SESHAMMAL & ORS. ETC, ETC.
y. STATE OF TAMIL NADU March 14, 1972
[S. M. Sikri, C.J., A. N. Grover, A, N. AND M. H. Bec, nye D: G. PaLEKAR
The Tamil Nadu Hindu Religious and 7 (Tamil Nadu 12 of 1959) as amended be Armen ae momante Act 55, 56 and 116—Hereditary right Of succession to afin a faire abolished—If violative of Arts, 25 and 26 of Constitution, rchaka
Section 55 of the Tamil Nadu Hindu Religious i dowments Act, 1959, gave the trustee of a some Fg a pa = the office holders or servants of the temple and also provided that where the office or service is hereditary, the person next in the line of succession shal} be entitled to succeed. In only exceptional cases the trustee was entitled to depart from the principle of next-in-the line Of succession, but even 60, the trustes was under an obligation to appoint a fit person to aig the service after having due regard“to the claims of the mem- rs of the family. Section 116(2) (xxiii) of the Act gave power to the Government to make rules providing for the qualifications to bo a egecsee by the officers and servants and their conditions of service, e State Government framed the Madras Hindu Religious Jastitutioas (Officers and Servants) Service Rules, 1964. Rule 12 provided that an Archaka, whether hereditary or non-hereditary whose duty it is to perform Pujas, shall, before succeeding to the office or appointment to the office, obtain a certificate of fitness tor performing the duties of his office from pee ef an jnstitution imparting instructions in Agamas or from the of g@ math recognised by the Commissioner or from such other person a3 may be designated by the Commissioner.
The Act was amended by the Amending Act of 1970. The Ameading Act did away with the hereditary tight of succession to the office of .Archaka. The petitioners who were Archakas of Snaivite and bi soytn temples and Mathadhipatis to whose Maths temples are attached file: petitions in this Court contending that the amendments violated Arts. 2 and 26 of the Constitution.
Dismissing the petitions,
; Copstiotiog
HELD: The protection of Arts. 25 and. 26 of the ’ is not Todt mattees of doctrine or belief; they extend pice tag done in pursuance of religion and therefore contain @ cee What Tituals anJj observances etc. which are the integral parts of 0 oes i> be constitutes an gssential part of a religion or religous ey OOS ar decided by the Courts with reference to the i Bites Ete a religion Including practices which are regarded by ; Part of its refigion. {827 B-Dj
Bardar Syedna Taher Salfuddin Baheb ¥. The Stare of
Bupp. 2 8.C.R. 496, referred to.
: j Avstiakas
2) With the gatublishment of femedas and he Insitulon Of Se io Use temples, treatises on rituals were cOmPLES TN pinpers aad yiwale have a two fold aspect, to setact
Bombay, [1962]
é > nm
B16 : ity from pollution, defilement or desecray; reserve the 10a a epee Be place in @ variety of ways and according Pollution or desecrar ge becomes defiled if there is any departure op to the Agamas, an ima ting to worship. Further, in all the temples ip violation of tis HS Pied the Agamas insisted i only the qualified which pe all step inside the sanctum sanctorum after observing certain Archaka imposed th: Agamas. Hence the Archaka of such a tem. discipline’ | eine proficient in the rituals appropriate to the Worship of ple, "rticular Deity, must also belong to a particular denomination; be. the p in ‘Archaka of,'a different denomination would defile the image paged touch. [825 F-H; 826 E-G]
amana Devaru v. The State of Mysore, 11958] S.C,R, ost te telnet Peria Kovil Kelvi Appean Thiruvenkata Ramanuja Pedda Jiyyangerlu Varlu v. Prathivathi Bhayankarart Venkatacharlu, 73 LA. 156 and Mohan Lalji v. Gordhan Lalji Maharaj, 35 Allababad P.C, 283, referred to,
3) The heredit rinciple in the appointment of an Archaka had sae Sisened and se ges from antiquity and had also been fully recognised in the unamended s. 55. But the change effected by the amend ment to s. 55, namely, the abolition of the principle of next-in-the-line of succession is however, not invalid, because, the usage is a stcular and not a religious usage. [833 A-C}
(a) An archaka has never been regarded as a spiritual head however accomplishéd and well-versed in the agamas and rituals he may be. He is a scrvant of the temple subject to the discipline and control of the trustee as recognised by the unamended s. 56 of the Act. That being his position the act of his appdintment by the trustee is essentially secular, though after appointment performs some religious functions. That after his appoinunent he performs worship is no ground for holding that his appointment is either a religious practice or a matter of religion. He owes his appointment to a secular authority. Any lay founder of a temple may appoint him and the Shebaits and Managers of temples Poe an Ege meng secular function in chovsing and appointing the followed In 2 ice that in some temples the hereditary principle ws ing the appointment ive ap pointments anything but secular, 132 AG) saint
K, Seshadri Kall Krishna ‘Ray WA Ranga Bhattar, 1.L.R. 35 Mad. 631,
N ? Lal Mookerjee, 1.L.R. 50 Cal. -233; (Une ayarotamdas Vv, Trimbak Balenut Uhaiplone, (1878-80) Vol. 4 Maharance Indurjeep Keer ne, the Bombay High ‘Court p. 169) and fea oer v. Chundemun. Misser, XVI Weekly Reporte?
us an Archaka so Ion h sensed 3 fitness cafti: Ang oe unqualified power, because the power bad the trustee to admin; fo the Act which controlfad it Sectioa 28 directs trust or ees the affairs of the templs in accordince with - the Archaka awill hey 82 of the institution, Therefore, the appoimtmest © oup in accordance keg inde from the apecified denoeaination, $6 os 4 n re . eTniv. 3 the matter of apport mended §, $5(2), the chase of tbe tasee 2 Operation of nextin.jing typ Of 8 archaka is no longer limited by of succession in temples where the usu2? -
SESHAMMAL y. TAMIL NADU (Palekar, J.) 817 to appoint the Archaka on the hereditary principle. To that extent the trustee is released from the obligation imposed on him by s. 28 to ad~° minister the affairs in accordance with that ‘part of the usage of a temple which. enjoined hereditary appointments.. But the legislation in this fact does not interfere with any religious practice. [832 H-833 qj c
(4) The other changes effected in the other provisions of the Act are merely consequential, and therefore, the Amendment Act as B whole must be regarded as valid. [833 F]
(5) The rule-making power is conferred by s. 116 on the. Gover ment with a view to carry out the purposes of the Act which are casentially secylar. The Act nowhere gives the indication that one of its purposes is to effect a change in the rituals and céremonies followed in the temples. Section 105 “and 107, on the contrary, emphasize that there aball not be any contravention of the rights’ conferred on any religious denominations of any section thereof, by Art. 26 of the Constitution. Rule 12 still holds the field-and there’ is no reason to think thatthe State Government would frame rules to revoluiionise temple worship by introducing methods of worship not current in the several temples. If any such rule is framed by Government. which purports to interfere with the Htosle and ceremonies of the temples, it will be liable to be challenged by those who are interested in the temple worship. [834 C-G]
_ ORIGINAL JURISDICTION: Writ Petitions Nos. 13, 14, 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444 of 1971.
Under Article 32 of: the Constitution of India for. the enforce-. ment of the Fundamental Rights,
R. Gopalakrishnan, for the petitioners (in W-Ps. Nos. 13 and 14 of 1971).
K. Parasaran and K, Jayaram, tor. the petitioners (in WP. No. 70 of 1971).
M. Natesan and K. Jayaram, for the petitioners in (W.P. No. . 83 of 1971).
-K. Parasayan and M. S. Narasimhan, for the petitioners (in WP. ‘No, 437 of of 1971).
- OW: 6 Ramchandran and M. S. Narasimhan, for the petitioners, (in W.P, Nos. 438 andi 444-of 1971).
_ | M. Natesan and M. S- Narasimhan, for the petitioners (in Ws. Nos, 439 and 443 of 1971).
S, Annadurai Ayyangar and M, S, Narasimhan, for the al ' toners (in W.P. No. 441 of 1971).
‘N. A. Palkhiwala, A. J. Rana and M. S. Norasimhen; for the wiitovers (in W.P, No, 442 of 1971).
wie 8. Narasimhan; for the ‘petitioner « (in WP. No. 440 ‘of any
818 SUPREME COURT REPORTS [972] 3 S.C.R.
S: Govind Swaminadhan, Advotate-Général for the State of Tamil Nadu, S$. Mohan, N.S. Sivan ahd A. V. Rargami, fot the résporident (ini all the pétitions),
The Judginent of the Court was delivered by
Palekar, J. In these 12 petitions under Article 32 of the Constitution filed by the hereditary Archakas and Mathadhipatis of some ancient Hindu Public temples in Tamil Nadu the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 (heteiiafter referred to as the Admendment Act, 1970) is called in question, principally, on the ground that it violatés theit freedom of religion secured to them under Articles 25 and 26 of the Constitution. The validity of the Amendinent Act had been also impugned of the ground that it interfered with céttdin other fundahental rights of the petitioners but that case was not pressed at the time of the hearing.
The temples with which we aré concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, 83, 437, 438, 439, 440, 441, 442, 443 ani 444/71 are filed by the Archakas and Writ Petitions 13. and 14/1971 are filed By the Mathadhipatis to whose Math some temples are attached. As, comition questions wére itvolved in all these petitions, atguinents ‘were addressed principally in Writ Petitions 13/1971 and 442/ 1971, and we are assured by counsel for both sides thet they cover the points involved in all the other petitions.
_ The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu Religious and Chatitable Endowments Act, 1959 being (Tamil Nadu Act XXII of 1959) hereinafter referred to as the Prificipal Act. It came into force on December 2, 1959, It was an Act to amend and consolidate the law relating to thé administration and governance of Hindu Religious and Charitable liistittitionis atid Endowments in thé State of Tamil Nadu. It applied to ali Hindu religious public institutions and endowments in the State of Tamil Nadu did repealed severil Acts which ‘had previously governed the administration of Hindu Public Religious Institutions. It is sufficient to say here that the provisions of the Principal Act applied to the temples in the present petitions and the petitioners have no complaint against any of its provisions.
Section 55 of that Act provided for the appointmont of. offieeholders and servants in such temples and section 56 provided for the punisbrhent of ffids-lolders 4nd servants, Sdction 55, broadly speaking, gave the trusteé of the temple the power to appoint the office-holders or servants of the temple and also provided that Wheré the office Or sérVicé ts hérédifary the person next in the line of succession shall be entitled to succeed. In. only
SESHAMMAL v. TAMIL NADU (Palekar, J.) - 819 exceptional cases the trustee was entitled to depart from the principles of next-in-the-line of succession, but even so, the trustee was woder an obligation to appoint a fit person to perform the functions of the office or perform the service after having due regard to the claims of the members of the family.
Power to make rules was given to Government by section 116 (2) (xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary. servants for succession to office and the conditions of service of all such officers and servants. Under this rule making power the State Government made the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Under these rules an Archak or Pujari of the deity came under the definition of ‘Ulthurai.servant’. ‘Ulthurai servant’ is defined as a servant whose duties relate mainly to the performance of rendering assistance in the performance of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, thevarams and similar invocations and the performance of duties connected with such performance of recitation. Rule 12 provided that every ‘ulthurai servant’, whether hereditary or non-hereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams, thevarams and other invocations shall, befote suicceeding, Or Appointment to an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by gerteral or special order or from the head of a math recognised by the Commissioner, by genetal or special ordet, or stich other person as may be designated by the Commissioner, frot tithe to time, for the purpose. By this ile the proper worship in the temple was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise provided in section 106 and in clause (2) of Atticle 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the Tights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimination in the matter of distribution of prasadam or theertham to the Hindu worshippers. That was a reform in the right direction atid there is no challenge fo it. The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the femples.
‘The Prltcipal Act of 1959 was amietided in certain respects by the Amendment Act of 1970 which came ittto force on ress re made to sections 55, 56 and 116 of 8, 1971. Ament cone consequential provisions were made the Principal 40 oe adments. The Amendment Act was enacted in view of th ‘al reform on the recommendation of the as a ap tora toucbability, Economic and Educational -Deve- led Castes. The Statement of Objects and eens nich Se ata in the counter-affidavit filed on be- half of the State of Tamii Nadu is as follows :
“ 1969 the Committee on Untouchability ee ee ath Educational Development of the Scheduled Castes has suggested in its report that the hereditary priesthood in the Hindu Society should be abolished, that the system can be replaced -by an ecclesiastical organisation of men possessing the requisite educational qualifications who may be trained in recognised institutions in priesthood and that the line should be open to all candidates irrespective of caste, creed or race. In Tamil Nadu Archakas, Gurukkals and Poojaries are all Ulthurai servants in Hindu temples. The duties of Ulthurai servants relate mainly to the performance of poojas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, thevarams and similar invocations and the performance: of duties connected with such performance and recitations. Sections 55 and 56 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) provide for appointment e office holders and servants in the religious institutions ie by applying the rule of hereditary succes-
» AS a step towards social reform Hindu temples of — ai is thrown open to all Hindus irrespective.
temples should be pe am nil hed and ac ordin roposed to on eat Charicbe ce 116 of the Tent Nadu Hindu Reli- XXIL of 1959), © ~“Ndowments Act, 1959 (Tamil Nadu Act
.. it is the com lai Introduce social Datnt of the Petitioners rportin to aad Pujaris, the Stee Matter of Pst Mag Te akas ay as really inter : : 11961} 2 SCR on, ered with the ‘peligious
SESHAMMAL y, TAMIL NADU (Palekar, J.) 821 practices of Saivite and Vaishnavite temples, and instead of introducing social reform, taken measures which would’ inevitably lead to defilement and desecration of the temples.
To appreciate the effect of the Amendment Act, it would be more convenient to set out the original sections 55, 56 and 116 of the Principal Act and the same sections as they stand after the amendment.
Unamended Section
Sec. 55
Amended Section Sec. 55
Appointment of office-holders and servants Appointment of office-holders and in religious institutions. ;
servants in religious institutions,
(1) Vacancies, whether permanent or tem- (1) Vacancies, whether permanent
(2)
G3)
porary, among the office-holders or servants of a religious institution shall ed up by the trustee in cases where the office or service is not hereditary.
In cases where the office or service (2) No is hereditary, the person next in the line of succession shalt be entitled to succeed, or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases.
Explanation; The expression ‘Office-holders or servants shalt include archakas and poojaris.’
on aball be entitled to appointment to any vacancy re fecred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office,
Where, however, there is a dispute (3) Omitted.
respecting the right of succession, or where such vacancy cannot be filled up immediately or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or— where the hereditary officeholder or servant is on account of incapacity illness or otherwise unable to perform the functions of the office or perform the service, or is suspended from his office under subsection (1) of section 56, the trustee may appoint a fit person to perform the functions of the office orperformthe service, until the disability of the office-holder ‘or servant Ceases or another person succeeds to ie Office or service, as the case may ion: Th aking any eppointpaces this subsection, the eae shall have due regard to the ame, 3 members of the family, if any, enti to the succession.
on aggrieved by an order of
@ re fre under sub-section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner,
See. 56
Punishment of office-holders and servants in religious institutions.
(1) All Office-holders and servants attached to a religious institution or in receipt of any emolument or Pprequisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee; and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for the breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause,
(2) Any office-bolder or servant punishod by a trustees under sub-section(1) may, withia one month from the date a — on podetend by him, ap- ns! tls oh order to the Deputy
Q) A hereditary Office-holder or servant my within one month from the date vd Teceipt by him of the order of the Deputy Commissioner under sub- section (2), prefer an appeal to the ner against such order,
See. 116 (xxiii)
2) Wi Without prstudice to the Benerality fi may otaee Og Power, such rules
Of (xxi) The qualifications to be ; sy cl fv by ne Onn eitary offices In religion tit utions, the Qualifications to we “a
‘ * 8i0N to office and evans for wuss vice of all Such Officers and we ot set .
(4) Any person aggrieved by an order of trustee under séction (1) may within One month from the date of receipt of the order him appeal against the order of the Deputy Commissioner,
Sec. $6
Punishment of office-holders and servants in religious institutions—
(i) All office holders and servants attached to a religious institu. tion or in receipt of any emolutent or uisite therefrom shal! be controlled by the Trustee and the trustee may after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause.
(2) Any office holder or servant punished by a trustee under subsection (1) may within one month from the date of receipt of order by him appeal against ths order to the Deputy Commissioner.
G) Omitted.
Sec. 116 (xxiii)
(axjil)
The qualificaions to be possessed by a nig CB 4 t to o nh 0) institution and the conditions of ser 3 — of all such officers and ser
[1972] 3 sor, ean dh eth
It is clear from a perusal of the above provisioris that the Amendment Act does away with the hereditary right of succession to the Office of Archaka even if the Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. it is claimed on behalf of the petitioners that as a result of the Amendment Act, their fundamental rights under Article 25(1) and Article 26(b} are violated since the effect of the amendment is as follows :
(a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications us they may choose to adopt for applicants to this religious office while the Act itself gives no indication whatever of the principles on which the qualifications should be based. The statement of Objects and Reasons which is adopted in the counter-affidavit on behalf of the State makes it clear that not only the scope but the object of the Amendment Act is to over-ride the exelusive right of the denomination to manage their own affairs in the matter of religion by appvinting Archakas: belonging to a specific denoniination for the purpose of worship.
(c} The Améndment Act gives the right of appointthént for the first time to the trustee who is under the control of the Government under the provisions of the Principal Act and this is the very negation of freedom of religion and the principle of non-interferance by the State as regards the practice of teligion and the right of a denomination to manage its own affairs in the matter of religion.
Before we turn to these questions, it will be necessary to refer to certain concepts of Hindu religious faith and practices to understand and appreciate the position in law. The temples with which we are concerned are public religious institutions estabilshed in olden times. Some of them are Saivite temples and the others are Vaishnavite teniples, which means, that in these tem- : ples God Shiva and Vishnu in their several. manifestations are wotshipped. The image of: Shiva is worshipped by his worshippers who dre called Saivites and the image of Vishnu is worshipped by his worshippers who are known as Vaishnavites. The institu-
824 SUPREME COURT REPORTS [1972] 3 8.C.1 tion of temple worship has an ancient history and, according to Dr. Kane, temples of deities had existed even in the 4th or 5th century B.C, (See : History of Dharmasastra Vol. II Part-I page 710.) With the construction of temples the institution of Archakas also came into existence, the Archakas being professional men who made their livelihood by attending on the images. Just when the cult of worship of Siva and Vishnu started and developed into two distinct cults is very difficult to say, but there can be no doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two deities. (See page 725 Supra.) With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as ‘Agamas’. The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaru-v. The State of Mysore('). Agamas are described in the last case as treatises of ceremonial law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The Agamas contain ela- _ borate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship. Where the temple was constructed as per directions of the Agamas the idol had to’be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down, for securing the continuance of the Divine Spirit. The rituals havea two-fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation
(i) [1958] S.C.R. 895, which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine [1958 S.C.R. 895 (910)]. Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the importance attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vy. Prathivathi Bhayankaram Venkatacharlu and others(*) which went up to the Privy Council. The contest was between two denominations of Vaishnava worshippers of South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple and the controversy between them involved the question as to how the invocation was to begin at the time of worship and which should be the concluding benedictary verses. This gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs, That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum sancforum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court.
The Agamas have also rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archakd in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite . temple as a lay worshipper or vice versa. What the Agamas pro- “(73 Indian Appeals 156.
hibit is his appointment as an Archakea in a temple of a different denomination. Dy. Kane has quoted the Brahmapurana on the topic of Punah-pratistha ‘(Re-consecration of images in temples) at page 904 of his History of Dharmasastra referred to above. The Brahmapurana says that “when an image is broken into two or is reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other detities or is rendered impure by the touch of outcastes and the like—in these ten contingencies, God ceases to indwell therein.” The Agamas appear to be more severe in this respect. Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, fo a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of ail 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 authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.
This Court in Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay(') has summarised the position in law as follows (pages 531 and 532).
“The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras
(1) [1962] 2 Suppl. S.C.R. 496.
SESHAMMAL Vv. TAMIL NADU (Palekar, J.) 827 v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matf(*); Mahant Jagannath Ramanuj Das v. The State of Orissa(?); Sri Venkatamona Devaru v. The State of Mysore(*); Durgah Committee, Ajmer v. Syed Hussain Ali(*) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain. a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.”
Bearing these principles in mind, we have to approach the controversy in the present case.
Section 55 of the Principal Act as it originally stood and Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 ensured, so far as temples with hereditary Archakas were concerned, that there would be no defilement of the image. By providing in sub-section (2) of section 55 that “in cases, where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed”, it ensured the personal qualification of the Archaka that he should belong to a particular sect or denomination as laid down in the Agamas. By Rule 12 it also ensured that the Archaka would be proficient in the mantras, vedas, prabandams, thevarams etc. and thus be fit for the preformance of the puja, in other words, that he would be a person sufficiently qualified for performing the rituals and ceremonies. As already shown an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and this risk is avoided by insisting that the Archaka should be an expert in the rituals and the ceremonies. By the Amendment Act the principle of next-in-the-line of succes- Sion is abolished. Indeed it was the claim made in the statement of Objects and Reasons that the hereditary principle of appointment of office-holders in the temples should be abolished and that the office of an Archaka should be thrown open to all candidates trained in recognised institutions in priesthood irrespective of caste, creed or race. The trustee, so far as the amended section
55. went, was authorized to appoint any body as an Archaka in
(1) [1954] S.C.R. 1005. (2) [1954] S.C.R. 1046, (3) [1958] S.C.R. 895,
(4) {1962} 1 S.C.R. 383.
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('). Yn that case the claimants to the temple and its worship were Brahmins and the daughter’s sons of the founder and his nearest heirs under the Hindu law. But their claim was rejected on the ground that the temple was dedicated to the sect following the principles of Vallabh Acharya in whose temples only the Gossains of that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the temple or to perform the worship. In view of the Amendment Act and its avowed object there was nothing, in the petitioners’ submission, to prevent the ‘Government from prescribing a standardized.‘ritual in all temples ignoring the Agamic requirements, and Archakas being forced on temples from donominations unauthorised by the Agamas. Since ‘such a departure, as already shown, would inevitably lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act. would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the. Constitution.
The force of the above submissions made on behalf of the petitioners. was not lost on the learned Advocate General of Tamil Nadu who appeared on behalf of the State. He, however, side tracked the issue by submitting that if we were to .consider in
(1) 35 Allahabad (P.C.) 283 at page 289.
isolation only the changes introduced in section 55 by the Amendment Act the situation as described on behalf of the, petitioners could conceivably arise. He did not also admit that he was bound by eithér the statement of Objects and Reasons or the reiteration of the same‘in the counter-affidavit filed on behalf of the State. His submission was that we have to take the Principal Act as it now stands after the amendment and see what is the truc effect of the same. He contended that the power given to the trustee under the amended section 55 was not an unqualified power becatise, in his submission, that power had to be read in the context of section 28 which controlled it. Section 28(1) provides as follows :
“Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act, 1947, the trustee of every religious institution; is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence. would deal with such affairs, funds and properties if they were his own.”
The learned Advocate General argued that the trustee was bounc under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and he would be bound to make the appointment under section 55 in accordance with the usage of appointing one from the particular denomination. There was nothing in section 55, in his’ submission, which released him from. his liability to make the appointment in accordance with the said usage. It was true that the principle of the next-in-line of succession was not binding on him when making the appointment of a new Archaka, but in his submission, that principle. is no part of the usage, the real usage being to appoint one from the denomination. Moreover the amended section, according to him, does not require the trustee to exclude in every case the hereditary principle if. a qualified successor is available and there was ho reason why the trustee should not make the appointment of the next heit, if found competent. He, however, agreed, that there was no such legal obligation on the trustee under that section. He further contended that if the next in-line-of-succession principle is regarded as a usage of any particular temple it would be merely a secular usage on which legislation was competent under Article 2§(2)(a) of the Constitution. Going further, he con- tended that if the hereditary principle was regarded as a religious 7—~1,1061Sup C1/72
830 SUPREME COURT REPORTS [1972] 3 SCR.
practice that would be also amenable to legislation under Article 25(2)(b) which permits legislation for the purpose of social welfare and reform. He invited attention to the report of the Hindu Religious Endowments Commission (1960-1962) headed by Dr. C. P. Ramaswami Aiyar and submitted that there was a’ crying need for reform in this direction since the hereditary principle of appointment of Archakas had led to grave malpractices practically destroying the sanctity of worship in various religious institutions.
We have found no. difficulty in agreeing with the learned Advocate General that section 28(1) of the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples. Failure to do so would not only be contrary to section 28(1) but would also interfere with a religious practice the inevitable result of which would be to defile the image. The question, however, remains whether the trustee, while making appointment from the specified denomination, sect or group in accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the temple. The learned Advocate-General contends that there is no such invariable usage. Jt may be that, as a matter of con- venience, an Archaka’s son being readily available to perform the — worship may have been selected for appointment as an Archaka from times immemorial. But that, in his submission, was not a.
usage. The principle of next-in-line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability. In all such cases the Atchaka was appointed from the particular. denomination, sect or group and the. worship was carried on with the help. of such a substitute. It, however, appears to us that it is now too late in the day to contend that the hereditary principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted, there can be - no doubt that the principle had been accepted from antiquity and had also been fully recognised in the unamended section 55 of the Principal Act. Sub-section (2) of section 55 provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed, and only a limited right was given under sub-section (3) to the trustee to appoint a substitute. Even in such cases the explanation to sub-section (3) provided that in making the appointment of the substitute the trustee should have due regard to the claims of the members of the family, if any, entitled to the succession. Therefore, it cannot be denied as a
SESHAMMAL V. TAMIL NADU (Palekar, J ) ) 831 hat there are several temples in Famil Nadu sppointment of an Archaka is governed by the usage deen : succession. The real question, therefore, is whether such a use should be regarded either as a secular usage or a religious usage if it is a secular usage, it ts obvious, legislation would be permis, sible under Article 25(1) (a) and if it is a religious usage it would be permissible if it falls squarely under sub-section 25(1)(b),
Mr. Palkhivala on behalf of the petitioners insisted that the sppointment of a person to a religious office in accordance with the hereditary principle is itself a religious usage and amounted to a vital religious practice and hence falls within Articles 25 and 26, In his submission, priests, who are to pertorm religious ceremonies may be chosen by a temple on such basis as the temple chooses to adopt. It may be election, selection, competition, nomination or hereditary succession. He, therefore, contended that any law which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed by Articles 25 und 26 of the Constitution. In his submission the right to select a priest has an immediate bearing on religious practice and the ‘ight of a denomination to manage its own affairs in matters of religion. The priest is more important than the ritual and nothing could be more vital than chosing the priest. .Under the pretext of social reform, he contended, the State cannot reform a religion out of existence and if any denomination has accepted the hereditary principle for chosing its priest that would be a religious naa Vital to the religious faith and cannot be changed on the aie i that it leads to social reform. Mere substitution of one He _ of appointment of the priest by another was, 1n his submission, Social reform.
fact t
‘ i . then appointed has [0 it is true that a priest or an Archaka SS whether the
Perform some religious functions but the question | ‘ppointment of a Priest is by itself a secular met has spiti- Bus practice. Mr, Palkhivala gave the iltusrranee Hindu sect ‘ual head of a math belonging to a denomination . * ‘dea that ike the Shankaracharaya and expressed horrer od recommended ‘uch.a spiritual head could be chosen by a methon TTS. tions Y the State though in conflict with the usase es a successor © Of the particular institution, Where, for examP' giving him a Mathadhipati is chosen by the Mathadhipatt nA by his immediate adeeksha or where the Mathadhipatt a “ordinary | s ie 4 nded, ntmen ciples, it would be, he contenCol ade of appre ths
State to j
‘ interfere and direct that some OP™ ,
Hoult be followed’ on the ground social nt religion." e ing es Strike“one as an instrusion in the on we af ka ‘has the affraid such an iltustration is 1a uel 2. The Arch
*Ppointment of an Archaka of @ ¢
832— SUPREME COURT REPORTS [1972] 3 SCR.
never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and Tituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam-karta or the Shebait makes the appointment and the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar(') that even the position uf the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended section 56 of the Principal Act which provides “all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee, and the trustee may, after following | the prescribed procedure, if any, fine, suspend, remove or dismiss any of-them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or'other sufficient cause.” That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may appoint the
Archaka. The Shebaits and Managers of temples exercise essen- tially a secular function in choosing ‘and appointing the Archaka.
That the son of an Archaka or the son’s son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary
Archaka can claim any right to the office. See: Kali Krishna
Ray v. Makhan Lal Mookerjee(*); Nanabhai Narotamdas v.
Trimbak Balwant Bhandare(*®) and Maharanee Indurjeet Keoer v. Chundemun Misser(*). Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but ‘secular. It would only mean that in making the appointment the trustee is limited in res- pect of the sources of recruitment. Instead of casting his net wide . for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a-matter of religion.
In view of sub-section (2) of section 55, as it now stands amended, the choice of the trustee im the matter of appointment of a
(1) LLR. 35 Madras 631. @ LLR. 50 Cal. 233, (3) (1878-80) Vol. 4 Unreported Printed Judgments of the Bombay High Court L > page 169.
(4) XVI Weekly Reporter, 99.
SESHAMMAL y. FAMIL NADU (Palekar, J.) 833 an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was ‘to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate is the next-in-line of succession to the last holder of Office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by section 28 of the Principal Act to administer the affairs in accordance with. that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does
- Rot interfere with any religious pratice or matter of religion and, therefore, is not invalid.
We shall now take separately the several amendments which were challenged as invalid. Section ? of the Amendment Act amended section 535 of the Principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of. the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The other changes effected in the other provisions of the Principal Act appear to us to be merely consequential. Since the hereditary principle was done away with the words “whether the office or service is hereditary or not” found in section 56 of the Principal Act have been omitted by section 3 of the Amendment Act. By section 4 of the latter Act clause (xxiii) of sub-section (2) in section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary and non-hereditary offices which was there in clause (xxiii) of the Principal Act. The change is only consequential on the amendmient of section 55 of the Principal Act. Sections 5 and 6 of the Amendment Act are also conse- -quential on the amendment of sections 55 and 56. These are-all the sections in the Amendment Act and in our view the Amendment. Act as a whole must be regarded as valid.
It' was, however. submiitted ‘before. us that the State had. taken power under section 116(2) clause (xxiil) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with ic injunctions. For example at present the Ulthurai ser- Oa duty it is to perform pujas and recite vedic mantras etc. has to obtain the fitness certificate for his Office from the head of institutions which impart instructions in Agamas and ritualistic matters. The Government, however, It is submitted, May hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which does not specialize in teaching Agamas and rituals. It is submitted that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field and thera is no good reason to think that the State Government wants to revolutionise temple worship by introducing methods of worship not current in the several temples. The rule making power conferred on the Government by section 1165 is only intended with a. view to carry out the purposes of the Act which are essentially secular. The Act no where gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies followed in the tempies. On the other hand, section 107 of the Principal Act emphasizes that nothing contained im the Act would be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Stmi- (iY fection 105 provides that nothing contained in the Act shall which any person ix enti mf rena, emohement or perquisite » gious institution, or ics bit Custom or otherwise In any rell Matter. Moreover, if any mee af dei sea in pedal which purports to interfere with famed by the Govermme temples the same will be liabl the rituals and ceremotties of the interested in the ¢ to be challenged by those who ure ; temple worship. In int . the apprehensions now expressed our opinion. therefore; Premature, by the petitioners are groundless and
In the res - . case Sere ar Nissi Petitions fai
WES:
L bu: ; of the no order as to | ge the circumstances
Petitions dismissed.