Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 354 OF 2006

ADI SAIVA SIVACHARIYARGAL

NALA SANGAM & ORS. ...PETITIONER (S)

VERSUS

THE GOVERNMENT OF TAMIL

NADU & ANR. ...RESPONDENT (S)

WITH

W.P. (C) No. 355 of 2006

W.P. (C) No.383 of 2006

AND

W.P. (C) No. 384 of 2006

J U D G M E N T

RANJAN GOGOI, J.

1.Religion incorporates the particular belief(s) that a group

of people subscribe to. Hinduism, as a religion, incorporates

all forms of belief without mandating the selection or

elimination of any one single belief. It is a religion that has no

1

Page 2 single founder; no single scripture and no single set of

teachings. It has been described as Sanatan Dharma, namely,

eternal faith, as it is the collective wisdom and inspiration of

the centuries that Hinduism seeks to preach and propagate. It

is keeping in mind the above precepts that we will proceed

further.

2.Before highlighting the issues that confronts the Court in

the present case the relevant Constitutional provisions in Part

III of the Constitution may be taken note of. Article 13, in

clear and unequivocal terms, lays down that all laws including

pre-constitution laws which are inconsistent with or in

derogation of the fundamental rights guaranteed by Part III are

void. Sub-Article (3) brings within the fold of laws, all Rules,

Regulations, Notification, custom and usage having the force

of law. While the several provisions of Part III would hardly

need to be re-emphasized, specific notice must be had of, in

the context of the present case, the provisions contained in

Articles 25 and 26 of the Constitution. While Article 25 makes

the freedom of conscience and the right to profess, practice

2

Page 3 and propagate the religion to which a person may subscribe, a

fundamental right, the exercise of such right has been made

subject to public order, morality and health and also to the

other provisions of Part III. Article 25(2)(b) makes it clear that

main part of the provisions contained in Article 25 will not

come in the way of the operation of any existing law or prevent

the State from making any law which provides for social

welfare and reform or for throwing open of Hindu religious

institutions of a public character to all classes and sections of

Hindus. Similarly, Article 26 while conferring the right on

every religious denomination to manage its own affairs makes

it clear that the right to manage the affairs of any religious

denomination is restricted to matters of religion only.

3.The provisions of Part III, as noted above, therefore

makes it amply clear that while the right to freedom of religion

and to manage the religious affairs of any denomination is

undoubtedly a fundamental right, the same is subject to

public order, morality and health and further that the

inclusion of such rights in Part III of the Constitution will not

3

Page 4 prevent the State from acting in an appropriate manner, in the

larger public interest, as mandated by the main part of both

Articles 25 and 26. Besides, the freedom of religion being

subject to the other provisions of Part III, undoubtedly,

Articles 25 and 26 of the Constitution has to be harmoniously

construed with the other provisions contained in Part III.

4.The necessary facts may now be noticed. In order to

amend and consolidate the law relating to administration and

governance of Hindu religious and charitable institutions in

the State of Tamil Nadu, the State Legislature has enacted the

Tamil Nadu Hindu Religious and Charitable Endowments Act,

1959 (hereinafter referred to as ‘the Tamil Nadu Act’). A

passing reference may be made, at this stage, to Section 55 of

the Tamil Nadu Act which provided that in case where the

office holders or servants of a religious institution are required

to be filled up on the principle of hereditary succession the

person next in line of succession is entitled to succeed. There

were some exceptions to the above rule i.e. where the person

next in line is a minor or suffers from some incapacity. The

4

Page 5 aforesaid provision (Section 55) was amended alongwith other

related provisions by the Amendment Act of 1970 which came

into force on January 8, 1971. By the aforesaid amendment

the principle of next in line of succession was abolished. The

amendment came to be challenged before this Court which

challenge was considered by a Constitution Bench of the

Court. In its judgment in Seshammal and Others, Etc. Etc.

Vs. State of Tamil Nadu

1

the Constitution Bench, while

upholding the validity of the amendment, dealt with a further

question, namely, though the principle of next in line was

validly abolished, whether the appointment of office bearers or

servants of the temples are required to be made from a

particular denomination/group/sect as mandated by the

Agamas i.e. treatises pertaining to matters like construction of

temples; installation of idols and conduct of worship of the

Deity. The Constitution Bench after an elaborate

consideration of the matter, details of which will be noticed

subsequently, seems to have answered the aforesaid question

in the affirmative.

1

(1972) 2 SCC 11

5

Page 6 5.No controversy surfaced after the Constitution Bench

judgment in Seshammal (supra) until a G.O. No. 118 dated

23.05.2006 was issued by the Government of Tamil Nadu,

Department of Tamil Development, Cultural and Endowments

to the effect that, “Any person who is a Hindu and

possessing the requisite qualification and training can

be appointed as a Archaka in Hindu temples ”. An

Ordinance (No. 5 /2006) dated 14.07.2006 followed the

aforesaid G.O. seeking to further amend sub-section (2) of

Section 55 of the Tamil Nadu Act. The said provision of the Act

i.e. Section 55(2), by virtue of the 1971 amendment referred to

above and the 2006 Ordinance, read as follows.

“(2) No person shall be entitled to appointment

to any vacancy referred to in sub-section (1)

merely on the ground that he is next in the line

of succession to the last holder of office.”

[Change brought about by amendment of S.55(2)]

“or on the ground of any custom or usage”.

[Change brought about by Ordinance 5/2006)

6

Page 7 6.The Explanatory statement to the Ordinance in para 4

indicated the purpose behind further amendment of Section

55(2) in the following terms.

“Archakas of the Temples are to be appointed

without any discrimination of caste and creed.

Custom or usage cannot be a hindrance to this. It is

considered that the position is clarified in the Act

itself and accordingly, it has been decided to amend

Section 55 of the said Act suitably”.

7.The Ordinance was replaced by The Tamil Nadu Act No.

15 of 2006 which received the assent of the Governor on

29.08.2006. The Act, however, did not contain the amendment

to Section 55 as was made by the Ordinance. In other words,

the said amendment brought by the Ordinance was dropped

from the Amending Act 15 of 2006.

8.The present writ petitions under Article 32 of the

Constitution have been instituted by an Association of

Archakas and individual Archakas of Sri Meenakshi Amman

Temple of Madurai. The writ petitions were filed challenging

the G.O. No. 118 dated 23.05.2006 and Ordinance No. 5/2006

(at that point of time the Amending Act of 2006 had not come

7

Page 8 into effect). As the amendment of Section 55(2) made by the

Ordinance had not been continued by the Amending Act 15 of

2006 the said part of the challenge (as against the ordinance)

made in the writ petitions became redundant leaving the

legality and validity of the G.O. 23.05.2006 as the sole issue

for consideration in the present writ petitions.

9.Preliminary Objections have been raised to the

maintainability of the writ petitions by Shri P.P. Rao and Shri

Colin Gonsalves, learned senior counsels appearing for

respondents . It has been urged that the present writ petitions

have not been filed as public interest litigations and in the

absence of any specific orders in implementation of the

impugned G.O. dated 23.05.2006 the writ petitions are

premature. It is further contended that even if the writ

petitions are to be considered as PILs the same raise questions

with regard to appointment in public office i.e. Archakas in

public temples and therefore the writ petitions will also not be

maintainable as public interest litigations. It is further urged

that as and when the G.O. is given effect to by actual

8

Page 9 appointment of an Archaka or Archakas, as may be, it will be

open for the petitioners to raise the issue and establish that

there is a usage or custom or customary practice governing

the temple in question which require the appointment of the

Archaka to be made from a particular denomination.

10.It is difficult for us to accept the contentions advanced on

behalf of the respondents with regard to the maintainability of

writ petitions on two counts. Firstly, it is difficult to

appreciate as to why the petitioners should be non-suited at

the threshold merely because the G.O. dated 23.05.2006 has

not been given effect to by actual orders of the State

Government. The institution of a writ proceeding need not

await actual prejudice and adverse effect and consequence. An

apprehension of such harm, if the same is well founded, can

furnish a cause of action for moving the Court. The argument

that the present writ petition is founded on a cause relating to

appointment in a public office and hence not entertainable as

a public interest litigation would be too simplistic a solution to

adopt to answer the issues that have been highlighted which

9

Page 10 concerns the religious faith and practice of a large number of

citizens of the country and raises claims of century old

traditions and usage having the force of law. The above is the

second ground, namely, the gravity of the issues that arise,

that impel us to make an attempt to answer the issues raised

and arising in the writ petitions for determination on the

merits thereof.

11.Shri K. Parasaran, learned senior counsel appearing for

the petitioners has submitted that the issues arising in the

case stand squarely covered by the pronouncement of the

Constitution Bench in Seshammal (supra). In fact, according

to the learned senior counsel, the issues in the present case

are res judicata; the same having been decided inter-partes in

Seshammal (supra); the Archakas of the Agamas Temples and

the respondent-State both being parties to the said decision.

Specifically, Shri Parasaran, has urged that in Seshammal

(supra) the Constitution Bench has unambiguously held that

the appointment of an Archaka has to be as per the Agamas

governing the particular temple and any deviation from the

1

Page 11 said age old custom and usage would be an infringement of

the freedom of religion and the rights of the religious

denomination to manage its own affairs, as guaranteed, by

Article 25 and 26 of the Constitution. The impugned G.O., by

its prescription, as noted, therefore, seeks to override the

declaration of law made by the Constitution Bench in

Seshammal (supra).

12.Shri Parasaran has further urged that curtailment of the

freedoms guaranteed by Articles 25 and 26 of the Constitution

can only be made by the legislature and even a legislative

exercise in this regard is circumscribed by the limitations

contained in both Articles 25 and 26. In the present case the

amendment of Section 55 of the Tamil Nadu Act as made by

Ordinance No.6 of 2005 has not been continued by the

Amendment Act No.15 of 2006 (as already noted). The

impugned G.O. has, therefore, to necessarily lose its efficacy.

Reliance herein is placed on the following passage from the

1

Page 12 report in Sanjeev Coke Manufacturing Vs. M/s Bharat

Coking Coal Limited & Anr.

2

“25………..The deponents of the affidavits filed into

court may speak for the parties on whose behalf

they swear to the statements. They do not speak

for the Parliament. No one may speak for the

Parliament and Parliament is never before the court.

After Parliament has said what it intends to say,

only the court may say what the Parliament meant

to say. None else. Once a statute leaves Parliament

House, the Court is the only authentic voice which

may echo (interpret) the Parliament……..”

13.It was further contended that the G.O. wrongly relies on

the decision in the case of N. Adhithyan Vs. Travancore

Devasom Board and Others

3

to justify its promulgation. The

reliance placed on Adhithyan (supra), in the face of the law

laid down in Seshammal (supra), is wholly misplaced. Shri

Parasaran has further argued that the impugned GO has to be

read on its own terms and the validity thereof cannot be saved

by what appears to be a “concession” made by the State in

Para 51 of the counter affidavit to the effect that the State

would respect the distinction between Saiva and Vaishanava

2

(1983) 1 SCC 147

3

(2002) 8 SCC 106

1

Page 13 temples and the Archakas in each of such temples shall be

appointed from either the Saivas or Vaishanavas, as may be,

taking into account the indoctrination of the concerned

Archakas in the Agamas. According to Shri Parasaran, neither

all Saivas nor all Vaishnavas are ipso facto denominational.

Only a Saiva who satisfies the eligibility under the Sivagama

and a Vaishnava satisfying the eligibility under the

pancharatna or vaikhanasa can be referred to as

denominations. A person who is a member of such

denomination alone can be appointed as a Archaka of a Saiva

or a Vaishnava temple, as the case may be.

14.On the other hand, Shri P.P. Rao and Shri Colin

Gonsalves, learned Senior Counsels appearing for the

respondents have contended that the decision of the

Constitution Bench in Seshammal (supra) upholding the

Constitution validity of the Amendment Act of 1970 had

opened the avenue to all qualified Hindus irrespective of caste,

denominations, etc to be appointed as Archakas. It is

contended that once the hereditary principle was held to be

1

Page 14 flexible, the exclusive right of a particular group to

appointment necessarily stood negated and it is qualification

coupled with merit and eligibility that has to be the crucial test

for appointment, consistent with Articles 14 and 16 of the

Constitution. Learned counsels have specifically referred to

the Government Order No.1 of 2007 and in this regard the

recommendation of the High Powered Committee appointed for

making recommendations for effective implementation of the

impugned GO dated 23.5.2006. It is contended, by referring to

the report of the High Powered Committee, that the same

demonstrates the lack of familiarity of even temple priests with

the Agamas and their lack of knowledge of such Agamas and

the practices of the Temples as may be prescribed by the

Agamas. It is submitted that not only the contents of the

Agamas have become uncertain, even assuming otherwise, the

same cannot be an authority to confer legitimacy to a practice

which is inconsistent with and contrary to the provisions of

the Constitution, specially those contained in Part III thereof.

It is further submitted that the impugned GO is consistent

with and in fact effectuates the Fundamental Right of Equality

1

Page 15 and equal opportunity and no contrary practice overriding the

said provisions of the Constitution would be legally acceptable.

Learned Counsels have further submitted that there is no

conflict between the judgments in Seshammal (supra) and N.

Adithayan (supra) and it is possible to read the law declared

in both the cases in a manner consistent with the

Constitutional requirements and principles.

15.An additional issue has been struck by Shri Gonsalves,

learned Senior Counsel, that the impugned GO needs to be

upheld on the touchstone of the principle enshrined by Article

17 of the Constitution. The exclusive right of a particular

group to enter the sanctum sanctorum of a temple and

perform the rituals on the ground that performance of such

rituals by any other person would defile the image is a thought

and action which is prohibited by Article 17 of the

Constitution. Violation and consequently commission of

offences under the Protection of Civil Rights Act, 1955 has also

been urged.

1

Page 16 16.The issues arising and the arguments made centre around

the true meaning, purport and effect of the Constitution Bench

judgment in Seshammal (supra) and in the above context the

effect of the decision of the numerically smaller Bench in N.

Adithayan (supra). We will therefore proceed to understand

the above position at the outset.

17.The contours of the challenge in Seshammal (supra) has

already been noticed. To repeat, it is the validity of the

Amendment Act of 1970 which sought to amend, inter alia,

Section 55 of the Tamil Nadu Act that was questioned in

Seshammal (supra). The Statement of Objects and Reasons for

the amendment Act of 1970 is stated as follows:

“In the year 1969 the Committee on Untouchability,

Economic and Educational Development of the

Scheduled Castes has suggested in its report that

the hereditary priesthood in the Hindu Society

should be abolished, that the system can be replaced

by an ecclesiastical organisation of men possessing

the requisite educational qualifications who may be

trained in recognised institutions in priesthood and

that the line should be open to all candidates

irrespective of caste, creed or race. In Tamil Nadu

Archakas, Gurukkals and Poojaries are all Ulthurai

servants in Hindu temples. The duties of ‘Ulthurai

servants’ relate mainly to the performance of poojas

rituals and other services to the deity, the recitation

1

Page 17 of mantras, vedas, prabandas, thevarams and

similar invocations and the performance of duties

connected with such performance and recitations.

Sections 55 and 56 of the Tamil Nadu Hindu

Religious and Charitable Endowments Act, 1959

(Tamil Nadu Act 22 of 1959), provide for appointment

of office-holders and servants in the religious

institutions by the trustees by applying the rule of

hereditary succession also. As a step towards social

reform Hindu temples have already been thrown

open to all Hindus irrespective of caste.…”

18.The arguments in support of the challenge were threefold

namely,

“(a) The freedom of hereditary succession to the office

of Archaka is abolished although succession to it is

an essential and integral part of the faith of the

Saivite and Vaishnavite worshippers.

(b) It is left to the Government in power to prescribe

or not to prescribe such qualifications as they may

choose to adopt for applicants to this religious office

while the Act itself gives no indication whatever of

the principles on which the qualifications should be

based. The statement of objects and reasons which

is adopted in the counter-affidavit on behalf of the

State makes it clear that not only the scope but the

object of the Amendment Act is to override the

exclusive right of the denomination to manage their

own affairs in the matter of religion by appointing

Archakas belonging to a specific denomination for

the purpose of worship.

(c) The Amendment Act gives the right of appointment

for the first time to the trustee who is under the

1

Page 18 control of the Government under the provisions of the

principal Act and this is the very negation of freedom

of religion and the principle of non-interference by the

State as regards the practice of religion and the right

of a denomination to manage its own affairs in the

matter of religion.”

19.In the course of a very lengthy discourse and after

considering the works of learned scholars in the field; the law

laid down by this Court in respect of Articles 25 and 26 till date

and particularly the efficacy of the Agamas the Constitution

Bench came to the following conclusion.

“Any State action which permits the defilement or

pollution of the image by the touch of an Archaka not

authorised by the Agamas would violently interfere

with the religious faith and practices of the Hindu

worshipper in a vital respect, and would, therefore,

be prima facie invalid under Article 25(1) of the

Constitution.”

20.Thereafter, the Constitution Bench by referring to several

earlier pronouncements of this Court specifically mentioned in

para 13 of the Report identified the main principles underlying

the provisions of Article 25 and 26 of the Constitution in the

following manner.

“The first is that the protection of these articles is not

limited to matters of doctrine or belief they extend

also to acts done in pursuance of religion and

1

Page 19 therefore contain a guarantee for rituals and

observances, ceremonies and modes of worship

which are integral parts of religion. The second is

that what constitutes an essential part of a religious

or religious practice has to be decided by the courts

with reference to the doctrine of a particular religion

and include practices which are regarded by the

community as a part of its religion.”

21.Applying the aforesaid principles to the facts before it the

Constitution Bench identified the main thrust of the arguments

made in support of the challenge to the amendment to be with

regard to the vesting of powers and authority in the temple

trustee to appoint any person as an Archaka so long as he was

holding a fitness certificate from one of the institutions referred

to in Rule 12 of the Madras Hindu Religious Institutions

(Officers and Servants) Service Rules, 1964. The Said Rule 12

required that an Archaka should be proficient in Mantras,

Vedas, Prabandams etc., namely, that such a person is fit and

qualified for performing puja and having knowledge of the

rituals and other services. The Constitution Bench was told

that the above position admits a situation where the

requirement of Rule 12 can very well be dispensed with (by a

1

Page 20 subsequent amendment of the Rules) thereby resulting in

conferment of virtually unguided and unbridled powers to the

trustee to appoint any person as a Archaka notwithstanding the

fact that worship of the deity by a person other than one

belonging to a particular denomination may have the effect of

defiling the deity. As the temple trustee is to function under the

control of the State under Section 27 of the Tamil Nadu Act the

question highlighted before the Constitution Bench was

whether by virtue of the amendment the State had gained a

right to step into and control the Sanctum Sanctorum of a

temple through the agency of the trustee and the Archaka

thereby transgressing the rights granted to a religious

denomination by Articles 25 and 26 of the Constitution.

22.The Constitution Bench noticed that to counter the above

situation the Advocate General of the State of Tamil Nadu had

contended that the power given to the trustee by virtue of the

amendment to Section 55 was not a unqualified power but was

subject to the provisions of Section 28 of the Act which is in the

following terms.

2

Page 21 “Section 28.- Subject to the provisions of the Tamil

Nadu Temple Entry Authorisation Act, 1947, the

trustee of every religious institution is bound to

administer its affairs and to apply its funds and

properties in accordance with the terms of the trust,

the usage of the institution and all lawful directions

which a competent authority may issue in respect

thereof and as carefully as a man of ordinary

prudence would deal with such affairs, funds and

properties if they were his own.”

In this regard the Advocate General had virtually admitted

that if the usage or practice of the institution required the

Archaka of a temple to be of a particular denomination the said

usage would be binding on the trustee and he would be bound

to make appointment under Section 55 in accordance with such

usage. The usage, practice or custom requiring an Archaka to

be of a particular denomination, according to the Advocate

General, was founded on religious beliefs and practices whereas

the next in line principle, if is to be regarded as a usage, was a

merely secular usage on which a legislation would be competent

under Article 25 (2)(a) of the Constitution. It was, alternatively,

contended that if the hereditary principle is to be understood as

a religious practice, alteration thereof can also be made by a

2

Page 22 legislation under Article 25(2)(b), such legislation being for the

purpose of social welfare and reform.

23.The Constitution Bench in Seshammal (supra) answered

the question by holding that the hereditary principle which was

of long usage was a secular principle and therefore a legislation

to alter the said usage, i.e. the Amendment Act of 1970, was

competent under Article 25(2)(a). However, the Constitution

Bench was quick to add that it is to the limited extent of the

above exception alone, namely, the liberty to make the

appointment from persons beyond next in line to the last holder

that the trustee is released from the obligation imposed on him

by Section 28 of the Tamil Nadu Act which otherwise requires

the trustee to administer the affairs of the temple in accordance

with the usage governing the temple. Para 22 of the

Constitution Bench judgment wherein the aforesaid view finds

mention may be noticed verbatim.

“22. In view of sub-section (2) of Section 55, as it

now stands amended, the choice of the trustee in the

matter of appointment of an Archaka is no longer

limited by the operation of the rule of next-in-line of

succession in temples where the usage was to

2

Page 23 appoint the Archaka on the hereditary principle. The

trustee is not bound to make the appointment on the

sole ground that the candidate, is the next-in-line of

succession to the last holder of office. To that extent,

and to that extent alone, the trustee is released from

the obligation imposed on him by Section 28 of the

principal Act to administer the affairs in accordance

with that part of the usage of a temple which

enjoined hereditary appointments. The legislation in

this respect, as we have shown, does not interfere

with any religious practice or matter of religion and,

therefore, is not invalid.”

24.A reading of the judgment of the Constitution Bench in

Seshammal (supra) shows that the Bench considered the

expanse of the Agamas both in Saivite and Vaishnavite temples

to hold that the said treatises restricted the appointment of

Archakas to a particular religious denomination(s) and further

that worship of the deity by persons who do not belong to the

particular denomination(s) may have the effect of even defiling

the idol requiring purification ceremonies to be performed. The

Constitution Bench further held that while the appointment of

Archakas on the principle of next in line is a secular act the

particular denomination from which Archakas are required to

be appointed as per the Agamas embody a long standing belief

that has come to be firmly embedded in the practices

2

Page 24 immediately surrounding the worship of the image and

therefore such beliefs/practice constitute an essential part of

the religious practice which under Section 28 of the Act

(extracted above) the trustee is bound to follow. The above,

which the petitioners contend to be the true ratio of the law laid

down by the Constitution Bench in Seshammal (supra), has

been questioned by the respondents who argue that

Seshammal (supra) is but the expression of an agreement of

the Constitution Bench to what was a concession made before

it by the Advocate General of the State. According to the

respondent in Seshammal (supra) the Constitution Bench had

no occasion to deal with the issue arising herein, the challenge

before it being confined to the validity of the Amendment Act of

1970.

25.The answers to the above will be dealt with a little later

and for the present what has to engage the attention of the

Court is the true ratio of the law laid down by the numerically

smaller Bench in Adithayan (supra).

2

Page 25 26.The facts confronting the Court in Adithayan (supra) may

now be noticed. The challenge therein was by a Namboodri

Brahmin to the appointment of a non-Namboodri Brahmin who

was otherwise well qualified to be appointed as a priest in the

temple in question. The challenge was sought to be based on

the ground that it has been a long standing practice and usage

in the temple that its priests are appointed exclusively from

Namboodri Brahmins and any departure therefrom is in

violation of the rights of Namboodri Brahmins under Article 25

and 26 of the Constitution. Upon a consideration of the various

earlier decisions of this Court specifically referred to in

Adithayan (supra), details of which need not again be noticed

herein (such details are being separately noticed later, though

in a different context) including the decision in Seshammal

(supra) it was held that rights claimed solely on the basis of

caste cannot enjoy the protection of Article 25 and 26 and no

earlier decision of this Court including Seshammal (supra)

would support the contention that even duly qualified persons

can be barred from performing Poojas on the sole ground that

such a person is not a Brahmin by birth or pedigree. After

2

Page 26 expounding the law in the above manner, it was held in

Adithayan (supra) that even proof of any such practice since

the pre-constitutional days (which in any case was not

forthcoming) cannot sustain such a claim as the same would be

in derogation of constitutional values and opposed to public

policy or social decency. We do not see how the above view of

this Court in any way strikes a discordant note with the views

expressed in any earlier decision including Seshammal(supra).

The issues in Seshammal(supra) were entirely different and the

discussions therein (para 12) proceeds on the basis that entry

to the sanctum sanctorum for a particular denomination is

without any reference to caste or social status. The reference to

the opinion of Sri R. Parthasarathy Bhattacharya who has been

referred to in the above para 12 of the report as an undisputed

scholar on the subject was cited to show that apart from the

followers of the 4 (four) traditions, so far as Vaishnava temples

are concerned “…..none others, however high placed in society

as Pontiffs or Acharyas, or even other Brahmins could touch the

idols, do Pooja or enter the Garba Girha……..” Exclusion solely

on the basis of caste was not an issue in Seshammal(supra) so

2

Page 27 as to understand the decision in Adithayan (supra) to be, in

any way, a departure from what has been held in Seshammal

(supra).

27.Before we go on to deliberate on the validity of the

impugned G.O. dated 23.05.2006 it will be useful to try to

understand what is Hinduism? A broad answer is to be found

in the preface to this report but, perhaps, we should delve a

little deeper into the issue. The subject has received an

indepth consideration of the Country’s philosopher President

Dr. S. Radhakrishnan in the celebrated work “ The Hindu way

of Life”. The said work has been exhaustively considered in

Sastri Yagnapurushadji and Others Vs. Muldas

Bhudradas Vaishya and Another

4

in the context of the

question as to whether Swaminarayan sect is a religion

distinguishable and separate from the Hindu religion and

consequently the temples belonging to the said sect fell

outside the scope of Section 3 of the Bombay Hindu Places of

Public Worship (Entry Authorisation) Act, 1956. The aforesaid

4

1966(3) SCR 242

2

Page 28 Section 3 of the Act inter alia provided that every temple to

which the Act applied shall be open to the excluded classes for

worship in the same manner and to the same extent as other

Hindus in general. While the eventual decision of the Court

which answered the question raised is in the negative, namely,

that the sect in question was not a distinguishable and

different religion, it is the very learned discourse that is to be

found in the report with regard to the true tenets of Hinduism

that would be of interest so far the present case is concerned.

The following passages from the report are truly worthy of

reproduction both for the purpose of recapitulation and

illumination.

“…………… .. ………….. ………… …………

When we think of the Hindu religion, we find it

difficult, if not impossible, to define Hindu

religion or even adequately describe it. Unlike

other religions in the world, the Hindu religion

does not claim any one prophet; it does not

worship any one God; it does not subscribe to

any one dogma; it does not believe in any one

philosophic concept; it does not follow any one

set of religious rites or performances; in fact, it

does not appear to satisfy the narrow

traditional features of any religion or creed. It

may broadly be described as a way of life and

nothing more.

2

Page 29 …………… .. ………….. ………… …………

The Hindu thinkers reckoned with the striking

fact that the men and women dwelling in India

belonged to different communities, worshipped

different gods, and practiced different rites

(Kurma Purana).(Ibid p.12.)

…………… .. ………….. ………… …………

“It presents for our investigation a complex

congeries of creeds and doctrines which in its

gradual accumulation may be compared to the

gathering together of the mighty volume of the

Ganges, swollen by a continual influx of

tributary rivers and rivulets, spreading itself

over an ever-increasing area of country and

finally resolving itself into an intricate Delta of

tortuous steams and jungly marshes ........ The

Hindu religion is a reflection of the composite

character of the Hindus, who are not one people

but many. It is based on the idea of universal

receptivity. It has ever aimed at accommodating

itself to circumstances, and has carried on the

process of adaptation through more than three

thousand years. It has first borne with and

then, so to speak, swallowed, digested, and

assimilated something from all creeds."

("Religious Thought & Life in India" by Monier

Williams, P. 57.)

The history of Indian thought emphatically

brings out the fact that the development of

Hindu religion has always been inspired by an

endless quest of the mind for truth based on the

consciousness that truth has many facets.

Truth is one, but wise men describe if

differently. The Indian mind has, consistently

through the ages, been exercised over the

problem of the nature of godhead the problem

2

Page 30 that faces the spirit at the end of life, and the

interrelation between the individual and the

universal soul. "If we can abstract from the

variety of opinion", says Dr. Radhakrishnan,

"and observe the general spirit of Indian

thought, we shall find that it has a disposition

to interpret life and nature in the way of

monistic idealism, though this tendency is so

plastic, living and manifold that it takes many

forms and expresses itself in even mutually

hostile teachings".(Ibid, p.32.)

Though philosophic concepts and principles

evolved by different Hindu thinkers and

philosophers varied in many ways and even

appeared to conflict with each other in some

particulars, they all had reverence for the past

and accepted the Vedas as the sole foundation

of the Hindu philosophy. Naturally enough, it

was realised by Hindu religion from the very

beginning of its career that truth was many-

sided and different views contained different

aspects of truth which no one could fully

express.

Do the Hindus worship at their temples the

same set or number of gods ? That is another

question which can be asked in this connection;

and the answer to this question again has to be

in the negative. Indeed, there are certain

sections of the Hindu community which do not

believe in the worship of idols; and as regards

those sections of the Hindu community which

believe in the worship of idols their idols differ

from community to community and it cannot be

said that one definite idol or a definite number

of idols are worshipped by all the Hindu in

general. In the Hindu Pantheon the first goods

that were worshipped in Vedic times were

3

Page 31 mainly Indra, Varuna, Vayu and Agni. Later,

Brahma, Vishnu and Mahesh came to be

worshipped. In course of time, Rama and

Krishna secured a place of pride in the Hindu

Pantheon, and gradually as different

philosophic concepts held sway in different

sects and in different sections of the Hindu

community, a large number of gods were

added, with the result that today, the Hindu

Pantheon presents the spectacle of a very large

number of gods who are worshipped by

different sections of the Hindus.

The development of Hindu religion and

philosophy shows that from time to time saints

and religious reformers attempted to remove

from the Hindu thought and practices elements

of corruption and superstition and that led to

the formation of different sects. Buddha stated

Buddhism; Mahavir founded Jainism; Basava

became the founder of Lingayat religion,

Dnyaneshwar and Tukaram initiated the

Varakari cult; Guru Nanak inspired Sikhism;

Dayananda founded Arya Samaj, and

Chaitanya began Bhakti cult; and as a result of

the teachings of Ramakrishna and

Vivekananda, Hindu religion flowered into its

most attractive, progressive and dynamic form.

If we study the teachings of these saints and

religious reformers, we would notice an amount

of divergence in their respective views; but

underneath that divergence, there is a kind of

subtle indescribable unity which keeps them

within the sweep of the broad and progressive

Hindu religion.

Tilak faced this complex and difficult problem of

defining or at least describing adequately

Hindu religion and he evolved a working

3

Page 32 formula which may be regarded as fairly

adequate and satisfactory. Said Tilak :

"Acceptance of the Vedas with reverence;

recognition of the fact that the means or ways

to salvation are diverse and realisation of the

truth that the number of gods to be worshipped

is large, that indeed is the distinguishing

feature of Hindu religion. This definition brings

out succinctly the broad distinctive features of

Hindu religion. It is somewhat remarkable that

this broad sweep of Hindu religion has been

eloquently described by Toynbee. Says

Toynbee : "When we pass from the plane of

social practice to the plane of intellectual

outlook, Hinduism too comes out well by

comparison with the religions an ideologies of

the South-West Asian group. In contrast to

these Hinduism has the same outlook as the

pre-Christian and pre-Muslim religions and

philosophies of the Western half of the old

world. Like them, Hinduism takes it for granted

that there is more than one valid approach to

truth and to salvation and that these different

approaches are not only compatible with each

other, but are complementary".

28.The fact that reference to Hindus in the Constitution

includes persons professing the Sikh, Jain and Buddhist

religions and the statutory enactments like Hindu Marriage

Act, Hindu Succession Act etc. also embraces Sikhs, Jains and

Buddhists within the ambit of the said enactments is another

significant fact that was highlighted and needs to be specially

taken note of.

3

Page 33 29.What is sought to be emphasized is that all the above

would show the wide expanse of beliefs, thoughts and forms of

worship that Hinduism encompasses without any divergence

or friction within itself or amongst its adherents. It is in the

backdrop of the above response to the question posed earlier

“what is Hinduism”? that we have to proceed further in the

matter.

30.Image worship is a predominant feature of Hindu

religion. The origins of image worship is interesting and a

learned discourse on the subject is available in a century old

judgment of the Madras High Court in Gopala Mooppanar

and Others Vs. Subramania Iyer and others

5

. In the said

report the learned Judge (Sadasiva Aiyar, J.) on the basis of

accepted texts and a study thereof had found that in the “first

stage” of existence of mankind God was worshiped as

immanent in the heart of everything and worship consisted

solely in service to ones fellow creatures. In the second age,

the spirit of universal brotherhood has lost its initial efficacy

and notions of inferiority and superiority amongst men

5

AIR 1915 Madras 363

3

Page 34 surfaced leading to a situation where the inferior man was

asked to worship the superior man who was considered as a

manifestation of God. Disputes arose about the relative

superiority and inferiority which was resolved by the wise

sages by introducing image worship to enable all men to

worship God without squabbles about their relative

superiorities. With passage of time there emerged Rules

regulating worship in temples which came to be laid down in

the treatises known as Agamas and the Thantras. Specifically

in Gopala Moopanar (supra), it was noticed that the Agamas

prescribed rules as regards “what caused pollution to a temple

and as regards the ceremonies for removing pollution when

caused.” In the said judgment it is further mentioned that,

“There are, it is well known Thanthries in Malabar who are

specialists in these matters of pollution. As the temple priests

have got the special saivite initiation or dheeksha which entitles

them to touch the inner most image, and as the touch of the

persons who have got no such initiation, even though they be

Brahmins, was supposed to pollute the image, even Brahmins

other than the temple priest were in many temples not allowed

3

Page 35 to go into the garbhagraham. The Agamas also contain other

prescriptions including who is entitled to worship from which

portion of the temple. In one of the Agamas it is said (as freely

translated) thus : “Saivite Brahmin priests are entitled to

worship in the anthrala portion. Brahmins learned in the Vedas

are entitled to worship in the arthamantapa, other Brahmins in

the front Mantapa, Kings and Vaisyas in the dwaramantapa,

initiated Sudras in the Bahir Mantapa” and so on.” The legal

effect of the above prescriptions need not detain us and it is

the portion underlined which is of particular importance as

the discussions that follow would reveal.

31.The Ecclesiastical jurisprudence in India, sans any

specific Ecclesiastical jurisdiction, revolves around the

exposition of the constitutional guarantees under Articles 25

and 26 as made from time to time. The development of this

branch of jurisprudence primarily arises out of claimed rights

of religious groups and denominations to complete autonomy

and the prerogative of exclusive determination of essential

religious practices and principles on the bedrock of the

3

Page 36 constitutional guarantees under Articles 25 and 26 of the

Constitution and the judicial understanding of the inter-play

between Article 25(2)(b) and 26(b) of the Constitution in the

context of such claims. In The Commissioner, Hindu

Religious Endowments, Madras Vs. Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt

6

(Shirur Mutt) while

dealing with the issue of autonomy of a religious denomination

to determine what rights and ceremonies are essential

according to the tenets of its religion it has been stated that -

“Under article 26(b), therefore a religious

denomination or organization enjoys complete

autonomy in the matter of deciding as to what rites

and ceremonies are essential according to the tenets

of the religion they hold and no outside authority has

any jurisdiction to interfere with their decision in

such matters.” – (Page 1028)

32.Besides the above, recognition of the aforesaid principle

is also to be found in the fact that in Shirur Mutt (supra),

though the eventual conclusion of the Court upholds the

validity of the Act (Madras Hindu Religious and Charitable

Endowments Act, 1951) certain specific provisions i.e. Section

6

1954 SCR 1005

3

Page 37 21 which empowered the Commissioner and his subordinates

to enter the premises of any religious institution at any time

for performance of duties enjoined under the Act has been

struck down indicating consistency with the principle

extracted above. The relevant of the report (page 1030/31) will

require a specific notice and therefore is extracted below.

“We agree, however, with the High Court in the view

taken by it about section 21. This section empowers

the Commissioner and his subordinate officers and

also persons authorised by them to enter the

premises of any religious institution or place of

worship for the purpose of exercising any power

conferred or any duty imposed by or under the Act. It

is well known that there could be no such thing as

an unregulated and unrestricted right of entry in a

public temple or other religious institution, for

persons who are not connected with the spiritual

functions thereof. It is a traditional custom

universally observed not to allow access to any

outsider to the particularly sacred parts of a temple

as for example, the place where the deity is located.

There are also fixed hours of worship and rest for the

idol when no disturbance by any member of the

public is allowed. Section 21, it is to be noted, does

not confine the right of entry to the outer portion of

the premises; it does not even exclude the inner

sanctuary "the Holy of Holies" as it is said, the

sanctity of which is zealously preserved. It does not

say that the entry may be made after due notice to

the head of the institution and at such hours which

would not interfere with the due observance of the

rites and ceremonies in the institution. We think that

3

Page 38 as the section stands, it interferes with the

fundamental rights of the Mathadhipati and the

denomination of which he is head guaranteed under

articles 25 and 26 of the Constitution. Our attention

has been drawn in this connection to section 91 of

the Act which, it is said, provides a sufficient

safeguard against any abuse of power under

section 21. We cannot agree with this contention.

Clause (a) of section 91 excepts from the saving

clause all express provisions of the Act within which

the provision of section 21 would have to be

included. Clause (b) again does not say anything

about custom or usage obtaining in an institution

and it does not indicate by whom and in what

manner the question of interference with

the religious and spiritual functions of the Math

would be decided in case of any dispute arising

regarding it. In our opinion, section 21 has been

rightly held to be invalid.” - (Page 1030/31)

33.The decision of this Court in Sri Venkataramana

Devaru and Others Vs. State of Mysore and others

7

may

now be considered. In the said case this Court was called

upon to answer as to whether Section 3 of the Madras Temple

Entry Authorization Act violated the guarantee under Article

26(b) insofar as Gaura Saraswati Brahmins are concerned by

making provisions to the effect that Shri Venkataramana

Temple at Moolky was to be open to all excluded classes of

7

AIR 1958 SC 255

3

Page 39 Hindus. It was the contention of the aforesaid sect that the

temple in question was founded for the exclusive use and

benefit of Gaura Saraswati Brahmins. This Court in its report

elaborately discussed the practice of idol/image worship;

regulation thereof by the Agamas and the efficacy and

enforceability of such Agamas. Paras 17 and 18 of the Report

which deals with the above aspect may be usefully extracted

below.

“17. The Gods have distinct forms ascribed to

them and their worship at home and in temples is

ordained as certain means of attaining salvation.

These injunctions have had such a powerful hold

over the minds of the people that daily worship of

the deity in temple came to be regarded as one of

the obligatory duties of a Hindu. It was during this

period that temples were constructed all over the

country dedicated to Vishnu, Rudra, Devi,

Skanda, Ganesha and so forth, and worship in

the temple can be said to have become the

practical religion of all sections of the Hindus ever

since. With the growth in importance of temples

and of worship therein, more and more attention

came to be devoted to the ceremonial law relating

to the construction of temples, installation of idols

therein and conduct of worship of the deity, and

numerous are the treatises that came to be written

for its exposition. These are known as Agamas,

and there are as many as 28 of them relating to

the Saiva temples, the most important of them

being the Kamikagama, the Karanagama and the

3

Page 40 Suprabedagama, while the Vikhanasa and the

Pancharatra are the chief Agamas of the

Vaishnavas. These Agamas, contain elaborate

rules as to how the temple is to be constructed,

where the principal deity is to be consecrated, and

where the other Devatas are to be installed and

where the several classes of worshippers are to

stand and worship. The following passage from

the judgment of Sadasiva Aiyar J. in Gopala

Muppanar v. Subramania Aiyar : (1914) 27 MLJ

253, gives a summary of the prescription

contained in one of the Agamas :

"In the Nirvachanapaddhathi it is said that

Sivadwijas should worship in the

Garbargriham, Brahmins from the ante

chamber or Sabah Mantabam, Kshatriyas,

Vysias and Sudras from the

Mahamantabham, the dancer and the

musician from the Nrithamantabham east of

the Mahamantabham and that castes yet

lower in scale should content themselves

with the sight of the Gopuram."

The other Agamas also contain similar

rules.”

18. According to the Agamas, an image becomes

defiled if there is any departure or violation of any

of the rules relating to worship, and purificatory

ceremonies (known as Samprokshana) have to be

performed for restoring the sanctity of the shrine.

Vide judgment of Sadasiva Aiyar J. in Gopala

Muppanar v. Subramania Aiyar (supra). In

Sankaralinga Nadan v. Raja Rajeswara Dorai, it

was held by the Privy Council affirming the

judgment of the Madras High Court that a trustee

who agreed to admit into the temple persons who

were not entitled to worship therein, according to

4

Page 41 the Agamas and the custom of the temple was

guilty of breach of trust. Thus, under the

ceremonial law pertaining to temples, who are

entitled to enter into them for worship and where

they are entitled to stand and worship and how

the worship is to be conducted are all matters of

religion. The conclusion is also implicit in

Art. 25 which after declaring that all persons

are entitled freely to profess, practice and

propagate religion, enacts that this should

not affect the operation of any law throwing

open Hindu religious institutions of a public

character to all classes and sections of

Hindus. We have dealt with this question at

some length in view of the argument of the

learned Solicitor-General that exclusion of

persons from temple has not been shown to

be a matter of religion with reference to the

tenets of Hinduism. We must accordingly

hold that if the rights of the appellants have

to be determined solely with reference to

Art. 26(b), then s. 3, of Act V of 1947, should

be held to be bad as infringing it.”

Eventually, this Court went on to hold that the provisions

of Article 26(b) are also subject to those contained in Article

25(2)(b) and accordingly dismissed the plea set up by the

Gaura Saraswati Brahmins in the suit out of which the

proceedings arose.

4

Page 42 34.The explicit reiteration of the Court’s power to decide on

what constitutes an essential religious practice in Sri

Venkataramana Devaru (supra) again found manifestation in

Durgah Committee, Ajmer and another Vs. Syed Hussain

Ali and others

8

. Gajendragadkar, J. (as His Lordship then

was) was of the view,

“……. that in order that the practices in question

should be treated as a part of religion they must

be regarded by the said religion as its essential

and integral part; otherwise even purely secular

practices which are not an essential or an

integral part of religion are apt to be clothed with

a religious form and may make a claim for being

treated as religious practices within the meaning

of Article 26. Similarly, even practices though

religious may have sprung from merely

superstitious beliefs and may in that sense be

extraneous and unessential accretions to religion

itself. Unless such practices are found to

constitute an essential and integral part of a

religion their claim for the protection under Article

26 may have to be carefully scrutinised; in other

words, the protection must be confined to such

religious practices as are an essential and an

integral part of it and no other.”

35.Almost half a century later, we find a reiteration of the

same view in the majority judgment rendered in

8

AIR 1961 SC 1402

4

Page 43 Commissioner of Police and Others Vs. Acharya

Jagadishwarananda Avadhuta and Another

9

though the

minority view in the said case preferred to take a contrary

opinion relying, inter alia, on Shirur Mutt (supra) and Jesse

Cantwell Vs. State of Connecticut

10

and United States Vs.

Ballard

11

. Para 57 of the minority opinion containing the

discordant note would be worthy of reproduction.

“57. The exercise of the freedom to act and

practise in pursuance of religious beliefs is as

much important as the freedom of believing in a

religion. In fact to persons believing in religious

faith, there are some forms of practising the

religion by outward actions which are as much

part of religion as the faith itself. The freedom to

act and practise can be subject to regulations. In

our Constitution, subject to public order, health

and morality and to other provisions in Part III of

the Constitution. However, in every case the

power of regulation must be so exercised with the

consciousness that the subject of regulation is the

fundamental right of religion, and as not to

unduly infringe the protection given by the

Constitution. Further, in the exercise of the power

to regulate, the authorities cannot sit in judgment

over the professed views of the adherents of the

religion and to determine whether the practice is

warranted by the religion or not. That is not their

function. (See Jesse Cantwell v. State of

9

(2004) 12 SCC 770

10

84 L Ed 1213 : 310 US 296 (1939)

11

88 L Ed 1148 : 322 US 78 (1943)

4

Page 44 Connecticut, L Ed at pp. 1213-1218, United

States v. Ballard, L Ed at pp. 1153, 1154.)”

36.That the freedom of religion under Articles 25 and 26 of

the Constitution is not only confined to beliefs but extends to

religious practices also would hardly require reiteration. Right

of belief and practice is guaranteed by Article 25 subject to

public order, morality and health and other provisions of Part-

III of the Constitution. Sub-Article (2) is an exception and

makes the right guaranteed by Sub-article (1) subject to any

existing law or to such law as may be enacted to, inter alia,

provide for social welfare and reforms or throwing or proposing

to throw open Hindu religious institutions of a public

character to all classes and sections of Hindus. Article 26(b)

on the other hand guarantees to every religious denomination

or section full freedom to manage its own affairs insofar as

matters of religion are concerned, subject,once again, to public

order, morality and health and as held by this Court subject to

such laws as may be made under Article 25(2)(b). The rights

guaranteed by Articles 25 and 26, therefore, are circumscribed

4

Page 45 and are to be enjoyed within constitutionally permissible

parameters. Often occasions will arise when it may become

necessary to determine whether a belief or a practice claimed

and asserted is a fundamental part of the religious practice of

a group or denomination making such a claim before

embarking upon the required adjudication. A decision on such

claims becomes the duty of the Constitutional Court. It is

neither an easy nor an enviable task that the courts are called

to perform. Performance of such tasks is not enjoined in the

court by virtue of any ecclesiastical jurisdiction conferred on it

but in view of its role as the Constitutional arbiter. Any

apprehension that the determination by the court of an

essential religious practice itself negatives the freedoms

guaranteed by Articles 25 and 26 will have to be dispelled on

the touchstone of constitutional necessity. Without such a

determination there can be no effective adjudication whether

the claimed right it is in conformity with public order, morality

and health and in accord with the undisputable and

unquestionable notions of social welfare and reforms. A just

balance can always be made by holding that the exercise of

4

Page 46 judicial power to determine essential religious practices,

though always available being an inherent power to protect the

guarantees under Articles 25 and 26, the exercise thereof

must always be restricted and restrained.

37.Article 16 (5) which has virtually gone unnoticed till date

and, therefore, may now be seen is in the following terms :

“16(5) - Nothing in this Article shall affect the

operation of any law which provides that an

incumbent of an office in connection with the

affairs of any religious or denominational

institution or any member of the governing body

thereof shall be a person professing a particular

religion or belonging to a particular denomination.”

38.A plain reading of the aforesaid provision i.e. Article

16(5), fortified by the debates that had taken place in the

Constituent Assembly, according to us, protects the

appointment of Archakas from a particular denomination, if so

required to be made, by the Agamas holding the field. The

debates in the Constituent Assembly referred to discloses that

the suggestion that the operation of Article 16(5) should be

restricted to appointment in offices connected with

4

Page 47 administration of a religious institution was negatived. The

exception in Article 16(5), therefore, would cover an office in a

temple which also requires performance of religious functions.

In fact, the above though not expressly stated could be one of

the basis for the views expressed by the Constitution Bench in

Sheshammal (supra).

39.The preceding discussion indicates the gravity of the

issues arising and the perceptible magnitude of the impact

thereof on Hindu Society. It would be, therefore, incorrect, if

not self defeating, to take too pedantic an approach at

resolution either by holding the principle of res judicata or

locus to bar an adjudication on merits or to strike down the

impugned G.O. as an executive fiat that does not have

legislative approval, made explicit by the fact that though what

has been brought by the G.O. dated 23.05.2006 was also

sought to be incorporated in the statute by the Ordinance,

eventually, the amending Bill presented before the legislature

specifically omitted the aforesaid inclusion. The significance of

the aforesaid fact, however, cannot be underestimated. What

4

Page 48 is sought to be emphasized is that the same, by itself, cannot

be determinative of the invalidity of the G.O. which will have to

be tested on certain other premises and foundation treating

the same to be an instance of exercise of executive power in an

area not covered by any specific law.

40.The issue of untouchability raised on the anvil of Article

17 of the Constitution stands at the extreme opposite end of

the pendulum. Article 17 of the Constitution strikes at caste

based practices built on superstitions and beliefs that have no

rationale or logic. The exposition of the Agamas made a

Century back by the Madras High Court in Gopala Moopnar

(supra) that exclusion from the sanctum sanctorum and duties

of performance of poojas extends even to Brahmins is

significant. The prescription with regard to the exclusion of

even Brahmins in Gopala Moopnar (supra) has been echoed

in the opinion of Sri Parthasarthy Bhattacharya as noted by

the Constitution Bench in Seshammal (supra). Such

exclusion is not on the basis of caste, birth or pedigree. The

provisions of Article 17 and the Protection of Civil Rights Act,

4

Page 49 1955, therefore, would not be of much significance for the

present case. Similarly, the ‘offer’ of the state in its affidavit to

appoint Shaivite as Archakas in Shiva temples and

Vaishnavas in Vaishanvite Temples is too naïve an

understanding of a denomination which is, to say the least, a

far more sharply indentified subgroup both in case of shaivite

and vaishanvite followers. However, what cannot be ignored is

the ‘admission’ inbuilt in the said offer resulting in some

flexibility in the impugned G.O. that the state itself has

acknowledged.

41.Sheshammal (supra) is not an authority for any

proposition as to what an Agama or a set of Agamas governing

a particular or group of temples lay down with regard to the

question that confronts the court, namely, whether any

particular denomination of worshippers or believers have an

exclusive right to be appointed as Archakas to perform the

poojas. Much less, has the judgment taken note of the

particular class or caste to which the Archakas of a temple

must belong as prescribed by the Agamas. All that it does and

4

Page 50 says is that some of the Agamas do incorporate a fundamental

religious belief of the necessity of performance of the Poojas by

Archakas belonging to a particular and distinct

sect/group/denomination, failing which, there will be

defilement of deity requiring purification ceremonies. Surely, if

the Agamas in question do not proscribe any group of citizens

from being appointed as Archakas on the basis of caste or

class the sanctity of Article 17 or any other provision of Part III

of the Constitution or even the Protection of Civil Rights Act,

1955 will not be violated. What has been said in Sheshammal

(supra) is that if any prescription with regard to appointment

of Archakas is made by the Agamas, Section 28 of the Tamil

Nadu Act mandates the Trustee to conduct the temple affairs

in accordance with such custom or usage. The requirement of

Constitutional conformity is inbuilt and if a custom or usage is

outside the protective umbrella afforded and envisaged by

Articles 25 and 26, the law would certainly take its own

course. The constitutional legitimacy, naturally, must

supersede all religious beliefs or practices.

5

Page 51 42.The difficulty lies not in understanding or restating the

constitutional values. There is not an iota of doubt on what

they are. But to determine whether a claim of state action in

furtherance thereof overrides the constitutional guarantees

under Article 25 and 26 may often involve what has already

been referred to as a delicate and unenviable task of

identifying essential religious beliefs and practices, sans which

the religion itself does not survive. It is in the performance of

this task that the absence of any exclusive ecclesiastical

jurisdiction of this Court, if not other shortcomings and

adequacies, that can be felt. Moreover, there is some amount

of uncertainty with regard to the prescription contained in the

Agamas. Coupled with the above is the lack of easy

availability of established works and the declining numbers of

acknowledged and undisputed scholars on the subject. In

such a situation one is reminded of the observations, if not the

caution note struck by Mukherjea, J. in Shirur Mutt (supra)

with regard to complete autonomy of a denomination to decide

as to what constitutes an essential religious practice, a view

that has also been subsequently echoed by this Court though

5

Page 52 as a “minority view”. But we must hasten to clarify that no

such view of the Court can be understood to an indication of

any bar to judicial determination of the issue as and when it

arises. Any contrary opinion would go rise to large scale

conflicts of claims and usages as to what is an essential

religious practice with no acceptable or adequate forum for

resolution. That apart the “complete autonomy” contemplated

in Shirur Mutt (supra) and the meaning of “outside authority”

must not be torn out of the context in which the views, already

extracted, came to be recorded (page 1028). The exclusion of

all “outside authorities” from deciding what is an essential

religion practice must be viewed in the context of the limited

role of the State in matters relating to religious freedom as

envisaged by Articles 25 and 26 itself and not of the Courts as

the arbiter of Constitutional rights and principles.

43.What then is the eventual result? The answer defies a

straight forward resolution and it is the considered view of the

court that the validity or otherwise of the impugned G.O.

would depend on the facts of each case of appointment. What

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Page 53 is found and held to be prescribed by one particular or a set of

Agamas for a solitary or a group of temples, as may be, would

be determinative of the issue. In this regard it will be

necessary to re-emphasise what has been already stated with

regard to the purport and effect of Article 16(5) of the

Constitution, namely, that the exclusion of some and inclusion

of a particular segment or denomination for appointment as

Archakas would not violate Article 14 so long such

inclusion/exclusion is not based on the criteria of caste, birth

or any other constitutionally unacceptable parameter. So long

as the prescription(s) under a particular Agama or Agamas is

not contrary to any constitutional mandate as discussed

above, the impugned G.O. dated 23.05.2006 by its blanket fiat

to the effect that, “Any person who is a Hindu and possessing

the requisite qualification and training can be appointed as a

Archaka in Hindu temples” has the potential of falling foul of

the dictum laid down in Seshammal (supra). A determination

of the contours of a claimed custom or usage would be

imperative and it is in that light that the validity of the

impugned G.O. dated 23.05.2006 will have to be decided in

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Page 54 each case of appointment of Archakas whenever and wherever

the issue is raised. The necessity of seeking specific judicial

verdicts in the future is inevitable and unavoidable; the

contours of the present case and the issues arising being what

has been discussed.

44.Consequently and in the light of the aforesaid discussion,

we dispose of all the writ petitions in terms of our findings,

observations and directions above reiterating that as held in

Seshammal (supra) appointments of Archakas will have to be

made in accordance with the Agamas, subject to their due

identification as well as their conformity with the

Constitutional mandates and principles as discussed above.

………..........…………………J.

[RANJAN GOGOI]

………… ..........………………J.

[N.V. RAMANA]

NEW DELHI,

DECEMBER 16, 2015.

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