ADI SAIVA SIVACHARIYARGAL N.SANGAM &ORS. Vs. GOVT. OF TAMIL NADU & ANR.

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 354 of 2006, Judgment Date: Dec 16, 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 354 OF 2006

ADI SAIVA SIVACHARIYARGAL
NALA SANGAM & ORS. ...PETITIONER (S)

VERSUS

THE GOVERNMENT OF TAMIL
NADU & ANR. ...RESPONDENT (S)

WITH
W.P. (C) No. 355 of 2006
W.P. (C) No.383 of 2006
AND
W.P. (C) No. 384 of 2006

J U D G M E N T

RANJAN GOGOI, J.

1. Religion incorporates the particular belief(s) that a group of people
subscribe to. Hinduism, as a religion, incorporates all forms of belief
without mandating the selection or elimination of any one single belief.
It is a religion that has no single founder; no single scripture and no
single set of teachings. It has been described as Sanatan Dharma, namely,
eternal faith, as it is the collective wisdom and inspiration of the
centuries that Hinduism seeks to preach and propagate. It is keeping in
mind the above precepts that we will proceed further.

2. Before highlighting the issues that confronts the Court in the
present case the relevant Constitutional provisions in Part III of the
Constitution may be taken note of. Article 13, in clear and unequivocal
terms, lays down that all laws including pre-constitution laws which are
inconsistent with or in derogation of the fundamental rights guaranteed by
Part III are void. Sub-Article (3) brings within the fold of laws, all
Rules, Regulations, Notification, custom and usage having the force of law.
While the several provisions of Part III would hardly need to be re-
emphasized, specific notice must be had of, in the context of the present
case, the provisions contained in Articles 25 and 26 of the Constitution.
While Article 25 makes the freedom of conscience and the right to profess,
practice and propagate the religion to which a person may subscribe, a
fundamental right, the exercise of such right has been made subject to
public order, morality and health and also to the other provisions of Part
III. Article 25(2)(b) makes it clear that main part of the provisions
contained in Article 25 will not come in the way of the operation of any
existing law or prevent the State from making any law which provides for
social welfare and reform or for throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Similarly, Article 26 while conferring the right on every religious
denomination to manage its own affairs makes it clear that the right to
manage the affairs of any religious denomination is restricted to matters
of religion only.

3. The provisions of Part III, as noted above, therefore makes it amply
clear that while the right to freedom of religion and to manage the
religious affairs of any denomination is undoubtedly a fundamental right,
the same is subject to public order, morality and health and further that
the inclusion of such rights in Part III of the Constitution will not
prevent the State from acting in an appropriate manner, in the larger
public interest, as mandated by the main part of both Articles 25 and 26.
Besides, the freedom of religion being subject to the other provisions of
Part III, undoubtedly, Articles 25 and 26 of the Constitution has to be
harmoniously construed with the other provisions contained in Part III.

4. The necessary facts may now be noticed. In order to amend and
consolidate the law relating to administration and governance of Hindu
religious and charitable institutions in the State of Tamil Nadu, the State
Legislature has enacted the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 (hereinafter referred to as ‘the Tamil Nadu Act’). A
passing reference may be made, at this stage, to Section 55 of the Tamil
Nadu Act which provided that in case where the office holders or servants
of a religious institution are required to be filled up on the principle of
hereditary succession the person next in line of succession is entitled to
succeed. There were some exceptions to the above rule i.e. where the
person next in line is a minor or suffers from some incapacity. The
aforesaid provision (Section 55) was amended alongwith other related
provisions by the Amendment Act of 1970 which came into force on January 8,
1971. By the aforesaid amendment the principle of next in line of
succession was abolished. The amendment came to be challenged before this
Court which challenge was considered by a Constitution Bench of the Court.
In its judgment in Seshammal and Others, Etc. Etc. Vs. State of Tamil
Nadu[1] the Constitution Bench, while upholding the validity of the
amendment, dealt with a further question, namely, though the principle of
next in line was validly abolished, whether the appointment of office
bearers or servants of the temples are required to be made from a
particular denomination/group/sect as mandated by the Agamas i.e. treatises
pertaining to matters like construction of temples; installation of idols
and conduct of worship of the Deity. The Constitution Bench after an
elaborate consideration of the matter, details of which will be noticed
subsequently, seems to have answered the aforesaid question in the
affirmative.

5. No controversy surfaced after the Constitution Bench judgment in
Seshammal (supra) until a G.O. No. 118 dated 23.05.2006 was issued by the
Government of Tamil Nadu, Department of Tamil Development, Cultural and
Endowments to the effect that, “Any person who is a Hindu and possessing
the requisite qualification and training can be appointed as a Archaka in
Hindu temples”. An Ordinance (No. 5 /2006) dated 14.07.2006 followed the
aforesaid G.O. seeking to further amend sub-section (2) of Section 55 of
the Tamil Nadu Act. The said provision of the Act i.e. Section 55(2), by
virtue of the 1971 amendment referred to above and the 2006 Ordinance, read
as follows.
“(2) No person shall be entitled to appointment to any vacancy referred to
in sub-section (1) merely on the ground that he is next in the line of
succession to the last holder of office.” [Change brought about by
amendment of S.55(2)]

“or on the ground of any custom or usage”. [Change brought about by
Ordinance 5/2006)

6. The Explanatory statement to the Ordinance in para 4 indicated the
purpose behind further amendment of Section 55(2) in the following terms.
“Archakas of the Temples are to be appointed without any discrimination of
caste and creed. Custom or usage cannot be a hindrance to this. It is
considered that the position is clarified in the Act itself and
accordingly, it has been decided to amend Section 55 of the said Act
suitably”.

7. The Ordinance was replaced by The Tamil Nadu Act No. 15 of 2006 which
received the assent of the Governor on 29.08.2006. The Act, however, did
not contain the amendment to Section 55 as was made by the Ordinance. In
other words, the said amendment brought by the Ordinance was dropped from
the Amending Act 15 of 2006.

8. The present writ petitions under Article 32 of the Constitution have
been instituted by an Association of Archakas and individual Archakas of
Sri Meenakshi Amman Temple of Madurai. The writ petitions were filed
challenging the G.O. No. 118 dated 23.05.2006 and Ordinance No. 5/2006 (at
that point of time the Amending Act of 2006 had not come into effect). As
the amendment of Section 55(2) made by the Ordinance had not been continued
by the Amending Act 15 of 2006 the said part of the challenge (as against
the ordinance) made in the writ petitions became redundant leaving the
legality and validity of the G.O. 23.05.2006 as the sole issue for
consideration in the present writ petitions.

9. Preliminary Objections have been raised to the maintainability of the
writ petitions by Shri P.P. Rao and Shri Colin Gonsalves, learned senior
counsels appearing for respondents . It has been urged that the present
writ petitions have not been filed as public interest litigations and in
the absence of any specific orders in implementation of the impugned G.O.
dated 23.05.2006 the writ petitions are premature. It is further contended
that even if the writ petitions are to be considered as PILs the same raise
questions with regard to appointment in public office i.e. Archakas in
public temples and therefore the writ petitions will also not be
maintainable as public interest litigations. It is further urged that as
and when the G.O. is given effect to by actual appointment of an Archaka or
Archakas, as may be, it will be open for the petitioners to raise the issue
and establish that there is a usage or custom or customary practice
governing the temple in question which require the appointment of the
Archaka to be made from a particular denomination.

10. It is difficult for us to accept the contentions advanced on behalf
of the respondents with regard to the maintainability of writ petitions on
two counts. Firstly, it is difficult to appreciate as to why the
petitioners should be non-suited at the threshold merely because the G.O.
dated 23.05.2006 has not been given effect to by actual orders of the State
Government. The institution of a writ proceeding need not await actual
prejudice and adverse effect and consequence. An apprehension of such harm,
if the same is well founded, can furnish a cause of action for moving the
Court. The argument that the present writ petition is founded on a cause
relating to appointment in a public office and hence not entertainable as a
public interest litigation would be too simplistic a solution to adopt to
answer the issues that have been highlighted which concerns the religious
faith and practice of a large number of citizens of the country and raises
claims of century old traditions and usage having the force of law. The
above is the second ground, namely, the gravity of the issues that arise,
that impel us to make an attempt to answer the issues raised and arising in
the writ petitions for determination on the merits thereof.

11. Shri K. Parasaran, learned senior counsel appearing for the
petitioners has submitted that the issues arising in the case stand
squarely covered by the pronouncement of the Constitution Bench in
Seshammal (supra). In fact, according to the learned senior counsel, the
issues in the present case are res judicata; the same having been decided
inter-partes in Seshammal (supra); the Archakas of the Agamas Temples and
the respondent-State both being parties to the said decision. Specifically,
Shri Parasaran, has urged that in Seshammal (supra) the Constitution Bench
has unambiguously held that the appointment of an Archaka has to be as per
the Agamas governing the particular temple and any deviation from the said
age old custom and usage would be an infringement of the freedom of
religion and the rights of the religious denomination to manage its own
affairs, as guaranteed, by Article 25 and 26 of the Constitution. The
impugned G.O., by its prescription, as noted, therefore, seeks to override
the declaration of law made by the Constitution Bench in Seshammal (supra).

12. Shri Parasaran has further urged that curtailment of the freedoms
guaranteed by Articles 25 and 26 of the Constitution can only be made by
the legislature and even a legislative exercise in this regard is
circumscribed by the limitations contained in both Articles 25 and 26. In
the present case the amendment of Section 55 of the Tamil Nadu Act as made
by Ordinance No.6 of 2005 has not been continued by the Amendment Act No.15
of 2006 (as already noted). The impugned G.O. has, therefore, to
necessarily lose its efficacy. Reliance herein is placed on the following
passage from the report in Sanjeev Coke Manufacturing Vs. M/s Bharat Coking
Coal Limited & Anr.[2]

“25………..The deponents of the affidavits filed into court may speak for the
parties on whose behalf they swear to the statements. They do not speak for
the Parliament. No one may speak for the Parliament and Parliament is never
before the court. After Parliament has said what it intends to say, only
the court may say what the Parliament meant to say. None else. Once a
statute leaves Parliament House, the Court is the only authentic voice
which may echo (interpret) the Parliament……..”

13. It was further contended that the G.O. wrongly relies on the decision
in the case of N. Adhithyan Vs. Travancore Devasom Board and Others[3] to
justify its promulgation. The reliance placed on Adhithyan (supra), in the
face of the law laid down in Seshammal (supra), is wholly misplaced. Shri
Parasaran has further argued that the impugned GO has to be read on its own
terms and the validity thereof cannot be saved by what appears to be a
“concession” made by the State in Para 51 of the counter affidavit to the
effect that the State would respect the distinction between Saiva and
Vaishanava temples and the Archakas in each of such temples shall be
appointed from either the Saivas or Vaishanavas, as may be, taking into
account the indoctrination of the concerned Archakas in the Agamas.
According to Shri Parasaran, neither all Saivas nor all Vaishnavas are ipso
facto denominational. Only a Saiva who satisfies the eligibility under the
Sivagama and a Vaishnava satisfying the eligibility under the pancharatna
or vaikhanasa can be referred to as denominations. A person who is a
member of such denomination alone can be appointed as a Archaka of a Saiva
or a Vaishnava temple, as the case may be.

14. On the other hand, Shri P.P. Rao and Shri Colin Gonsalves, learned
Senior Counsels appearing for the respondents have contended that the
decision of the Constitution Bench in Seshammal (supra) upholding the
Constitution validity of the Amendment Act of 1970 had opened the avenue to
all qualified Hindus irrespective of caste, denominations, etc to be
appointed as Archakas. It is contended that once the hereditary principle
was held to be flexible, the exclusive right of a particular group to
appointment necessarily stood negated and it is qualification coupled with
merit and eligibility that has to be the crucial test for appointment,
consistent with Articles 14 and 16 of the Constitution. Learned counsels
have specifically referred to the Government Order No.1 of 2007 and in this
regard the recommendation of the High Powered Committee appointed for
making recommendations for effective implementation of the impugned GO
dated 23.5.2006. It is contended, by referring to the report of the High
Powered Committee, that the same demonstrates the lack of familiarity of
even temple priests with the Agamas and their lack of knowledge of such
Agamas and the practices of the Temples as may be prescribed by the Agamas.
It is submitted that not only the contents of the Agamas have become
uncertain, even assuming otherwise, the same cannot be an authority to
confer legitimacy to a practice which is inconsistent with and contrary to
the provisions of the Constitution, specially those contained in Part III
thereof. It is further submitted that the impugned GO is consistent with
and in fact effectuates the Fundamental Right of Equality and equal
opportunity and no contrary practice overriding the said provisions of the
Constitution would be legally acceptable. Learned Counsels have further
submitted that there is no conflict between the judgments in Seshammal
(supra) and N. Adithayan (supra) and it is possible to read the law
declared in both the cases in a manner consistent with the Constitutional
requirements and principles.

15. An additional issue has been struck by Shri Gonsalves, learned Senior
Counsel, that the impugned GO needs to be upheld on the touchstone of the
principle enshrined by Article 17 of the Constitution. The exclusive
right of a particular group to enter the sanctum sanctorum of a temple and
perform the rituals on the ground that performance of such rituals by any
other person would defile the image is a thought and action which is
prohibited by Article 17 of the Constitution. Violation and consequently
commission of offences under the Protection of Civil Rights Act, 1955 has
also been urged.

16. The issues arising and the arguments made centre around the true
meaning, purport and effect of the Constitution Bench judgment in Seshammal
(supra) and in the above context the effect of the decision of the
numerically smaller Bench in N. Adithayan (supra). We will therefore
proceed to understand the above position at the outset.

17. The contours of the challenge in Seshammal (supra) has already been
noticed. To repeat, it is the validity of the Amendment Act of 1970 which
sought to amend, inter alia, Section 55 of the Tamil Nadu Act that was
questioned in Seshammal (supra). The Statement of Objects and Reasons for
the amendment Act of 1970 is stated as follows:
“In the year 1969 the Committee on Untouchability, Economic and Educational
Development of the Scheduled Castes has suggested in its report that the
hereditary priesthood in the Hindu Society should be abolished, that the
system can be replaced by an ecclesiastical organisation of men possessing
the requisite educational qualifications who may be trained in recognised
institutions in priesthood and that the line should be open to all
candidates irrespective of caste, creed or race. In Tamil Nadu Archakas,
Gurukkals and Poojaries are all Ulthurai servants in Hindu temples. The
duties of ‘Ulthurai servants’ relate mainly to the performance of poojas
rituals and other services to the deity, the recitation of mantras, vedas,
prabandas, thevarams and similar invocations and the performance of duties
connected with such performance and recitations. Sections 55 and 56 of the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (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 succession also. As a step towards social reform Hindu temples
have already been thrown open to all Hindus irrespective of caste.…”

18. The arguments in support of the challenge were threefold namely,
“(a) The freedom of hereditary succession to the office of Archaka is
abolished although succession to it is an essential and integral part of
the faith of the Saivite and Vaishnavite worshippers.

(b) It is left to the Government in power to prescribe or not to prescribe
such qualifications as they may choose to adopt for applicants to this
religious office while the Act itself gives no indication whatever of the
principles on which the qualifications should be based. The statement of
objects and reasons which is adopted in the counter-affidavit on behalf of
the State makes it clear that not only the scope but the object of the
Amendment Act is to override the exclusive right of the denomination to
manage their own affairs in the matter of religion by appointing Archakas
belonging to a specific denomination for the purpose of worship.

(c) The Amendment Act gives the right of appointment for the first time to
the trustee who is under the control of the Government under the provisions
of the principal Act and this is the very negation of freedom of religion
and the principle of non-interference by the State as regards the practice
of religion and the right of a denomination to manage its own affairs in
the matter of religion.”

19. In the course of a very lengthy discourse and after considering the
works of learned scholars in the field; the law laid down by this Court in
respect of Articles 25 and 26 till date and particularly the efficacy of
the Agamas the Constitution Bench came to the following conclusion.
“Any State action which permits the defilement or pollution of the image by
the touch of an Archaka not 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.”

20. Thereafter, the Constitution Bench by referring to several earlier
pronouncements of this Court specifically mentioned in para 13 of the
Report identified the main principles underlying the provisions of Article
25 and 26 of the Constitution in the following manner.
“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.”

21. Applying the aforesaid principles to the facts before it the
Constitution Bench identified the main thrust of the arguments made in
support of the challenge to the amendment to be with regard to the vesting
of powers and authority in the temple trustee to appoint any person as an
Archaka so long as he was holding a fitness certificate from one of the
institutions referred to in Rule 12 of the Madras Hindu Religious
Institutions (Officers and Servants) Service Rules, 1964. The Said Rule 12
required that an Archaka should be proficient in Mantras, Vedas, Prabandams
etc., namely, that such a person is fit and qualified for performing puja
and having knowledge of the rituals and other services. The Constitution
Bench was told that the above position admits a situation where the
requirement of Rule 12 can very well be dispensed with (by a subsequent
amendment of the Rules) thereby resulting in conferment of virtually
unguided and unbridled powers to the trustee to appoint any person as a
Archaka notwithstanding the fact that worship of the deity by a person
other than one belonging to a particular denomination may have the effect
of defiling the deity. As the temple trustee is to function under the
control of the State under Section 27 of the Tamil Nadu Act the question
highlighted before the Constitution Bench was whether by virtue of the
amendment the State had gained a right to step into and control the Sanctum
Sanctorum of a temple through the agency of the trustee and the Archaka
thereby transgressing the rights granted to a religious denomination by
Articles 25 and 26 of the Constitution.

22. The Constitution Bench noticed that to counter the above situation
the Advocate General of the State of Tamil Nadu had contended that the
power given to the trustee by virtue of the amendment to Section 55 was not
a unqualified power but was subject to the provisions of Section 28 of the
Act which is in the following terms.
“Section 28.- Subject to the provisions of the Tamil Nadu Temple Entry
Authorisation Act, 1947, the trustee of every religious institution is
bound to administer its affairs and to apply its funds and properties in
accordance with the terms of the trust, the usage of the institution and
all lawful directions which a competent authority may issue in respect
thereof and as carefully as a man of ordinary prudence would deal with such
affairs, funds and properties if they were his own.”

In this regard the Advocate General had virtually admitted that if the
usage or practice of the institution required the Archaka of a temple to be
of a particular denomination the said usage would be binding on the trustee
and he would be bound to make appointment under Section 55 in accordance
with such usage. The usage, practice or custom requiring an Archaka to be
of a particular denomination, according to the Advocate General, was
founded on religious beliefs and practices whereas the next in line
principle, if is to be regarded as a usage, was a merely secular usage on
which a legislation would be competent under Article 25 (2)(a) of the
Constitution. It was, alternatively, contended that if the hereditary
principle is to be understood as a religious practice, alteration thereof
can also be made by a legislation under Article 25(2)(b), such legislation
being for the purpose of social welfare and reform.

23. The Constitution Bench in Seshammal (supra) answered the question by
holding that the hereditary principle which was of long usage was a secular
principle and therefore a legislation to alter the said usage, i.e. the
Amendment Act of 1970, was competent under Article 25(2)(a). However, the
Constitution Bench was quick to add that it is to the limited extent of the
above exception alone, namely, the liberty to make the appointment from
persons beyond next in line to the last holder that the trustee is released
from the obligation imposed on him by Section 28 of the Tamil Nadu Act
which otherwise requires the trustee to administer the affairs of the
temple in accordance with the usage governing the temple. Para 22 of the
Constitution Bench judgment wherein the aforesaid view finds mention may be
noticed verbatim.
“22. In view of sub-section (2) of Section 55, as it now stands amended,
the choice of the trustee in the matter of appointment of an Archaka is no
longer limited by the operation of the rule of next-in-line of succession
in temples where the usage was to appoint the Archaka on the hereditary
principle. The trustee is not bound to make the appointment on the sole
ground that the candidate, is the next-in-line of succession to the last
holder of office. To that extent, and to that extent alone, the trustee is
released from the obligation imposed on him by Section 28 of the principal
Act to administer the affairs in accordance with that part of the usage of
a temple which enjoined hereditary appointments. The legislation in this
respect, as we have shown, does not interfere with any religious practice
or matter of religion and, therefore, is not invalid.”

24. A reading of the judgment of the Constitution Bench in Seshammal
(supra) shows that the Bench considered the expanse of the Agamas both in
Saivite and Vaishnavite temples to hold that the said treatises restricted
the appointment of Archakas to a particular religious denomination(s) and
further that worship of the deity by persons who do not belong to the
particular denomination(s) may have the effect of even defiling the idol
requiring purification ceremonies to be performed. The Constitution Bench
further held that while the appointment of Archakas on the principle of
next in line is a secular act the particular denomination from which
Archakas are required to be appointed as per the Agamas embody a long
standing belief that has come to be firmly embedded in the practices
immediately surrounding the worship of the image and therefore such
beliefs/practice constitute an essential part of the religious practice
which under Section 28 of the Act (extracted above) the trustee is bound to
follow. The above, which the petitioners contend to be the true ratio of
the law laid down by the Constitution Bench in Seshammal (supra), has been
questioned by the respondents who argue that Seshammal (supra) is but the
expression of an agreement of the Constitution Bench to what was a
concession made before it by the Advocate General of the State. According
to the respondent in Seshammal (supra) the Constitution Bench had no
occasion to deal with the issue arising herein, the challenge before it
being confined to the validity of the Amendment Act of 1970.

25. The answers to the above will be dealt with a little later and for
the present what has to engage the attention of the Court is the true ratio
of the law laid down by the numerically smaller Bench in Adithayan (supra).

26. The facts confronting the Court in Adithayan (supra) may now be
noticed. The challenge therein was by a Namboodri Brahmin to the
appointment of a non-Namboodri Brahmin who was otherwise well qualified to
be appointed as a priest in the temple in question. The challenge was
sought to be based on the ground that it has been a long standing practice
and usage in the temple that its priests are appointed exclusively from
Namboodri Brahmins and any departure therefrom is in violation of the
rights of Namboodri Brahmins under Article 25 and 26 of the Constitution.
Upon a consideration of the various earlier decisions of this Court
specifically referred to in Adithayan (supra), details of which need not
again be noticed herein (such details are being separately noticed later,
though in a different context) including the decision in Seshammal (supra)
it was held that rights claimed solely on the basis of caste cannot enjoy
the protection of Article 25 and 26 and no earlier decision of this Court
including Seshammal (supra) would support the contention that even duly
qualified persons can be barred from performing Poojas on the sole ground
that such a person is not a Brahmin by birth or pedigree. After expounding
the law in the above manner, it was held in Adithayan (supra) that even
proof of any such practice since the pre-constitutional days (which in any
case was not forthcoming) cannot sustain such a claim as the same would be
in derogation of constitutional values and opposed to public policy or
social decency. We do not see how the above view of this Court in any way
strikes a discordant note with the views expressed in any earlier decision
including Seshammal(supra). The issues in Seshammal(supra) were entirely
different and the discussions therein (para 12) proceeds on the basis that
entry to the sanctum sanctorum for a particular denomination is without any
reference to caste or social status. The reference to the opinion of Sri R.
Parthasarathy Bhattacharya who has been referred to in the above para 12 of
the report as an undisputed scholar on the subject was cited to show that
apart from the followers of the 4 (four) traditions, so far as Vaishnava
temples are concerned “…..none others, however high placed in society as
Pontiffs or Acharyas, or even other Brahmins could touch the idols, do
Pooja or enter the Garba Girha……..” Exclusion solely on the basis of caste
was not an issue in Seshammal(supra) so as to understand the decision in
Adithayan (supra) to be, in any way, a departure from what has been held in
Seshammal (supra).

27. Before we go on to deliberate on the validity of the impugned G.O.
dated 23.05.2006 it will be useful to try to understand what is Hinduism?
A broad answer is to be found in the preface to this report but, perhaps,
we should delve a little deeper into the issue. The subject has received
an indepth consideration of the Country’s philosopher President Dr. S.
Radhakrishnan in the celebrated work “ The Hindu way of Life”. The said
work has been exhaustively considered in Sastri Yagnapurushadji and Others
Vs. Muldas Bhudradas Vaishya and Another[4] in the context of the question
as to whether Swaminarayan sect is a religion distinguishable and separate
from the Hindu religion and consequently the temples belonging to the said
sect fell outside the scope of Section 3 of the Bombay Hindu Places of
Public Worship (Entry Authorisation) Act, 1956. The aforesaid Section 3 of
the Act inter alia provided that every temple to which the Act applied
shall be open to the excluded classes for worship in the same manner and to
the same extent as other Hindus in general. While the eventual decision of
the Court which answered the question raised is in the negative, namely,
that the sect in question was not a distinguishable and different religion,
it is the very learned discourse that is to be found in the report with
regard to the true tenets of Hinduism that would be of interest so far the
present case is concerned. The following passages from the report are
truly worthy of reproduction both for the purpose of recapitulation and
illumination.

“…………….. ………….. ………… ………… When we think of the Hindu religion, we find it
difficult, if not impossible, to define Hindu religion or even adequately
describe it. Unlike other religions in the world, the Hindu religion does
not claim any one prophet; it does not worship any one God; it does not
subscribe to any one dogma; it does not believe in any one philosophic
concept; it does not follow any one set of religious rites or performances;
in fact, it does not appear to satisfy the narrow traditional features of
any religion or creed. It may broadly be described as a way of life and
nothing more.

…………….. ………….. ………… …………

The Hindu thinkers reckoned with the striking fact that the men and women
dwelling in India belonged to different communities, worshipped different
gods, and practiced different rites (Kurma Purana).(Ibid p.12.)

…………….. ………….. ………… …………

“It presents for our investigation a complex congeries of creeds and
doctrines which in its gradual accumulation may be compared to the
gathering together of the mighty volume of the Ganges, swollen by a
continual influx of tributary rivers and rivulets, spreading itself over an
ever-increasing area of country and finally resolving itself into an
intricate Delta of tortuous steams and jungly marshes ........ The Hindu
religion is a reflection of the composite character of the Hindus, who are
not one people but many. It is based on the idea of universal receptivity.
It has ever aimed at accommodating itself to circumstances, and has carried
on the process of adaptation through more than three thousand years. It has
first borne with and then, so to speak, swallowed, digested, and
assimilated something from all creeds." ("Religious Thought & Life in
India" by Monier Williams, P. 57.)

The history of Indian thought emphatically brings out the fact that the
development of Hindu religion has always been inspired by an endless quest
of the mind for truth based on the consciousness that truth has many
facets. Truth is one, but wise men describe if differently. The Indian mind
has, consistently through the ages, been exercised over the problem of the
nature of godhead the problem that faces the spirit at the end of life, and
the interrelation between the individual and the universal soul. "If we can
abstract from the variety of opinion", says Dr. Radhakrishnan, "and observe
the general spirit of Indian thought, we shall find that it has a
disposition to interpret life and nature in the way of monistic idealism,
though this tendency is so plastic, living and manifold that it takes many
forms and expresses itself in even mutually hostile teachings".(Ibid,
p.32.)

Though philosophic concepts and principles evolved by different Hindu
thinkers and philosophers varied in many ways and even appeared to conflict
with each other in some particulars, they all had reverence for the past
and accepted the Vedas as the sole foundation of the Hindu philosophy.
Naturally enough, it was realised by Hindu religion from the very beginning
of its career that truth was many-sided and different views contained
different aspects of truth which no one could fully express.

Do the Hindus worship at their temples the same set or number of gods ?
That is another question which can be asked in this connection; and the
answer to this question again has to be in the negative. Indeed, there are
certain sections of the Hindu community which do not believe in the worship
of idols; and as regards those sections of the Hindu community which
believe in the worship of idols their idols differ from community to
community and it cannot be said that one definite idol or a definite number
of idols are worshipped by all the Hindu in general. In the Hindu Pantheon
the first goods that were worshipped in Vedic times were mainly Indra,
Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be
worshipped. In course of time, Rama and Krishna secured a place of pride in
the Hindu Pantheon, and gradually as different philosophic concepts held
sway in different sects and in different sections of the Hindu community, a
large number of gods were added, with the result that today, the Hindu
Pantheon presents the spectacle of a very large number of gods who are
worshipped by different sections of the Hindus.

The development of Hindu religion and philosophy shows that from time to
time saints and religious reformers attempted to remove from the Hindu
thought and practices elements of corruption and superstition and that led
to the formation of different sects. Buddha stated Buddhism; Mahavir
founded Jainism; Basava became the founder of Lingayat religion,
Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired
Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and
as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion
flowered into its most attractive, progressive and dynamic form. If we
study the teachings of these saints and religious reformers, we would
notice an amount of divergence in their respective views; but underneath
that divergence, there is a kind of subtle indescribable unity which keeps
them within the sweep of the broad and progressive Hindu religion.

Tilak faced this complex and difficult problem of defining or at least
describing adequately Hindu religion and he evolved a working formula which
may be regarded as fairly adequate and satisfactory. Said Tilak :
"Acceptance of the Vedas with reverence; recognition of the fact that the
means or ways to salvation are diverse and realisation of the truth that
the number of gods to be worshipped is large, that indeed is the
distinguishing feature of Hindu religion. This definition brings out
succinctly the broad distinctive features of Hindu religion. It is somewhat
remarkable that this broad sweep of Hindu religion has been eloquently
described by Toynbee. Says Toynbee : "When we pass from the plane of social
practice to the plane of intellectual outlook, Hinduism too comes out well
by comparison with the religions an ideologies of the South-West Asian
group. In contrast to these Hinduism has the same outlook as the pre-
Christian and pre-Muslim religions and philosophies of the Western half of
the old world. Like them, Hinduism takes it for granted that there is more
than one valid approach to truth and to salvation and that these different
approaches are not only compatible with each other, but are complementary".

28. The fact that reference to Hindus in the Constitution includes
persons professing the Sikh, Jain and Buddhist religions and the statutory
enactments like Hindu Marriage Act, Hindu Succession Act etc. also embraces
Sikhs, Jains and Buddhists within the ambit of the said enactments is
another significant fact that was highlighted and needs to be specially
taken note of.
29. What is sought to be emphasized is that all the above would show the
wide expanse of beliefs, thoughts and forms of worship that Hinduism
encompasses without any divergence or friction within itself or amongst its
adherents. It is in the backdrop of the above response to the question
posed earlier “what is Hinduism”? that we have to proceed further in the
matter.

30. Image worship is a predominant feature of Hindu religion. The
origins of image worship is interesting and a learned discourse on the
subject is available in a century old judgment of the Madras High Court in
Gopala Mooppanar and Others Vs. Subramania Iyer and others[5]. In the said
report the learned Judge (Sadasiva Aiyar, J.) on the basis of accepted
texts and a study thereof had found that in the “first stage” of existence
of mankind God was worshiped as immanent in the heart of everything and
worship consisted solely in service to ones fellow creatures. In the
second age, the spirit of universal brotherhood has lost its initial
efficacy and notions of inferiority and superiority amongst men surfaced
leading to a situation where the inferior man was asked to worship the
superior man who was considered as a manifestation of God. Disputes arose
about the relative superiority and inferiority which was resolved by the
wise sages by introducing image worship to enable all men to worship God
without squabbles about their relative superiorities. With passage of time
there emerged Rules regulating worship in temples which came to be laid
down in the treatises known as Agamas and the Thantras. Specifically in
Gopala Moopanar (supra), it was noticed that the Agamas prescribed rules as
regards “what caused pollution to a temple and as regards the ceremonies
for removing pollution when caused.” In the said judgment it is further
mentioned that, “There are, it is well known Thanthries in Malabar who are
specialists in these matters of pollution. As the temple priests have got
the special saivite initiation or dheeksha which entitles them to touch the
inner most image, and as the touch of the persons who have got no such
initiation, even though they be Brahmins, was supposed to pollute the
image, even Brahmins other than the temple priest were in many temples not
allowed to go into the garbhagraham. The Agamas also contain other
prescriptions including who is entitled to worship from which portion of
the temple. In one of the Agamas it is said (as freely translated) thus :
“Saivite Brahmin priests are entitled to worship in the anthrala portion.
Brahmins learned in the Vedas are entitled to worship in the arthamantapa,
other Brahmins in the front Mantapa, Kings and Vaisyas in the dwaramantapa,
initiated Sudras in the Bahir Mantapa” and so on.” The legal effect of the
above prescriptions need not detain us and it is the portion underlined
which is of particular importance as the discussions that follow would
reveal.

31. The Ecclesiastical jurisprudence in India, sans any specific
Ecclesiastical jurisdiction, revolves around the exposition of the
constitutional guarantees under Articles 25 and 26 as made from time to
time. The development of this branch of jurisprudence primarily arises out
of claimed rights of religious groups and denominations to complete
autonomy and the prerogative of exclusive determination of essential
religious practices and principles on the bedrock of the constitutional
guarantees under Articles 25 and 26 of the Constitution and the judicial
understanding of the inter-play between Article 25(2)(b) and 26(b) of the
Constitution in the context of such claims. In The Commissioner, Hindu
Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt[6] (Shirur Mutt) while dealing with the issue of autonomy of a
religious denomination to determine what rights and ceremonies are
essential according to the tenets of its religion it has been stated that -

“Under article 26(b), therefore a religious denomination or organization
enjoys complete autonomy in the matter of deciding as to what rites and
ceremonies are essential according to the tenets of the religion they hold
and no outside authority has any jurisdiction to interfere with their
decision in such matters.” – (Page 1028)

32. Besides the above, recognition of the aforesaid principle is also to
be found in the fact that in Shirur Mutt (supra), though the eventual
conclusion of the Court upholds the validity of the Act (Madras Hindu
Religious and Charitable Endowments Act, 1951) certain specific provisions
i.e. Section 21 which empowered the Commissioner and his subordinates to
enter the premises of any religious institution at any time for performance
of duties enjoined under the Act has been struck down indicating
consistency with the principle extracted above. The relevant of the report
(page 1030/31) will require a specific notice and therefore is extracted
below.

“We agree, however, with the High Court in the view taken by it about
section 21. This section empowers the Commissioner and his subordinate
officers and also persons authorised by them to enter the premises of
any religious institution or place of worship for the purpose of exercising
any power conferred or any duty imposed by or under the Act. It is well
known that there could be no such thing as an unregulated and unrestricted
right of entry in a public temple or other religious institution, for
persons who are not connected with the spiritual functions thereof. It is a
traditional custom universally observed not to allow access to any outsider
to the particularly sacred parts of a temple as for example, the place
where the deity is located. There are also fixed hours of worship and rest
for the idol when no disturbance by any member of the public is allowed.
Section 21, it is to be noted, does not confine the right of entry to the
outer portion of the premises; it does not even exclude the inner sanctuary
"the Holy of Holies" as it is said, the sanctity of which is zealously
preserved. It does not say that the entry may be made after due notice to
the head of the institution and at such hours which would not interfere
with the due observance of the rites and ceremonies in the institution. We
think that as the section stands, it interferes with the fundamental rights
of the Mathadhipati and the denomination of which he is head guaranteed
under articles 25 and 26 of the Constitution. Our attention has been drawn
in this connection to section 91 of the Act which, it is said, provides a
sufficient safeguard against any abuse of power under section 21. We cannot
agree with this contention. Clause (a) of section 91 excepts from the
saving clause all express provisions of the Act within which the provision
of section 21 would have to be included. Clause (b) again does not say
anything about custom or usage obtaining in an institution and it does not
indicate by whom and in what manner the question of interference with
the religious and spiritual functions of the Math would be decided in case
of any dispute arising regarding it. In our opinion, section 21 has been
rightly held to be invalid.” - (Page 1030/31)

33. The decision of this Court in Sri Venkataramana Devaru and Others Vs.
State of Mysore and others[7] may now be considered. In the said case this
Court was called upon to answer as to whether Section 3 of the Madras
Temple Entry Authorization Act violated the guarantee under Article 26(b)
insofar as Gaura Saraswati Brahmins are concerned by making provisions to
the effect that Shri Venkataramana Temple at Moolky was to be open to all
excluded classes of Hindus. It was the contention of the aforesaid sect
that the temple in question was founded for the exclusive use and benefit
of Gaura Saraswati Brahmins. This Court in its report elaborately
discussed the practice of idol/image worship; regulation thereof by the
Agamas and the efficacy and enforceability of such Agamas. Paras 17 and 18
of the Report which deals with the above aspect may be usefully extracted
below.

“17. The Gods have distinct forms ascribed to them and their worship at
home and in temples is ordained as certain means of attaining salvation.
These injunctions have had such a powerful hold over the minds of the
people that daily worship of the deity in temple came to be regarded as one
of the obligatory duties of a Hindu. It was during this period that temples
were constructed all over the country dedicated to Vishnu, Rudra, Devi,
Skanda, Ganesha and so forth, and worship in the temple can be said to have
become the practical religion of all sections of the Hindus ever since.
With the growth in importance of temples and of worship therein, more and
more attention came to be devoted to the ceremonial law relating to the
construction of temples, installation of idols therein and conduct of
worship of the deity, and numerous are the treatises that came to be
written for its exposition. These are known as Agamas, and there are as
many as 28 of them relating to the Saiva temples, the most important of
them being the Kamikagama, the Karanagama and the Suprabedagama, while the
Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas. These
Agamas, contain elaborate rules as to how the temple is to be constructed,
where the principal deity is to be consecrated, and where the other Devatas
are to be installed and where the several classes of worshippers are to
stand and worship. The following passage from the judgment of Sadasiva
Aiyar J. in Gopala Muppanar v. Subramania Aiyar : (1914) 27 MLJ 253, gives
a summary of the prescription contained in one of the Agamas :

"In the Nirvachanapaddhathi it is said that Sivadwijas should worship in
the Garbargriham, Brahmins from the ante chamber or Sabah Mantabam,
Kshatriyas, Vysias and Sudras from the Mahamantabham, the dancer and the
musician from the Nrithamantabham east of the Mahamantabham and that castes
yet lower in scale should content themselves with the sight of the
Gopuram."

The other Agamas also contain similar rules.”

18. According to the Agamas, an image becomes defiled if there is any
departure or violation of any of the rules relating to worship, and
purificatory ceremonies (known as Samprokshana) have to be performed for
restoring the sanctity of the shrine. Vide judgment of Sadasiva Aiyar J. in
Gopala Muppanar v. Subramania Aiyar (supra). In Sankaralinga Nadan v. Raja
Rajeswara Dorai, it was held by the Privy Council affirming the judgment of
the Madras High Court that a trustee who agreed to admit into the temple
persons who were not entitled to worship therein, according to the Agamas
and the custom of the temple was guilty of breach of trust. Thus, under the
ceremonial law pertaining to temples, who are entitled to enter into them
for worship and where they are entitled to stand and worship and how the
worship is to be conducted are all matters of religion. The conclusion is
also implicit in Art. 25 which after declaring that all persons are
entitled freely to profess, practice and propagate religion, enacts that
this should not affect the operation of any law throwing open Hindu
religious institutions of a public character to all classes and sections of
Hindus. We have dealt with this question at some length in view of the
argument of the learned Solicitor-General that exclusion of persons from
temple has not been shown to be a matter of religion with reference to the
tenets of Hinduism. We must accordingly hold that if the rights of the
appellants have to be determined solely with reference to Art. 26(b), then
s. 3, of Act V of 1947, should be held to be bad as infringing it.”

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 354 OF 2006

ADI SAIVA SIVACHARIYARGAL
NALA SANGAM & ORS. ...PETITIONER (S)

VERSUS

THE GOVERNMENT OF TAMIL
NADU & ANR. ...RESPONDENT (S)

WITH
W.P. (C) No. 355 of 2006
W.P. (C) No.383 of 2006
AND
W.P. (C) No. 384 of 2006

J U D G M E N T

RANJAN GOGOI, J.

“or on the ground of any custom or usage”. [Change brought about by
Ordinance 5/2006)

…………….. ………….. ………… …………

The other Agamas also contain similar rules.”

Eventually, this Court went on to hold that the provisions of Article
26(b) are also subject to those contained in Article 25(2)(b) and
accordingly dismissed the plea set up by the Gaura Saraswati Brahmins in
the suit out of which the proceedings arose.

34. The explicit reiteration of the Court’s power to decide on what
constitutes an essential religious practice in Sri Venkataramana Devaru
(supra) again found manifestation in Durgah Committee, Ajmer and another
Vs. Syed Hussain Ali and others[8]. Gajendragadkar, J. (as His Lordship
then was) was of the view,

“……. that in order that the practices in question should be treated as a
part of religion they must be regarded by the said religion as its
essential and integral part; otherwise even purely secular practices which
are not an essential or an integral part of religion are apt to be clothed
with a religious form and may make a claim for being treated as religious
practices within the meaning of Article 26. Similarly, even practices
though religious may have sprung from merely superstitious beliefs and may
in that sense be extraneous and unessential accretions to religion itself.
Unless such practices are found to constitute an essential and integral
part of a religion their claim for the protection under Article 26 may have
to be carefully scrutinised; in other words, the protection must be
confined to such religious practices as are an essential and an integral
part of it and no other.”

35.   Almost half a century later, we find a reiteration of the same view
in the majority judgment rendered in Commissioner of Police and Others   Vs.
Acharya Jagadishwarananda Avadhuta and Another[9] though the minority view
in the said case preferred to take a contrary opinion relying, inter alia,
on Shirur Mutt (supra) and Jesse Cantwell   Vs.   State of Connecticut[10]
and United States Vs. Ballard[11].   Para 57 of the minority opinion
containing the discordant note would be worthy of reproduction.

“57. The exercise of the freedom to act and practise in pursuance of
religious beliefs is as much important as the freedom of believing in a
religion. In fact to persons believing in religious faith, there are some
forms of practising the religion by outward actions which are as much part
of religion as the faith itself. The freedom to act and practise can be
subject to regulations. In our Constitution, subject to public order,
health and morality and to other provisions in Part III of the
Constitution. However, in every case the power of regulation must be so
exercised with the consciousness that the subject of regulation is the
fundamental right of religion, and as not to unduly infringe the protection
given by the Constitution. Further, in the exercise of the power to
regulate, the authorities cannot sit in judgment over the professed views
of the adherents of the religion and to determine whether the practice is
warranted by the religion or not. That is not their function. (See Jesse
Cantwell v. State of Connecticut, L Ed at pp. 1213-1218, United States v.
Ballard, L Ed at pp. 1153, 1154.)”

36.   That the freedom of religion under Articles 25 and 26 of the
Constitution is not only confined to beliefs but extends to religious
practices also would hardly require reiteration.   Right of belief and
practice is guaranteed by Article 25 subject to public order, morality and
health and other provisions of Part-III of the Constitution.   Sub-Article
(2) is an exception and makes the right guaranteed by Sub-article (1)
subject to any existing law or to such law as may be enacted to, inter
alia, provide for social welfare and reforms or throwing or proposing to
throw open Hindu religious institutions of a public character to all
classes and sections of Hindus. Article 26(b) on the other hand guarantees
to every religious denomination or section full freedom to manage its own
affairs insofar as matters of religion are concerned, subject,once again,
to public order, morality and health and as held by this Court subject to
such laws as may be made under Article 25(2)(b). The rights guaranteed by
Articles 25 and 26, therefore, are circumscribed and are to be enjoyed
within constitutionally permissible parameters. Often occasions will arise
when it may become necessary to determine whether a belief or a practice
claimed and asserted is a fundamental part of the religious practice of a
group or denomination making such a claim before embarking upon the
required adjudication. A decision on such claims becomes the duty of the
Constitutional Court. It is neither an easy nor an enviable task that the
courts are called to perform. Performance of such tasks is not enjoined in
the court by virtue of any ecclesiastical jurisdiction conferred on it but
in view of its role as the Constitutional arbiter.   Any apprehension that
the determination by the court of an essential religious practice itself
negatives the freedoms guaranteed by Articles 25 and 26 will have to be
dispelled on the touchstone of constitutional necessity.   Without such a
determination there can be no effective adjudication whether the claimed
right it is in conformity with public order, morality and health and in
accord with the undisputable and unquestionable notions of social welfare
and reforms. A just balance can always be made by holding that the exercise
of judicial power to determine essential religious practices, though always
available being an inherent power to protect the guarantees under Articles
25 and 26, the exercise thereof must always be restricted and restrained.

37. Article 16 (5) which has virtually gone unnoticed till date and,
therefore, may now be seen is in the following terms :

“16(5) - Nothing in this Article shall affect the operation of any law
which provides that an incumbent of an office in connection with the
affairs of any religious or denominational institution or any member of the
governing body thereof shall be a person professing a particular religion
or belonging to a particular denomination.”

38. A plain reading of the aforesaid provision i.e. Article 16(5),
fortified by the debates that had taken place in the Constituent Assembly,
according to us, protects the appointment of Archakas from a particular
denomination, if so required to be made, by the Agamas holding the field.
The debates in the Constituent Assembly referred to discloses that the
suggestion that the operation of Article 16(5) should be restricted to
appointment in offices connected with administration of a religious
institution was negatived. The exception in Article 16(5), therefore, would
cover an office in a temple which also requires performance of religious
functions. In fact, the above though not expressly stated could be one of
the basis for the views expressed by the Constitution Bench in Sheshammal
(supra).

39. The preceding discussion indicates the gravity of the issues arising
and the perceptible magnitude of the impact thereof on Hindu Society. It
would be, therefore, incorrect, if not self defeating, to take too pedantic
an approach at resolution either by holding the principle of res judicata
or locus to bar an adjudication on merits or to strike down the impugned
G.O. as an executive fiat that does not have legislative approval, made
explicit by the fact that though what has been brought by the G.O. dated
23.05.2006 was also sought to be incorporated in the statute by the
Ordinance, eventually, the amending Bill presented before the legislature
specifically omitted the aforesaid inclusion. The significance of the
aforesaid fact, however, cannot be underestimated. What is sought to be
emphasized is that the same, by itself, cannot be determinative of the
invalidity of the G.O. which will have to be tested on certain other
premises and foundation treating the same to be an instance of exercise of
executive power in an area not covered by any specific law.

40.   The issue of untouchability raised on the anvil of Article 17 of the
Constitution stands at the extreme opposite end of the pendulum. Article 17
of the Constitution strikes at caste based practices built on superstitions
and beliefs that have no rationale or logic. The exposition of the Agamas
made a Century back by the Madras High Court in Gopala Moopnar (supra) that
exclusion from the sanctum sanctorum and duties of performance of poojas
extends even to Brahmins is significant.   The prescription with regard to
the exclusion of even Brahmins in Gopala Moopnar (supra) has been echoed in
the opinion of Sri Parthasarthy Bhattacharya as noted by the Constitution
Bench in Seshammal (supra). Such exclusion is not on the basis of caste,
birth or pedigree. The provisions of Article 17 and the Protection of
Civil Rights Act, 1955, therefore, would not be of much significance for
the present case. Similarly, the ‘offer’ of the state in its affidavit to
appoint Shaivite as Archakas in Shiva temples and Vaishnavas in Vaishanvite
Temples is too naïve an understanding of a denomination which is, to say
the least, a far more sharply indentified subgroup both in case of shaivite
and vaishanvite followers. However, what cannot be ignored   is   the
‘admission’ inbuilt in the said offer resulting in some flexibility in the
impugned G.O. that the state itself has acknowledged.

41. Sheshammal (supra) is not an authority for any proposition as to what
an Agama or a set of Agamas governing a particular or group of temples lay
down with regard to the question that confronts the court, namely, whether
any particular denomination of worshippers or believers have an exclusive
right to be appointed as Archakas to perform the poojas. Much less, has the
judgment taken note of the particular class or caste to which the Archakas
of a temple must belong as prescribed by the Agamas. All that it does and
says is that some of the Agamas do incorporate a fundamental religious
belief of the necessity of performance of the Poojas by Archakas belonging
to a particular and distinct sect/group/denomination, failing which, there
will be defilement of deity requiring purification ceremonies. Surely, if
the Agamas in question do not proscribe any group of citizens from being
appointed as Archakas on the basis of caste or class the sanctity of
Article 17 or any other provision of Part III of the Constitution or even
the Protection of Civil Rights Act, 1955 will not be violated. What has
been said in Sheshammal (supra) is that if any prescription with regard to
appointment of Archakas is made by the Agamas, Section 28 of the Tamil Nadu
Act mandates the Trustee to conduct the temple affairs in accordance with
such custom or usage. The requirement of Constitutional conformity is
inbuilt and if a custom or usage is outside the protective umbrella
afforded and envisaged by Articles 25 and 26, the law would certainly take
its own course. The constitutional legitimacy, naturally, must supersede
all religious beliefs or practices.

42.    The difficulty lies not in   understanding   or   restating   the
constitutional values. There is not an iota of doubt on what they are. But
to determine whether a claim of state action in furtherance thereof
overrides the constitutional guarantees under Article 25 and 26 may often
involve what has already been referred to as a delicate and unenviable task
of identifying essential religious beliefs and practices, sans which the
religion itself does not survive. It is in the performance of this task
that the absence of any exclusive ecclesiastical jurisdiction of this
Court, if not other shortcomings and adequacies, that can be felt.
Moreover, there is some amount of uncertainty with regard   to   the
prescription contained in the Agamas. Coupled with the above is the lack
of easy availability of established works and the declining numbers of
acknowledged and undisputed scholars on the subject. In such a situation
one is reminded of the observations, if not the caution note struck by
Mukherjea, J. in Shirur Mutt (supra) with regard to complete autonomy of a
denomination to decide as to what constitutes an essential religious
practice, a view that has also been subsequently echoed by this Court
though as a “minority view”. But we must hasten to clarify that no such
view of the Court can be understood to an indication of any bar to judicial
determination of the issue as and when it arises.   Any contrary opinion
would go rise to large scale conflicts of claims and usages as to what is
an essential religious practice with no acceptable or adequate forum for
resolution. That apart the “complete autonomy” contemplated in Shirur Mutt
(supra) and the meaning of “outside authority” must not be torn out of the
context in which the views, already extracted, came to be recorded (page
1028). The exclusion of all “outside authorities” from deciding what is an
essential religion practice must be viewed in the context of the limited
role of the State in matters relating to religious freedom as envisaged by
Articles 25 and 26 itself and not of the Courts as the arbiter of
Constitutional rights and principles.

43.   What then is the eventual result? The answer defies a straight
forward resolution and it is the considered view of the court that the
validity or otherwise of the impugned G.O. would depend on the facts of
each case of appointment. What is found and held to be prescribed by one
particular or a set of Agamas for a solitary or a group of temples, as may
be, would be determinative of the issue. In this regard it will be
necessary to re-emphasise what has been already stated with regard to the
purport and effect of Article 16(5) of the Constitution, namely, that the
exclusion of some and inclusion of a particular segment or denomination for
appointment as Archakas would not violate Article 14 so long   such
inclusion/exclusion is not based on the criteria of caste, birth or any
other   constitutionally   unacceptable   parameter.    So   long   as   the
prescription(s) under a particular Agama or Agamas is not contrary to any
constitutional mandate as discussed above, the impugned   G.O.   dated
23.05.2006 by its blanket fiat to the effect that, “Any person who is a
Hindu and possessing the requisite qualification and training can be
appointed as a Archaka in Hindu temples” has the potential of falling foul
of the dictum laid down in Seshammal (supra).   A determination of the
contours of a claimed custom or usage would be imperative and it is in that
light that the validity of the impugned G.O. dated 23.05.2006 will have to
be decided in each case of appointment of Archakas whenever and wherever
the issue is raised. The necessity of seeking specific judicial verdicts
in the future is inevitable and unavoidable; the contours of the present
case and the issues arising being what has been discussed.

44. Consequently and in the light of the aforesaid discussion, we dispose
of all the writ petitions in terms of our findings, observations and
directions above reiterating that as held in Seshammal (supra) appointments
of Archakas will have to be made in accordance with the Agamas, subject to
their due identification as well as their conformity with the
Constitutional mandates and principles as discussed above.

………..........…………………J.
[RANJAN GOGOI]

…………..........………………J.
[N.V. RAMANA]
NEW DELHI,
DECEMBER 16, 2015.

-----------------------
[1]    (1972) 2 SCC 11
[2]    (1983) 1 SCC 147
[3]    (2002) 8 SCC 106
[4]    1966(3) SCR 242
[5]    AIR 1915 Madras 363
[6]    1954 SCR 1005
[7]    AIR 1958 SC 255
[8]    AIR 1961 SC 1402
[9]    (2004) 12 SCC 770
[10]   84 L Ed 1213 : 310 US 296 (1939)
[11]    88 L Ed 1148 : 322 US 78 (1943)

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