Supreme Court of India
ADI SAIVA SIVACHARIYARGAL NALA SANGAM & ORS.versusTHE GOVERNMENT OF TAMIL NADU &ANR.
- Citation
- 2015 INSC 929
- Decided
- 16 December 2015
- Disposal
- Disposed off
- Bench
- RANJAN GOGOI
Holding
Appointments of Archakas must be made in accordance with the Agamas and conform to constitutional mandates; a blanket order allowing any Hindu to be appointed is invalid unless it aligns with the specific Agamic prescriptions of each temple.
Summary
The petitioners challenged a Government Order (G.O. No.118 dated 23‑05‑2006) that any Hindu with requisite qualifications could be appointed as an Archaka in Hindu temples, arguing that it violated Articles 25 and 26 of the Constitution. The Court examined whether the appointment of Archakas must follow the prescriptions of the Agamas and whether a blanket G.O. could override those religious customs. It held that appointments must be made in accordance with the Agamas, subject to constitutional safeguards, and that a generic G.O. is invalid unless it conforms to the specific Agamic rules of each temple. The Court also rejected the contention that the writs were premature, emphasizing that a cause of action exists where a potential violation of constitutional rights is foreseen. Consequently, the petitions were disposed of, reaffirming that any exclusion or inclusion in Archaka appointments must not be based on caste or birth and must respect both religious doctrine and constitutional mandates.
Issues considered
- The validity of G.O. No.118/2006 permitting any Hindu to be appointed as Archaka under Articles 25 and 26.
- Whether appointments of Archakas must be governed by the Agamas and related customs.
- Whether the G.O. is ultra vires for lacking legislative backing.
- Whether the writ petitions are maintainable despite the absence of actual appointments.
- Whether exclusion or inclusion of a particular denomination in Archaka appointments violates Articles 14, 16(5) and 17.
- The extent to which the State can intervene in religious practices without breaching constitutional guarantees.
Legislation cited
Subjects
Religious freedomArticles 25 and 26Archaka appointmentAgamasTamil Nadu Hindu Religious and Charitable Endowments ActConstitutional lawTemple administrationEssential religious practiceCaste discriminationPublic order
Judgment
[2015) 11 S.C.R. i110
A ADI SAIVA SIVACHARIYARGAL NALA SANGAM &
ORS.
v.
THE GOVERNMENT OF TAMIL NADU &ANR.
B
(Writ Petition (Civil) No. 354 of 2006)
DECEMBER 16, 2015
c [RANJAN GOGOi AND N.V. RAMANA, JJ.]
Constitution of India, 1950 - Articles 25, 26 -
Appointments of Archakas in temple - Issuance of G. 0. No.
118 dated 23. 05. 2006 by Tamil Nadu to the effect that, "any
D person who is a Hindu and possessing the requisite
qualification and training can be appointed as ·a Archaka in
Hindu temples - Writ petitions challenging the G. 0. - Held:
Appointments of Archakas will have to be made in
accordance with the Agamas, subject to their due
E identification as well as their conformity with the constitutional
mandates and the principles - Requirement of constitutional
conformity is inbuilt and if a custom or usage is outside the
'protective umbrella afforded and envisaged by Arts 25 and
26, the law would take its own course - Constitutional
F legitimacy must supersede all religious beliefs or practices
- Validity of the G 0. would depend on the facts of each case
of appointment - What is prescribed by one particular or a
set of Agamas for a solitary or a group of temples, would be
determinative of the issue - Exclusion of some and ;nclusion
G of a particular segment or denomination for appointment as
Archakas would not violate Art 14 so Jong such inclusion/
exclusion is not based on the criteria of caste, birth or any
other constitutionally unacceptable parameter -
Determination of th.e contours of a claimed custom or usage
H
1110
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1111
GOVERNMENT OFT. N.
would be imperative and in that light the validity of the said A
G. 0. would be decided in each case of appointment of
Archakas whenever such issue is raised- Tami/.Nadu Hindu
Religious and Charitable Endowments Act, 1959 -
G.O.No.118 dt 23.05.2006.
B
Disposing of the writ petitions, the Court,
HELD: 1.1 Appointments of Archakas will have to
be made in accordance with the Agamas, subject to their
due identification as well as their conformity with the c
Constitutional mandates and the principles. [Para 44]
[1153-B]
1.2 The rights guaranteed by Articles 25 and 26, are
circumscribed and _are to be enjoyed within
0
constitutionally permissible parameters. Often occasions
will arise when it may become necessary to determine
whether a belief or a practice claimed and asserted is a
fundamental part of the religious practice of a group or
denomination making such a claim before embarking E
upon the required adjudication. A decision on such
claims becomes the duty of the Constitutional Court. It
is neither an easy nor an enviable task that the courts
are called to perform. Performance of such tasks is not
enjoined in the court by virtue of any ecclesiastical F
jurisdiction conferred on it but in view of its role as the
Constitutional arbiter. Any apprehension that the
determination by the court of an essential religious
practice itself negatives the freedoms guaranteed by
Articles 25 and 26 will have to be dispelled on the G
touchstone of constitutional necessity. Without such a
determination there can be no effective adjudication
whether the claimed right it is in conformity with public
order, morality and health and in accord with the
undisputable and unquestionable notions of social H
1112 SUPREME COURT REPORTS [2015] 11 S.C.R.
A welfare and reforms. A just balance can always be made
by holding that the exercise of judicial power to
determine essential religious practices, though always
available being an inherent power to protect the
guarantees u/Articles 25, 26, the exercise thereo_f must
B always be restricted and restrained.[Para 36][1147-F-H;
1148-A-C]
1.3 A plain reading of Article 16(5), fortified by the
debates that had taken place in the Constituent
C Assembly, protects the appointment of Archakas from a
particular denomination, if so required to be made, by
the Agamas holding the field. The debates discloses that
the suggestion that the operation of Article 16(5) should
be restricted to appointment in offices connected with
o administration of a religious institution was negatived.
The exception in Article 16(5), therefore, would cover an
office in a temple which also requires performance of
religious functions. [Para 38][1148-F-H]
E 1.4 It would be, incorrect, if not self defeating, to
take too pedantic an approach at resolution either by
holding the principle of res judicata or locus to bar an
adjudication on nierits or to strike down the impugned
G.O. as an executive fiat that does not have legislative
F approval, made explicit by the fact that though what has
been brought by the G.O. dated 23.05.2006 was also
sought to be incorporat~d in the statute by the
Ordinance, eventually, the amending Bill presented
before the legislature specifically omitted the said
G inclusion. The significance of the said .fact, however,
cannot be underestimated. What is sought to be
emphasized is that the same, by itself, cannot be
determinative of the invalidity of the G.O. which would
have to be tested on certain other premises and
H foundation treating the same to be an instance of
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1113
GOVERNMENT OFT. N.
exercise of executive power in an area not covered by A
any specific law. [Para 39][1149-B-E]
1.5 Sheshammal case is not an authority for any
proposition as to what an Agama or a set of Agamas
governing a particular or group of temples lay down with B
regard to the question that confronts the court, namely,
whether any particular denomination of worshippers or
believers have an exclusive right to be appointed as
Archakas to perform the poojas. Much less, has the
judgment taken note of the particular class or caste to C
which the Archakas of a temple must belong as
prescribed by the Agamas. All that it does and says is
that some of the Agamas do incorporate a fundamental
religious belief of the necessity of performance of the
Poojas by Archakas belonging to a particular and distinct D
sect/group/denomination, failing which, there would be
defilement of deity requiring purification ceremonies.
Surely, if the Agamas in question do not proscribe any
group of citizens from being appointed as Archakas on
the basis of caste or class the sanctity of Article 17 or E
·any other provision of Part Ill of the Constitution or even
the Protection of Civil Rights Act, 1955 would not be
violated. What has been said in Sheshammal case is that
if any prescription with regard to appointment of F
Archakas is made by the Agamas, s. 28 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act
mandates the Trustee to conduct the temple affairs in
accordance with such custom or usage. The
requirement of Constitutional conformity is inbuilt and if G
a custom or usage is outside the protective umbrella
afforded and envisaged by Articles 25 and 26, the law
would certainly take its own course. The constitutional
legitimacy, naturally, must supersede all religious beliefs
or P.ractices. (Para 41] (1150-D-H; 1151-A-B] H
1114 SUPREME COURT REPORTS (2015] 11 S.C.R.
A 1.6 The difficulty lies in determining whether a claim
of State action in furtherance thereof overrides the
constitutional guarantees under Article 25 and 26 may
often involve what has already been referred to as a
delicate and unenviable task of identifying essential
B religious beliefs and practices, sans which the religion
itself does not survive. It is in the performance of this
task that the absence of any exclusive ecclesiastical
jurisdiction of th!s Court, if not other shortcomings and
adequacies, that can be felt. Moreover, there is some
C amount of uncertainty with regard to the prescription
contained in the Agamas. Coupled with the above i~ .the
lack of easy availability of established works and the
declining numbers of acknowledged and undisputed
scholars on the subject. In Shirur Mutt case with regard
0
to complete autonomy of a denomination to decide as
to what constitutes an essential religious practice, a
view that has also been subsequently echoed by this
Court though as a "minority view". But it is clarified that
E no such view of the Court can be understood to an
indication of any bar to judicial determination of the issue
as and when it arises. Any contrary opinion would go
rise to large scale conflicts of claims and usages as to
what is an essential religious practice with no acceptable
F or adequate forum for resolution. That apart the
"complete autonomy" contemplated in ShirurMuttcase
and the meaning of "outside authority" must not be torn
out of the context in which the views came to be
recorded. The exclusion of all "outside authorities" from
G deciding what is an essential religion practice must be
viewed in the context of the limited role of the State in
matters relating to religious freedom as envisaged by
Articles 25 and 26 itself and not of the Courts as the
arbiter of Constitutional rights and principles. [Para
H 42][1151-B-H; 1152-A-B]
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1115
GOVERNMENT OFT. N.
1.7 The validity or otherwise of the impugned G.O. A
would depend on the facts of each case of appointment
What is found and held to be prescribed by one
particular or a set of Agamas for a solitary or a group of
temples, as may be, would be determinative of the issue.
It is re-emphasised that the exclusion of some and B
inclusion of a particular segment or denomination for
appointment as Archakas would not violate Article 14 so
long such inclusion/exclusion is not based on the criteria
of caste, birth or any other constitutionally unacceptable
parameter. So long as the prescription(s) under a C
particular Agama or Agamas is not contrary to any
constitutional mandate the impugned G'.O. dated
23.05.2006 by its blanket fiat to the effect that, "Any
person who is a Hindu and possessing the requisite
0
qualification and training can be appointed as a Archaka
in Hindu temples" has the potential of falling foul of the
dictum laid down in Seshammal case. A determination
of the contours of a claimed custom or usage would be
imperative and it is in that light that the validity of the E
impugned G.O. dated 23.05.2006 would have to be
decided in each case of appointment of Archakas
whenever and wherever the issue is raised. The
necessity of seeking specific judicial verdicts in the
future is inevitable and unavoidable; the contours of the F
instant case and the issues arisen. [Para 43][1152-C-H]
2. The submission with regard to the maintainability
of writ petitions cannot be accepted on two counts.
Firstly, it is difficult to appreciate as to why the petitioners G
should be non-suited at the threshold merely because
the G.O. dated 23.05.2006 has not been given effect to
by actual orders of the State Government. The institution
of a writ proceeding need not await actual. prejudice and
adverse effect and consequence. An apprehension of H
1116 SUPREME COURT REPORTS (2015] 11 S.C.R.
A such harm, if the same is well founded, can furnish a
cause of action for moving the Court. The argument that
the writ petition is founded on a cause relating to
appointment in a public office· and hence not
entertainable as a public interest litigation would be too
B simplistic a S?lution to adoptto answer the issues which
concerns the religious faith and practice of a large
number of citizens of the country and raises claims of
century old traditions and usage having the force of law.
[Para 10] (1122-D-G]
c
Seshammal and Others, Etc. Etc. Vs. State of
Tamil Nadu 1972 (3) SCR 815: (1972) 2SCC11;
Sanjeev Coke Manufacturing Vs. Mis Bharat
Coking Coal Limited & Anr. 1983 (1) SCR
D 1000:(1983) 1 SCC 147; N. Adhithyan Vs.
Travancore Devasom Board and Others 2002 (3)
Suppl. SCR 76:(2002) 8 SCC 106; Sastri
Yagnapurushadji and Others Vs. Mu/das
Bhudradas Vaishya and Another 1966 (3) SCR
E 242; Gopala Mooppanar and Others Vs.
Subramania Iyer and others AIR 1915 Madras
363; The Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt 1954 SCR 1005; Sri
F
Venkataramana Devaru and Others Vs. State of
Mysore and others AIR 1958 SC 255:1958 SCR
895; Durgah Committee, Ajmer and another Vs.
Syed Hussain Ali and others AIR 1961 SC
G 1402:1962 SCR 383; Commissioner of Police
and Others Vs. Acharya Jagadishwarananda
Avadhuta andAnother2004 (2) SCR 1019:(2004)
12 sec 770- referred to.
H
ADI SAIVASIVACHARIYARGAL NALASANGAM v. 1117
GOVERNMENT OFT. N.
Case Law Reference A
1983 (1) SCR 1000 referred to. Para 12
~002 (3) Suppl. SCR 76 referred to. Para 13
1966 (3) SCR 242 referred to. Para 27
B
AIR 1915 Madras 363 referred to. Para 30
1954 SCR 1005 referred to. Para 31
1958 SCR895 referred to. Para 33
c
1962 SCR 383 referred to. Para 35
2004 (2) SCR 1019 referred to. Para 35
1972 (3) SCR 815 followed. Para 44
D
ORIGINALAPPELLATE JURISDICTION: Writ Petition
(Civil) No. 354 of 2014
'
[Under Article 32 of the Constitution of India]
E
WITH
W. P. (C) Nos. 355, 383 and 384 of 2006
Subramonium Prasad, AAG, K .. Parasaran, P. P. Rao,
Colin Consalves, G Umapathy, Vineet Pandey, R. Mekhala, F
Rakesli K. Sharma, A. Mukunda Rao, Arjun Singh,
Gaichangpou Gangmei, Sridhar Potaraju, M. Yogesh Kanna,
Sri Vignesh, Swarnendhu Chaterjee, Sabarish Subramanian,
Praburama Subramanian, B. Subrahmanya Prasad, Naresh
Kumar, P. R. Kovilan Poongkuntran, Mahalakshmi Pavani, S. G
Raju, Geetha Kovila_n, V. G. Pragasam, S. Ramamani, B.
Balaji, Rakesh Sharma, R. Shase for appearing parties.
The Judgment of the Court was delivered by
H
1118 SUPREME COURT REPORTS [2015] 11 S.C.R.
A RANJAN GOGOi, J. 1. Religion incorporates the
particular belief(s) that a group of people subscribe to.
Hinduism, as a religion, incorporates all forms of belief without
mandating the selection or elimination of any one single belief.
It is a religion that has no single founder; no single scripture
B and no single set of teachings. It has been described as
Sanatan Dharma, namely, eternal faith, as it is the collective
wisdom and inspiration of the centuries that Hinduism seeks
to preach and propagate. ltis keeping in mind the above
precepts that we will proceed further.
c
2. Before highlighting the issues that confronts the Court
in the present case the relevant Constitutional provisions in
Part Ill of the Constitution may be taken note of. Article 13, in
clear and uhequivocal terms, lays down that all laws including
D pre-constitution laws which are inconsistent with or in
derogation of the fundamental rights guaranteed by Part 111 are
void. Sub-Article (3) brings within the fold of laws, all Rules,
Regulations, Notification, custom and usage having the force
of law. While the several provisions of Part Ill would hardly
E need to be re-emphasized, specific notice must be had of, in
the context of the present case, the provisions contained in
Articles 25 and 26 of the Constitution. While Article 25 makes
the freedom of conscience and the right to profess, practice
F and propagate the religion to which a person may subscribe,
a fundamental right, the exercise of such right has beer:i made
subject to public order, morality and health and also to the other
provisions of Part Ill. Article 25(2)(b) makes it clear that main
part of the provisions contained in Article 25 will not come in
G the way of the operation of any existing law or prevent the State
from making any law which provides for social welfare and
reform or for throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus. Similarly,
Article 26 while conferring the right on every religious
H denomination to manage its own affairs makes it clear that
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1119
GOVERNMENT OFT. N. [RAN JAN GOGOi. J ]
the right to manage the affairs of any religious denomination A
is restricted to matters of religion only.
3. The provisions of Part Ill, as noted above, therefore
makes it amply clear that while the right to freedom of religion
and to manage the religious affairs of any denomination is B
undoubtedly a fundamental right, the same is subject to public
order, morality and health and further that the inclusion of such
rights in Part Ill of the Constitution will not prevent the State
from acting in an appropriate manner, in the larger public
interest, as mandated by the main part of both Articles 25 and C
26. Besides, the freedom of religion being subject to the other
provisions of Part Ill, undoubtedly, Articles 25 and 26 of the
Constitution has to be harmoniously construed with the other
provisions contained in Part Ill.
D
4. The necessary facts may now be noticed. In order to
amend and consolidate the law relating to administration and
governance of Hindu religious and charitable institutions in the
State of Tamil Nadu, the State Legislature has enacted the
Tamil Nadu Hindu Religious and Charitable Endowments Act, E
1959 (hereinafter referred to as 'the Tamil Nadu Act'). A
passing reference may be made, at this stage, to Section 55
of the Tamil Nadu Act which provided that in case where the.
office holders or servants of a religious jnstitution are required
to be filled up on the principle of hereditary succession the F
person next in line of succession is entitled to succeed. There
were some exceptions to the above rule i.e. where the person
next in line is a minor or suffers from some incapacity. The
aforesaid provision (Section 55) was amended alongwith other
related provisions by theAmendmentAct of 1970 which came G
into force on January 8, 1971. By the aforesaid amendment
the principle of next in line of succession was abolished. The
amendment came to be challenged before this Court which
d:~l!~r.~8 wa:. considered by a Constitution Bench of the Court. H
1120 SUPREME COURT REPORTS [2015) 11 S.C.R.
A In its judgment in Seshammal and Others, Etc. Etc. Vs. State
of f."jmif Nadu' the Constitution Bench, while upholding the
validity of the amendment, dealt with a further question, namely,
though the principle of next in line was validly abolished, whether
the appointment of office bearers or servants of t_he temples
B are required to be made from a particular denomination/group/
sect as mandated by the Agamas i.e. treatises pertaining to
matters like construction of temples; installation of idols and
conduct of worship of the Deity. The Constitution Bench after
an elaborate consideration of the matter, details of which will
C be noticed subsequently, seems to have answered the
aforesaid question in the affirmative.
5. No controversy surfaced after the Constitution Bench
judgment in Seshammal (supra) until a G.O. No. 118 dated
D 23:05.2006 was issued by the Government of Tamil Nadu,
Department of Tamil Development, Cultural and Endowments
to the effect that, "Any person who is a Hindu and
possessing the requisite qualification and training can be
appointed as a Archaka in Hindu temples". An Ordinance
E (No. 5 /2006) dated 14.07 .2006 followed the aforesaid G.O.
seeking to further amend sub-section (2) of Section 55 of the
Tamil NaduAct. The said provision of theAct i.e. Section 55(2),
by virtue of the 1971 amendment referred to above and the
F 2006 Ordinance, read as follows.
"(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. fine of
succession to the last holder of office." [Change
G brought about by amendment of S.55(2)]
"or on the ground of any custom or usage".
[Change brought about by Ordinance 512006)
H 1
(1972) 2 sec 11
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1121 ·
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
· 6. The Explanatory statement to the Ordinance in para 4 A
indicated the purpose behind further amendment of Section
55(2) in the following terms.
"Archakas of the Temples are to be appointed without
any discrimination of caste and creed. Custom or usage B
cannot be a hindrance to this. It is considered that the
position is clarified in the Act itself and accordingly, it
has been decided to amend Section 55 of the said Act
suitably".
c
7. The Ordinance was replaced by The Tamil NaduAct
No. 15 of 2006 which received the assent of the Governor on
29.08.2006. The Act, however, did not contain the amendment
to Section 55 as was made by the Ordinance. In otherwords,
the said amendment brought by the Ordinance was dropped 0
from the Amending Act 15 of 2006.
8. The present writ petitions under Article 32 of the
Constitution have been instituted by an Association of
Archakas and individual Archakas of Sri Meenakshi Amman
E
Temple of Madurai. The writ petitions were filed challenging
the G.O. No. 118 dated 23.05.2006 and Ordinance No. 5/2006
(at that point of time the Amending Act of 2006 had not come
into effect). As the amendment of Section 55(2) made by the
Ordinance had not been continued by the Amending Act 15 of F
2006 the said part of the challenge (as ag_ainst the ordinance) ·
made in the writ petitions became redundant leaving the legality
and validity of the G.O. 23.05.2006 as the sole issue for
consideration in the present writ petitions.
G
9. Preliminary Objections have been raised to the
maintainability of the writ petitions by Shri P.P. Rao and Shri
. Colin Gonsalves, learned senior counsels appearing for
respondents . It has been urged that the present writ petitions
have not been filed as public interest litigations and in the H
. 1122 SUPREME COURT REPORTS [2015) 11 S.C.R
A absence of any specific orders in implementation of the
impugned G.0. dated 23.05.2006 the writ petitions are
premature. It is further contended that even if the writ petitions
are to be considered as Plls the same raise questions with
regard to appointment in public office i.e. Archakas in public
B temples and therefore the writ petitions will also not be
maintainable as public interest litigations. It is further urged
that as and when the G.O. is given effect to by actual
appointment of an Archaka or Archakas, as may be, it will be
open for the petitioners to raise the issue and establish that
C there is a usage or custom or customary practice governing
the temple in question which require the appointment of the
Archaka to be made from a particular denomination.
10. It is difficult for us to acceptthe contentions advanced
D on behalf of the respondents with regard to the maintainability
of writ petitions on two counts. Firstly, it is difficult to appreciate
as to why the petitioners should be non-suited at the threshold
merely because the GO. dated 23.05.2006 has not been given
effect to by actual orders of the State Government. The
E institution of a writ proceeding need not await actual prejudice
and adverse effect and consequence. An apprehension of such
harm, if the same is well founded, can furnish a cause of action
for moving the Court. The argument that the present writ
F petition is founded on a cause relating to appointment in a
.public office and hence not entertainable as a public interest
litigation would be too simplistic a solution to adopt to answer
the issues that have been highlighted which concerns the
religious faith and practice of a large number of citizens of the
G country and raises claims of century old traditions and usage
having the force of law. The above is the second ground,
namely, the gravity of the issues that arise, that impel us to
make an attempt to answer the issues raised and arising in
the writ petitions for determination on the merits thereof.
H
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1123
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
11. Shri K. Parasaran, learned senior counsel appearing A
for the petitioners has submitted that the issues arising in the
case stand squarely covered by the pronouncement of the
Constitution Bench in Seshammal (supra). In fact, according
to the learned senior counsel, the issues in the present case
are resjudicata; the same having been decided inter-partes B
in Seshammal (supra); the Archakas of the Agamas Temples
and the respondent-State both being parties to the said
decision. Specifically, Shri Parasaran, has urged that in
Seshaminal (supra) the Constitution Bench has
unambiguously held that the appointment of an Archaka has C
to be as per the Agamas governing the particular temple and
any deviation from the said age old custom and usage would
be an infringement cif the freedom of religion and the rights of
the religious denomination to manage its own affairs, as
0
guaranteed, by Article 25 and 26 of the Constitution. The
impugned G.O., by its prescription, as noted, therefore, seeks
to override the declaration of law made by the Constitution
Bench in Seshamma/(supra).
12. Shri Parasaran has further urged that curtailment of E
the freedoms guaranteed by Articles 25 and 26 of the
Constitution can only be made by the legislature and even a
· legislative exercise in this regard is circumscribed by the
limitations contained in both Articles 25 and 26. In the present F
case the amendment of Section 55 of the Tamil Nadu Act as
made by Ordinance No.6 of 2005 has not been continued by
the Amendment Ad No.15 of 2006 (as already noted). The
impugned G.0. has, therefore, to necessarily lose its efficacy.
Reliance herein is placed on the following passage from the G
report in Sanjeev Coke Manufacturing Vs. Mis Bharat
Coking Coal Limited & Anr. 2
'(1983) 1sec147. H
1124 SUPREME COURT REPORTS [2015] 11 S.C.R.
A "25 ...... ..... The deponents of the affidavits filed into
court may speak for the parties on whose behalf they
swear to the statements. They do not speak for the
Parliament. No one may speak for the Parliament and
Parliament is never before the court. After Parliament
B has said what it intends to say, only the court may say
what the Parliament meant to say. None else. Once a
statute leaves Parliament House, the Court is the only
authentic voice which may echo (interpret) the
Parliament ........ "
c
13. It was further contended that the G.O. wrongly relies
on the decision in the case of N. Adhithyan Vs. Travancore
Devasom Board and Others3 to justify its·promulgation. The
reliance placed on Adhithyan (supra), in the face of the.law
D laid down in Seshammal (supra), is wholly misplaced. Shri
Parasaran has further argued that the impugned GO has to be
read on its own terms and the validity thereof cannot be saved
by what appears to be a "concession" made by the State in
Para 51 of the counter affidavit to the effect that the State would
E respect the distinction between Saiva and Vaishanava temples
and the Archakas in each of such temples shall be appointed
from either the Saivas or Vaishanavas, as may be, taking into
account the indoctrination of the concerned Archakas in.the
F Agamas. According to Shri Parasaran, neither all Saivas nor
all Vaishnavas are ipso facto denominational. Only a Saiva
who satisfies the eligibility under the Sivagama and a
Vaishnava satisfying the eligibility under the pancharatna or
vaikhanasa can be referred to as denominations. A person
G who is a member of such denomination alone can be appointed
as a Archaka of a Saiva or a Vaishnava temple, as the case
maybe.
H ' (2002) s sec 1OB
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1125
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
14. On the other hand, Shri P.P. Rao and Shri Colin A
Gonsalves, learned Senior Counsels appearing for the
respondents have contended that the decision of the
Constitution Bench in Seshamma/ (supra) upholding the
Constitution validity of the Amendment Act of 1970 had opened
the avenue to all qualified Hindus irrespective of caste, B
denominations, etc to be appointed as Archakas. It is
contended that once the hereditary principle was held to be
flexible, the exclusive right of a particular group to appointment
necessarily stood negated and it is qualification coupled with
merit and eligibility that has to be the crucial test for C
appointment, consistent with Articles 14 and 16 of the
Constitution. Learned counsels have specifically referred to
the Government Order No.1 of 2007 and in this regard the
recommendation of the High Powered Committee appointed
0
for making recommendations for effective implementation of
the impugned GO dated 23.5.2006. It is contended, by referring
to the report of the High P_owered Committee, that the same
demonstrates the lack of familiarity of even temple priests with
the Agamas and their lack of knowledge of such Ag am as and E
the practices of the Temples as may be prescribed by the
Agamas. It is submitted that not only the contents oftheAgamas
have become uncertain, even assuming otherwise, the same
cannot be an authority to confer legitimacy to a practice which
is inconsistent with and contrary to the provisions of the F
Constitution, specially those contained in Part Ill thereof. It is
further submitted that the impugned GO is consistent with and
in fact effectuates the Fundamental Right of Equality and equal
opportunity and no contrary practice overriding the said
provisions of the Constitution would be legally acceptable. G
Learned Counsels have further submitted that there is no
conflict between the judgments in Seshamma/(supra) and N.
Adithayan (supra) and it is possible to read the law deClared
in both the cases in a manner consistent with the Constitutional
requirements and principles. H
1126 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 15. An additional issue has been struck by Shri Gonsalves,
learned Senior Counsel, that the impugned GO needs to be
upheld on the touchstone of the principle enshrined by Article
17 of the Constitution. The exclusive right of a particular group
to enterthe sanctum sanctorum of a temple and perform the
B rituals on the ground that performance of such rituals by any
other person would defile the image is a thought and action
which is prohibited by Article 17 of the Constitution. Violation
and consequently commission of offences under the Protection
of Civil Rights Act, 1955 has also been urged.
c
16. The issues arising and the arguments made centre
around the true meaning, purport and effect of the Constitution
Bench judgment in Seshamma/ (supra) and in the above
context the effect of the decision of the numerically smaller
D Bench in N. Adithayan (supra). We will therefore proceed to
understand the above position at the outset.
17. The contours of the challenge in Seshammal (supra)
has already been noticed. To repeat, it is the validity of the
E Amendment Act of 1970 which sought to amend, inter alia,
Section 55 of the Tamil Nadu Act that was questioned in
Seshammal (supra). The Statement of Objects and Reasons
for the amendment Act of 1970 is stated as follows:
F "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
G 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 ·
H Poojaries are all U/thurai servants.in Hindu temples.
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. . 1127
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
The duties of 'Ulthurai servants' relate mainly to the A
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 B
Religious and Charitable Endowments Act, 1959 (Tamil
Nadu Act 22of1959), 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 C
have already been thrown open to all Hindus
irrespective of caste .... "
18. The arguments in support of the challenge were
threefold namely, D
"(a) The freedom ef hereditary succession to the office
of Archaka is abolished although succession to it is an
essential and integral parl of the faith of the Saivite and
Vaishnavite worshippers. E
(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 F
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 G
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 H
1128 SUPREME COURT REPORTS [2015] 11 S.C.R.
A for the first time to the trustee who is under the control
of the Government under the provisions of the principal
Act and this is the very negation offreedom of religion
and the principle of non-interference by the State as
regards the practice of religion and the right of a
B denomination to manage its own affairs in the matter of
religion."
19. In the course of a very lengthy discourse and after
considering the works.of learned scholars in the field; the law
c laid down by this Court in respect of Articles 25 and 26 till date
and particularly the efficacy of the Agamas the Constitution
Bench came to the following conclusion.
"Any State action which permits the defilement or
pollution of the image by the touch of an Archaka not
D
authorised by the Agamas would violently interfere with
the religious faith and practices of the Hindu worshipper
in a vital respect, and would, therefore, be prima facie
invalid under Article 25(1) of the Constitution."
E 20. Thereafter, the Constitution Bench by referring to
several earlier pronouncements of this Court specifically
mentioned in para 13 of the Repori identified the main
principles underlying the provisions of Article 25 and 26 of the
Constitution in the following manner.
F
"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,
G 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
H regarded by the community as a part of its religion."
ADI SAIVASIVACHARIYARGAL NALASANGAM v. 1129
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
21. Applying the aforesaid principles to the facts before A
it the Constitution Bench identified the main thrust of the
arguments made in support of the challeng~ to the amendment
to be with regard to the vesting of powers and authority in the
temple trustee to appoint any person as an Archaka so long
as he was holding a fitness certificate from one of the B
institutions referred to in Rule 12 of the Madras Hindu Religious
Institutions (Officers and Servants) Service Rules, 1964. The
Said Rule 12 required that anArchaka should be proficient in
Mantras, Vedas, Prabandams etc., namely, that such a person ,,
is fit and qualified for performing puja and having knowledge C
of the rituals and other services. The Constitution Bench was
told that the above position admits a situation where the
requirement of Rule 12 can very well be dispensed with (by a
· subsequent amendment of the Rules) thereby resulting in
0
conferment of virtually unguided and unbridled powers to the
trustee to appoint any person as a Arch aka notwithstanding
the fact that worship of the deity by a person other than one
belonging to a particular denomination may have the effect of
defiling the deity. As the temple trustee is to function under the E
control of the State under Section 27 of the Tamil Nadu Act the
question .highlighted before the Constitution Bench was
whether by virtue of the amendment the State had gained a
. right to step into and control the Sanctum Sanctorum of a
temple through the agency of the trustee and the Archaka F
thereby transgressing the rights granted to a religious
denomination by Articles 25 and 26 of the Constitution.
22. The Constitution Bench noticed that to counter the
above situation the Advocate General of the State of Tamil Nadu G
had contended that the power given to the trustee by virtue of
the amendment to Section 55 was not a unqualified power but·
was subject to the provisions of Section 28 of the Act which is
in the following terms.
H
1130 SUPREME COURT REPORTS (2015] 11 S.C.R.
A "Section 28.- Subject to the provisions of the Tamil
Nadu TempleEntryAuthorisationAct, 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
B institution and a/I 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, fund~ and properties if they were his own."
C In this regard the Advocate General had virtually admitted
that if the usage or practice of the institution required the
Archaka' of a temple to be of a particular denomination the
said usage would be binding on the trustee and he would be
bound to make appointment under Section 55 in accordance
D with such usage. The usage, practice or custom requiring an
Archaka to be of a particular denomination, according to the
Advocate General, was founded on religious beliefs and
practices whereas the next in line principle, if is to be regarded
as a usage, was a merely secular usage on which a legislation
E would be competent under Article 25 (2)(a) of the Constitution.
It was, alternatively, contended that if the hereditary principle
is to be understood as a religious practice, alteration thereof
can also be made by a legislation under Article 25(2)(b), such
F legislation being for the purpose of social welfare and reform.
23.The Constitution Bench in Seshammal (supra)
answered the question by holding that the hereditary principle
which was of long usage was a secular principle and therefore
a legislation to alter the said usage, i.e. theAmendmentAct of
G 1970, was competent under Article 25(2)(a). However, the
Constitution Bench was quick to add that it is to the limited
extent of the above exception alone, namely, the liberty to make
the appointment from persons beyond next in line to the last
H holder that the trustee is released from the obligation imposed
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1131
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
·on him by Section 28 of the Tamil Nadu Act which otherwise A
requires the trustee to administer the affairs of the temple in
accordance with the usage governing the temple. Para 22 of
the Constitution Bench judgment wherein the aforesaid view
finds mention may be noticed verbatim.
B
"22. 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 C
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 D
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 E
and, therefore; is not invalid."
24. A reading of the judgment of the Constitution Bench
in Seshammal (supra) shows that the Bench considered the
expanse of the Agamas both in Saivite and Vaishnavite F
temples t0 hold that the said treatises restricted the
appointment of Archakas to a particular religious
·denomination(s) and further that worship of the deity by persons
who do not belong to the particular denomination(s) may have
the effect of even defiling the idol requiring purification G
ceremonies to be performed. The Constitution Bench further
held that while the appointment of Archakas on the principle of
next in line is a secular act the particular denomination from
which Archakas are required to be appointed as per the H
1132 SUPREME COURT REPORTS (2015) 11 S.C.R.
A Ag a mas embody a long standing belief that has come to be
firmly embedded in the practices immediately surrounding the
worship of the image and therefore such beliefs/practice
constitute an essential part of the religious practice which under
Section 28 of the Act (extracted above) the trustee is bound to
B follow. The above, which the petitioners contend to be the true
ratio of the law laid down by the Constitution Bench in
Seshammal (supra), has been questioned by the respondents
who argue that Seshamma/ (supra) is but the expression of
an agreement of the Constitution Bench to what was a
C concession made before it by the Advocate General of the
State. According to the respondent in Seshammal (supra) the
Constitution Bench had no occasion to deal with the issue
arising herein, the challenge before it being confined to the
validity oftheAmendmentAct of 1970.
0
25. The answers to the above will be dealt with a little
later and for the present what has to engage the attention of
the Court is the true ratio of the law laid down by the numerically
smaller Bench in Adithayan (supra).
E
26. The facts confronting the Court in Adithayan (supra)
may now be noticed. The challenge therein was by a
Namboodri Brahmin to the appointment of a non-Namboodri
Brahmin who was otherwise well qualified to be appointed as
F a priest in the temple in question. The challenge was sought
to be based on the ground that it has been a long. standing
practice and usage in the temple that its priests are appointed
exclusively from Namboodri Brahmins and any departure
therefrom is in violation of the rights of Namboodri Brahmins
G under Article 25 and 26 of the Constitution. Upon a
consideration of the various earlier decisions of this Court
specifically referred to in Adithayan (supra), details of which
need not again be noticed herein (such details are being
H separately noticed later, though in a different context) including
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1133
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
the decision in Seshammal (supra) it was held that rights A
claimed solely on the basis of caste cannot enjoy the protection
of Article 25 and 26 and no earlier decision of this Court
including Seshammal (supra) would support the contention
that even duly qualified persons can be barred from performing
Poojas on the sole ground that such a person is not a Brahmin B
by birth or pedigree. After expounding the law in the above
manner, it was held in Adithayan (supra) that even proof of
any such practice since the pre-constitutional days (which in
any case was not forthcoming) cannot sustain such a claim as
the same would be in derogation of constitutional values and C
opposed to public policy or social decency. We do not see
how the above view of this Court in any way strikes a discordant
note with the views expressed in any earlier decision including
Seshamma/(supra). The issues in Seshamma/(supra) were
0
entirely different and the discussions therein (para 12)
proceeds on the basis that entry to the sanctum sanctorum for
a particular denomination is without any reference to caste or
social status. The reference to the opinion of Sri R.
Parthasarathy Bhattacharya who has been referred to in the E
above para 12 of the report as an undisputed scholar on the
subject was cited to show that apart from the followers of the 4
(four) traditions, so far as Vaishnava temples are concerned
" ..... none others, however high placed in societv as Pontiffs
or Acharyas. or even other Brahmins could touch the idols, F
do Pooja or enter the Garba Girha ... ..... " Exclusion solely on
the basis of caste was not an issue in Seshamma/(supra) so
as to understand the decision in Adithayan (supra) to be, in
any way, a departure from what has been held in Seshammal
(supra). G
27. Before we go on to deliberate on the validity of the
impugned GO. dated 23.05.2006 it will be useful to try to
understand what is Hinduism? A broad answer is to be found
in the preface to this report but, perhaps, we should delve a H
1134 SUPREME COURT REPORTS [2015] 11 S.C.R.
A little deeper into the issue. The subject has received an indepth
consideration of the Country's philosopher President Dr. S.
Radhakrishnan in the celebrated work" The Hindu way of Life''.
The said work has been exhaustively considered in Sastri
Yagnapurushadji and Others Vs. Muldas Bhudradas
B Vaishya and Another' in the context of the question as co
whether Swaminarayan sect is a religion distinguishable and
separate from the Hindu religion and consequently the temples
belonging to the said sect fell outside the scope of Section 3
of the Bombay Hindu Places of Public Worship (Entry
C Authorisation) Act, 1956. The aforesaid Section 3 of the Act
inter alia provided that every temple to which the Act applied
shall be open to the excluded classes for worship in the same
manner and to the same extent as other Hindus in general.
D While the eventual decision of the Court which answered the
question raised is in the negative, namely, that the sect in
question was not a distinguishable and different religion, it is
the very learned discourse that is to be found in the report with
regard to the true tenets of Hinduism that would be of interest
E so far the present case is concerned. The following passages
from the report are truly worthy of reproduction both for the
purpose of recapitulation and illumination.
"....................................................... When we
think of the Hindu religion, we find it difficult, if not
F
impossible, to define Hindu religion or even adequately
describe it. Unlike other religions in the world, the Hindu
religion does not claim any one prophet; it does not
worship any one God; it does not subscribe to any one
G dogma; it does not believe in any one philosophic
concept; it does not follow any one set of religious rites
or performances; in fact, it does not appear to satisfy
the narrow traditional features of any religion or creed.
H ' 1966(3) SCR 242
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1135
GOVERNMENT OFT. N. [RANJAN GOGOi, J.)
It may broadly be described as a way of life and nothing A
more.
The Hindu thinkers reckoned with the striking fact that
8
the men and women dwelling in lndi,a belonged to
different communities, worshipped different gods, and
practiced different rites (Kurma Purana). (Ibid p. 12.)
c
"ft presents for our investigation a complex congeries
of creeds and doctrines which in its gradual
accumulation may be compared to the gathering
· together of the mighty volume of the Ganges, swollen
by a continual influx of tributary rivers and rivulets, D
spreading itself over an ever-increasing area of country
and finally resolving itself into an intricate Delta of
tortuous steams and jungly marshes ........ The Hindu
religion is a reflection of the composite character of the
Hindus, who are not one people but many. It is based E
on the idea of universal receptivity. It 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 F
speak, swallowed, digested, and assimilated something
from all creeds." ("Religious Thought &Life in India" by
Monier Williams, P 57.)
The history of Indian thought emphatically brings out
·the fact that the development of Hindu religion has G
always been inspired by an endless quest of the mind
for truth based on the consciousness that truth has
many facets. Truth is one, but wise men describe if
differently. The Indian mind has, consistently through H
1136 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the ages, been exerCised over the problem of the nature
of godhead the problem that faces the spirit at the end
of life, and the interrelation between the individual and
the universal soul. "If we can abstract from the variety
of opinion", says Dr. Radhakrishnan, "and observe the
8 general spirit of Indian thought, we shall find that it has
a disposition to interpret life and nature in the way of
monistic idealism, though this tendency is so plastic,
Jiving and manifold that it takes many forms and
expresses itself in even mutually hostile
c teachings".(lbid, p.32.)
Though philosophic concepts and principles evolved
by different Hindu thinkers and philosophers varied in
many ways and even appeared to conflict with each
D other in some particulars, they all had reverence for
the past and accepted the Vedas as the sole foundation
of the Hindu philosophy. Naturally enough, it was
realised by Hindu religion from the very beginning of
its career that truth was many-sided and different views
E contained different aspects of truth which no one could
fully express.
Do the Hindus worship at their temples the same set or
number of gods ? That is another question which can
F be asked in this connection; and the answer to this
question again has to be in the negative. Indeed, there
are certain sections of the Hindu community which do
not believe in the worship of idols; and as regards those
sections of the Hindu community which believe in the
G worship of idols their idols differ from community to
community and it cannot be said that one definite idol
or a definite number of idols are worshipped by all the
Hindu in general. In the Hindu Pantheon the first goods
that were worshipped in Vedic times were mainly Indra,
H
ADI SAIVASIVACHARIYARGALNALASANGAMv. 1137
GOVERNMENT OF TAMIL NADU [RANJAN GOGOi, J .]
Varuna, Vayu and Agni. Later, Brahma, Vishnu and A
Mahesh came to be worshipped. In course of time,
Rama and Krishna secured a place ofpride in the Hindu
Pantheon, and gradually as different philosophic
concepts held sway in different sects and in different
sections of the Hindu community, a large number of B
gods were added, with the result that today, the Hindu
Pantheon presents the spectacle of a very large number
of gods wh9 are worshipped by different sections of the
Hindus. ·
c
The development of Hindu religion and philosophy
shows that from time to time saints and religious
reformers attempted to remove from the Hindu thought
and practices elements of corruption and superstition
and that led to the formation of different sects. Buddha D
stated Buddhism; Mahavir founded Jainism; Basava
became the founderofLingayat religion, Dnyaneshwar
and Tukaram initiated the Varakari cult; Guru Nanak
inspired Sikhism; Dayananda founded Arya Sama},
and Chaitanya began Bhakti cult; and as a result of the E
teachings of Ramakrishna and Vivekananda, Hindu
religion flowered into its most attractive, progressive and
dynamic form. If we study the teachings of these saints
and religious reformers, we would notice an amount of F
divergence in their respective views; but underneath
that divergence, there is a kind of subtle indescribable
unity which keeps them within the sweep of the broad
and progressive Hindu religion.
Tilak faced this complex and difficult problem of defining G
or at least describing adequately Hindu religion and
he evolved a working formula which may be regarded
as fairly adequate and satisfactory. Said Tilak :
"Acceptance of the Vedas with reverence; recognition H
1138 SUPREME COURT REPORTS (2015] 11 S.C.R.
A of the fact that the means or ways to salvation are
diverse and realisation of the truth that the number of
gods to be worshipped is large, that indeed is the
distinguishing feature of Hindu religion. This definition
brings out succinctly the broad distinctive features of
B Hindu religion. It is somewhat remarkable that this broad
sweep of Hindu religion has been eloquently described
by Toynbee. Says Toynbee : "When we pass from the
plane of social practice to the plane of intellectual
outlook, Hinduism too comes out well by comparison
c with the religions an ideologies of the South-West Asian
group. In contrast to these Hinduism has the "same
outlook as the pre-Christian and pre-Muslim religions
and philosophies of the We stem half of the old world.
Like them, Hinduism takes it for granted that there is
D
more than one valid approach t~ truth and to salvation
and that these different approaches are not only
compatible with each other, but are complementary".
28. The fact that reference to Hindus in the Constitution
E includes persons professing the Sikh, Jain and Buddhist
religions and the statutory enactments like Hindu Marriage Act,
Hindu Succession Act etc. also embraces Sikhs, Jains and
Buddhists within the ambit of the said enactments is another
F significant fact that was highlighted and needs to be specially
taken note of.
29. What is sought to be emphasized is that all the above
would show the wide expanse of beliefs, thoughts and forms
of worship that Hinduism encompasses without any divergence
G or friction within itself or amongst its adherents. It is in the
backdrop of the above response to the question posed earlier
"what is Hinduism"? that we have to proceed further in the
matter.
H 30. Image worship is a predominant feature of Hindu
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1139
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
religion. The origins of image worship is interesting and a A
learned discourse on the subject is available in a century old
judgment of the Madras High Court in Gopala Mooppanar
and Others Vs. Subramania Iyer and others 5 . In the said
report the learned Judge (SadasivaAiyar, J.) on the basis of
accepted texts and a study thereof had found that in the "first B
stage" of existence of mankind God was worshiped as
immanent in the heart of everything and worship consisted
solely in service to ones fellow creatures. In the second age,
the spirit of u1•iversal brotherhood has lost its initial efficacy
and notions of inferiority and superiority amongst men surfaced C
leading to a situation where the inferior man was asked to
worship the superior man who was considered as a
manifestation of God. Disputes arose about the relative
superiority and inferiority which was resolved by the wise sages D
by introducing image worship to enable all men to worship
God without squabbles about their relative superiorities. With
passage of time there emerged Rules regulating worship in
temples which came to be laid down in the treatises known as
Agamas and the Thantras. Specifically in Gopala Moopanar E
(supra), it was noticed that the Agamas prescribed rules as
regards "what caused pollution to a temple and as regards
the ceremonies for removing pollution when caused." In the
said judgment it is further mentioned that, "There are, it is well
known Thanthries in Malabar who are specialists in these F
matters of pollution. As the temple priests have got the
special saivite initiation or dheeksha which entitles them to
touch the inner most image, and as the touch of the persons
·who have got no such initiation. even though they be
Brahmins. was supposed to pollute the image. even G
Brahmins other than the temple priest were in many temples
not allowed to go into the garbhagraham. The Ag a mas also
contain other prescriptions including who is entitled to worship
s AIR 1915 Madras 363 H
1140 SUPREME COURT REPORTS [2015] 11 S.C.R.
A from which portion of the temple. In one of the Agamas it is
said (as freely translated) thus: "Saivite Brahmin priests are
entitled to worship in the anthrala portion. Brahmins learned
in the Vedas are entitled to worship in the arthamantapa, other
Brahmins in the front Mantapa, Kings and Vaisyas in the
B dwaramantapa, initiated Sudras in the Bahir Mantapa" and
so on." The legal effect of the above prescriptions need not
detain us and it is the portion underlined which is of particular
importance as the discussions that follow would reveal.
C -31. The Ecclesiastical jurisprudence in India, sans any
specific Ecclesiastical jurisdiction, revolves around the
exposition of the constitutional guarantees under Articles 25
and 26 as made from time to time. The development of this
branch of jurisprudence primarily arises out of claimed rights
D of religious groups and denominations to complete autonomy
and the prerogative of exclusive determination of essential
religious practices and principles on the bedrock of the
constitutional guarantees under Articles 25 and 25 of the
Constitution and the judicial understanding of the inter-play
E between Article 25(2)(b) and 26(b) of the Constitution in the
context of such claims. In The Commissioner, Hindu
Religious Endowments, Madras Vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt6 (Shirur Mutt) while
F dealing with the issue of autonomy of a religious denomination
to determine what rights and ceremonies are essential
according to the tenets of its religion it has been stated that-
"Under article ?B(b), therefore a religious denomination
or organization enjoys complete autonomy in the matter
G of 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
H 6 1954 SCR 1005
•
ADI SAIVASIVACHARIYARGAL NALA SANGAM v. 1141
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
•
interfere with their decision in such matters." - (Page A
1028)
32. Besides the above, recognition of the aforesaid
principle is also to be found in the fact that in Shirur Mutt
(supra), though the eventual conclusion of the Court upholds B
the validity of the Act (Madras Hindu Religious and Charitable
EndowmentsAct, 1951) certain specific provisions i.e. Section
21 which empowered the Commissioner and his subordinates
to enter the premises of any religious institution at any time for
performance of duties enjoined under the Act has been struck C
down indicating consistency with the principle extracted above ..
The relevant of the report (page 1030/31) will require a specific
notice and therefore is extracted below.
'We agree, however, with the High Court in the view taken .o
by it about section 21. This section empowers
the Commissioner and his subordinate officers and
also persons authorised by them to enter the premises
of any religious institution or place of worship for the·
purpose of exercising any power conferred or any duty E
imposed by or under the Act. It is well known that there
could be no such thing as an unregulated and
unrestricted right of entry in a public temple or
other religious institution, for persons ·who. are not
connected with the spiritual functions thereof. It is a F
traditional custom universally observed not to allow
access to any outsider to the partic·u1arly sacred parts
of a temple as for example, the place where the deity is
located. There are also fixed hours of worship and rest
for the idol when no disturbance by any member of the G
public is allowed. Section 21, itis to be noted, does not
confine the right of entry to the outer portion of the
premises; it does not even exclude the inner sanctuary
"the Holy of Holies" as it is said, the sanctity of which is H
1142 SUPREME COURT REPORTS [2015) 11 S.C.R.
•
A zealously preserved. It does not say that the entry may
be made after due notice to the head of the institution
and at such hours which would not interfere with the due
observance of the rites and ceremonies in the institution.
We think that as the section stands, it interferes with the
B fundamental rights of the Mathadhipati and the
denomination of which he is head guaranteed under
articles 25 and 26 of th~ Constitution. Our attention has
been drawn in this connection to section 91 of the Act
which, it fs said, provides a sufficient safeguard against
c anyabuseofpowerundersection 21. We cannot agree
with this contention. Clause (a) of section 91 excepts
from the saving clause all express provisions of the Act
within which the provision of section 21 would have to
be included. Clause (b) again does not say anything
D
about custom or usage obtaining in an institution and it
does not indicate by whom and in what manner the
question of interference with the religious and spiritual
functions of the Math would be decided in case of any
E dispute arising regarding it. In out opinion,
section 21 has been rightly held to be invalid." - (Page
1030131)
33. The decision of this Court in Sri Venkataramana
F Devaru and Others Vs. State of Mysore and others' may
now be considered. In the said case this Court was called
upon to answer as to whether Section 3 of the Madras Temple
Entry Authorization Act violated the guarantee under Article
26(b) insofar as Gaura Saraswati Brahmins are concerned
G by making· provisi.ons to the effect that Shri Venkataramana
Temple at Moolky was to be open to all excluded classes of
Hindus. It was the contention of the aforesaid sect that the
temple in question was founded for the exclusive use and
H 'AIR 1958 SC 255
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1143
GOVERNMENT OFT. N. [RANJAN GOGOi, J.)
benefit of Gaura Saraswati Brahmins. This Court in its report A
elaborately discussed the practice of idol/image worship;
regulation thereo"f by the Agamas and the efficacy and
enforceability of such Ag a mas. Paras 17 and 18 of the Report
which deals with the above aspect may be usefully extracted
~~ B
"17. The Gods have distinct forms ascribed to them and
their worship at home and in temples is ordained as
certain means of attaining salvation. These injunctions
have had such a powerful hold over the minds of the C
people that daily worship of the deity in temple came to
be regarded as one of the obligatory duties of a Hindu.
It was during this period that temples were constructed
all over the country dedicated to Vishnu, Rudra, Devi,
Skanda, Ganesha and so forth, and worship in the D
temple can be said to have become the practical
religion of all sections of the Hindus ever since. With
the growth in importance of temples and of worship
therein, more and more attention came to be devoted
to the ceremonial law relating to the construction of E
temples, installation of idols therein and conduct of
worship of the deity, and numerous are the treatises that
came to be written for its exposition. These are known ·
as Agamas, and there are as many as 28 of them F
relating to the Saiva temples, the most important of
them being the Kamikagama, the Karanagama and the
Suprabedagama, while the Vikhanasa and the
Pancharatra are the chief Agamas of the Vaishnavas.
These Agamas, contain elaborate rules as to how the G
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. The following
passage from the judgment of Sadasiva Aiyar J. in H
1144 SUPREME COURT REPORTS [2015] 11 S.C.R.
A Gopala Muppanar v. Subramania Aiyar: (1914) 27 MLJ
253, gives a summary of the prescription contained in
one of the Agamas :
"In the Nirvachanapaddhathi it is said that Sivadwijas
B should worship in the Garbargriham, Brahmins from the
ante chamber or Sabah Mantabam, Kshatriyas, Vysias
and Sudras from the Mahamantabham, the dancer and
the musician from the Nrithamantabham east of the
Mahamantabham and that castes yet lower in scale
C should content themselves with the sight of the
Gopuram."
The other Agamas also contain similar rules."
18. According to the Agamas, an image becomes
D
defiled if there is any departure or violation of any of
the rules relating to worship, and purificatory ceremonies
(known as Samprokshana) have to be performed for
restoring the sanctity of the shrine. Vide judgment of
E Sadasiva Aiyar J. in Gopala Muppanar v. Subramania
Aiyar (supra). In Sankaralinga Nadan v. Raja
Rajeswara Dorai, it was held by the Privy Council
affirming the judgment of the Madras High Court that a
trustee who agreed to admit into the temple persons
F who were not entitled to worship therein, according to
the Agamas and the custom of the temple was guilty of
breach of trust. Thus, under the ceremonial law
pertaining to temples, who are entitled to enter into them
for worship and where they are entitled to stand and
G worship and how the worship is to be conducted are all
matters of religion. The conclusion is also implicit in
Art. 25 which after declaring that all persons are
entitled freely to profess, practice and propagate
religion, enacts that this should not affect the
H operation of any Jaw throwing open Hindu religious
ADI SAIVASIVACHARIYARGAL NALASANGAM v. 1145
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
institutions of a public character to all classes and A
sections of Hindus. We have dealt with this question
· at some length in view of the argument of the
learned Solicitor-General that exclusion ofpersons
from temple has not been shown to be a matter of
religion with reference to the tenets of Hinduism. B
We must accordingly hold that if the rights of the
appellants have to be determined solely with
reference to Art. 26(b), thens. 3, of Act Vof 1947,
should be held to be bad as infringing it."
c
Eventually, this Court went on to hold that the provisions
of Article 26(b) are also subject to those contained in Article
25(2)(b) arfd accordingly dismissed the plea set up by the
Gaura Saraswati Brahmins in the suit out of which the
proceedings arose. D
34. The explicit reiteration of the Court's power to decide
on what constitutes an essential religious practice in Sri
Venkataramana Dev.aru (supra) again found manifestation
in Durgah Committee, Ajmer and another Vs. Syed E
Hussain Ali and others 8 • Gajendragadkar, J. (as His
Lordship then was) was of the view,
" ....... that in order that the practices in question should
be treated as a part of religion they must be regarded F
by the said religion as its essential arid integral part;
otherwise even purely secular practices which aie not
an essential or an integral part of religion are apt to be
clothed with a religious form and m?Y make a claim for
being treated as religious practices within the meaning G
of Article 26. Similarly, even practices though religious
may have sprung from merely superstitious beliefs and
may in that sense be extraneous and unessential
' AIR 1961 SC 1402 H
1146 SUPREME COURT REPORTS [2015) 11 S.C.R.
A accretions to religion itself Unless such practices are
found to constitute an essential and integral part of a
religion their claim for the protection unde.r Article 26
may have to be carefully scrutinised; in other words,
the protection must be confined to such religious
B practices as are an essential and an integral part of it
and no other."
35. Almost half a century later, we find a reiteration of the
same view in the majority judgment rendered in
C Commissioner of Police and Others Vs. Acharya
Jagadishwarananda Avadhuta and Another'l though the
minority view in the said case preferred to take a contrary
opinion relying, interalia, on ShirurMutt(supra) and Jesse
Cantwell Vs. State of Connecticut10 and United States
D Vs. Ballard''· Para 57 of the minority opinion containing the
discordant note would be worthy of reproduction.
"57. The exercise of the freedom to act and practise in
pursuance of religious beliefs is as much important as
E the freedom of believing in a religion. In fact to persons
believing in religious faith, there are some forms of
practising the religion by outward actions which are as
much part of religion as the faith itself The freedom to
act and practise can be subject to regulations. In our
F Constitution, subject to public order, health and morality
and to other provisions in Part Ill of the Constitution.
However, in evefY case the power of regulation must be
so exercised with the consciousness that the subject of
regulation is ff.le fundamental right of religion, and as
G not to unduly infringe the protection given by the
Constitution. Further. in the exercise of the power to
• (2004) 12 sec no
"84 L Ed 1.213: 310 US 296 (1939)
H "88 L Ed 1148: 322 US 78 (1943)
ADI SAIVASIVACHARIYARGAL NALA SANGAM v. 1147
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
regulate. the authorities cannot sit in judgment over the A
professed views of the adherents of the religion and to
determine whether the practice is warranted by the
religion or not. That is not their function. (See Jesse
Cantwell v. State of Connecticut, L Ed at pp. 1213-1218,
United States v. Ballard, L Ed at pp. 1153, 1154.)" B
36. That the freedom of religion under Articles 25 and 26
of the Constitution is not only confined to beliefs but extends to
religious practices also would hardly require reiteration. Right
of belief and practice is guaranteed by Article 25 subject to C
public order, morality and health and other provisions of Part-
111 of the Constitution. Sub-Article (2) is an exception and
makes the right guaranteed by Sub-article (1) subject to any
existing law or to such law as may be enacted to, inter alia,
provide for social welfare and reforms or throwing or proposing D
to throw open Hindu religious institutions of a public character
to all classes and sections of Hindus. Article 26(b) on the other
hand guarantees to every religious denomination or section
full freedom to manage its own affairs insofar as matters of
religion are concerned, subject.once again, to public order, E
morality and health and as held by this Court subject to such
laws as may be made under Article 25(2)(b). The rights
guaranteed by Articles 25 and 26, therefore, are circumscribed
and are to be enjoyed within constitutionally permissible F
parameters. Often occasions will arise when it may become.
necessary to determine whether a belief or a practice claimed
and asserted is a fundamental part of the religious practice of
a group or denomination making such a claim before
embarking upon the required adjudication. A decision on such G
claims becomes the duty of the Constitutional Court. It is neither
an easy nor an enviable task that the courts are called to
perform.Performance of such tasks is notenjoined in the court
by virtue of any ecclesiastical jurisdiction conferred on it but in
view of its role as the Constitutional arbiter. Any apprehension H
1148 SUPREME COURT REPORTS . [2015] 11 S.C.R
A that the determination by the court of an essential religious
practice itself negatives the freedoms guaranteed by Articles
25 and 26 will have to be dispelled on the touchstone of
constitutional necessity. Without such a determination there
can be no effective adjudication whether the claimed right it is
B in conformity with public order, morality and health and in
accord with the undisputable and unquestionable notions of
social welfare and reforms. A just balance can always be made
by holding that the exercise of judicial power to determine
essential religious pr<!ctices, though always available being
C an inherent power to protect the guarantees under Articles 25
and 26, the exercise thereof must always be restricted and
restrained.
37. Article16(5) which has virtually gone unnoticed till date
D and, therefore, may now be seen is in the following terms:
"16(5) - Nothing in this Article shall affect the operation
of any law which provides that an incumbent of an office
in connection with the affairs of any religious or
E denominational institution or any member of the
governing body thereof shall be a person professing a
particular religion or belonging to a particular
denomination."
F 38. A plain reading of the aforesaid provision i.e. Article
16(5), fortified by the debates that had taken place in the
Constituent Assembly, according to us, protects the
appointment of Archakas from a particular denomination, if so
required to be made, by the Agamas holding the field. The
G debates in the ConstituentAssembly referred to discloses that
the suggestion that the operation of Article 16(5) should be
restricted to appointment in offices connected with
administration of a religious institution was negatived. The
exception in Article 16(5), therefore, would cover an office in a
H temple which also requires performance of religious functions.
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1149
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
In fact, the above though not expressly stated could be one of A
the basis for the views expressed by the Constitution Bench in
Sheshammal (supra).
39. The preceding discussion indicates the gravity of the
issues arising and the perc~ptible magnitude of the impact B
thereof on Hindu Society. It would be, therefore, incorrect, if
not self defeating, to take too pedantic an approach at
resolution either by holding the principle of res judicata or locus
to bar an adjudication on merits or to strike down the impugned
G 0. as an executive fiat that does ncit have legislative approval, C
made explicit by the fact that though what has been brought by
the G 0. dated 23. 05.2006 was also. sought to be incorporated
in the statute by the Ordinance, eventually, the amending Bill
presented before the legislature specifically omitted the
aforesaid inclusion. The significance of the aforesaid fact, D
however, cannot be underestimated. What is sought to be
emphasized is that the same, by itself, cannot be determinative
of the invalidity of the G 0. which will have to be tested on certain
other premises and foundation treating the same to be an
instance of exercise of executive power in an area not covered E
by any specific law.
40. The issue of untouchability raised on the anvil of
Article 17 of the Constitution stands at the extreme opposite
end of the pendulum. Article 17 of the Constitution strikes at F
caste based practices built on superstitions and beliefs that
have no rationale or logic. The exposition of the Agamas made
a Century back by the Madras High Court in Gopala Moopnar
(supra) that exclusion from the sanctum sanctorum and duties
of performance of poojas extends even to Brahmins is G
significant. The prescription with regard to the exclusion of
even Brahmins in Gopala Moopnar(supra) has been echoed
in the opinion of Sri Parthasarthy Bhattacharya as noted by
the Constitution Bench in Seshammal (supra). Such exclusion H
1150 SUPREME COURT REPORTS [2015] 11 S.C.R.
A is not on the basis of caste, birth or pedigree. The provisions
of Article 17 and the Protection of Civil Rights Act, 1955,
therefore, would not be of much significance for the present
case. Similarly, the 'offer' of the state in its affidavit to appoint
Shaivite as Archakas in Shiva temples and Vaishnavas in
B Vaishanvite Temples is too narve an understanding of a
denomination which is, to say the least, a far more sharply
indentified subgroup both in case of shaivite and vaishanvite
followers. However, what cannot be ignored is the 'admission'
inbuilt in the said offer resulting in some flexibility in the
C impugned G. 0. that the state itself has acknowledged.
41. Sheshammal (supra) is not an authority for any
proposition as to what an Agama or a set ofAg amas governing
a particular or group of temples lay down with regard to the
D question that confronts the court, namely, whether any particular
denomination of worshippers or believers have an exclusive
right to be appointed asArchakas to perform the poojas. Much
less, has the judgment taken note of the particular class or
caste_ to which the Archakas of a temple must belong as
E prescribed by the Agamas. All that it does and says is that
some oftheAgamas do incorporate a fundamental religious
belief of the necessity of performance of the Poojas by
Archakas belonging to a particular and distinct secUgroup/
F denomination, failing which, there will be defilement of deity
requiring purification ceremonies. Surely, if the Agamas in
question do not proscribe any group of citizens from being
appointed as Archakas on the basis of caste or class the
sanctity of Article 17 or any other provision of Part Ill of the
G Constitution or even the Protection of Civil Rights Act, 1955
will not be violated. What has been said in Sheshammal
(supra) is that if any prescription with regard to appointment of
Archakas is made by the Agamas, Section 28 of the Tamil
Nadu Act mandates the Trustee to conduct the temple affairs
H in accordance with such custom or usage. The requirement of
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1151
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
Constitutional conformity is inbuilt and if a custom or usage is A
outside the protective umbrella afforded and envisaged by
Articles 25 and 26, the law would certainly take its own course.
The constitutional legitimacy, naturally, must supersede all
religious beliefs or practices.
B
42. The difficulty lies not in understanding or restating
the constitutional values, There is not an iota of doubt on what
they are. But to determine whether a claim of state action in
furtherance thereof overrides _the constitutional guarantees
under Article 25 and 26 may often involve what has already C
been-referred to as a delicate and unenviable tasl< of iaentifying
essential religious beliefs and practices, sans which the
religion itself does not survive. It is in the performance of this
task that the absence of any exclusive ecclesiastical jurisdiction
of this Court, if not other shortcomings and adequacies, that D
can be felt. Moreover, there is some amount of uncertainty with
regard to the prescription contained in theAgamas. Coupled
with the above is the lack of easy availability of established
works and the ·declining n~mbers of acknowledged and
undisputed scholars on the subject. In such a situation one is E
reminded of the observations, if not the caution note struck by
Mukherjea, J. in ShirurMutt (supra) with regard to complete
autonomy of a denomination to decide a.> to what constitutes
an .essential. religious practice, a view that has also been F
subsequently echoed by this Court though as a "minority view".·
But we must hasten to clarify that no such view of the Court
can be understood to an indication of any bar to judicial
determination of the issue as and when it arises. Any contrary
opinion would go rise to large scale conflicts of claims and. G
usages as to what is an essential religious practice with no
acceptable or adequate forum for resolution. That apart the
"complete autonomy" contemplated in Shirur Mutt (supra) and
the meaning of "outside authority" must not be torn out of the
context in which the views, already extracted, came to be H
1152 SUPREME COURT REPORTS [2015] 11 S.C.R.
A recorded (page 1028). The exclusion of all "outside authorities"
from deciding what is an essential religion practice must be
viewed in the context of the limited role of the State in matters
relating to religious freedom as envisaged by Articles 25 and
26 itself and not of the Courts as the arbiter of Constitutional
B rights and principles.
43. What then is the eventual result? The answer defies
a straight forward resolution and it is the considered view of
the court that the validity or otherwise of the impugned G.O.
C would depend on the facts of each case of appointment. What
is found and l'!eld to be prescribed by one particular or a set of
Agamas for a solitary or a group of temples, as may be, would
be determinative of the issue. In this regard it will be necessary
to re-emphasise what has been already stated with regard to
D the purport and effect ofArticle 16(5) of the Constitution, namely,
that the exclusion of some and inclusion of a particular segment
or denomination for appointment asArchakas would not violate
Article 14 so long such inclusion/exclusion is not based on the
criteria of caste, birth or any other constitutionally unacceptable
.E
parameter. So long as the prescription(s) under a particular
Agama orAgamas is not contrary to any constitutional mandate
as discussed above, the impugned GO. dated 23.05.2006 by
its blanket fiat to the effect that, "Any person who is a Hindu
F and possessing the requisite qualification and training can
be appointed as a Archaka in Hindu temples" has the
potential of falling foul of the dictum laid down in Seshammal
(supra). A determination of the contours of a claimed custom
or usage would be imperative and it is in that light that the
G validity of the impugned GO. dated 23.05.2006 will have to be
decided in each case of appointment of Archakas whenever
and wherever the issue is raised. The necessity of seeking
specific judicial verdicts in the future is inevitable and
unavoidable; the contours of the present case and the issues
H arising being what has been discussed.
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. 1153
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
44. Consequently and in the light of the aforesaid A
discussion, we dispose of all the writ petitions in terms of our
findings, observations and directions above reiterating that as
held in Seshammal (supra) appointments of Archakas will
have to be ma<;113 in accordance with the Agamas, subject to
their due identification as well as their conformity with the B
· Constitutional mandates and principles as discussed above.
Nidhi Jain Writ petitions disposed of..
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