Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16
PETITIONER:
SESHAMMAL & ORS, ETC. ETC
Vs.
RESPONDENT:
STATE OF TAMIL NADU
DATE OF JUDGMENT14/03/1972
BENCH:
ACT:
The Tamil Nadu Hindu Religious and Charitable Endowments Act
(Tamil Nadu 12 of 1959) as amended by Amending Act of 1970, ss.
28 55, 56 and 116--Hereditary right of succession to office of
Archaka abolished--If violative of Arts. 25 and 26 of
Constitution.
HEADNOTE:
Section 55 of the Tamil Nadu Hindu Religious. and Charitable En-
dowments Act, 1959, gave the trustee of a temple the power to
appoint the officer holders or servants of the temple and also
provided that where the office or service is hereditary, the
person next in the line of succession shall be entitled to
succeed. In only exceptional cases the trustee was entitled to
depart from the principle of next-in-the line of succesion, but
even so, the trustee was under an obligation to appoint a fit
person to perform the service after having due regard to the
claims of the members of the family. Section II 6 (2) (xxiii) of
the Act gave power to the Government to make rules providing for
the qualifications to be possessed by the officers and servants
and their conditions of service. The State Government framed the
Madras Hindu Religious Institutions (Officers and Servants)
Service Rules, 1964. Rule 12 provided that an Archaka, whether
hereditary or nonhereditary whose duty it is to perform Pujas,
shall, before succeeding to the office or appointment to the
Office, obtain a certificate of fitness for performing the duties
of his office from the head of an institution imparting,
instructions in Agamas or from the’ head of a math recognised by
the ’Commissioner or front such other person- as may be
designated by the Commissioner.
The Act was amended by the Amending Act of 1970. The Amending
Act did away with the hereditary right of succession to the
office of Archaka. The petitioners who were Archakas of saivite
and Vaishnavite temples and Mathadhipatis to whose Maths temples
are attached firm writ petitions in this Court contending that
the amendments violated Arts. 25 and 26 of the Constitution.
Dismissing the petition
HELD : (1) The protection of Arts, 25 and 26 of the Constitution
is not limited to matters of, doctrine or believe, they extend
also to’ ’acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances etc. which are
the integral parts of religion. What constitutes aft essential
part of a religion or religious practice has to be decided by the
Courts with reference to the doctrine of at particular teli
including practices which are regarded by the community as a part
of its religion. [8271]
Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay,
[1962] *pp. 2 S.C.P. 490, referred to.
(2) With the establishment of temples and the, institution of
Archakas in the temples, treatises on rituals were compiled known
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16
as Agamas . The rituals have a two fold aspect, to attract the
lay worshippers and to
816
preserve the image of the Deity from pollution, defilement or
desecration. Pollution or desecration may take place in a
variety of ways and according to the Agamas, an image becomes
defiled if there is any departure or violation of the rules
relating to worship. Further, in all the temples in which images
are consecrated the Agamas insisted that only the qualified
Archaka shall step inside the sanctum sanctorum after observing
certain disciplines imposed by the Agamas. Hence the Archaka of
such a temple, besides being proficient in the rituals
appropriate to the worship of the particular Deity, must also
belong to a particular denomination; because, an Archaka of a
different denomination would defile the image by his touch. [825
F-H; 826 E-G]
Sri Venkataramana Devaru v. The State of Mysore, [1958] S.C.R.
895, His Holiness Peria Kovil Kelvi Appean Thiruvenkata Ramanuja
Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu,
73 I.A. 156 and Mohan Lalji v. Gordhan Lalji Maharaj, 35
Allahabad P.C. 283, referred to.
(3) The hereditary principle in the appointment of an Archaka
had been adopted and accepted from antiquity and had also been
fully recognised in the unamended s. 55. But the change effected
by the amendment 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 secular and not a religious
usage. [833 A-C]
(a) An archaka has never been regarded as a spiritual head
however accomplished and well-versed in the agamas and rituals he
may be. He is a servant 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 appointment
by the trustee is essentially secular, ’though after appointment
he performs some religious functions. That after his appointment
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 She baits and Managers of
temples .exercise an essentially secular function in choosing and
appointing the Archaka. The fact that in some temples the
hereditary principle was followed in making the appointment would
not make the successive appointments anything but secular. [832
A-G]
K. Syedna Taher Saifuddin Saheb v. Ranga Bhattar, I.L.R. 35
Mad. 631, Kali Krishna Ray v. Makhan Lal Mookerjee, I.L.R. 50
Cal. 233, Nanabhai Narotamdas v. Trimbak Balwant Bhandare, (1878-
80) Vol. 4 (Unreported printed judgments of the Bombay High Court
p. 169) and Maharanee Indurjeet Koer v. Chundemun Misser, XVI
Weekly Reporter, :89, referred to.
(b) The power given to the trustee under the amended section to
appoint any body as an Archaka so long as he possessed a
fitness certificate under r. 12 was not an unqualified power,
because the power had to be read with S. 28 of the Act which
controlled it. Section 28 directs the trustee to administer the
affairs of the temple, in accordance with the terms of the trust
or usage of the institution. Therefore, the appointment of the
Archaka’ will have to be made from the specified denomination,
sect or group in accordance with the directions of the Agamas
governing the temple. In view of. the amended s. 55(2)., the
choice of the trustee in .the matter of appointment of an archaka
is no longer limited by the Operation of next-in-line of
succession in temples where the usage was
817
to appoint the Archaka on the hereditary principle. To that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16
extent the trustee is released from the obligation imposed on him
by s. 28 to administer 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 C]
(4) The other changes effected in the other provisions of the Act
are
merely consequential, and therefore, the Amendment Act as a whole
must be regarded as valid. [833 F]
(5) The rule-making power is conferred by s. 116 on the Govern-
ment with a view to carry out the purposes of the Act which are
essentially secular. The Act nowhere gives the indication that
one of its purposes is to effect a change in the rituals and
ceremonies followed in the temples. Section 105 and 107, on the
contrary, emphasize that there shall 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 that the State
Government would frame rules to revolutionise 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 rituals and ceremonies of the temples, it
will be liable to be challenged by those who are interested in
the temple worship. [834 C-G]
JUDGMENT:
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, for the petitioners (in W.P. No.
70.of 1971).
M. Natesan and K. Jayaram, for the petitioners in (W.P. No. 83
of 1971).
K. Parasaran and M. Narasimhan, for the petitioners (in W.P.
No. 437 of 1971).
V. G. Ramchandran and M. S. Narasimhan, for the petitioners (in
W.P. Nos. 438 and 444 of 1971).
M. Natesan and M. S. Narasimhan, for the petitioners (in W.Ps.
Nos. 439 and 443 of 1971).
S. Annadurai Ayyangar and M. S. Narasimhan, for the petitioners
(in W.P. No. 441 of 1971).
N. A. Palkhiwala, A. J. Rana and M. S. Narasimhan, for the
petitioners (in W.P. No. 442 of 1971).
M. S. Narasimhan, for the petitioner (in W.P. No. 440 of
1971).
818
S Govind Swaminadhan, Advocate,-General for the State of Tamil
Nadu, S. Mohan, N. S. Sivan and A. V. Rangam, for the respondent
(in all the petitions).
The Judgment 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 (hereinafter referred to as the Amendment
Act, 1970) is called in question, principally, on the ground that
it violates their freedom of religion secured to them under
Articles 25 and 26 of the Constitution. The validity of the
Amendment Act had been also impugned on the ground that it
interfered with certain other fundamental rights of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16
petitioners but that ease was not pressed at the time of the
hearing.
The temples with which we are concerned are Saivite and
Vaishnavite temples in Tamil Nadu. Writ Petitions 70, s3, 437,
438, 439, 440 441, 442, 445 and 444/71 are filed by the Archakas,
and I Writ Petitions 13 and 14/1971 are filed by the
Mathadhipatis to whose Math some temples are attached. As,
common questions were involved in all these petitions, arguments
were addressed principally in Writ Petitions 13/1971 and 442/
1971, and we are, assured by counsel for both sides that they
cover the points involved In all the other petitions.
The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu
religious and Charitable Endowments Act, 1959 being (Tamil Nadu
Act xxii of 1959) hereinafter referred to as the principle Act.
It came into force on December 2, 1959. It was an Act to amend
and consolidate the law relating, to the administration and
governance of Hindu Religious an Charitable Institutions and
Endowments in the State of Tamil Nadu. it applied to all Hindu
religious public institutions and endowments in the we of Tamil
Nadu and repeated several Acts which had previously governed the
administration of Hindu Public Religious Institutions. It is
sufficient to say here that the provisions of the Principal Act
applied to the temples in the present Petitions and the
petitioners have no complaint against any of its provisions.
Section 55 of that Act provided for the appointment of office
holders and servants in such temples, and section 56 provided for
;he, punishment of office-holders kind servants. Section 55,
broadly speaking, gave the trustee of the temple the power to
appoint the office-holders or servants of the temple and ;also
provided that where the office or service is hereditary the
person next in the line of succession shall be entitled to
succeed. In only
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 under an obligation to appoint a fit person to
perform the functions of the office or perform the service after
having due, regard to the claims of the members of the family,
Power to make rules was given to Government by section 116 (2)
(xxiii) and it was open to the Government to make rules providing
for the qualifications to be possessed by the Officers and
servants for appointment to non-hereditary offices in religious
institutions, the qualifications to be possessed by hereditary
’servants for succession to office and the conditions of service
of all such officers and servants. Under this rule making power
the State Government made the Madras Hindu Religious Institutions
(Officers and Servants) Service Rules, 1964. Under these rules
an Archak or Pujari of the deity came under the definition of
’Ulthurai servant’. ’Ulthurai servant’ is define as, a servant
whose duties relate mainly to the performance of rendering assis-
tance in the performance, of pujas, rituals and other services to
the deity, the recitation of mantras, vedas, prabandas, the
varams and similar invocations and the performance of duties
connected with such performance of recitation. Rule 12 provided
that every ’ulthurai servant’, whether hereditary or
nonhereditary whose duty it is to perform pujas and recite
mantras, vedas, prabandams, thevarams and other invocations
shall, before succeeding, or appoint 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
general or special order or from the head of, a math recognised
by the Commissioner, by general or special order, or such other
person as may be designated by the Commissioner, from time to
time, for the purpose. By this rule the proper worship in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16
temple, was secured whether the Archaka or Pujari was a
hereditary Archaka or Pujari or not. Section 107 of the Act
emphasized that nothing contained in the Act shall, save as
otherwise provided in section 106 and in clause (2) of Article 25
of the Constitution, be deemed to confer any power or impose any
duty in contravention of the rights conferred on any religious
denomination or any section thereof by Article 26 of the
Constitution. Section 106 deals with the removal of discrimina-
tion in the matter of distribution of prasadam or theertham to
the Hindu worshippers. That was a reform in the right direction
and there is no challenge to it. The Act as a whole, it is
conceded, did not interfere with the religious usages and
practices of the temples.
The Principal Act of 1959 was amended in certain respects by the
Amendment Act of 1970 which came into, force on January
820
8, 1971. Amendments were made to sections 55, 56 and 116 of the
Principal Act and some consequential provisions were made in view
of those amendments. The Amendment Act was enacted as a step
towards social reform on the recommendation of the Committee on
Untouchability, Economic and Educational Development of the
Scheduled Castes. The Statement of Objects and Reasons which are
reiterated in the counter-affidavit filed on behalf of the State
of Tamil Nadu is as follows :
"In the year 1969 the committee on untouchability,
Economic and Educational Development of the
Scheduled Castes has suggested in its report that
the hereditary priesthood in the Hindu Society
should be abolished, that the system can be
replaced by an ecclesiastical Organisation of men
possessing the requisite educational qualifications
who may be trained in recognised institutions in
priesthood and that the line should be open to all
candidates irrespective of caste, creed or race.
In Tamil Nadu Archakas, Gurukkals and Poojaries are
all Ulthurai servants in Hindu temples. The duties
of Ulthurai servants relate mainly to the
performance of poojas, rituals and other services
to the deity, the recitation of mantras, vedas,
prabandas, the varams 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 of office holders and
servants in the religious institutions by the
trustees by applying the rule of hereditary succes-
sion also. As a step towards social reform Hindu
temples have already been thrown open to all Hindus
irrespective of caste........
In the light of the recommendations of the Committee and in view
of the decision of this Court in Gazula Dasaratha Rama Rao v.
State of Andhra Pradesh & Ors.(1) and also as a further step
towards social reform the Government considered that the here-
ditary principle of appointment of all office holders in the
Hindu temples should be abolished and accordingly it proposed to
amend sections 55, 56 and 116 of the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of
1959).
It is the complaint of the petitioners that by purporting to
introduce social reform in the matter of appointment of Archakas
and Pujaris, the State has really interfered with the religious
(1) [1961] 2 S.C.R. 931.
821
practices of Saivite and Vaishnavite temples, and instead of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16
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
Appointment of office-holders and servants in religious
institutions.
(1) Vacancies, whether permanent or temporary, among the office-
holders or servants of a religious institution shall be filled up
by the trustee in cases where the office or service is not here-
ditary.
(2)In cases where the office or service is hereditary, the
person next in the line of succession shall be entitled to
succeed.
(3) Where, however, there is a dispute respecting the right of
succession, or where such vacancy cannot be filled up immediately
or where the person entitled to succeed is a minor without a
guardian fit and willing to act as such or there is a dispute
respecting the person who is entitled to act as guardian, or-
where the hereditary officeholder or servant is on account of
incapacity illness or otherwise unable to perform the functions
of the office or perform the service, or is suspended from his
office under sub-section (1) of section 56,
the trustee may appoint a fit person to perform the functions of
the office or perform the service, until the disability of the
office-holder or servant ceases or another person succeeds to the
office or service, as the case may be.
Amended Section
Sec. 55
Appointment of office-holders and servants in religious
institutions.
(1) Vacancies, whether permanent or temporary among the office
holders or servants of a religious institution shall be filled up
by the trustee in all cases.
Explanation: The expression ’Office-holders or servants shall
include archakas and poojaris.’
(2) No person shall be entitled to appointment to any vacancy
referred to in sub-section (1) merely on the ground that he is
next in the line of succession to the last holder of office.
(3) Omitted.
822
Explanation : In making any appointment under this subsection,
the trustee shall have due regard to the claims of members of the
family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the trustee 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 Com-
missioner.
Sec. 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 prequisite
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-holder or servant punished by a trustee under
sub-section(1) may, within one month from the date of the receipt
of the order by him, appeal against the order to the Deputy
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16
Commissioner.
(3) A hereditary officeholder or servant may, within one month
from the date of the receipt by him of the order of the Deputy
Commissioner under sub-section (2), prefer an appeal to the
Commissioner against such order.
Sec. 116 (xxiii)
(1) The Government may, by notification, make rules to carry out
the purposes of this act.
(2) Without prejudice to the generality of the foregoing power,
such rules may provide for-
(Xxiii)
The qualifications to be possessed by the officers and servants’
for appointment to nonhereditary offices in religious in-
stitutions, the qualifications to be possessed by hereditary
servants for succession to office and the conditions of service
of all such officers and servants.
(4) Any person aggrieved by an order of trustee under section
(1) may within one month from the date of receipt of the order by
him appeal against the order of the, Deputy Commissioner.
Sec. 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 perquisite
therefrom shall be controlled by the Trustee and the trustee may
after following the prescribed procedure, if any, fine, suspend,
remove or dismiss any of them for breach of trust, incapacity,
disobedience of orders, neglect of duty, misconduct or other
sufficient cause.
(2) Any office holder or servant Punished by a trustee under
sub-section (1) may within one month from the date of receipt of
order by him appeal against the order to the Deputy Commissioner.
(3) Omitted.
Sec. II 6 (xxiii)
(xxiii)
The qualifications to be possessed by the officers and servants
for appointment to offices in religious institution and the
conditions of service of all such officers and servants.
823
It is clear from a perusal of the above provisions that the
Amendment Apt does away with the hereditary right of succession
to the Office of Archaka even if the, Archaka was qualified under
Rule 12 of the Madras Hindu Religious Institutions (Officers and
Servants) Service Rules, 1964. It is claimed on behalf of the
petitioners that as a result of the Amendment Act, their
fundamental rights under Article 25(1) and Article 26(b) are
violated since the effect of the amendment is as follows :
(a) The freedom of hereditary succession to the
office of Archaka is abolished although succession
to it is an essential and integral part of the
faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to
prescribe or not to prescribe such qualifications
as they may choose to adopt for applicants to this
religious office while the Act itself gives no
indication whatever of the principles on which the,
qualifications should be based. The statement of
Objects and Reasons which is adopted in the
counter-affidavit on behalf of the State makes it
Clear that not only the scope but the object of the
Amendment Act is to over-ride the exclusive right
of the denomination to manage their own affairs in
the matter of religion by appointing Archakas
belonging to a specific denomination for the
purpose of worship-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16
(c) The Amendment Act gives the right of appoint-
ment 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 religion and the right of a denomination to
manage its own affairs in the matter of religion.
Before we turn to these questions, it will be necessary to refer
to certain concepts of Hindu religious faith and practices to
understand and appreciate, the position in law. The temples with
which we are concerned are public religious institutions
established in olden times. Some of them are Saivite temples and
the others are Vaishnavite temples, which means, that in these
temples God Shiva and Vishnu in their several manifestations are
Worshipped. The image of Shiva is worshipped by his worshippers
who are called Saivites and the image of Vishnu is worshipped by
his worshippers who are known as Vaishnavites. The institu-
824
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-II 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 theme 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(1). 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 Aganias 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 have a two-fold object. One is to attract
the lay worshipper to participate in the worship carried on by
the priest or Archaka. It is believed that when a congregation
of worshippers participates in the worship a particular attitude
of aspiration and devotion is developed and confers great
spiritual benefit. The second object is to preserve the image
from pollution, defilement or desecration. It is part of the
religious belief of a Hindu worshipper that when the image is
polluted or defiled the Divine Spirit in the image diminishes or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16
even vanishes. That is a situation
(1) [1958] S.C.R. 895.
825
which every devotee or worshipper looks upon with horror.
Pollution or defilement may take place in variety of ways.
According to the Agarnas, 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 v.
Prathivathi Bhayankaram Venkatachrlu and others(1) 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 sanctorum. 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 any-
body else would defile it. Thus under the ceremonial law
pertaining to temples even the question as to who is to enter the
Garbhagriha or the sanctum sanctorum and who is not entitled to
enter it and who can worship and from which Place in the temple
are all matters of religion as shown in the above decision of
this Court.
The Agamas have also rules with regard to the Archakas. In
Saivite temples only a devotee of Siva, and there too, one
belonging to a particular denomination or group or sub-group is
entitled to be the Archaka. If he is a Saivite, he cannot
possibly be an Archaka in a Vaishnavite Agama temple to whatever
caste he may belong and however learned he may be. Similarly, a
Vaishnavite Archaka has no place as an Archaka in a Saivite
temple. Indeed there is no bar to a Saivite worshipping in a
Vaishnavite temple as a lay worshipper or vice versa. What the
Agamas pro-
(1) 73 Indian Appeals 156.
826
hibit is his appointment as an Archaka in a temple, of a
different denomination’ DR. Kane has quoted the Brahmapurana on
the topic of Punah-pratistha (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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16
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, to a
particular denomination. An Archaka of a different denomination
is supposed to defile the image by his touch and since it is of
the essence of the religious faith of all worshippers that there
should be no pollution or defilement of the image under any
circumstances, the Archaka undoubtedly occupies in 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(1) has summrised 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.
827
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Matt(1); Mahant Jagannath Ramanuj Das v. The State
of Orissa(2); Sri Venkatmona Devaru v. The State of
Mysore(3); Durgah Committee, Ajmer v. Syed Hussain
Ali(4) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16
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 succession is
abolished. Indeed it was the claim made in the statement of
Objects and Reasons that the hereditary principle of appointment
of office-holders in the temples should be abolished and that the
office of an Archaka should be thrown open to all candidates
trained in recognised institutions in priesthood irrespective of
caste. creed or race. The trustee, so far as the amended section
55 went, was 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.
828
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(1). In that case the
claimants to the temple and its worship were Brahmins and the
daughter’s sons of the founder and his nearest heirs under the
Hindu law. But their claim was rejected on the, ground that the
temple was dedicated to the sect following the principles of
Vallabh Acharya in whose temples only the Gossains, of that sect
could perform the rituals and ceremonies and, therefore, the
claimants had no right either to the temple or to perform the
worship. In view of the Amendment Act and its avowed object
there was nothing, in the petitioners submissions to prevent the
Government from prescribing a standardized ritual in all temples
ignoring the Agamic requirements, and Archakas being forced on
temples from denominations unauthorised by the Agamas. Since
such a departure, as already shown, would inevitably lead to the
defilement of the image, the powers thus taken by the Government
under the Amendment Act would lead to interference with religious
freedom guaranteed under Articles 25 and 26 of the Constitution.
The force of the above submissions made on behalf of the
petitioners was not lost on the learned Advocate General of Tamil
Nadu who appeared on behalf of the State. He, however, side
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16
tracked the issue by submitting that if we, were to consider in
(1) 35 Allahabad (p.c) 283 at page 289.
829
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
be was bound by either the statement of Objects and Reasons or
the reiteration of the same in the counter--affidavit filed on
behalf of the State. His submission was that we have to take the
Principal Act as it now stands after the amendment and see what
is the true effect of the same. He contended that the power
given to, the trustee under the amended section 55 was not an
unqualified power because, in his submission, that power had to
be read in the context of section 28 which controlled it.
Section 28(1) provides as follows :
"Subject to the provisions of the Tamil Nadu Temple
Entry 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 bound
under this provision to administer the affairs of the temple in
accordance with the terms of the trust and the usage of the
institution. If the usage of the institution is that the Archaka
or Pujari of the temple must be of a particular denomination then
the usage would be binding upon him and he would be bound to make
the appointment under section 55 in accordance with the usage of
appointing one from the particular denomination. There was
nothing in section 55, in his submission, which released him from
his liability to make the appointment in accordance with 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 deno-
mination. Moreover the amended section, according to him, does
not require the trustee to exclude in every case the hereditary
principle if a qualified successor is available and there was no
reason why the trustee should not make the appointment of the
next heir, if found competent. He, however, agreed, that there
was no such legal obligation on the trustee under that section.
He further contended that if the next in-line-of-succession
principle is regarded as a usage of any particular temple it
would be merely a secular usage on which legislation was,
competent under Article 25 (2) (a) of the Constitution. Going
further, he contended that if the hereditary principle was
regarded as a religious
7-L1061Sup CT/72
830
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 ( 1 960-1962) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16
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
ski 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. It may be that,
as a matter of convenience, an Archaka’s son being readily
available to perform the worship may have been selected for
appointment as an Archaka from times immemorial. But that, in
his submission, was not a usage. The principle of next-in-line
of succession has failed when the successor was a female or had
refused to accept the appointment or was under some disability.
In all such cases the Archaka was appointed from the particular
denomination, sect or group and the worship was carried on with
the help of such a substitute. It, however, appears to us that
it is now too late in the day to contend that the-hereditary
principle in appointment was not a usage. For whatever reasons,
whether of convenience or otherwise, this hereditary principle
might have been adopted, there can be no doubt that the principle
had been accepted from antiquity and had also been fully
recognised in the unamended section 55 of the Principal Act.
Sub-section (2) of section 55 provided that where the office or
service is hereditary, the person next in the line of succession
shall be entitled to succeed and only a limited right was given
under-sub-section (3) to the trustee to appoint a substitute.
Even in such cases the. explanation to sub-section (3) provided
that in making the appointment of the substitute the trustee
should have, due regard to the claims.of the members of the
family, if any. entitled to the succession. Therefore, it cannot
be denied as a
831
fact that there are several temples in Tamil Nadu where the
appointment of an Archaka is governed by the. usage of hereditary
succession. The real question, therefore, is whether such a
usage should be regarded either as a secular usage or a religious
usage. If it is a secular usage, it is obvious,legislation would
be permissible under Article 25(1) (a) and if it is a religious
usage it would be, permissible if it falls squarely under sub-
section 25 (1) (b).
Mr.Palkhivala on behalf of the petitioners insisted that the
appointment of a person to a religious office in accordance with
the hereditary principle is itself a, religious usage and
amounted to a vital religious practice, and, hence falls within
Articles 2 5 . and 26. In his submission, priests, who are to
perform religious ceremonies may be chosen by a temple on such
basis as the temple chooses to adopt. It may be election,
selection, competition. nomination or hereditary succession. He,
therefore, contended that any law which interferes with the
aforesaid basis of appointment would violate religious freedom
guaranteed by Articles 25 and 26 of the Constitution. . In his
submission the right to select a priest has an immediate, bearing
on religious practice and the eight 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16
chosing its priest that would be a religious practice vital to
the religious faith and cannot be changed on the ground ,that it
leads to social reform. Mere substitution of one method of
appointment of the, priest by another was, in his submission no
social reform.
It is true that a priest or an Archaka when appointed has to
perform some religious functions but the question is whether the
appointment of a priest is by, itself a secular function or a
religious practice. Mr. Palkhivala gave the illustration of the
spiritual head of a math belonging to a denomination of a Hindu
sect like the Shankaracharaya and expressed horror at the idea
that such a spiritual head could be, chosen by a method
recommended by the State though in conflict with,the usage and
the traditions of the particular institution. Where, for
example, a successor of a Mathadhipati is, chosen by the
Mathadhipati by giving hit" mantra-deeksha or where the
Mathadhipati is chosen by his immediate disciples, it would be,
he contended, extra-ordinary for the State to interfere and
direct that some other mode of appointment should be followed on
the ground of social reform. Indeed this may strike one as an
instrusion in the matter of religion. But, we are affraid such
an illustration is inapt when we. are considering the appointment
of an Archaka of a temple. The Archaka has
832
never been regarded as a spiritual head of any institution. He
may be, an accomplished person, well versed in the Agamas and
rituals necessary to be performed in a temple but he does not
have the status of a spiritual head. Then again the assumption
made that the Archaka may be chosen in a variety of ways is not
correct. The Dharam-karta or the Shebair makes the appointment
and the Archaka is a servant of the temple. It has been held in
K., Seshadri Aiyangar v, Ranga Bhattar(1) that even the position
of the hereditary Archaka of a temple is that of a servant
subject to the disciplinary power of the trustee. The trustee
can enquire into the conduct of such a servant and dismiss him
for misconduct. As a servant he is subject to the discipline and
control of the trustee as recognised by the unamended section 56
of the Principal Act which provides "all office-holders and
servants attached to a religious institution or in receipt of any
emolument or perquisite therefrom shall, whether the office or
service is hereditary or not, be. controlled by the trustee, and
the trustee may, after following the prescribed procedure, if
any, fine, suspend, remove or dismiss any of them for breach of
trust, incapacity, disobedience of orders, neglect of duty,
misconduct or other sufficient cause." That being the position of
an Archaka, the act of his appointment by the trustee is
essentially secular. He owes his appointment to a secular
authority. Any lay founder of a temple may appoint the Archaka.
The Shebaits and Managers of temples exercise essentially a
secular function in choosing and appointing, the Archaka. That
the son of an Archaka or the son’s son has been continued in the
office from generation to generation does not make any difference
to the principle of appointment and no such hereditary Archaka
can claim any right to-the office. See : Kali Krishna Ray v.
Makhan Lal Mookerjee(2); Nanabhai Narotamdas v. Trimbak Balwant
Bhandare(3) and Maharanee Indurjeet Keoer v. Chundemun Misser(4).
Thus the appointment of an Archaka is a secular act and the fact
that in some temples the hereditary principle was followed in
making the appointment would not make the successive appointments
anything but secular. It would only mean that in making the
appointment the trustee is limited in respect of the sources of
recruitment. Instead of casting his net wide for selecting a
proper candidate, he appoints the next heir Of the last holder of
the office. . That after his appointment the Archaka performs
worship is no ground for holding that the appointment is either a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16
religious Practice or a matter of religion.
In view of sub-section (2) of section 55, as it now stands
amended, the choice of the trustee in the matter of appointment
of
(1) I.L.R. 35 Madras 631.
(2) I.L.R. 50 Cal. 233.
(3) 87 80) Vol. 4 Unreported Printed Judgments of the Bombay
High Court page 169.
(4) XVI Weekly Reporter, 99.
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 appoint-
ments. The legislation in this respect, as we have shown, does
not interfere with any religious practice or matter of religion
and, therefore, is not invalid.
We shall now take separately the several amendments which were
challenged as invalid. Section 2 of the Amendment Act amended
section 55 of the Principal Act and the important change which
was impugned on behalf of the petitioners related to the
abolition of the hereditary principle in the appointment of the
Archaka. We have shown for reasons already mentioned that the
change effected by the Amendment is not invalid. The other
changes effected in the other provisions of the Principal Act
appear to us to be merely consequential. Since the hereditary
principle was done away with the words "whether the office or
service is hereditary or not" found in section 56 of the
Principal Act have been omitted by section 3 of the Amendment
Act. By section 4 of the latter Act clause (xxiii) of subsection
(2) in section 116 is suitably amended with a view to deleting
the reference to ’the qualifications of hereditary and non-
hereditary offices which was there in clause (xxiii) of the
Principal Act. The change is only consequential on the amendment
of section 55 of the Principal Act. Sections 5 and 6 of the
Amendment Act are also consequential on the amendment of sections
55 and 56. These are all the sections in the Amendment Act and
in our view the Amendment Act as a whole must be regarded as
valid. .
It was, however. submitted before us that the State had taken
power under section 116(2) clause (xxiii) to prescribe qualifica-
tions 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
834
Agamic injunction. For example at present the Ulthurai servant
whose duty it, is to, perform, pujas and recite vedic mantras
etc. has to obtain the fitness certificate for his Office from
the head of, institutions which-impart instructions in Agamas and
ritualistic mattors. The; Government,, however, it is submitted,
may hereafter change its mind, and prescribe qualifications which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16
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
tradition pujas and rituals followed in those temples. . In our
opinion the, apprehensions-;of the petitioners are unfounded;,
Rule 12 referred to above still holds- the field and there is no
good reason to think that the State Government wants to
revolutinise temple worship by introducing methods of worship
not current in the several temples. The rule making power con-
ferred on the . Government by section 116, is only intended with
a view to carry out the purposes of the Act which are essentially
secular.. The Act no where gives the indication that one of the
purposes of the Art is to effect change in the rituals and cere-
monies: followed in the terms. On the other hand, section 107 of
the Principal Act emphasizes that nothing contained in the Act
would be deemed to confer any power or impose any duty in con-
travention of 4th rights conferred on any religious denomination
or any section there of by Article 26 of the Constitution. Simi-
larly section 105 provides that nothing contained in the Act
shall (a) save as otherwise expressly provided in the Act or the
, rules made thereunder, affect any honour emolument or
perquisite to which any person is entitled by custom or otherwise
in any religious institution, or its established usage in regard
to any other matter. Moreover, if any rule is framed by the
Government which purports to interfere with the rituals and
ceremonies of the temples the same will be liable to be
challenged by those who are interested in the temple worship. In
out opinion, therefore, the apprehensions now expressed by the
petitioners are groundless and premature.
In the result these Petitions fail but in the circumstances of
the case there shall be no order as to costs.
V.I.P.S.
Petitions dismissel.
835