TaxTMI 
TaxTMI 
1972 (3) TMI 115
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.... Amendment Act had been also impugned on the ground that if interfered with certain other fundamental rights of the petitioners but that case was not pressed at the time of the hearing. 2. The temples With which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444/71 art filed by the Archakas and Writ Petitions 13 tad 14/1971 are filed by the Mathadhipatis to whose Math some temples are attached. As, Common questions were involved it all these petitions, arguments were addressed principally in Writ petitions 13/1971 and 442/1971, and we are assured by Counsel for both sides that they cover the points involved in all the other petitions. 3. The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1950 being (Tamil Nadu Act XXII of 1959) hereinafter referred to as the Principal Act. It cam info force on December 2, 1050. It was an Act to amend and consolidate the law relating to the 5 administration and governance of Hindu Religious and Charitable Institutions add Endowments in the State of Tamil Nadu. It applied to all Hindu religious public institut....
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....f fitness for performing his office, from the head of an institution, imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special order or from the head of a math recognised by the Commissioner, by general of special order, Of such other person as may be designated by the Commissioner, from time to tone, for the purpose. By this rule the proper worship in the temple was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act Shan, save as otherwise provided in Section 106 and in Clause 2 of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimination in the matter of distribution of prasadam of theertham to the Hindu worshippers. That was a reform in the right direction and there is no challenge to it. The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the temples. 6. The Principal Act of 1....
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....rporting to introduce social reform in the matter of appointment of Archakas and Pujaris, the State has really interfered with the religious practices of Saivite and Vaishnavite temples, and instead of introducing social reform, taken measures which would inevitably lead to defilement and desecration of the temples. 8. To appreciate the effect of the Amendment Act, it would be more convenient to set out the original Sections 55, 56 and 116 of the Principal Act and the same Sections as they stand after the amendment. img 9. It is clear from a perusal of the above provisions that the Amendment Act does away with the hereditary tight of succession to the Office of Archaka even if the Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. It is claimed on behalf of the petitioners that as a result of the Amendment Act, their fundamental rights under Article 25(1) and Article 26(b) are violated since the effect of the amendment is as follows: (a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and integral part of the faith of the Sa....
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.... Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two deities. (See page 725 supra.) With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as 'Agamas'. The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaruv. The State of Mysore [1958] 1 SCR 895 . Agamas are described in the last case as treatises of ceremonial Law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the important of them being the Kaimi kagama the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The 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. Where the temple was constructed as per ....
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....dea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum sanctorum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court. 11. The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the A....
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.... the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. 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. 12. This Court in Sardar Syadna Taker Saifuddin Saheb v. The State of Bombay [1962] 2 S.C.R. 496 has summarised the position in law as follows (pages 531 and 532). The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt [1954] 1 SCR 1005 . Mahant Jagannath Ramanuj Das v. The State of Orissa [1954] 1 SCR 1046 ; Sri Venkatamona Devaru v. The State of Mysore [1958] 1 SCR 895 ; Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383 and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The firs....
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.... was a rule made by the Government under the Principal Act. That rule is always capable of being varied or changed. It was also open to the Government to make no rule at all or to prescribe a fitness certificate issued by an institution which did not teach the Agamas or traditional ritual s. The result would, therefore, be that any person, whether he is a Saivite or Vaishnavite or not, or whether he is proficient in the rituals appropriate to the temple or not, would be eligible for appointment as an Archaka and the trustee's discretion in appointing the Archaka without reference to personal and other qualifications of the Arehaka would be unbridled. The trustee is to function under the control of the State, because under Section 87 of the Principal Act the trustee was bound to obey all lawful orders issued under the provisions of the Act by the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner. It was submitted that the innocent looking amendment brought the State right into the sanctum sanctorum through the agency of the trustee and the Archaka. 15. It has been recognised for a long time that where the ritual in a temple cannot be performe....
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.... 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. The learned Advocate General argued that the trustee was bound under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and he would be bound to make the appointment under Section 55 in accordance with the usage of appointing one from the particular denomination. There was nothing in Section 55, in his submission, which released him from his liability to make the appointment in accordance with the said usage. It was true that the principle of the next-in-line of succession was not binding on him when making the appointment of a new Archaka, but in his submission, that principle is no part of the usage, the real usage being to appoint one from the denomination. Moreover the amended section, according to him, does not requ....
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....at, in his submission, was not a usage. The principle of next-in-line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability. In all such cases the Archaka was appointed from the particular denomination, sect or group and the worship was carried on with the help of such a substitute. It, however, appears to us that it is now too late in the day to contend that the hereditary principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted, there can be no doubt that the principle had been accepted from antiquity and had also beep fully recognised in the unamended Section 55 of the Principal Act. Sub-section 2 of Section 55 provided that where the office or service is, hereditary, the person next in the line of succession shall be entitled to succeed, and only a limited right was given under Sub-section 3 to the trustee to appoint a substitute. Even in such cases the explanation to Sub-section 3 provided that in making the appointment of the substitute the trustee should have due regard to the claims of the members of the famil....
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....nflict with the usage and the traditions of the particular institution. Where, for example, a successor, of a Mathadhipati is chosen by the Mathadhipati by giving him mantra-deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he contended, extra-ordinary for the State to interfere and direct that some other mode of appointment should be followed on the ground of social reform. Indeed this may strike one as an intrusion in the matter of religion. But we are afraid such an illustration is inapt when we are considering the appointment of an Archaka of a temple. The Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharamkarta or the Shebait makes the appointment and the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar I.L.R. 35 Mad 631 that even the position of the hereditary Archaka of a temple is that of a servant subject t....
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.... to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate is the next-in-line of succession to the last holder of Office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the Principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid. 21. We shall now take separately the several amendments which were challenged as invalid. Section 2 of the Amendment Act amended Section 55 of the Principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The other changes effected in the other provisions of the Principal Act appear to us to be merely consequential. Since the hereditary principle was done away wit....