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

Palelwf j. In these 12 petitions under Article 32 of tile Constitution filed by the hereditary Archakas and Mathadhipatis 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 the 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.

p. 818

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 that they covet the points irtvolVed in all the other petitions. . Tbe State Legislature of Tamil Niuiu enacted The Tamil Nadu ~du Religious and Charitable ~ndowments Act, 19S9 'MiDI (Tamil Nadu Act XXII of 1959) hereinafter referred to as the Prlft.clpill A~t'. It e~ intb force on n.cotn~t 2, 1959. It .was an Act to amend and consolidate the law relatmg to tb6 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 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 the petitioners have no complaint against any of its provisions.

p. 818, margin C

·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 to appoint the office--holders or servants of the temple and pro-- Vided that wher~ the offic~ 6r s~l'Vict ts h6redifai'y' the pe~ iaHt in the line of succession shall be entitled to succeed. Iri . only exceptiOnal cases the: trustee was entitled to depart from the principles of next-irt·the-line of succession, but even so, the trustee was under an obligation to appoint a fit person to perform the functions of the office or perform the service after having due regard to the claims of the members of the family.

pp. 818–819, margin C

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 servants for appointment to non-hereditary offit~ in religious institutions, the qualifications to be possessed by hereditary, servants for succession to office and the conditions of service of all

p. 819, margin A

such officers and servants. Under this rule making power the 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 'Ulthurai, servant'. 'Ultburai servant' is defi:Md as a servant whose duties relate mainly to the performance of rendering assis-

p. 819, margin A

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 with such performance of recitation. Rule 12 ptOVided that every 'ulthurai servant', whether hereditary or non-hctdditary whose duty it is to perform pujas and recite JIWltnw, vedas, prabandllrtlS, thevarruns and other inva<:ations shall, before stu:ceeding, 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 ot such other ptr'SOn may be designate<~ by the Commissionet, from ilirle to time, for the purpose. By this tult the proper 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 tbe Constitution. Section 106 deals with ,the removal of discri1nblation 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,

p. 819, margin C

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

p. 819, margin G

[1972] 3

p. 820

coURT 820

p. 820

ts were made to sections 55, 56 and 116 · 1971. Amendme~ some consequential provisions were made the ?rincipal Act ~ndments. The Amendment Act. was enacted. hi of those am ocial reform on the recommendation of as a st~p tow;rtn~ouchability, Economic and Education:ai -Deve- Coronllttee Scheduled Castes. The Statement of ObJects and loproent ofht_h~ are reiterated in tbe counter~affidavit filed on Reasons w Nad • follows · half of the State of Tarotl u as .

p. 820, margin A

"In the year 1969 the . Committee on Untouchabi· lit Economic and Educational Development of .the

p. 820, margin B

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 requtsite educational qualifications who may be trained in recognised institutions in priesthood and that the line

p. 820, margin B

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~

p. 820, margin C

The of Ulthurai servants relate mainly to performance of poojas, rituals and other services to

p. 820, margin C

cteity, the recitation of mantras, vedas, prabandas, thev~ and similar_invocations·and the performance ·

p. 820, margin C

connected 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

p. 820, margin C

and servants in religious institutions ~Y 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 ·

p. 820, margin C

••.•• In light of the r ~--· ecommen~tions of the Committee and in view Ulw~1S1on of this Court · G ,

p. 820, margin C

of Alldhra Prad h & awla Dizsaratlza Rama. · R(JQ ~wards reformes Ors.(~) and also as a further principle of a ~ Government coosi<kred that the here·

p. 820, margin C

be ~~lit of all office holders in the amend ~tions and accordingly it p~

p. 820, margin G

56 gious and Charitabl and•ll6 of the Tamil Nadu tfindu ReU XXII of 19S9). Endowments Act, 19.59 (Tamil Nadu It is ~m · 1 .

p. 820, margin G

P of th~ petiti P ce ~1a1 reform. ln. tho onet'9 that by purpc;nWtg uJans, tho State has mat.ter of apPointment of ArcJial!S u.c.a.. r_::illy lnte.rfertd with the · relfgioU'

p. 820, margin G

(Palekar, /.) 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.

p. 821

To appreciate the effect of the Amendment Act, it would be

p. 821, margin A

more convenient to set out the original sections 55, 56 and 116 of the Principal Act and the same sections as they stand after the amendment. · cases

p. 821, margin A

to or-

p. 821, margin D

~ustee ~hall ~erson ~r ~tee

p. 822

~ne s~c. s~c.

p. 822

rcliglo~

p. 822

S~l"'lct ~ny negt~ oth~

p. 822

~ervant b~ ~ ~lei

p. 822

ot ~fl:UY

p. 822

WI~ m~nth bet~ ~

p. 822

ap~J s,e.

p. 822

s~c. ~ ~b"'ment th~~-to

p. 822

(u Tbo,..~ i6catfon1

p. 822

po~d

p. 822

~ll.l~= ~ H t~on v~ ~C:OndJtloJU acr.:

p. 822

0 \lan~.

p. 822

(Palekar, /.)

p. 823

It is clear from a perusal of the above provlsiorts that the Amendmant Act does away with the hereditary right of succession to the Office of Archaka even if the Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. It is claimed on behalf of the petitioners that as a result of the 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 :

p. 823

(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

p. 823, margin B

faith of the Saivite and Vaishnavite worshippers. (b) It is left to the Government in power to prescribe or not to prescribe such qualifications us they may choose to adopt for ap})licants 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 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-

p. 823, margin B

tion for the purpose of worship. (c) The Amendment Act gives the right of appointment for the first tiine to the trustee who is under the control of the Government under the provisions of the Prittcipal Act and thH is the very negation of freedom of religion and the principle of non-interfetance by the State as regards the practice of religion and the right of a denomination to manage its own affairs in the matter

p. 823, margin D

of religion. ·

p. 823, margin F

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 estabilshed in olden times. Some of them are Saivite temples and the others are. Vaishnavitt temples, which means, that in these temples God Shiva and Vishnu in their several. manifestations are wotshipped. The image 0f· Shiva is worshipped by his worshlppers who are called Saivites and the image of Vishnu is worshipped by his worshippers ·who are known as Vaishnavites. The institu· tion of temple worship has an ancient history and, according to 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 two distinct cults is very difficult to say, but there can be no doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two ·deities. (See page 725 supra.) With the establishment of temples and the 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 therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa .and the Pancharatra. The Agamas coptain 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. Where the temple was constructed as per directions of the Agamas the idol had to ·be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped. Rules with. regard to daily and periodical worship have been laid down. for securing the continuance of the Divine Spirit. The rituals have ·a two-fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshippers partiCipates ·in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation

pp. 823–824, margin F

(Palekar, /.} which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine [1958 S.C.R. 895 (910)]. Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the importance attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu 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 the time of worship and which should be the concluding benedictary verses. This gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs, That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum saneforum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the ceremonial law pertain· ing to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court.

p. 825

The Agamas have also rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled · to be. the Archaka.. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever c.aste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit 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 the Garbha Griha. Not even a person belonging tQ another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch aDd since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any ·circumstances, the Archaka undoubtedly occupies 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.

pp. 825–826, margin F

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

p. 826, margin C

''The content of Arts. Z5 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindr(l Thirtha Swamiar of Sri Shirnr Matt(!); Mahant Jagannath Ramanuj Das v. The State of Orissa( Sri Venkatamona Devaru v. The State of My~ore( ); Durgah Committee, Ajmer v. Syed Hussain Ali( and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of 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."

pp. 826–827, margin C

Bearing these principles in mind, we have to approach the controversy in the present case.

p. 827, margin C

Section 55 of the Principal Act as it originally stood and Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 ensured, so far as temples with hereditary Archakas were concerned, that there would be no 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", 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 rituals and ceremonies. As already shown an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and this risk is avoided by insisting that the Archaka should be an expert in the rituals and the ceremonies. By the Amendment Act the principle of next~in-the-line of succeasion is abolished. Indeed it was the claim made in the statement of Objects and Reasons that the hereditary principle of appointment of office-holders in the temples should be abolished and that the office of an Archaka should be thrown open to all candidates trained in recognised institutions in priesthood irrespective 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 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 cha!!ged. It was also open to the Government to make no rule 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 appropriate to the temple or not, would be .eligible for appointment as an Archaka and the trustee's discretion in appointing the Archaka without reference to personal and other qualifications of the Archaka would be unbridled. The trustee is to function under the control of the State, because under section 87 of the Principal Act the trustee was bound to obey all lawful orders issued under the provic;ions of the Act by the Government, ~e Commissioner, the Deputy Commjssioneror the Assistant Commissioner. It was submitted that the innocent looking amendment brought the State right int9 the sanctum sanctorum through the agency of the trustee and the Archaka.

pp. 827–828, margin C

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 daughter's sons of the founder and his nearest heirs under the Hindu law. But their claim was rejected on the; ground that the temple was· dedicated to the sect following the principles of Vallabh Acharya in whose temples only the Gossains of that sect could perfonn the rituals and ceremonies and, therefore, the claimant$ had no right either to the temple or to perform the worship. In view of the Amendment Act, end its avowed object there was nothing, in the petitioners' submission, to prevent the·Govemment 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 the Govemment under the ·Amendment Act. would lcitd to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution.

p. 828, margin D

The force of the above submissions made on behalf of the petitioners· was not lost on the learned Advoc~to General of Tamil Nadu who appeared on behalf of the State. He, however, side tracked the issue by submitting that if we were to . consider in i~olation. only the changes introduced in section 55 by the Amend~ ment Act the situation as described on behalf of tht; petitioners could conceivably arise. 'He did not also admit that he was 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 as it now stands after the .amendment and see what is the true effect of the same. He contended that the power given to the 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 ) provides as follows :

pp. 828–829, margin G

"Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act 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

p. 829, margin C

and properties if they were his own." The learned Advocate General argued that the trustee was boum. under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archak.a or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and. he would be bound to make the appointment under section 55 in accordance with the usage of appointing one from the particular denomination. There was nothing in section 55, in his· submission, which released him from his liability to make the appointment in accordance with the said usage. It was true that the principle of the next-in-line of succession was not binding on 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 denomination. Moreover the amended section, according to him, does not require the trustee to. exclude in every case the hereditary principle if. a qualified successor is available and there was . 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 principle 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 contended that if the. hereditary principle was regarded as a religious p1~tice that would be also amenable to legislation under Article ~5{2) (b) which. penn!ts ~egislation for the purpose of social welfare 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.

pp. 829–830, margin D

We have found no. difficulty in agreeing with the learned Advocate General that section 28 ( 1 ) of the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka. will have to be made from a specified denomination, sect or group in accordance. with the directions of the Agamas governing those temples. Failure to do so would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of 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. convenience, 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 appointment or was u,nder some disability. In all such cases the Archaka 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 contend .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 · · doubt that the principle had been a.ccepted from antiquicy and had 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 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

p. 830

/.) t that there are several temples in Tamil Nad a~ ointment of an Archaka is governed by the usa ~ where :~~cession. The rea~ question, therefore, is wheth~r ~Jc~e~edJtary hould be regarded e1ther as a secular usaoe or a rei' . usage s l 't . b . . usage If it is a secu ar usage, 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).

p. 831

Mr:. PJlkhivala on behalf of the petitioners insisted that :;ppointm~nt of a. pe:son. to. a religiou~ ~ffice in accordance the hereditary pnnctple Itself a rehgwus usage and amounted

p. 831, margin A

a vital religiou:; practice and hence falls within Articles 25 26. In his submission. priests, who are to petfonn religious ceremonies be chosen by a temple on such basis as the temple chooses .1dopt. It may be election. selection, competition. nomination or hereditary succ:essioo. He, therefore, contended that any lav. which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed by Articles

p. 831, margin A

and 26 of the Constitution. In b.\s submission the right to se o u priest h;,s an immediate bearing on religious practice and light of a denomination to manage its own affairs in religion. The priest is more important than the ritual and nothing could ~ more vital than chasing the priest. .Under the ~r~text ~ocial refonn_ he contt":nded, the Stlte cannot refonn a rehgt,o~ of·e'!"tence and if any denomination has accepte~ ~e heredl~ J'~tllctple for c.hosing its priest that would be a rehgtous · practtcd

p. 831, margin C

.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~ of ~ppointment of the priest by another was. m \Octal refonn.

p. 831, margin E

•· · · h ppointed has r . true that a priest or ao. Archaka w en .a . ·hether perfo.nn sorne rcugious (unctions but the questton or a 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 .uat h~:;W o[ a math bclonoing to a denommatton lrke Sh ~- norrvr at the

p. 831, margin E

e :tnkaracharaya nnd expressed h d recommen ~uch. a spiritual head could be ch.osen by a nlet ~ the tradition the State thou~h in conflict wlth the usage ~. a 5ucc~sot

p. 831, margin E

the particular tnstitution. Where, for ~:taJ1?P by giving ~ Mathadhipati is chosen by the MathadJ;ipan osen by inuneun:tra:de.eksha or where the Mathadhipadu x~~a-ardinar)' .cor

p. 831, margin E

dJ~clples it would he contende • e _.~ of appotnttne~ S late ther muue d. 11o Interfere and direct diat some reform· to eB rna~ ~ ~ollowed o';l the $rou?d of s~::er of religiOfl· ~rtng a n~e one as an Ul.Struston the we are th~ atfnuct such an illustration i!i tnapt wh~n 'Tbe Afch:tka appointment of an Archa\ca of a temP e. 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 correct. The Dharam-karta or the Sheibait makes the appointment and the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar( that even the position 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 trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may1lppoint the Archaka. The Shebaits and Managers of temples exercise essentially 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 Ray v. Makhatz Lal Mookerjee( Nanabhai Narotamdas v. Triinbak Balwant Bhandare( and Maharanee lndur;eet Keoer v; Chundemun Misser( 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 the successive appointments anything but secular. It would only 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.

pp. 831–832, margin E

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 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 appointments. 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.

pp. 832–833, margin G

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 to the abolition of the hereditary principle in the appointment of the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The other 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 conseq~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 qualifications 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 Government 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 apprehend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with Agamic injunctions. For example ~t present ~e tn~hurai ser~ vant whose duty it is to perfofll_l pujas and. rectte vedtc mantras

pp. 833–834, margin C

to ~rtlfica~e fo: rus Office from ~e ~~ of institutions 1mpart mstructlo~ Aga~as and ntualisttc mattas. The Government, however, su~mJtted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals an~ direct that A~ch~ka candidate certificate ~n does not specialize in teaching Agamas a,nd ntuals. It

p. 834

that the Act does not provide guidelines to the Government in matter of prescribing qualifications with regard to fitness· of an for performing the rituals and ceremonie$ in these temples and will be open to the Government to prescribe a simple curriculum for pujas in the several temples ignoring the and rituals followed in those temples. In our opinion the apprehensions of the petitionen are unfounded. Rult- to still holds the field and tllero is no good r .:ason to think: that the State Government to revolutioni.~e temple won~hip introducing methods of ~

p. 834, margin B

current in several temples. · The rule making power f~ned oo Government section 116 is only intended with a. v~ew to carry out of the Act which are essenlial!y

p. 834, margin C

Act no whe~t gives the indication. that one of the purpmtt; of Act effect change in the rituals and e~· monies f~Jo_wed in tompie$. On other hand, section 107 the Pnnctpal Act that nothing contained in Act ~ deemed to confer any power or impose any duty con-

p. 834, margin C

<!f ri~bts on any rdi!,\005 denominatiOn or any ~twn thereof by Article 26 of the Constitution. Simi- ~ar}y 105 ~ovide, that ln Act sbfttl rna;~ave a, expresoJy provided in me Act or ndes which ~nder, ~ffect. aay honour, emolmnetrt perquisite

p. 834, margin E

~~an by or ift any gtous or i~ usaae in -o.ro ~ ~y matter. Moreover if an I . ~r;, whkh Y by the Government tempk& Ia •~tetter~ ..-ith the rituals and cere'rno!rieS of the intere5tl!d · ~ ~ lrable be chaUented by those who· are apprdlt:ns!: now temple wcmhip. In our opinion. therefore; 1fte prcnnature. e~pressed by the petitioners are groundless if\tl lnlhe resuiL tbe5e ...... . . • ~ circtml.8tlHl~ oi the

p. 834, margin E

no or er to cos~ V.P.S.

p. 834, margin E