TaxTMI 
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2015 (12) TMI 1917
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....escribed 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 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 ....
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....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 [(1972) 2 SCC 11] 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. 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 quali....
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....tions 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 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 which require 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 actua....
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....d 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 report in Sanjeev Coke Manufacturing Vs. M/s Bharat Coking Coal Limited & Anr. [(1983) 1 SCC 147] "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 [(2002) 8 SCC 106] 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 v....
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....consistent with and in fact effectuates the Fundamental Right of Equality 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 s 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. 16. The issues arising and the arguments made centre around the true meaning, purport and effect of the Constitution Bench ....
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....jects 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 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 by % works 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 Agama....
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....endment 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. "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 ....
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....n 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 mmediately 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 trustee is bound to (extracted above) the trustee is bound to follow. The above, which the petit....
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....essed 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 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 radwa ltd understand what is Hinduism? A broad answer is to be found in the preface to this report but, perhaps, we should delve a litt....
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....d 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 t....
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....he 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; Arya Samaj, and Dayananda founded Chaitanya began Bhakti cult; and as a result of Ramakrishna and the teachings of 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 formula which may be regarded as fairly adequate and satisfactory. Said Tilak : "Acceptance of the Vedas with reverence; reco....
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....nd notions of inferiority and superiority amongst men 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 temp....
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....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. Sect....
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....taining 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 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 b....
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.... 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. 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 [AIR 1961 SC 1402]. 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....
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....y 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 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 vi....
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....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 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 t....
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....ve 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. 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, ....