http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14

CASE NO.:

Appeal (civil) 6675 of 1999

PETITIONER:

M.P. Gopalakrishnan Nair & Anr.

RESPONDENT:

State of Kerala & Ors.

DATE OF JUDGMENT: 20/04/2005

BENCH:

H.K. Sema & S.B. Sinha

JUDGMENT:

JUDGMENT

W I T H

CIVIL APPEAL NO. 6674 OF 1999

S.B. SINHA, J :

BACKGROUND FACT:

Sri Krishna Temple situated at Guruvayoor is one of the most famous

temples in the world. The history and legends of the temple are intimately

linked with great saints like Villwamangalam Swamiyar, Melpathur, the

author of Narayaneeyam, Poonthanam and Kururamma. The temple attracts

millions of devotees from all over the world. Zamorin Raja and the

Karanavan of the Mallissery Illom were the hereditary trustees of the temple.

Disputes and differences arose between the Zamorin Raja and the Karanavan

of the Illom mainly about Orrayma rights which were ultimately determined

by a judgment of the Madras High Court in A.S. No. 35/1887 on 1-11-1880.

After the Madras Hindu Religious and Charitable Endowments Act,

1926 came into force, a scheme for administration of the Temple and its

properties was framed in terms whereof the Zamorin Raja was entrusted

with the management of the Temple under the supervision of the officers of

the Board. The Karanavan of the Mallissery Illom thereupon filed O.S. No.

1 of 1929 before the District Court of South-Malabar.

The worshippers of the Temple also filed O.S. No. 2 of 1929 in the

same court praying for framing up of a proper scheme which would give

appropriate representation to the non-hereditary trustees from among the

devotees. The District Court by a judgment and decree dated 25-10-1929

upheld the claim of the Karanavan of the Mallissery Illom to be made a joint

trustee along with Zamorin Raja as a result whereof the scheme was

amended. The Zamorin Raja preferred an appeal thereagainst before the

High Court of Madras which were marked as A.S. No. 211 and 212 of 1930.

The High Court of Madras disposed of the appeals by a common judgment

dated 21-11-1930 confirming the decision of the District Court rejecting the

prayer for appointment of non-hereditary trustees. Some modifications in

the said scheme were made later on.

The Guruvayoor Devaswom Act, 1971, Act 6 of 1971 was framed

after the Government established a Commission to enquire into the cause of

the fire, which destroyed the temple in 1970. The validity of the Act was

challenged before the Kerala High Court by the hereditary trustees in O.P.

No. 812 of 1971, claiming infringement of their fundamental rights under

Articles 19, 25 and 26 of Constitution of India. A Full Bench of the Kerala

High Court dismissed the said writ petition. The Act was thereafter

amended by Act 12 of 1972, which again came to be challenged in O.P. No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14

314 of 1973 in a writ petition filed on behalf of the denomination of the

temple. A Bench of Five Judges of the Kerala High Court struck down the

said Amending Act in Krishnan Vs. Guruvayoor Devaswom Managing

Committee [since reported in 1979 KLT 350]. The Governor of Kerala

promulgated an ordinance known as Guruvayur Devaswom Ordinance, No.

25 of 1977.

The Legislature of the State of Kerala thereafter enacted Guruvayoor

Devaswom Act, 1978 (the 1978 Act) with a view to make provision for the

proper administration of the Guruvayoor Devaswom. The 1978 Act was

enacted having regard to the decision of the 5-Judge Bench of Kerala High

Court in Krishnan (supra).

PROCEEDINGS BEFORE THE HIGH COURT:

The First Appellant herein is President, Kerala Kshethra Samrakshina

Samithi and the Second Appellant herein is the General Secretary, Vishwa

Hindu Parishad, Kerala State. They filed a writ petition before the High

Court praying for the following reliefs:

"i) declare that the Hindus in the Council of

Ministers of the Leftist Democratic Front,

respondents 4 to 14 herein, have no manner of

authority to nominate Members to the Guruvayoor

Devaswom Managing Committee in the light of

the pronouncement of this Honourable Court in

1985 KLT 629 and other ruling of the Kerala High

Court and that any move initiated by them to so

nominate and constitute the Managing Committee

will be illegal and unconstitutional and violative of

the petitioners Fundamental Rights under Articles

14, 21, 25 & 26 of the Constitution of India;

ii) issue a writ of mandamus or any other

appropriate writ, order or direction directing

respondents 4 to 14 to refrain from nominating any

members to the Guruvayoor Devaswom Managing

Committee in pursuance of the provisions of

Section 4 of the Guruvayoor Devaswom Act 1978;

iii) issue an interim order of stay of all steps

initiated by respondents 1 & 4 to 14 to nominate

any member/ members to the Guruvayoor

Devaswom Managing Committee pending disposal

of the above original petition before this

Honourable Court;"

A Division Bench of the said Court having regard to the importance of

the question involved in the writ petition by an order dated 9th July, 1999

referred the matter to a larger bench. By reason of the impugned judgment,

a 5-Judge Bench of the Kerala High Court dismissed the said writ petition.

The Appellants herein are, thus, before us.

SUBMISSIONS:

Mr. M.K.S. Menon, learned counsel appearing on behalf of the

Appellants would contend that the expression 'Hindu' having not been

defined either in the 1978 Act or Travancore Cochin Hindu Religious

Institutions Act must be construed in the light of the series of decisions

rendered by the Kerala High Court, as a person who believes in god and

temple worship and professes Hindu faith. A person belonging to the

denomination in relation to a temple, according to Appellants, must not only

be entitled to attend at the performance of the worship or service but also

must be in the habit of attending such performance. As the Hindu members

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14

of the then Council of Ministers (Respondent Nos. 4 to 14) did not satisfy

such requirements having regard to their political affiliation as they owe

their allegiance to the leftist (Marxist) ideology and as they were against

such religious practice; any nomination made by them as members of the

Committee is ultra vires Articles 25 and 26 of the Constitution of India.

Strong reliance in this behalf has been placed on Krishnan (supra), K.

Krishnankutty & Others Vs. State of Kerala [1985 KLT 289], Narayanan

Namboodiri & Others Vs. State of Kerala [1985 KLT 629] and

Muraleedharan Nair Vs. State of Kerala [1990 (1) KLT 874].

Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the

Respondents, on the other hand, would support the impugned judgment of

the High Court contending that the management of a temple or religious

endowment is a secular aspect which can always be subject matter of control

by a State. Reliance in this behalf has been placed on A.S. Narayana

Deekshitulu Vs. State of A.P. and Others [(1996) 9 SCC 548] and Sri Adi

Visheshwara of Kashi Vishwanath Temple, Varanasi and Others Vs. State of

U.P. and Others [(1997) 4 SCC 606].

Mr. Iyer would urge that the worshippers never enjoyed any right in

the denomination to have a person in the Management Committee and in any

event, the Appellants herein have failed to establish that there had been a

religious practice which had been existing as on the date of coming into

force of the Constitution, the writ petition was not maintainable.

Mr. Iyer submitted that the expression "Hindu" having not been

defined in the 1978 Act, the High Court rightly did not extend the meaning

thereof to a person having a faith in the temple worship and other rituals

connected therewith. It was pointed out that keeping in view the decision of

the Kerala High Court in Krishnan (supra), the power of nomination is

vested in a smaller body and not in the Government. It is the smaller body

of Hindus amongst the members of the Council of Ministers who would

nominate persons who must fulfill the qualifications laid down in Sub-

sections (2) and (4) of Section 4 of the 1978 Act.

QUESTIONS BEFORE THE HIGH COURT:

The High Court framed the following questions for its determination:

(1) Whether the Hindu Ministers in the Council of Ministers should have

faith in God and Temple worship while nominating the members to the

Managing Committee of the Guruvayoor Devaswom under Section 4 of the

Guruvayoor Devaswom Act? and

(2) Whether Hindu Ministers who are not believers in God and Temple

Worship can, by reason of their not having faith in Hindu God and Temple

worship, are disqualified from nominating the members of the Managing

Committee of the Guruvayoor Devaswom, who should have faith in God

and Temple worship, and must also make and subscribe an oath affirming

their faith in God and Hindu Religion and believe in Temple worship.

JUDGMENT OF THE HIGH COURT

(a) The High Court noticed that in Krishnan (supra), the 5-Judge Bench

upheld the validity of the 1978 Act holding that the Committee did not

represent the denomination.

(b) Article 25 merely secures to every citizen, subject to public order,

morality and health, a freedom specified therein but the State has the

requisite power to make laws regulating economic, financial, political or

other secular activity which may be associated with religious practice.

(c) Furthermore, the State has reserved unto itself the power to make laws

providing for social reform and social welfare even though they might

interfere with religious practices.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14

(d) The Bench in Krishnan (supra) merely directed for consideration of

the Government whether the nomination could be given to a statutory body

other than the State Government with sufficient guidelines furnished to it for

ensuring that such nominations would be effected in such a way so as to

make the committee a truly representative of the denomination consisting of

the worshipping public.

(e) Section 4(1) of the 1978 Act was declared invalid as by reason thereof

the State had been conferred with a naked and arbitrary power without any

safeguard being provided for ensuring that the Committee will be a body

representing the denomination.

(f) The observations made by a 3-Judge Bench in Narayanan Namboodiri

(supra) to the effect that the requirements of Article 26 (d) would be satisfied

only if those in charge of Devaswom represent denomination are not in

consonance with the observations and findings of Krishnan (supra).

(g) What is necessary is that the Managing Committee should be the

representative of the religious denomination and it is not necessary that the

persons nominating should form part of it.

(h) The Bench in Narayanan Namboodiri (supra) having been called upon

to determine the lis as to whether Section 4 was ultra vires Article 14 of the

Constitution was not correct in making the observations that the requirement

of Article 26 would be satisfied only if the Hindu Ministers among the

Council of Ministers should also have belief in God and temple worship and,

thus, it was not correctly decided.

(i) The management and administration of a temple being a secular

matter, the State can control and administer the management thereof.

(j) The concession made by the Additional Advocate General and the

Special Counsel appearing for the Devaswom to the effect that the persons

nominating the members to the Managing Committee should also belong to

the denomination as a result whereof Section 4(1) of the Act was not struck

down by the Kerala High Court. It was held, that such a concession was not

binding upon the State.

(k) Having regard to the concept of secularism and tolerance as reflected

in our constitutional scheme as would appear from Clause (3) of Article 164

of the Constitution of India, Section 4(1) cannot be read in the manner as

was submitted by the Appellants in view of the fact that the administration

of the property of a religious institution is not a matter of religion.

(l) The Appellants herein have failed to establish that there had been a

religious practice which was subsisting on the date of the coming into force

of the Constitution of India to the effect that the denomination of the temple

worshipers had a right to be in the Management Committee and members of

the Management Committee were to be elected or nominated by an electoral

college consisting of members of such denomination.

(m) The 1978 Act is not violative of Articles 25 and 26 of the Constitution

of India.

(n) It was observed:

"39. Before parting with this case, we want to

make it clear that it is a very important function or

duty that is assigned to the nominating persons,

namely, the duty of constituting a Committee for

the efficient management and administration of

Guruvayur Temple. It is true that the Act

prescribed that persons who are elected as

members of the Managing Committee should be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14

persons who have faith in Temple Worship and

they have also to give a declaration to that effect.

But, every man who believes in God and Temple

worship may not be a good or efficient

administrator or may not be aware of the

formalities of temple management. It is our

earnest hope and desire that the persons nominated

by the Hindu Ministers should be of high integrity

and honesty and should discharge the functions of

management and administer with care, sincerity

and in the interests of the religious denomination

and in public interest. With a view to avoid

politics among the members of the Committee, it is

desirable that no politician from any party should

be nominated to the Committee."

STATUTORY PROVISIONS:

Section 2(c) of the 1978 Act defines "committee" to mean the

Guruvayoor Devaswom Managing Committee constituted under Section 3

thereof. 'Devaswom' has been defined in Section 2(e) to mean the Temple

and includes its properties and endowments and the subordinate temples

attached to it. The expression "person having interest in the Temple" has

been defined to mean a person who is entitled to attend at, or is in the habit

of attending, the performance of worship or service in the temple or who is

entitled to partake, or is in the habit of partaking, in the benefit of the

distribution of gifts thereat.

By reason of Section 3 of the 1978 Act, the administrative control and

management of the Devaswom is vested in a committee constituted in the

manner provided for under Section 4 thereof. The said committee is a body

corporate and has perpetual succession having a common seal and shall by

the said name sue and be sued through the Administrator. In terms of

Section 4 of the 1978 Act, the Management Committee is to consist of nine

members as provided for in Clauses (a) to (e) of Sub-section (1) thereof.

Sub-section (2) of Section 4 of the 1978 Act provides for disqualification for

being nominated under clause (e) of Sub-section (1) of Section 4 if:

"(i) he believes in the practice of untouchability or

does not profess the Hindu Religion or believe in

temple worship; or

(ii) he is an employee under the Government or the

Devaswom; or

(iii) he is below thirty years of age; or

(iv) he is engaged in any subsisting contract with

the Devaswom; or

(v) he is subject to any of the disqualifications

mentioned in clauses (a), (b) and (c) of sub-section

(3) of section 5."

Sub-section (3) of Section 4 of the 1978 Act provides for election of

one of its members by the members of the Committee as its Chairman at its

first meeting. Sub-section (4) of Section 4 enjoins every member of the

Committee to make and subscribe an oath in the presence of the

Commissioner in the following form, that is to say \026

"I, A B, do swear in the name of God that I profess

the Hindu Religion and believe in temple worship

and that I do not believe in the practice of

untouchability."

CONSTITUTIONAL RIGHT OF THE APPELLANTS:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14

Before adverting to the questions raised at the Bar, we must place on

record that the Appellants herein did not question the constitutionality of

Section 4 of the 1978 Act. The provisions of the Act merely were required

to be read in the light of the different judgments rendered by the Kerala High

Court. While it may be true that in certain cases a statute in the nature of the

1978 Act may have to be read in the light of the provisions contained in

Articles 25 and 26 of the Constitution of India, but the same would not mean

while doing so the Court shall extend the protection granted thereby.

Articles 25 and 26 of the Constitution of India read, thus:

"25. FREEDOM OF CONSCIENCE AND FREE

PROFESSION, PRACTICE AND

PROPAGATION OF RELIGION.

(1) Subject to public order, morality and health and

to the other provisions of this Part, all persons are

equally entitled to freedom of conscience and the

right freely to profess, practise and propagate

religion.

(2) Nothing in this article shall affect the operation

of any existing law or prevent the State from

making any law-

(a) regulating or restricting any economic,

financial, political or other secular activity which

may be associated with religious practice;

(b) providing for social welfare and reform or the

throwing open of Hindu religious institutions of a

public character to all classes and sections of

Hindus.

Explanation I

The wearing and carrying of kirpans shall be

deemed to be included in the profession of the

Sikh religion.

Explanation II

In sub-clause (b) of clause (2), the reference to

Hindus shall be construed as including a reference

to persons professing the Sikh, Jaina or Buddhist

religion, and the reference to Hindu religious

institutions shall be construed accordingly.

26. FREEDOM TO MANAGE RELIGIOUS

AFFAIRS

Subject to public order, morality and health, every

religious denomination or any section thereof shall

have the right-

(a) to establish and maintain institutions for

religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable

property; and

(d) to administer such property in accordance with

law."

Article 25 guarantees that every person in India shall have the

freedom of conscience and shall have the right to profess, practice and

propagate religion subject to the restrictions imposed by the State on the

following grounds, viz.:

(i) Public order, morality and health;

(ii) other provisions of the Constitution;

(iii) regulation of non-religious activity associated with religious practice;

(iv) social welfare and reform; and

(v) throwing open of Hindu religious institutions of a public character to

all classes of Hindus.

SECULARISM:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14

India is a secular country. Secularism has been inserted in the

Preamble by reason of the Constitution 42nd Amendment Act, 1976. The

object of inserting the said word was to spell out expressly the high ideas of

secularism and the integrity of the nation on the ground that these

institutions are subjected to considerable stresses and strains and vested

interests have been trying to promote their selfish ends to the great detriment

of the public good.

A 9-Judge Bench of this Court in S.R. Bommai Vs. Union of India

[(1994) 3 SCC 1] observed:

"197. Rise of fundamentalism and

communalisation of politics are anti-secularism.

They encourage separatist and divisive forces and

become breeding grounds for national

disintegration and fail the parliamentary

democratic system and the Constitution. Judicial

process must promote citizens' active participation

in electoral process uninfluenced by any corrupt

practice to exercise their free and fair franchise.

Correct interpretation in proper perspective would

be in the defence of the democracy and to maintain

the democratic process on an even keel even in the

face of possible friction, it is but the duty of the

court to interpret the Constitution to bring the

political parties within the purview of

constitutional parameters for accountability and to

abide by the Constitution, the laws for their strict

adherence.

It is now well-settled:

(i) The Constitution prohibits the establishment of a theocratic State.

(ii) The Constitution is not only prohibited to establish any religion of its

own but is also prohibited to identify itself with or favouring any

particular religion.

(iii) The secularism under the Indian Constitution does not mean

constitution of an atheist society but it merely means equal status of

all religions without any preference in favour of or discrimination

against any one of them.

STATUTORY INTERPRETATION:

The management or administration of a temple partakes to a secular

character as opposed to the religious aspect of the matter. The 1978 Act

segregates the religious matters with secular matters. So far as, religious

matters are concerned, the same have entirely been left in the hands of the

'Thanthri'. He is the alter ego of the deity. He gives mool mantra to the

priests. He holds a special status. He prescribes the rituals. He is the only

person who can touch the deity and enter the sanctum sanctorum. He is the

final authority in religious matters wherefor a legal fiction has been created

in Section 35 of the Act in terms whereof the Committee or the

Commissioner or the Government is expressly prohibited from interfering

with the religious or spiritual matters pertaining to Devaswom. His decision

on all religious, spiritual, ritual or ceremonial matters pertaining to

Devaswom is final unless the same violates any provision contained in any

law for the time being in force. The impugned provisions of the Act must be

construed having regard to the said factor in mind. By reason of Section

4(1) of the 1978 Act, the Committee will consist of nine members. The

nomination of one person from the Council of Ministers as a representative

of the employees of the Devaswom and five persons, one of whom shall be a

member of a Scheduled Caste, are required to be nominated by the Hindus

among the Council of Ministers from amongst the persons having interest in

the temple. The area within which such nomination can be made by the

Hindus amongst the Council of Minister is, thus, limited.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14

HINDU-CONCEPT OF

The word 'Hindu' is not defined. A Hindu admittedly may or may not

be a person professing Hindu religion or a believer in temple worship. A

Hindu has a right to choose his own method of worship. He may or may not

visit a temple. He may have a political compulsion not to openly proclaim

that he believes in temple worship but if the submission of the Appellants is

accepted in a given situation, the 1978 Act itself would be rendered

unworkable. Idol worships, rituals and ceremonials may not be practised by

a person although he may profess Hindu religion.

A 5-Judge Bench of the Kerala High Court in Krishnan (supra) in

paragraph 40 of its judgment noticed:

"\005It is well known that there are sections of

Hindus whose schools of thought and philosophy

do not consider idol worship, rituals and

ceremonials as necessary or even conducive to the

spiritual progress of man. There are also political

creeds or social theories which openly condemn

such forms of worship as being based on mere

superstition and ignorance. Many persons, who

are born Hindus and who may be said to profess

Hinduism solely because they have not openly

renounced the Hindu faith by any recognized

process, may ardently believe in such political or

social ideologies which do not view temple

worship with favour."

The legislature has not chosen to qualify the word "Hindu" in any

manner. The meaning of word is plain and who is a Hindu is well known.

The legislature was well aware that "Hindu" is a comprehensive expression

(as the religion itself is) giving the widest freedom to people of all hues

opinion, philosophies and beliefs to come within its fold. [See Shastri

Yagnapurushdasji and others Vs. Muldas Bhundardas Vaishya and another,

AIR 1966 SC 1119 and Dayal Singh and Others Vs. Union of India and

Others, (2003) 2 SCC 593, para 37]

The legislature was also well aware of the conglomeration/ diversity

of thought that prevailed in the Hindu religion but it did not choose to limit

'Hindus' to the category propounded by the appellants \026 namely those who

believe in temple worship. There is no absurdity or ambiguity which

compels a departure from the plain language and to read section 4 as

meaning something more than what is expressed, and, thus there is no reason

to construe the expression 'Hindu' in the manner sought to be done by the

Appellants. To debar all 'Hindu' Ministers of leftist Government, from

nominating members to the Managing Committee of the Guruvayoor

Devaswom will lead to stalemate in the Management of the Devaswom.

DETERMINATION:

The Bench in Krishnan (supra) upheld the right of the Executive

Government to oversee control and management of a temple, but merely

made the following observations:

"\005We may, however, observe that in the light of

the recent amendment of the preamble to the

Constitution emphasizing the secular character of

the State it is desirable that the legislature should

consider whether the power to nominate the

members of the Committee should not be

conferred on an independent statutory body other

than the State Government with sufficient

guidelines furnished to it for ensuring that the

nominations will be effected in such a way as to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14

truly representative of the denomination consisting

of the worshipping public."

The only ground, which weighed with the Bench declaring Section

4(1) of the 1978 as unconstitutional, is confirmation of naked and arbitrary

power upon the Government without any safeguard being provided for

ensuring that the Committee would be a body representing the

denomination. The 1978 Act was, as noticed hereinbefore, enacted to

overcome the same. The composition of the body which would have the

power of nomination in terms of Sections 4(1)(d) and 4(1)(e) would consist

of the Hindu Ministers professing Hindu religion only. While making such

nominations, they are statutorily bound to nominate such persons who would

fulfill the criteria laid down therein. Section 4, therefore, lays down

guidelines for ensuring that the Committee would be a body representing the

denomination.

From its provisions it is clear that the Act has ensured that only

persons who believe in temple worship are to be in the management of the

temple. The Act has further ensured that none except the Thanthri gets any

voice in the spiritual administration of the temple and that his voice alone

will prevail in such matters. The practice of religion by the denomination

including customs, practices and rituals is, therefore, preserved in its entirety

and there is no tampering therewith in any manner whatsoever.

It is not clear how vesting of such a right on the Hindus in the Council

of Ministers can effect their denominational rights when the members of the

Managing Committee, the Commissioner and the Administrator have all got

to be believers in temple worship. To insist on such a qualification in the

electorate will be as bad saying that when the law relating to a temple is

under consideration in the legislature, only Hindu legislators can vote and

they must further be qualified as believers in temple worship.

It is expected that the action of such a body would be bona fide and

reasonable. Once a committee is constituted which would be representing

the denomination, in our opinion, it would be not be correct to contend that

even the authority empowered to nominate must also be representative of the

denomination.

Indisputably the State has the requisite jurisdiction to oversee the

administration of a temple subject to Articles 25 and 26 of the Constitution

of India. The grievance as regard the violation of the constitutional right as

enshrined under Articles 25 and 26 of the Constitution of India must be

considered having regard to the object and purport of the Act. For fulfilling

the said requirements, the denomination must have been enjoying the right

to manage the properties endowed in favour of the institutions. If the right

to administer the properties never vested in the denomination, the protection

under Article 26 of the Constitution of India is not available.

Assuming such a denomination exist, the question which is required

to be posed is, what is the right that is sought to be protected. The right

sought to be preserved is that under clauses (d) and (e) of Section 4(1). It

does not depend upon the persons who nominates the members of the

Managing Committee. The crux of the matter is who are the persons who

are qualified to be in the Managing Committee. To fulfill the said object,

the statute has taken particular care to see that only those who believe in

temple worship among the Hindus can be nominated under clauses (d) and

(e) of Section 4.

The High Court in its impugned judgment has arrived at a finding as

regard categorical existence of a subsisting religious practice that as on the

date of coming into force of the Constitution of India it has not been

established that the denomination of temple worshippers had any right to be

on the management committee or the members of such a committee were

being elected / nominated by an electoral college consisting exclusively of

members of such denomination. Nothing has been pointed out before us to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14

show that such a finding is contrary to the materials on records.

The freedom guaranteed under Article 25 of the Constitution is not an

unconditional one. A distinction exists between the matters of religion, on

the one hand, and holding and management of properties by religious

institutions, on the other. What is necessary to be considered for

determining the issue is as to whether by reason of the impugned Act the

administration of the institution had been taken from the hands of the

religious denomination and vested in another body. If the answer to the said

question is rendered in the negative, attack to the constitutionality of the Act

would not survive.

Furthermore, it is permissible for a legislature to take over the

management of the temple from the control of a person and vest the same in

a Committee of which he would remain the Chairman. [See Raja Bira

Kishore Deb, hereditary Superintendent, Jagannath Temple, P.O. and

District Puri Vs. The State of Orissa, AIR 1964 SC 1501]

It is also now trite that although State cannot interfere with the

freedom of a person to profess, practise and propagate his religion, the

secular matters connected therewith can be the subject matter of control by

the State. The management of the temple primarily is a secular act. The

temple authority controls the activities of various servants of the temple. It

manages several institutions including educational institutions pertaining to

it. The disciplinary power over the servants of the temple, including the

priest may vest in a committee. The payment of remuneration to the

temple servants was also not a religious act but was of purely secular in

nature. [See Shri Jagannath Temple Puri Management Committee

represented through its Administrator and Another Vs. Chintamani Khuntia

and Others, (1997) 8 SCC 422, Pannalal Bansilal Pitti and Others Vs. State

of A.P. and Another, (1996) 2 SCC 498 and Bhuri Nath and Others Vs. State

of J&K and Others, (1997) 2 SCC 745].

State of Rajasthan and Others Vs. Shri Sajjanlal Panjawat and Others

[(1974) 1 SCC 500] relied upon by Mr. Menon was also a case where the

statute enabled the Government to appoint a committee of management.

The provision was upheld. When the Government in terms of a statute is

entitled to appoint a management committee for the temple, without

violating the constitutional provisions, the more remote aspect of the mode

of nomination of the members of the Managing Committee cannot be said to

constitute violation of any constitutional mandate.

Yet again in Sri Adi Visheshwara of Kashi Vishwanath Temple,

Varanasi (supra), this Court held:

"31\005 It is a well-settled law that administration,

management and governance of the religious

institution or endowment are secular activities and

the State could regulate them by appropriate

legislation\005"

(See also N. Adithayan Vs. Travancore Devaswom Board and Others,

(2002) 8 SCC 106, para 6)

Recently in Guruvayoor Devaswom Managing Committee and

Another Vs. C.K. Rajan and Others [(2003) 7 SCC 546], a bench of this

Court of which one of us (S.B. Sinha, J.) was a member observed:

"60. It is possible to contend that the Hindus in

general and the devotees visiting the temple in

particular are interested in proper management of

the temple at the hands of the statutory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14

functionaries. That may be so but the Act is a self-

contained code. Duties and functions are

prescribed in the Act and the Rules framed

thereunder. Forums have been created thereunder

for ventilation of the grievances of the affected

persons. Ordinarily, therefore, such forums should

be moved at the first instance. The State should be

asked to look into the grievances of the aggrieved

devotees, both as parens patriae as also in

discharge of its statutory duties."

The decision of the Kerala High Court in Krishnan (supra) did not lay

down any proposition of law that the person authorized to nominate the

persons of the Managing Committee should also form part of the

denomination. With respect, the Full Bench in Narayanan Namboodiri

(supra) misread and misinterpreted Krishnan (supra). Even assuming that

the decision in Narayanan Namboodiri (supra) is correct (which it is not) it is

not proper or correct to brand all Ministers of leftist Government as persons

not believing in temple worship. There is no presumption that a Communist

or Socialist (who may normally form part of a leftist Council of Ministers)

are ipso facto non believers in god or in temple worship. Such a sweeping

allegation or premise on which the prayer is based need not be correct. It

depends on each individual approach. The observations in a judgment

should not be, it is trite, read as a ratio. A decision, as is well-known, is an

authority of what it decides and not what can logically be deduced

therefrom. [See Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav

& Anr. \026 para 42 - (2005) 1 SCALE 385 and Haryana State Coop. Land

Dev. Bank Vs. Neelam, JT 2005 (2) SC 600]

So far as the decision of Narayanan Namboodiri (supra) is concerned,

we are of the opinion that the High Court in its impugned judgment has

rightly held the same to be not applicable to the fact of the present case.

In Muraleedharan Nair (supra), whereuon Mr. Menon has placed

strong reliance, the Bench was concerned with the interpretation of Sections

4 and 6 of the Hindu Religious Institutions Act, 1950. In that case for the

purpose of contesting election, the candidate in the nomination paper itself

was required to comply with Rule 3(b) mentioned in the Scheduled II which

reads, thus:

"3(b) The person nominated shall affix his

signature to the nomination paper before it is

delivered to the Chairman, stating that he believes

in God and professes the Hindu Religion and

believes in temple worship and that he is willing to

serve as a member of the Board, if elected."

The Court rightly proceeded on the basis that the function of the court

is to apply the law as it stands. It is whilst analyzing the provisions of the

Act and the Rules, the Bench referred to the dictionary meaning of temple

and observed:

"So only persons who have faith in God or in

temple worship, will be taken in by the word

"Hindu", occurring in Act XV of 1950. It is

implicit that only such of those who have faith in

God and in temple worship, will be aware of its

efficacy, necessity and importance and can be

entrusted with the administration, supervision and

control of the Devaswoms and other Hindu

Religious Endowments. However wide the

meaning of the word 'Hindu' may be under the

general law, under Act XV of 1950, only those

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14

Hindus who believe in God and in temple worship,

will fulfill the requirement of the word 'Hindu'

occurring in the Act. Our conclusion aforesaid

necessarily flows from the title and preamble of

the Act as also the definition contained in S.2(b) of

the Act\005"

The High Court for the aforementioned purpose considered the history

of the provisions as was understood at the relevant time. It noticed the Full

Bench decision of Krishnan (supra) and while doing so fell into an error as

was done in Krishnankutty (supra) that therein a proposition of law has been

laid down in the fact that the person who professes Hindu religion but not a

believer in temple worship and may even be opposed to the practice of idol

worship cannot be considered a representative of the public having believed

in God and temple worship.

This decision cannot, thus, be said to be an authority for the

proposition that the "electoral college" should also be believers in temple

worship.

The crucial question may now be addressed whether the vesting of

power in the "Hindus" in the Council of Ministers to nominate the members

of the Managing Committee could be held to violate Articles 25 and 26. The

temple is visited by millions every year. Apart from proper management of

the funds flowing from these devotees, the Devaswom also owns other

properties, runs a college, a guest house, choultries etc., all of which require

efficient and prompt management. This is quiet apart from the spiritual

management dealing with religious side which is under the sole control

management and guidance of the Thanthri. It is the secular aspect of the

management that is vested in the Management Committee.

We have noticed hereinbefore that it is one thing to say that prejudice

may be caused if the management of temple is entrusted to a person who has

no faith in temple worship but it is another thing to say that such persons are

nominated by those who may not have any such faith but those nominated

would not only be believers in God but also in temple worship. The function

of a statutory and constitutional authority while exercising its power of

nomination cannot be equated with the power of management of a temple,

particularly, in relation to the religious aspects involved therein.

One further question which may arise is as to whether Articles 25 or

26 can be invoked on the facts of the present case. There is no case for the

Appellant that Section 4 insofar as it provides for the constitution of the

Managing Committee is violative of any rights. If this be the position, the

claim that the right of nomination has not been vested in a proper body is

beside the point. The right to manage the Devaswom was at the inception of

the Constitution vested in the two hereditary trustees, viz., the Zamorain

Raja of Calicut and the Karnavam (Manager) of the Malliseery Illom (A

Namboodri Family). The denomination of devotees at large had no say in

the administration, except to watch the counting of the contents, the

Bhandarams of the hundies of sealed locks where the devotees deposit their

offerings to prevent any defalcation or pilferage. [See Krishnan (supra),

para 3] The denomination of devotees had no say or right in the

administration \026 secular or religious \026 of the temple. Article 26 does not

create any rights in any denomination which it never had. It only safeguards

and guarantees existing rights, which such a denomination had. [See Sri Adi

Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)] Since the

denomination had no right prior to January 26, 1950, they cannot claim any

such rights after the enactment of the impugned Act. If it had no such right

even in the matter of management of the temple, it is all most so in the

matter of the constitution of the "electorate".

The said decision, therefore, also has no application to the fact of the

present case.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14

The submission of the learned counsel to the effect that in Narayanan

Namboodiri (supra) Section 4(1) was read down on the basis of the

concession made by the Additional Advocate General and Special Counsel

appearing for the Devaswom, in our opinion, with respect, have rightly been

held to be not binding on the State by the High Court.

In Sanjeev Coke Manufacturing Company Vs. M/s. Bharat Coking

Coal Limited and Another [(1983) 1 SCC 147 : AIR 1983 SC 239], this

Court held:

"25\005 No Act of Parliament may be struck down

because of the understanding or misunderstanding

of parliamentary intention by the executive

Government or because their (the Government's)

spokesmen do not bring out relevant circumstances

but indulge in empty and self-defeating affidavits.

They do not and they cannot bind Parliament.

Validity of legislation is not to be judged merely

by affidavits filed on behalf of the State, but by all

the relevant circumstances which the court may

ultimately find and more especially by what may

be gathered from what the legislature has itself

said."

In P. Nallammal and Another Vs. State represented by Inspector of

Police [(1999) 6 SCC 559 : JT 1999 (5) SC 410], this Court observed:

"7\005 The volte-face of the Union of India cannot

be frowned at, for, it is open to the State or Union

of India or even a private party to retrace or even

resile from a concession once made in the court on

a legal proposition. Firstly, because the party

concerned, on a reconsideration of the proposition

could comprehend a different construction as more

appropriate. Secondly, the construction of statutory

provision cannot rest entirely on the stand adopted

by any party in the lis. Thirdly, the parties must be

left free to aid the court in reaching the correct

construction to be placed on a statutory provision.

They cannot be nailed to a position on the legal

interpretation which they adopted at a particular

point of time because saner thoughts can throw

more light on the same subject at a later stage."

The High Court, therefore, in our opinion, did not commit any error

whatsoever in allowing the State to file a supplementary affidavit resiling

from such concession made in the earlier case as had been noticed in

paragraph 5 of the impugned judgment.

A wrong concession of law cannot bind the parties, particularly when

the constitutionality of a statue is in question.

The contention by the Appellant that the "electorate" should be

representative of the denomination of believers in temple worship (assuming

such a denomination exists) also cannot be accepted, who will determine the

electorate from amongst the millions of devotees of Lord Krishna visiting

the temple? It will be impossible and impracticable to select such a College

of "electors" from among them. The whole exercise will be arbitrary and

time consuming and will be open to further challenge. The present mode

has the advantage of being precise as the same has the advantage that only

believers in temple worship are put incharge of the administration.

A statute, it is trite, should not be interpreted in such a manner as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14

would lead to absurdity. [See Nandkishore Ganesh Joshi Vs. Commissioner,

Municipal Corporation of Kalyan & Dombivali and Ors, JT 2004 (9) SC 242

and Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra and Anr.,

JT 2005 (4) SC 123]

It is necessary to bear in mind the principle 'ut res magis valeat quam

pereat' in terms whereof a statute must be read in such a manner which

would make it workable. [See Balram Kumawat Vs. Union of India, (2003)

7 SCC 628, Nandkishore Ganesh Joshi (supra), para 19 and Pratap Singh Vs.

State of Jharkhand and Anr., JT 2005 (2) SC 271, para 82].

For the reasons aforementioned, we do not find any infirmity in the

impugned judgment which is hereby affirmed. These Appeals are

dismissed. No costs.