SESHAMMAL & ORS. ETC. ETC. versus STATE OF TAMILNADU

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SESJIAMMAL 4 OlilS. ETC. ETC. Y. srATE OF T~MIL NADU March 14, 1972

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{S. M. SIKIU, C.J., A. N. G~tOVER, A. N, RAY D G p

AND M. H. BEG, JJ.]

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. ALEKAR.

The Tc.-mil Nadu Hindu Religious and Charitabl End

/'i<;nlf/ls ~g~ (Tamil Nadu 12 of 1959) a.l' amerrde-d by Anuntling ~ct 0 55, .56 and J1.6-J:!ereditary right of sc<c,:ession ro offictt of A::i.~ abohrTu!d-JJ VJolat•ve of Arts. 25 and 26 of Constitution.

Section 55 t:>f the Tamil Nadu Hindu Religious . an.d Ch:uitablc Ell· dowments Act, 195~, gave the trusree of a temple the power to appoint the officr.l holders_ or. servan~ of the temple and also provided that where the of!ice or s.erYJce IS hereditary, tlle perwn ne:tt in the lice o( succession .shall be entitled t1> sw:.cce.d. In Ollly CXQ:pti9Q.il ~as.c:s the trustee was s:ntitled Lo &part from the principle of ncl!t·in·the line of sua:cs.sioo, but even iO, the trustee was under an oblijption to appoint a fit ~rson to perform the service after having due: r~gard"to the dJ.iau of the mem bers of the famil y. Section 116(2) (xxiii) of the Act gave power to the Government to make rules pro'Viding for tbe qualification.• 1o bo pos£-essed by the ~~rs ~U~d ~rvant.s and their conditions o{ oetvio:. The State GovemmeQt tram.e.d tho Madras Hindu Religious lnstir.wi.oos (()fliul'$ and Servanr&) Service RuLes, 1964. Rul.c 12 provided that .lLil An:J}ab, whetb,er bm:ditacy. or non-hereditary whose. duty it L$ !.0 perlorm Pujai, shall, before succee$1111g t.o the offi~ or ajlpOmtJneot. to dJoe office, obt;.in a certificate 0( fune&.$ C.or perfQrmmg the d ulles of hiS office from the! head ,:X ill i~Mion imprtttiog instrtu:ti?DS in Apmas cr !Tom the ~ad of i math recognised by the CommiSS!oru:r or from sudl olDer pef'50il ~ may ~ dcsiiWit.cd by Jh.e Comrmsslon.er.

The 1\J:i Wall ~ l!y the Am«oding Mt· of tno. The Amald· ~ ~ ,did away ..-jj:.b t.Q,e heco~dilary ri~ of su=~.on to tbe ~b ~f .Acchalca. The peti!ioaers ..,ho were Ar.cbalqw of S;uvue and Y~~ temples and Mathadbipatis to wllose Maths LefJIP~S :ll'e J.Ullebed fi.W p:titions in ~is Court contending tha.t the amendment! v•olated ArtS. - •1111 26 pi tl)(i ~stirutiop .

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ull1':Ultee

is not limited to matt~s of octr1noe or

Pia m~i.Q.a 4le pctiliPna. JiEJ,..D : (1) Tbe Pr¢ecijdon ~>f ~~ ~ie,~dth;; ~!te~ ~'1ra: done in p~USuance of religion. IIDd tbere~ore ~nt~~ •ol religi.cn. )Vbat for rituals anJ observa~s ~tc. which ~ -~ ~e~!igi~' pracliee ba.s !JJ be ~1tu1n an 1'5~t!tial part of a '~· Sl the doctrine of a parocuhr deJ:ided by .the Courta with r:eJ'l:r~nce to ckd by the community .u J1 religion lndudinjl prnctices wlucb are repr PJ!I1 of iu religion. {827 B-Dj

&mar l}'rJM TaJrrr Bal/uddirr 8alub v . Th# Stare PI po,rbay, l

, 1 196 ~ m With tile --'lilbii.Wuc,nt 9l fl:IJl tW .,-.:wbe ~~Aga8lJ.$. llws

&up,t. 2 S.C.R. 496, rt'fCI'red to.

je tfot !OJJW)Pf, ~j~ QB ntiJalf i¥ele COIJll) the ~ 'I'(Of~jppets .aU Tilmll ~~Vf •

!Qjsl ,JlSpec.l, W _,li.aJ;t

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SUPR

EME

COURT REPORTj

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[1972] 3 S.C.R..

S16

to worship.

Deity from pOllution, deftlement or desecration preserve the image C>~ th~ay take place in a. variety o~ ways and according Pollution or d~ecrat!on ge becomes defile& Jf there 1.! any departure or .~er, in all the temple~ in to the Agarnas, an Jma latin violation of the roles re crate~ the Agamas JDSJSted that only the qualified which iroages are ~~d the sanctum sanctorum after observing certain Arc~~a ~all step Jnsl ~ Agam~. Hence the A~chaka of such a tem disclp~ !IDJ'?Sed ~ficient in the Jit"uals. appro~nate to the _worship of ple, besi.des bemg} must also belong to. a particular denommation; be.. the part1cular hDelcl y,of ·a different do;nom1nanoo would defile the image cause an Arc a a by hi; touch. [825 F-H; 826

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s . y~ kataramana Devaru v. The State of Mysore, U958] S.C.R. 895 nn· 'Holin~s Perla Kovil Kelvl A.ppean Thiruvenkato Ramanuja Pedda ;fyyangcrlu V arlu v. Prath ivaJhi Blray~f;mam Venka1acharlu, 7J I .A. 156 and Mohan Lalji v. Gotdhan LolJI Maharaf, 35 Allahabad P. C. 283, referred to,

(3) Tb:: hereditary principle in the appointrr>..ent of an Archaka had been adopted and accepted from antiquity and bad also been .fu!Jy recog nised in the unamended s. 55. But the change effected by the am~nU. ment to a. 55, namely, the aboliticm of the principle of n~t-in-the·line ~f succe.Mion is however, not invalid, because, the usage is a ~cul~r and not a religious wage. [833 A-C)

(a) An archah bas never been regarded as a spiritual head however acromplished and weU-vers.ed in the agamas and rituals he may be. He is a s:rvant or the temple su&ject to the discipline and qorurol of the trustee aa recognised by the unamended s. 56 of the Act. Tb:lt being h~ position the act o! liis appOin'tment by the trustee is essentially secular, '11lat thougll . after ;~~ppointnr.nt he performs some religious functions. a~ter hta .appotn~ent. he perfor~s. wonhip is no ground I or holdin~ !!Jat hta &ppoill~t ~ etther a reilg~ous practic-e or a matter of relig~on. He owe1 h~ apPQ:Ullm~nt to a se.cular authonty. Any lay founder of a kmpk: may appotnt him and the Shebail$ and l-fana&'!rs of temples e:~~.e~se an e"SeotJany secular function in choosing and appointing tbe ~~fb ... k~ .. '11le ~act that in 11ome tt.'1llples tb.o bereditazy principle w:lS poi~~e 1D. mili~z the appointn.=nt would DOt · make the su~ive ap-

. men"- anything but sccutur. 1!!32 A-G)

J(aJ~.K~'f':adr~ Alyanagar v. Rmlga Bhattar. I.L. R . 35' Mad. 631, Naflllbhai Naro ay v • Male han LaJ Mookerfu, l.L. R. 50 CIIL · 233, ( UM:portcd · ~amdtM v • Trimb"* Balwant BhandaT~ (187B-SO) Vol. 4 Mal!4rane~ pnnted judgments of the Bombay Hight Court p. 169) and 89, referrel11~~r}eet Koer v. Chundemun- Misser, XVI W~y R.-portn-,

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{b} The power i1

. Vtn to tho tr\1.\k:(! under the ~nd•'d s..-..-tiou ~ appoint any body fic&le untJcr t. 12. ~a!n Arctw.a lo ~oni as he poo;.;.."'<'\i os titn~~.~~ to be read with a. 2.8 nut lln unq~lft.::l.l power, bcc.lU."-' 1M powe~ b ~ tnut~e to lldmlntsl.c<>f ~he Ac~ which cootrol(.:.J it. ~00 ~8 ·d~ ~rma of the tru~t or the Arc.bab .will h!lv~o~f the Jlllltltulion. Therefore, the ~pP?urtmc:D! ~ E.,~ 111 ~rJancc with :had~ . fro'!l the •rcitlect <knqaunauon,. sed thll ih--ywo, e l.hrtctlO!l<i 0 in o e nu.tter of llPPoln~n~n~ ' · ~S(l), ~ choi.ce of the trOste the pcratiQq ot n~t-in-llne of or an ~ch~a Is no Jon~ limited: by w»

e a!fal~ ?f tho ~rnrh· in ~~rd:.Ul~ wltb

thol Agam:u £0VeTlllUg

ln 'tic~ ()f ·th

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SU~1on I.Q tem.ol~ w.bero .the Utla.il'

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SESHAMMAL v. TAMIL NADU (Palekar, /.)

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to Qppoint the Archaka on the bertditaiy principle. To that extent the trustee is released from the obligation imposed on him by s. 28 to ad· · tninis1er the affairs in accordance w'ith that Part of the u8age of a templo which enjoined hereditary appointments . . But the .legislatioa in this fact does not interfere with any religious practice. [832 H~833 q

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( 4) The other changes effected .i,n the other provisions of the Act B are merely consequential, and therefore, the Amendment Act u t whole

must be regarded as valid. [833 FJ

(5) The rule-making poWer is c;onfeiled by s. 116 on .the. Govern .. ment with a view to carry out t.lM! purposes of the Act which are ~· tially secv.tar. The Act nowhere givea the indication that one of its purposes is to eft'ect a change in th,e rituals and ceremonies follOwed iD the temple&. Section lOS and 107, on the contrary, empha&ize that there ahall not be any contravention of the rights conferred o~ any religious de. nominations of any section thereof,' by Art. 26 of the Olnstitution. Rule 12 5till holds the 1'leld · ang there is no reason to think that . the State Government would f~ rules tO revolu>lonise temple WOI$hip by intro-< ducing methods of worship not cumnt in the several temPfe&. If any such rule is framed by GOvel'lUDe'nt . Which pt~rports to interfd'e with the l'ituals and ceremonies of the temples, it will .be liable to be challenged by those who are interested. in the temple worship. [834 CG)

ORIGINAL JURISDICTION: Writ Petitions Nos. ·13, 14,. 70, 83,

43.7, 438, 439, 440, 441, 442. 443 and 444 of 19.71.

Undor Article 32 of- the Constitution of India for. the enforce·.

mont of the Fundamental Rights,

R. Gopaltlkrlshnan, for the petitioners (in W.Ps. Nos. 13 and

14 of 1971).

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· K.. Parasaran and K. Jayara~, lor the petition~rs (in W :P. No.

70 of 1971).

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r· 83 of 1971)..

M. Natesan flJld K. Jayaram, for the petitioners in. (W .P. No. · K. Parasa#zn ·an4 M. S. Narasimha11, for the petitioners (in

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W.P. ; ~o~ 437 of 19712_. • . ·V; G... Ramchlmdrt~n aod M.S. Narasimhlln, for the.petitiollel( (in W.P. ·Nos. 438 ar444·ol.1971). · · M. Nt/Jesan and M. S; N~imhan, for th~ Petitioners (in W.Ps. Nos. 439 and 443 of 1971,.

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S. Annadurai Ayyangar ~d M. S. Narasimhan, for the peti- .

tioners (in W.P. No. 441 Of 1~1)

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H peti~ (in W.P. No, 442 of 1971).

· : N. A.. Palkhiwa/4,. A. I. Rana and M. S. Naraaimhalt, for tbe · M. S. Narl18imlfitn;. 'tor the. petiti~ne~ · .(in "f/.P. No: 440 ·Of ..

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818

SUPllEMB COURT RBPOUS

[1972] 3 S.C.R..

s. Govind Swaminndhan, AdVocate-General fat the State of Tamil Nadu, S. Moliiin, N. S. Sivan and A. Y. Rartgam, fot the respottdertt (in all the petitions) .

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The Judgment' of the Court was delivered by

Palelwf j. In these 12 petitions under Article 32 of tile Constitution filed by the hereditary Archakas and Mathadhipatis B of some ancient Hindu Publi_c temples .in Tamil Nadu the validity of the Tamil N adu Hindu Religious and Charitable ·Endowments (Anumdment) Act, 1970 (heteht.after referred to as the Admend· ment Act, 1970) is called in question, prlndpally, on the ground that it vif?1ates tli~it freedom of religion se~ured to them under Articles 25 and 26 of the Constitution. The validity of Amendtnent Act had been also impugned ofi the ground t~at if ittterfered with certain m.her ftirt~ental rifhts of the petitiobets but that case was not pressed at the time o the hearing.

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Tlie tempies with w~ich ~e are ~oncemod are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, 83, 431, 438, 439, 440j 441, 442, 443 artd 444/71 a~ filed by the Archakas and Wtit Ptdiion!l 13 ind 14/1971 ate :fi1ed by tfte Mathadhipatis to whose Math some temples are attached. As, comrttful questiorts were involv~ in all th~se pe,tltiObi, at~ts were addressed principally in Writ rre~ 13;19'71 and 442/ 1971, and we are assured by counsel for both sides they covet the points irtvolVed in all the other petitions.

that

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It e~ intb force on n.cotn~t 2, 1959. to

. Tbe State Legislature of Tamil Niuiu enacted The Tamil Nadu 'MiDI ~du Religious and Charitable ~ndowments Act, 19S9 (Tamil Nadu Act XXII of 1959) hereinafter referred to as the It Prlft.clpill A~t'. tb6 p .was an Act to amend and consolidate the law relatmg administratio~ and governance of Hindu :Religious and Charitable ittstittitions aii:d ~ildowments in the Sfate of Tamil Nadu. ·It aPJ>lied to all Hindu religious public institutions and endowments ·in tile Stata: m·TJunil Nadu Mld' re)'tale4 IIIVUal A«5 which :had previausly governed the adrnfuisttatfon Oi ltind.u Publi~ R•Ilgious 11\Sti~utions. It is su~cient to say here that the provisiODi oi. the Prlntipal Act appl1M to the temples in the preiltmt petltiOllSI and o the petitioners have no complaint against any of its provisions.

·Section 55 ot that Act proVided· for ~ appoi~ont of. oftiGe~ l.lolders and servants in such temples and section 56 provided for thcs pU.ni111uhetlt of dffi~Jjglders tnd 'S~nt~. ~tion 55, broadly speaking, gave the t'rttlttee of the temple tht powet appoint the office--holders or servants of the temple and a1sQ pro- Vided that wher~ the offic~ 6r s~l'Vict ts h6redifai'y' the pe~ iaHt Iri . only in the line of succession shall be entitled to succeed.

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SESHAMMAL v. TAMIL NADU (Pa/ekar, J.)

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A exceptiOnal cases the: trustee was entitled to depart from the prin ciples of next-irt·the-line of succession, but even so, 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.

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Power to make rules was given to Government by sectioa 116 ( 2) ( xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and religious servants for appointment to non-hereditary offit~ in institutions, the qualifications to be possessed by hereditary, ser vants for succession to office and the conditions of service of all such officers and servants. Under this rule making power the C State Govetnment made the Madras Hindu Religioll8 Institutions (Officers and Servants) Service Rules, 1964. Under these rules an Archak or Pu jari· of the deity came under the definition of 'Ultburai servant' is defi:Md as a servant 'Ulthurai, servant'. whose duties relate mainly to the performance of rendering assis tance in the perfonnance of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, thevarams and similar invocations and the performance of duties connected that with such performance of recitation. Rule 12 ptOVided every 'ulthurai servant', whether hereditary or non-hctdditary whose duty it is to perform pujas and recite JIWltnw, vedas, pra bandllrtlS, thevarruns and other inva<:ations shall, before stu:ceed- ing, or ap}X)intment to an offi.c:e, obtain a certificate of fitness for performing his office, from the head of an instltutkm imparting instruc:tiotls in Aga.m~ and ritualistic matten ~ re®gniSed by the C'»1lmissionetj by gentral or 11pecial order or from the bead of a math recognised by the Commissioner, by general or special order j ot' such other ptr'SOn a& may be designate<~ by the Commis- sionet, from ilirle to time, for the purpose. By this tult the pro per worship in the temple was secured whether the Arehaka or P~jari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that n<illting conUtined itt the Act Shan, save as otherwise pr<Mded in section I 06 and in clause ( 2) of Article 25 of the Constitution, be deemed to oonfet any power or impose any duty in contravention of the ngbts 001Ifetred on any rellgiou~ denomination Or any section thereof by Article 26 C1f tbe Constitution. Section 106 deals with ,the removal of discri1nbla tion in the matter of distribution of prasadam or theerfhatn to the Hindu worshippers. That was a reform in the right direction aftd there is no challenge to it. The AcJ as a whole, it is conetded ,did .not interfere with the religious usages and practices of th~ .temples,

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The Principal Act of 1959 was amended in ~rtain respects by the Amendment Act of 1970 which came into forte 011 January

suPREME coURT REPORTS

[1972] 3 S.C.It

820

ts were made to sections 55, 56 and 116 ()f A

.g · 1971. Amendme~ some consequential provisions were made the ?rincipal Act ~ndments. The Amendment Act. was enacted. hi VIeW of those am ocial reform on the recommendation of the as a st~p tow;rtn~ouchability, Economic and Education:ai -Deve Coronllttee 0 Scheduled Castes. The Statement of ObJects and loproent ofht_h~ are reiterated in tbe counter~affidavit filed on be· B Reasons w tc half of the State of Tarotl

follows · .

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u IS as

"In the year 1969 the . Committee on Untouchabi· .the lit Economic and Educational Development of s!heduled Castes has ~uggested_ in its re_Port that the hereditary priesthood m the Hindu Society should be abolished, that the sy~tem can be repl~ced ·by ~ e.cclesiastical organisation of men possessmg the requt in site educational qualifications who may be trained recognised institutions in priesthood and that the line should be open to all candidates irrespective of caste, creed or race'. In Tamil Nadu Archakas, Gurukk.als and Poojaries are all Ulthurai servants in Hindu tem~ ples. The duties of Ulthurai servants relate mainly _to the performance of poojas, rituals and other services to the cteity, the recitation of mantras, vedas, prabandas, thev~ and similar_invocations ·and the performance · of dutlc!> connected With such performance and recita· tio~.. Sections 55 and 56 of the Tamil Nadu Hindu Relig1?W and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) provide for appointment of office holders and servants in the religious institutions ~Y the trustees by applying the rule of heredltacy succes· ~on also. As a step towards social reform Hindu temples ve already been thrown open to aU Hindus iqespective · f · o caste ••.•• • "

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Ulw~1S1on of this Court · G

In the light of the r ecommen~tions of the Committee and in view ·ot the ~--· · St<Ue of Alldhra Prad h & tn awla Dizsaratlza Rama. · R(JQ v. ~wards social reformes further step -ditary principle of a ~ Government coosi<kred that the here· temple\ should be ~~lit of all office holders in the Hindu G amend ~tions 55 56 gious and Charitabl XXII of 19S9).

it p~ to and•ll6 of the Tamil Nadu tfindu ReU' 0 Endowments Act, 19.59 (Tamil Nadu Act

Ors.(~) and also as a

and accordingly

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It is tho ~m 1 .

. P :unt of th~ petiti

introdu l.1ld P ce ~1a1 reform. ln. tho -

onet'9 that by purpc;nWtg . to uJans, tho State has mat.ter of apPointment of ArcJial!S the · relfgioU'

r_::illy lnte.rfertd with

U} U9dtf u.c.a.. Y.Jt.

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SESHAMMAL V. TAMIL NADU (Palekar, /.)

821

A practices of Saivite and Vaishnavite temples; and instead of intro~ ducing 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 B of the Principal Act and the same sections as they stand after the

amendment.

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Unamended Section

Amended Section

Sec. 55

Stc. SS

Appointment of office-holders and servants Appointment of office-holders and

in relig[ous institutions.

servants in religious institutions.

(1) Vacancies, whether permanent or tem- porary, 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.

(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.

(2) In cases where the office or service is hereditary, tho person next in the line of succession shall be entitled to succeed.

(2)

ExP_lanation : The expression 'Office-holdm or servants shall archak:as and poojaris.' include

No person aball be entitled to appOintment to any vacancy re ferred to in n1b-scction (l) merely on the around that he 11 next in the line of succeasion to the laat holder Of Offic:e.

(3) Where, however, there is a dispute (3) Omitted.

respecting the right of succession, or where such vacancy cannot be filled up immediately or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or-

where

the hereditary office. holder or servant is on account of otherwise incapacity illness or unable .functions of the office or perform the service, or is suspended from his office under aub scction (1) of section .56,

to perform

the

the trustee may appoint a fit person to perform the functions of the office or perform the service, until the dis· ability of the office-holder 1lr servant ceases or another person succeeds to the office or service, as the case may be.

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822

SUPREME COUJt.T REPORTS

[1972] 3 S.C.lt

Eirpfanatian : Ill tnaklna any appoint· ment under this subsection, the ~ustee ~hall b!lvc due regard to the clauJ!.S of members of the family, If any, entttled to the succession.

(4} Any ~erson aggrieved by an order of the trustee under suf>.section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the D eputy Com· missioner.

(4) Any person _aggrieved by an order ~r ~tee ull£1cr s«tion {l) may Within ~ne montb from tbe date of receipt of the order by him appeal against the order of the Deputy Commissioner.

s~c. S6

s~c. S6

Punishment of office-holders and servants Punishment of office-holders and ser-

io rcliglo~ institutions.

vants in religious institutions-

(1) All Office..holders and servants at· tached to a religious imtitutioo or io reCeiPt of anY emolument or pre quisite therefrom shaU, 'Whtther tiu of!1ce or S~l"'lct 1.1 heruli· tory or not, be controlled by the trus tee; and tbe trustee may, after fol lowinc the prescribed procedure, if any, fine, suspend, n:move or dismis.t ~ ny of them for the breach of trU3t, mc:apacity, disobedience of orders negt~ or duty, misconduct or oth~ auffiaeot awe.

(1) All olfic.e holders and servants attached to a n:ligio us institu. tioo or in receiPt of any emolu. rnent or perquisite there!rom aball be controlled by the Trustee and the trustee may after followinc tbe prescribed proce<lun:, it: any, fine, swpend, remove or diSilliss any of them for breach of rrust incapacity, disobcdicnc:e of ord: ers, neglect of duty, misconduct or other sufficient cause.

mtnlSS!ooer.

(2) Any oiJiclr-hold.tr or ~ervant punish- {2) ed b~ ~ ~lei under sub-eection( l) m,ay, Wllh'!l Oot trwnth from tho date 0 the teccJpt of tho order by him ap.. CopeaJ •f1i!11t the order to tho Deputy (3) A ~fl:UY olfic:c-holdcr or servant ::ry, WI~ one m~nth from tho date I bet~ Reletpt by ~ of the order of uty Cornnusstoner under aub- IC>Ct. Co •oo_ (2), J)refor an ap~J to the llllnas•oncr •aalnst aucb order.

Any office liotdcr or servant punished by a trustee under auf>. section (l) may within one month from the date of receipt ot order by him appeal a&aillst th' order to tho Deputy Commissioner.

(3) Omitted.

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s,e. 116 Cull() (I)

~ ~b"'ment may, by notifica. POleS or th~~-to carry out the Pur·

s~c. 116 (xxl/i)

(2) Without pr j d'- -

or the t may provldo for-

e u. """ to tho aenerality rules

on:aotoa power

h • sue

(Jr..r/U)

Tbo,..~i6catfon1 to be

· 0 """"" and ee po~d by tht to DDI\-ben:<!Jt rvant, for appointment atltutlons, tho ~ll.l~= In rcllf !oua ln. ons to bt 1!01 .. ~ by heredit t~on to offlco an'cfY Jervants for auece... v~ of all auch 0~C:OndJtloJU of acr.:

and lletvants.

(u/11)

The quall!lcalon.s to be ,a.sessed by the O!Hoers and servart11 for ap Pointment to oflk:el 111 rella!ou.s ln.lltutlon •nd tho condltlom of M:tvloo o( afJ ruch offic:en and aer• \lan~.

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SESHAMMAL V. TAMIL NADU (Palekar, /.)

823

that

It is clear from a perusal of the above provlsiorts

the Amendmant Act does away with the hereditary right of succes sion to the Office of Archaka even if the Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Offi It is claimed on behalf cers and Servants) Service Rules, 1964. of the petitioners that as a result of the Arne.ndment 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 succes sion 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 pres cribe or not to prescribe such qualifications us they may choose to adopt for ap})licants to this religious office while the Act itself gives no indi cation whatever of the principles on which the qualifications should be based. The statement of Object& 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 oveNide the e.xdu· sive right of the denomination to manage their own affairs in the matter of religio.n by appoint~ ing Archakas· belonging to a specific denoniina tion for the purpose of worship.

(c) The Amendment Act gives the right of appoint ment for the first tiine to the trustee who is under the control of the Government under the provi sions of the Prittcipal Act and thH is the very negation of freedom of religion and the princi ple of non-interfetance by the State as regards the practice of religion and the right of a deno mination 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 ate concerned are public religious institutions estabilsh ed in olden times. Some of them are Saivite temples and the others are. Vaishnavitt temples, which means, that in these tem- ·. ples God Shiva and Vishnu in their several. manifestations are wotshipped. The image 0f· Shiva is worshipped by his worshlp pers who are called Saivites and the image of Vishnu is worshipped by his worshippers ·who are known as Vaishnavites. The institu·

824

SUPREME COURT REPORTS

(1972] 3 i.C.f

to A

two ·deities.

(See page 725 c

tion of temple worship has an ancient history and, according Dr. Kane, temples of deities had existed even in the 4th or 5th ce.ntury B.C. (See: History of Dharmasastra Vol. II Part-ll 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 B two distinct cults is very difficult to say, but there can be no doubt that in the times of the Mahabharata these cults were sepa rately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endea voured to inculcate a spirit of synthesis by impressing that there was no difference between the supra.) With the establishment of temples and the institulion 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 V enkataramana Devaru v. The State of Mysore(l). Agamas are described in the last case as treatises of .ceremonial law dealing with such matters as the construction of temples, installation. of idols conduct of the worship of the deity. There are 28 Agamas relat- ing to the Saiva temples, the important of them being the Kami kagama, the Karanagama and the Suprabedagama. The Vaish navas also had their own Agamas. Their principal Agamas were the Vikhanasa .and the Pancharatra. The Agamas coptain ela borate rules as to how the temple is to be constructed, where the E 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 in per directions of the Agamas the idol had to ·be consecrated 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 wor shipper to participate in the worship carried on by the priest or G It is believed that when a congregation of worshippers Archaka. 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 It is part of the religious belief of a Hindu wor or desecration. shipper that when the image is polluted or defiled the Divine Spirit H in the image diminishes or even vanishes. That is a situation

therein and D

11'

(1)

[19S8] S.C.R. 89S.

SESHAMMAL V. TAMIL NADU (Palekar, /.}

825

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B

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D

E

F

if

the

there

which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. Accord is any ing to the Agamas, an image becomes defiled In departure or violation of any of the rules relating to worship. 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 importance attached to minor details of ritual is found in the case of His Holi ness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu and others(l) 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 time of worship and which should be the concluding benedictary verses. the wor This gives the measure of the importance attached by shippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the tradi tional 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 sane forum. 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 pertain· ing to temples even the question as to who is to enter the Garbha griha 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

G

H

In The Agamas have also rules with regard to the Archakas. Saivite temples only a devotee of Siva, and there too, one belong ing 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 c.aste he may belong and however learned he may be. Similarly, a Vaishna vite 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

SUPREME COURT I.EPORTS

[1972] 3 S.C.R.

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 Dhannasastra referred to above. The Brahmapurana says that "when an image is broken into two or is reduced to particles, is burnt, is n;moved from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other detities or is rendered impure by the touch of outcastes and the like-in these ten contingencies, God ceases to indwell therein." The Agamas appear to be more severe in this respect. Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the V aikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra ( Agama), persens who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of V aikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vishnavites. They only can touch the idols and perfonn 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 tQ another the Garbha Griha. Not even a person belonging Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational It is, therefore, manifest that the Archaka of such a temples. temple besides being proficient in the rituals appropriate the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a diffe rent denomination is supposed to defile the image by his touch aDd since it is of the essence of the religious faith of all worship pers that there should be no pollution or defilement of the image under any ·circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which pennits the defilement or poilution of the image by the touch of an Archaka ~ authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper jn a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.

to

This Court in Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay( 1) has summarised the pOSition in law as follows (pages 531 and 532).

''The content of Arts. Z5 and 26 of the Constitution the came up for consideration before this Court Commissioner, Hindu Religious Endowments Madras

in

(I) [1962) 2 Suppl. S.C.R. 496.

I

c

D

F

c

H

SESHAMMAL V, TAMIL NADU (Palekar~ J.)

827

v. Sri Lakshmindr(l Thirtha Swamiar of Sri Shirnr Matt(!); Mahant Jagannath Ramanuj Das v. The State ); Sri Venkatamona Devaru v. The State of of Orissa( 2 My~ore( 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 pur suance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of wor~ ship which are integral parts of religion. The second is that whaf 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 (Officers and 12 of the Madras Hindu Religious Institutions Servants) Service Rules, 1964 ensured, so far as temples with hereditary Archakas were concerned, that there would be no defile~ ment of the image. By providing in sub-section (2) of section 55 that "in cases, where the office or service is hereditary, the per~ son next in the line of succession shall be entitled to succeed", it ensured the personal quaJification of the _Archaka that he should belong to a particular sect or denomination as laid down in the Agamas. ay Rule 12 it also ensured that the Archaka would be proficient in the mantras, vedas, prabandams, thevarams etc. and thus be fit for the prefonnance of the puja, in other words, that he would be a person sufficiently qu3.lified for perfomring the image becomes rituals and ceremonies. As already shown an the rules defiled if there is any departure or violation of any of 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 succea sion is abolished. Indeed it was the claim made in the statement of Objects and Reasons that the hereditary principle of appoint ment 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 l?odY as an Archaka in

(1) {l9S4] S.C.R. 1005. (3)

[1958] S.C.R. 895.

(2) (4)

[1954) S.C.R. 1046. [1962] 1 S.C.R. 383.

8

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828

SUPREME COURT REPORTS

[1972] 3 S.C.R.

an¥ temple 'Yhether Saivite or Vaish.nav.ite .as long as he possessed a fitness certlflcate from one of the Institutions referred to in rule 12. Rule 12 w~ a rule made by the Government under the Principal Act. That rule is always capable of being varied or It was also open to the Government to make no rule cha!!ged. at all or to prescribe a fitness certificate issued by ap. 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 appro priate 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 provic;ions of the Act by the Government, ~e Commissioner, It was the Deputy Commjssioneror the Assistant Commissioner. submitted that the innocent looking amendment brought the State right int9 the sanctum sanctorum through the agency of the trustee and the Archaka.

A

B

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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(l). In that case the claimants to the temple and its worship we,re . Brahmins and the E the daughter's sons of the founder and his nearest heirs under 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 perfonn the rituals and ceremonies and, the claimant$ had no right either to the temple or to perform the wor ship. was nothing, in the petitioners' submission, to prevent the·Govem ment from prescribing a standardized ritual in all temples ignoring the· Agamic requirements, and. Archakas being forced on temples from donommations unauthorised by the Agamas. Since ·such a departure, as already shown, would inevitably lead to the defile~ ment of the ilnage, the powers thus taken by under the ·Amendment Act. would lcitd to interference with reli gious freedom guaranteed under Articles 25 and 26 of the Cons titution.

In view of the Amendment Act, end its avowed object there F

the Govemment G

therefore,

the The force of the above submissions made on behalf of petitioners· was not lost on the learned Advoc~to General of Tamil Nadu who appeared on behalf of the State. He, however, side in tracked the issue by submitting that if we were to . consider

H

(1) 35 Allahabad (P.C.) 283 at page 289.

SESHAMMAL v. TAMIL NADU (Palekar~ J.)

829

'He did not also admit

i~olation. only the changes introduced in section 55 by the Amend~ ment Act the situation as described on behalf of tht; petitioners that he was could conceivably arise. bound by eith!r the,. statement of Objects and Reasons or the reite~ ration of the same:in the counter ... affidavit filed on behalf of the State. His submission was that we have to take the Principal Act true as it now stands after the .amendment and see what is to the effect of the same. He contended that the power given trust~ under the amended section 55 was not an unqualified power "because, jn his submission, that power had to be read in the context of secti'on 28 whiCh controlled it. Section 2 8 ( 1 ) pro vides as follows :

the

"Subject to the provisions of the Tamil Nadu Tem ple Entry Authorization Act1 1947, the trustee of eVfEY 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 aft'airs, funds and properties if they were his own."

the

temple

The learned Advocate General argued that the trustee was boum. under this provision to administer the affairs of in accordance with the terms of the trust and the usage of the insti If the usage of the institution is that the Archak.a or tution. 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 It was true that the principle of the next-in-line of said usage. succession was not binding on bim when making the appointment of a new Archa}{a, 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 nel:t heir, if found competent. He, however, agreed, that there was no such legal obligation on the trustee·w.tder that .. section. He further contended that if the next in-line~f-succession princi ple is regarded as a usage of any particular temple it would be merely a secular usage on which legislation was competent under Article 2S(2)(a) of the Constitution. Going further, he con tended that if the. hereditary principle was regarded as a religious 7-L1061Sup Cl/72

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830

SUPREME COURT REPORTS

[1972) 3 S.C.R.

p1~tice that would be also amenable to legislation under Article A ~5{2) (b) which. penn!ts ~egislation for the purpose of social wel- fare and reform. He 1nv1ted attention to the report of the Hindu Religious Endowments Commission ( 1960-1962) headed by Dr. C. P. Ramaswami Aiyar and submitted that there was a · crying need for reform in this direction since the hereditary principle of appoin!ment of Arc~akas had led to grave malpractices practically destroymg the sanctity of worship in various religious institutions.

8

c

D

the

We have found no. difficulty in agreeing with

learned Advocate General that section 28 ( 1 ) of the Principal Act which directs the trustee to administer the affairs of the temple in accor dance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka. will have to be made from a specified denomination, sect or group in accordance. with the directions of the Agamas governing those temples. Failure to do so would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of wh.ich would be to defile the image. The question, however, remains whether the trustee, while making appointment from the specified cJenomination, sect or group in accordance with the Agamas, will hi bound to follow the hereditcuy principle as a usage peculiar to the temple. The learned Advocate-General contends that there is no such invariaple usage. It may be that, as a matter of. con venience, an Archa.ka's son being readily available to perform the wru:ship may have been selected for appointment as an Archaka · from times immemorial. But that, in his submission, was not a. usag~, The principle of next-in-line of succession has faile<;l when the svccessor was. a female or had refused to accept the appoint In all such cases the Archaka ment or was u,nder some disability. was appointe~ from ~he .Particul~r. denomination, sect or ~roup and tbe. worship was earned on With the ~lp. of such a. subsb~ute. lt, however, appears .to us that it is now too .late in the day to con tend .that the hereditary principle in appointment was not a usag~. F'ot whatever reasons, whether of convenience or othetwise, $is hereditary principle might have beeu adopted, th~re .cap be · · n<,> doubt that the principle had been a.ccepted from antiquicy and had G aliop beei) ft;~ily recognised in the unamended sec(ion 55 of the Prlncip~l Act. Sub-section (2) of section 55 provid.ed.t~at where the :office or .service is. hereditary, the person next in the line of succession shall beentitled .to succeM and only a limited nghtwa£ given under. sul;>~section. ( 3) to t~e trustee to a~point a suhsti~utc .. Even. io such cases the explanatto,n to sub-secti_on ( 3) provt~ed that· in ma~ln_g'th.e appoin~mentof the .substitute the t1Jl.~e ~bouiQ have d1,1e regard to the.clatms of th.e rne'!'bers o( the fan:n~, tf ~ny, entitled to the successton. Therefore, it cannot be den~ as a

H

F

s£Sl1AMMAL V. TAMIL NADU (Pafekar, /.) .

831

t that there are several temples in Tamil Nad

1 a~ ointment of an Archaka is governed by the usa ~ where . the :~~cession. The rea~ question, therefore, is wheth~r ~Jc~e~edJtary ·hould be regarded e1ther as a secular usaoe or a rei' . usage b . JgiOus usage s If it is a secu ar usage, 1 ts o v10us. legJslation would be . · ~ible un~er. Arti.cl~ 25 ( 1) (a) and n it is a religious usage l'~,:;~ be penmsstble If It falls squarely under sub-section 25(1)(b).

't .

. e

l

A

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C monies may be chosen by a temple on such basis as

o u priest h;,s an immediate bearing on religious practice and

the

Mr:. PJlkhivala on behalf of the petitioners insisted that the :;ppointm~nt of a. pe:son. to. a religiou~ ~ffice in accordance with the hereditary pnnctple IS Itself a rehgwus usage and amounted to a vital religiou:; practice and hence falls within Articles 25 and 26. In his submission. priests, who are to petfonn religious cere- temple It may be election. selection, competition. chooses to .1dopt. nomination or hereditary succ:essioo. He, therefore, contended that any lav. which interferes with the aforesaid basis of appoint ment would violate religious freedom guaranteed by Articles 25 In b.\s submission the right to select and 26 of the Constitution. the light of a denomination to manage its own affairs in r:PUtters . of religion. The priest is more important than the ritual and nothing could ~ more vital than chasing the priest. .Under the ~r~text of ~ocial refonn_ he contt":nded, the Stlte cannot refonn a rehgt,o~ out of·e'!"tence and if any denomination has accepte~ ~e heredl~ J'~tllctple for c.hosing its priest that would be a rehgtous · practtcd Vttal .w the religious faith and cannot be c~an~ed on the gt'()~~d that· It leads to social refonn. Mere substlt~uo~· of on~ f.Ile 00 of ~ppointment of the priest by another was. m hts submiSSIOn, \Octal refonn. ·

ppointed has

h

.

~-

r

•· ·

:tnkaracharaya nnd expressed

to . 14 1s true that a priest or ao. Archaka w en .a ·hether the perfo.nn sorne rcugious (unctions but the questton .15 w or a reli appomtment of a prie!t is by itself a secu.lar fun~uo~f the spiri· ~Jous Practice:. Mr. Palkhival;1 gave the ~llu~ratio~ a Hindu sect 1.uat h~:;W o[ a math bclonoing to a denommatton ° 'clca. that lrke th Sh d d h d recommen .e e c . ~uch. a spiritual head could be ch.osen by a nlet ~ the traditions i the State thou~h in conflict wlth the usage ~. a 5ucc~sot .of 0 the particular tnstitution. Where, for ~:taJ1?P by giving 111111 ~ Mathadhipati is chosen by the MathadJ;ipan osen by his inune un:tra:de.eksha or where the Mathadhipadu IS x~~a-ardinar)' .cor th~ e dJ~clples it would be he contende • e _.~ of appotnttne~ S late t d. d' thlS to eB t we rna~ st ~ ~ollowed o';l the $rou?d of s~::er of religiOfl· ~rtng we are cA' • a hn' th~ atfnuct such an illustration i!i tnapt wh~n 'Tbe Afch:tka

lt ~.11o Mo Interfere and direct diat some 0 n~e one as an Ul.Struston Jn. the 01

norrvr at the 1

• 1 reform·

ther muue

•

.

'

e appointment of an Archa\ca of a temP e.

I \I

I I 1.1 I I .·

' ..

832

SUPREME COURT REPORTS

[1972] 3 S.C.R.

never been regarded as a spiritual bead of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be perfonned in a temple b:ut he does not have the status of a spiritual head. Then again the assumption made that the Archak:a may be chosen in a variety of ways is not cor rect. The Dharam-karta or the Sheibait makes the appointment and the Archaka is a servant of the temple. It has been held in ) that even the position K. Seshadri Aiyangar v. Ranga Bhattar( 1 t)f the hereditary Archaka of a temple is that of a servant subject to tha 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 lrustee as recognised by the unamended section 56 of the Principal Act which prov_ides "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 to a trustee is essentially secular. He owes his appointment secular authority. Any lay founder of a temple may1lppoint the Archaka. The Shebaits and Managers of temples exercise essen tially a secular function in choosing and appointing the Archaka. That the son of ail Archaka or the son's son has been continued in the offi-ce 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 ); · Nanabhai Narotamdas v. Ray v. Makhatz Lal Mookerjee( 2 ) and Maharanee lndur;eet Keoer Triinbak Balwant Bhandare( 8 v; Chundemun Misser( 4 ). Thus the appointinent of an Archaka i., a se~ular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make It would only the successive appointments anything but secular. mean that in making the appointmt:nt the trustee is limited in res~ pect of the sources of recruitinent. Instead of casting his. net wide for ~electing a proper: candidate, he appoints the next heir of. the last bolder of the office. That after his appointment the Archa~a ~f10ffi1s worship is no ground for holding that the app9inttnent is either a religious practice or a.matter of religion.

A

B

c

D

E

F

G

ln view of sub-section (2) of section 55, as

it now stands ame,nded, the choice of the trustee in the matter of appointment of

H

(1). I.LR. 35 Madras 631. (3) (18'78-SO)Vol. 4 Unreported Printed Judgments of the Bombay High Court '· .. page 169. (4) XVl Weekly Reporter, 99.

I.L.R. SO Cal. 233.

(2)

A

B

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0

SESHAMMAL v. 'PAMIL NADU (Palt~kar, J.)

8'33

an Archaka is no longer limited by the operation· of the rule of next~!n~line of succession in temples where the usage was ·to appomt 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 inter(ere with any religious pratice or matter of ~gion and, therefore, is not invalid.

to

We shall now take separately the· several .amendments which were challenged as invalid. Section 7 of the Amendment Act amended section 55 of the Principal Act and the important change wJP,ch was impugned on bdhalf of the petitioners related 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 chaagac; effected in the other provisions of the Principal Act appear to us to be merely consequential. Since the. hereditary principle w~ done away with the words "wJwther the office or service is hereditary or not" found in section 56 of the PrinCipal Act have been oniitted ·by section 3 of the Amendment Act. By section 4 of the latter Act clause (xxiii) of sub--section (2) in section 116 is suitably amended with a view to deleting the. reference to the qualifications of hereditary and non-hereditary offices which was the:re in clause (xxili) of the Principal Act. The change is only consequential on the amendnient of section. 55 of the Principal Act. Sec:;tion.s S and 6 of the Amendment Act are also conse q~tial on the a.m.endment of sections 55 and 56. These are-all tbe sections in .the Amendment Act and in our view the Amend· ment. Act as. a whole. must be regarde(i aa valid. . If was, however. subniitted .. before us that the State had tak.en ~r· under section 116(2) clause (xxill) to prescribe qualifica tions to be.~ by the Archakas and,. in view of ~ avowed ob]ect of the State Government to create a class of Archakas irres· pective of caste, creed or race, it would be open to the Govern ment to prescribe qualifications for the office of an Archaka which w~ in conflict with Agam.as. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, proper provision has been made for qualifications of tile Archakils and the petitioners have no objection to that rule. The rule still continuac; to be in force. But the petitioners appre hend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with

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834

SUPREME COURT REPORTS

[1972) 3 S.C.R.

Agamic injunctions. For example ~t present ~e tn~hurai ser~ A vant whose duty it is to perfofll_l pujas and. rectte vedtc mantras etc. has to obtain _the !Jtness ~rtlfica~e fo: rus Office from ~e ~~ of institutions wh1ch 1mpart mstructlo~ 1_n Aga~as and ntualisttc mattas. The Government, however, .It IS su~mJtted, may here after change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals an~ direct that the_ A~ch~ka B candidate should produce a fitness certificate from ~n mstltUtiOI} It is which does not specialize in teaching Agamas a,nd ntuals. submiued that the Act does not provide guidelines to the Govern ment in the matter of prescribing qualifications with regard to the fitness· of an Archaka for performing the rituals and ceremonie$ in these temples and it will be open to the Government to prescribe C a simple s_tandardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those tem ples. In our opinion the apprehensions of the petitionen are unfounded. Rult- 12 referred to above still holds the field and tllero is no good r .:ason to think: that the State Government wants to revolutioni.~e temple won~hip by introducing methods of ~ not current in the several temples. · The rule making power COl\- f~ned oo the Government by section 116 is only intended with a. v~ew to carry out the ptupOSes of the Act which are essenlial!y fo.eW!ar. Tbe Act no whe~t gives the indication. that one of the purpmtt; of the Act is to effect ll change in the rituals and e~· monies f~Jo_wed in the tompie$. On the other hand, section 107 oC the Pnnctpal Act empha&izes that nothing contained in the Act E woukl ~ deemed to confer any power or impose any duty 1ft con traventtoo <!f the ri~bts conferred on any rdi!,\005 denominatiOn or any ~twn thereof by Article 26 of the Constitution. Simi ~ar}y !le(:llon 105 ~ovide, that nothing cont2ined ln the Act sbfttl rna;~ave a, otberwtSe expresoJy provided in me Act or the ndes which ~nder, ~ffect. aay honour, emolmnetrt trr perquisite to r . ~~an 111 enttUcd by custom or otherwise ift any reU- . gtous lruitJtUtJOn, or i~ estabti!.lbed usaae in -o.ro ~ ~y <ldK'r . matter. Moreover if an whkh pufllOm t the Government 0 •~tetter~ ..-ith the rituals and cere'rno!rieS of the tempk& the Ia intere5tl!d · ~ WJfi ~ lrable to be chaUented by those who· are In our opinion. therefore; 1fte apprdlt:ns!: now temple wcmhip. e~pressed by the petitioners are groundless if\tl prcnnature.

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