touch of anybody else would
defile it. Thus under the ceremonial law pertaining to temples even the question as to
who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to
enter it and who can worship and from which place in the temple are all matters of
religion as shown in the above decision of this Court.
The Agamas have also rules with regard to the Archakas. In Saivite temples only
a devotee of Siva, and there too, one belonging to a particular denomination or group
or sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an
Archaka in a Vaishnavite Agama temple to whatever caste he may belong and
however learned he may be. Similarly, a Vaishnavite Archaka has no place as an
Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a
Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is
his appointment as an Archaka in a temple of a different denomination. Dr Kane has
quoted the Brahmapurana on the topic of Punahpratistha (Reconsecration of images
in temples) at p. 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. Parthasarthy Bhattacharya, whose authority on
Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of
1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to
which he belongs, that according to the texts of the 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
Garbhagriha. 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
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since it is of the essence of the religious faith of all worshippers that there should be
no pollution or defilement of the image under any circumstances, the Archaka
undoubtedly occupies 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 authorized by the Agamas would violently interfere with the religious
faith and practices of the Hindu worshipper in a vital respect, and would, therefore,
be prima facie invalid under Article 25(1) of the Constitution.” - While repelling, in the same decision, the grievance that the innocent-looking
amendment brought the State right into the sanctum sanctorum, through the agency of trustees
and Archaka, this Court observed as hereunder:
“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 recognized institutions in priesthood irrespective of caste, creed or race.
The trustee, so far as the amended Section 55 went, was authorized to appoint
anybody as an Archaka in any temple whether Saivite or Vaishnavite as long as he
possessed a fitness certificate from one of the institutions referred to in Rule 12. Rule
12 was a rule made by the Government under the principal Act. That rule is always
capable of being varied or changed. It was also open to the Government to make no
rule at all or to prescribe a fitness certificate issued by an institution which did not
teach the Agamas or traditional rituals. The result would, therefore, be that any
person, whether he is a Saivite or Vaishnavite or not, or whether he is proficient in
the rituals appropriate to the temple or not, would be eligible for appointment as an
Archaka and the trustee’s discretion in appointing the Archaka without reference to
personal and other qualifications of the Archaka would be unbridled. The trustee is to
function under the control of the State because under Section 87 of the principal Act
the trustee was bound to obey all lawful orders issued under the provisions of the Act
by the Government, the Commissioner, the Deputy Commissioner or the Assistant
Commissioner. It was submitted that the innocent-looking amendment brought the
State right into the sanctum sanctorum through the agency of the trustee and the
Archaka.
It has been recognised for a long time that where the ritual in a temple cannot be
performed except by a person belonging to a denomination, the purpose of worship
will be defeated: See Mohan Lalji v. Gordhan Lalji Maharaj [ILR (1913) 35 All
283 (PC)]. In that case the claimants to the temple and its worship were Brahmins
and the daughter’s sons of the founder and his nearest heirs under the Hindu law. But
their claim was rejected on the ground that the temple was dedicated to the sect
following the principles of Vallabh Acharya in whose temples only the Gossains of
that sect could perform the rituals and ceremonies and, therefore, the claimants had
no right either to the temple or to perform the worship. In view of the Amendment
Act and its avowed object there was nothing, in the petitioner’s submission, to
prevent the Government from prescribing a standardized ritual in all temples ignoring
the Agamic requirements, and Archakas being forced on temples from denominations
unauthorized by the Agamas. Since such a departure, as already shown, would
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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.” - This Court repelled a challenge to the provisions in the Bombay Hindu Places of
Public Worship (Entry Authorisation) Act, 1956, in Shastri Yagnapurushdasji v. Muldas
Bhundardas Vaishya and quoted with approval the observation of Monier Williams (a
reputed and recognized student of Indian sacred literature for more than forty years and
played an important role in explaining the religious thought and life in India) that “Hinduism
is far more than a mere form of theism resting on Brahmanism” and that
“(I)t has ever aimed at accommodating itself to circumstances, and has carried on the
process of adaptation through more than three thousand years. It has first borne with
and then, so to speak, swallowed, digested and assimilated something from all
creeds.”
This Court ultimately repelled the challenge, after adverting to the changes undergone in the
social and religious outlook of the Hindu community as well as the fundamental change as a
result of the message of social equality and justice proclaimed by the Constitution and the
promise made in Article 17 to abolish “untouchability”, observing that as long as the actual
worship of the deity is allowed to be performed only by the authorized Poojaris of the temple
and not by all devotees permitted to enter the temple, there can be no grievance made. - In Bhuri Nath v. State of J & K, this Court while dealing with the validity of the J&K
Shri Mata Vaishno Devi Shrine Act, 1988, and the abolition of the right of Baridars to receive
share in the offerings made by pilgrims to Shri Mata Vaishno Devi, observed their right to
perform pooja as only a customary right coming from generations which the State can and has
by legislation abolished and that the rights seemed under Articles 25 and 26 are not absolute
or unfettered but subject to legislation by the State limiting or regulating any activity,
economic, financial, political or secular which are associated with the religious belief, faith,
practice or custom and that they are also subject to social reform by suitable legislation. It
was also reiterated therein that though religious practices and performances of acts in
pursuance of religious beliefs are, as much a part of religion, as further belief in a particular
doctrine, that by itself is not conclusive or decisive and as to what are essential parts of
religion or belief or matters of religion and religious practice is essentially a question of fact
to be considered in the context in which the question arises on the basis of materials –factual
or legislative or historic if need be giving a go-by to claims based merely on supernaturalism
or superstitious beliefs or actions and those which are not really, essentially or integrally
matters of religion or religious belief or faith or religious practice. - A challenge made to the U.P. Sri Kashi Vishwanath Temple Act, 1983 and a claim
asserted by a group of Saivites to the exclusive right to conduct worship and manage the
temple in question came to be repelled by this Court in Sri Adi Visheshwara of Kashi
Vishwanath Temple v. State of U.P. While taking note of the aim of the Constitution to
establish an egalitarian social order proscribing any discrimination on grounds of religion,
race, caste, sect or sex alone by Articles 15 to 17 in particular, it was once again reiterated as
hereunder:
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“28. The religious freedom guaranteed by Articles 25 and 26, therefore, is
intended to be a guide to a community life and ordain every religion to act according
to its cultural and social demands to establish an egalitarian social order. Articles 25
and 26, therefore, strike a balance between the rigidity of right to religious belief and
faith and their intrinsic restrictions in matters of religion, religious beliefs and
religious practices and guaranteed freedom of conscience to commune with his
cosmos/creator and realize his spiritual self. Sometimes, practices religious or secular
are inextricably mixed up. This is more particularly so in regard to Hindu religion
because under the provisions of the ancient Smriti, human actions from birth to death
and most of the individual actions from day to day are regarded as religious in
character in one facet or the other. They sometimes claim the religious system or
sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25
and 26. One hinges upon constitutional religious model and another diametrically
more on traditional point of view. The legitimacy of the true categories is required to
be adjudged strictly within the parameters of the right of the individual and the
legitimacy of the State for social progress, well-being and reforms, social
intensification and national unity. Law is a tool of social engineering and an
instrument of social change evolved by a gradual and continuous process. As
Benjamin Cardozo has put it in his Judicial Process, life is not logic but experience.
History and customs, utility and the accepted standards of right conduct are the forms
which singly or in combination all be the progress of law. Which of these forces shall
dominate in any case depends largely upon the comparative importance or value of
the social interest that will be, thereby, impaired. There shall be symmetrical
development with history or custom when history or custom has been the motive
force or the chief one in giving shape to the existing rules and with logic or
philosophy when the motive power has been theirs. One must get the knowledge just
as the legislature gets it from experience and study and reflection in proof from life
itself. All secular activities which may be associated with religion but which do not
relate or constitute an essential part of it may be amenable to State regulations but
what constitutes the essential part of religion may be ascertained primarily from the
doctrines of that religion itself according to its tenets, historical background and
change in evolved process etc. The concept of essentiality is not itself a determinative
factor. It is one of the circumstances to be considered in adjudging whether the
particular matters of religion or religious practices or belief are an integral part of the
religion. It must be decided whether the practices or matters are considered integral
by the community itself. Though not conclusive, this is also one of the facets to be
noticed. The practice in question is religious in character and whether it could be
regarded as an integral and essential part of the religion and if the court finds upon
evidence adduced before it that it is an integral or essential part of the religion,
Article 25 accords protection to it. Though the performance of certain duties is part
of religion and the person performing the duties is also part of the religion or
religious faith or matters of religion, it is required to be carefully examined and
considered to decide whether it is a matter of religion or a secular management by the
State. Whether the traditional practices are matters of religion or integral and
essential part of the religion and religious practice protected by Articles 25 and 26 is
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the question. And whether hereditary Archaka is an essential and integral part of the
Hindu religion is the crucial question. - As observed by this Court in Kailash Sonkar v. Maya Devi [AIR 1984 SC 600] in
view of the categorical revelations made in the Gita and the dream of the Father of the Nation
Mahatma Gandhi that all distinctions based on caste and creed must be abolished and man
must be known and recognized by his actions, irrespective of the caste to which he may on
account of his birth belong, a positive step has been taken to achieve this in the Constitution
and, in our view, the message conveyed thereby got engrafted in the form of Articles 14 to 17
and 21 of the Constitution of India, and paved the way for the enactment of the Protection of
Civil Rights Act, 1955. - It is now well settled that Article 25 secures to every person, subject of course to
public order, health and morality and other provisions of Part III, including Article 17
freedom to entertain and exhibit by outward acts as well as propagate and disseminate such
religious belief according to his judgment and conscience for the edification of others. The
right of the State to impose such restrictions as are desired or found necessary on grounds of
public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b)
ensures the right of the State to make a law providing for social welfare and reform besides
throwing open of Hindu religious institutions of a public character to all classes and sections
of Hindus and any such rights of the State or of the communities or classes of society were
also considered to need due regulation in the process of harmonizing the various rights. The
vision of the founding fathers of the Constitution to liberate the society from blind and
ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has
found expression in the form of Article 17. The legal position that the protection under
Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and as to what really constitutes an essential part
of religion or religious practice has to be decided by the courts with reference to the doctrine
of a particular religion or practices regarded as parts of religion, came to be equally firmly
laid down. - Where a temple has been constructed and consecrated as per Agamas, it is considered
necessary to perform the daily rituals, poojas and recitations as required to maintain the
sanctity of the idol and it is not that in respect of any and every temple any such uniform
rigour of rituals can be sought to be enforced, dehors its origin, the manner of construction or
method of consecration. No doubt only a qualified person well versed and properly trained for
the purpose alone can perform poojas in the temple since he has not only to enter into the
sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying
that what is required and expected of one to perform the rituals and conduct poojas is to know
the rituals to be performed and mantras, as necessary, to be recited for the particular deity and
the method of worship ordained or fixed therefor. For example, in Saivite temples or
Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to
be performed and recited in the respective temples and appropriate to the worship of the
particular deity could be engaged as an Archaka. If traditionally or conventionally, in any
temple, all along a Brahmin alone was conducting poojas or performing the job of
Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing
so because he is not a Brahmin, but those others were not in a position and, as a matter of
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fact, were prohibited from learning, reciting or mastering Vedic literature, rites or
performance of rituals and wearing sacred thread by getting initiated into the order and
thereby acquire the right to perform homa and ritualistic forms of worship in public or private
temples. Consequently, there is no justification to insist that a Brahmin or Malayala Brahmin
in this case, alone can perform the rites and rituals in the temple, as part of the rights and
freedom guaranteed under Article 25 of the Constitution and further claim that any deviation
would tantamount to violation of any such guarantee under the Constitution. There can be no
claim based upon Article 26 so far as the Temple under our consideration is concerned. Apart
from this principle enunciated above, as long as anyone well versed and properly trained and
qualified to perform the pooja in a manner conducive and appropriate to the worship of the
particular deity, is appointed as Santhikaran dehors his pedigree based on caste, no valid or
legally justifiable grievance can be made in a court of law. There has been no proper plea or
sufficient proof also in this case of any specific custom or usage specially created by the
founder of the Temple or those who have the exclusive right to administer the affairs –
religious or secular of the Temple in question, leave alone the legality, propriety and validity
of the same in the changed legal position brought about by the Constitution and the law
enacted by Parliament. The Temple also does not belong to any denominational category with
any specialized form of worship peculiar to such denomination or to its credit. For the said
reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such
practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21 of
the Constitution of India. - In the present case, it is on record and to which we have also made specific reference
in the details of facts showing that an institution has been started to impart training to students
joining the institution in all relevant Vedic texts, rites, religious observances and modes of
worship by engaging reputed scholars and Thanthris and the students, who ultimately pass
through the tests, are being initiated by performing the investiture of sacred thread and
gayatri. That apart, even among such qualified persons, selections based upon merit are made
by the Committee, which includes among other scholars a reputed Thanthri also and the
quality of the candidate as well as the eligibility to perform the rites, religious observances
and modes of worship are once again tested before appointment. While that be the position, to
insist that the person concerned should be a member of a particular caste born of particular
parents of his caste can neither be said to be an insistence upon an essential religious practice,
rite, ritual, observance or mode of worship nor has any proper or sufficient basis for asserting
such a claim been made out either on facts or in law, in the case before us, also. The decision
in Shirur Mutt case and the subsequent decisions rendered by this Court had to deal with the
broad principles of law and the scope of the scheme of rights guaranteed under Articles 25
and 26 of the Constitution, in the peculiar context of the issues raised therein. The
invalidation of a provision empowering the Commissioner and his subordinates as well as
persons authorized by him to enter any religious institution or place of worship in any
unregulated manner by even persons who are not connected with spiritual functions as being
considered to violate rights secured under Articles 25 and 26 of the Constitution of India,
cannot help the appellant to contend that even persons duly qualified can be prohibited on the
ground that such person is not a Brahmin by birth or pedigree. None of the earlier decisions
rendered before Seshammal case related to consideration of any rights based on caste origin
and even Seshammal case dealt with only the facet of rights claimed on the basis of
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hereditary succession. The attempted exercise by the learned Senior Counsel for the appellant
to read into the decisions of this Court in Shirur Mutt case and others something more than
what it actually purports to lay down as if they lend support to assert or protect any and
everything claimed as being part of the religious rituals, rites, observances and method of
worship and make such claims immutable from any restriction or regulation based on the
other provisions of the Constitution or the law enacted to implement such constitutional
mandate, deserves only to be rejected as merely a superficial approach by purporting to deride
what otherwise has to have really an overriding effect, in the scheme of rights declared and
guaranteed under Part III of the Constitution of India. Any custom or usage irrespective of
even any proof of their existence in pre-constitutional days cannot be countenanced as a
source of law to claim any rights when it is found to violate human rights, dignity, social
equality and the specific mandate of the Constitution and law made by Parliament. No usage
which is found to be pernicious and considered to be in derogation of the law of the land or
opposed to public policy or social decency can be accepted or upheld by courts in the country. - For the reasons stated supra, no exception, in our view, could be taken to the
conclusions arrived at by the Full Bench of the Kerala High Court and no interference is
called for with the same, in our hands. The appeal consequently fails and shall stand
dismissed.
