W.P.No.574 of 2015 (Suo-Motu, PIL) was mentioned by Senior Counsel R.Singaravelan before the Specially Constituted Division Bench comprising of Hon’ble Mr.Justice R.Mahadevan and Hon’ble Mr. Justice P.D.Audikesavalu and submitted his Written Brief on behalf of the Anuhhur Kamatchi Amman Sametha Ehambareshwara Sami Temple. In his submission he touched upon various provisions of the HR&CE Act, 1959 which empowers the Commissioner to interfere in Affairs of the Religious Institutions, Agamas and Rituals of the Temple. Those sections are against the Preamble and Arts. 25 and 26 of the Constitution of India which need to be read down to bring into the line with the demand of the Constitution and various judicial pronouncements of the Hon’ble Apex Court.

 

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.No.  574 of 2015

(Suo-Motu, PIL)

 

 

Anuhhur Kamatchi Amman Sametha

Ehambareshwara Sami Temple.                                                      —Petitioner

Petitioner on Mentioning

–Vs-

Suo Motu Public Interest Litigation

And Government of Tamil Nadu.                                           —Respondents

 

WRITTEN BRIEF

1. PRELUDE:-

 

1. This Suo-Motu Public Interest Litigation is on the basis of an article published in “The Hindu”, Sunday, 04.01.2015, under the caption of “Silent Burial”. The cynosure attack causing the publication of the above article is the failure on the part of the government to form the 17 member Heritage Commission despite enacting a law 3 years ago. The author has given a vivid picture of various Temples including main block of Fort St. George and Nilgiri Mountain Railway which are to be protected under the Tamil Nadu Heritage Commissions Act, 2012 and his grievance is that though the Act was brought forth no steps are taken by the Government to implement the Act by forming the 17 member Heritage Commission.
2. DISCUSSION:-
3. PREAMBLE AND ARTICLES 25 AND 26 OF THE CONSTITUTION OF INDIA:-

 

2. The above Suo-Motu PIL has taken a different dimension when it comes to deal with the protection of Ancient Temples as it touches the fundamental freedom of conscience and free profession, practice and propagation of religion including the freedom to manage the religious affairs under Arts.25 and 26 of the Constitution of India which are in fact resolved to be secured for the people of India by the people themselves even in the Preamble in the following words:-

                    “We, the People of India; having solemnly resolved to           constitute India into a Sovereign Socialist Secular          Democratic Republic and to secure to all its citizens ……………………. Liberty of thought, expression, belief, faith           and worship …………………………..” among other   fundamentals.”

 

• Tribunal under the College Act, 1976:-

3. It is not only the provision for the formation of Heritage Commission under the above Act is ignored but also the provision for the Constitution of the Tribunal under the two more enactments is neglected.

One is the provision for the Constitution of the Tribunal under the head of the learned Principal District Judge under the Tamil Nadu Recognized Private Colleges (Regulation) Act, 1976 and the Rules and Regulation framed thereunder was ignored for more than 42 years and atlast only at the instance of Thamilavel Uma Maheswaranar College, Karanthai, Tanjore the Collegiate Tribunal was directed to be formed in W.P.(MD).Nos.11785 & 11786 of 2012 and accordingly it was formed just 3 months before by way of G.O.Ms.No.171 dated 24.11.2020.

• Tribunal under Sections 82 and 83 of the Act, 1959:-

 

4.         Another is under Section 83 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and to the best of my knowledge it also is not yet formed. It is not known as to how many of the quasi judicial bodies under the statutory enactments like this are not formed. Though the Tribunal under the TN Hindu Religious and Charitable Endowments Act, 1959 hast to be constituted only with one person in the rank of the Deputy Collector that too for fixation of compensation amount to the tenants who put up super structure or improved the leased out place. It is in public interest the Tribunal has to be constituted with the Judicial Officer with a power to decide all the disputes related to the Religious Institutions as in almost all the sensitive matters only the Officials under the above Act are conferred with the power to decide.

 

5.       Under the TNHR&CE Act, 1959 the jurisdiction of the Civil Court is barred by the provisions of the said Act, 1959 in important complicated matters and it is placed in the hands of the Officials of the Department as if they can deal with all the complicated and sensitive disputes touching the public interest more than the court. For example, matters dealing with alienation, lease, exchange and mortgage of the properties of Religious Institutions. (Section 34-D)

 

6.         In some matters, after the exhaustion of the remedies upto the level of the Commissioner and the Govt., suit remedy is provided (Section 70) which would cause inordinate delay in deciding the right of the temples and the worshippers and the protection of the temple properties.

 

1. TAMIL NADU HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ACT, 1959:-

• Chapter – II – Sections 8 to 22 of the TNHR&CE Act, 1959:-

 

7.         The Commissioner and other Controlling Authorities are dealt with under Chapter II of the above Act containing provisions from Sec.8 to Sec.22 of the Act.

• Chapter – III – Sections 23 to 58 of the TNHR&CE Act, 1959:-

 

8.         Chapter III containing Sections 23 to 58 of the Act deals with the power of the Government Officials, the Trustees and Executive Officers appointed by the Officials and the Government versus the right of the Hindu Temples, Rituals, individuals and worshippers concerned with those temples and more importantly the properties of the temples and the alienation, exchange and leasehold powers of the above officials.

• Section 34:-

Under Alienation of immovable properties it is stated any exchange, sale or mortgage and any lease for a term exceeding 5 years of immovable property belonging to or given or endowed for the purpose of any Religious Institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. This has to be read down to prohibit any lease beyond 3 years at a stretch and also sale or exchange or mortgage in consonance with the general law and public interest by following the principles of the Hon’ble Apex Court to “Read Down” laid down in (2009) 5 SCC 625 in the case of Rathinasamy –Vs- State of Tamil Nadu which is reproduced in the subsequent pages.

 

• Section 34-D of the TNHR&CE Act, 1959, barring Civil Court Jurisdiction:-

 

9. After conferring wide powers on the Officials of the Department, Trustees and the Govt., to deal with the sensitive matters and the invaluable properties of the Religious Institutions Sec.34-D bars the jurisdiction of the Civil Court in the following words:-

“Save as otherwise provided in Section 34-A or 34-C, no suit or other legal proceedings in respect of an order passed under Section 34-A or 34-B or 34-C as the case may be, shall be instituted in any court of law.”

• 34-A speaks about Fixation of lease Rent.
• 34-B speaks about the Termination of lease of immovable property.
• 34-C Speaks about the payment of amount to the lessee for the building, superstructure and trees if any erected or planted in accordance with the terms of agreement or with the permission of the Commissioner.

For such important matters the jurisdiction of the Civil Court is barred by Sec.34-D.

• Chapter IV – Sections 59 to 62 of the Act, 1959:-

 

10. Further, Chapter IV of Sections 59 to 62 deals with Maths Sec.59 deals with Suit for removal of Trustee of Math or specific Endowment attached thereto.
    • 60 speaks about the arrangement to be made when vacancies occur in the Office of the trustee of a Math.
    • 61 deals with the Standard scales of expenditure and the power of the Commissioner in connection with that.
    • 62 deals with the power to spend ‘Pathakanika’ by the Head of the Math.

• Chapter V – Sections 63 to 70 of the Act, 1959:-

 

11. Chapter V deals with the Inquiries and it contains Section 63 to Section 70 of the Act.

Section 70 for the first time under the Act speaks about the suits and appeals in the following words:-

“70. Suits and appeals – (1) Any party aggrieved by an order passed by the Commissioner-

• Under Sub-Section (1) or Sub Section (2) of /Section 69 and relating to any of the matters specified in Section 63 , Section 64 or Section 67 ;
• Under Section 63, Section 64 or Section 67 read with Sub Section (1) (a), (2), or (4) (a) of Section 22 or under Section 65;

may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order, and the Court may modify or cancel such order, but it shall have no power to stay the order of the Commissioner pending the disposal of the suit.

(2)  Any party aggrieved by a decree of the Court under Sub-Section (1) may, within ninety days from the date of the decree, appeal to the High Court.”

 

12. Section 63 confers wide powers on the Joint Commissioner and Deputy Commissioner to inquire and decide the following disputes and matters:-
    1. “Whether an Institution is a Religious Institution;
    2. Whether a Trustee holds or held office as a hereditary trustee;
    3. Whether any property or money is a religious endowment;
    4. Whether any property or money is a Specific endowment;
    5. Whether any person is entitled, by custom or otherwise to any honour, endowment  or perquisite in any religious  institution; and whether the established usage of a religious institution is with regard to any other matter;
    6.   Whether any institution or endowment is wholly or partly of a religion or secular character; and Whether any property or money has been given wholly or partly for religious or secular uses; and
    7. Where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to which portion of such property or money shall be allocated to religious uses.”

 

13. A cursory glance at the above Section would clearly reveal that Section 63 is nothing but an assault on the fundamental rights guaranteed under Arts.25 and 26 of the Constitution of India as it confers wider powers on the Deputy Commissioner or Joint Commissioner to inquire and decide even the status of the Religious Institution, affairs of the Religious Institutions and the worshipper.

 

14. The interference of the Govt., officials even to decide the basis of the religious Institutions is against the Basic Structure of the Constitution. It not only is an interference with the fundamental rights guaranteed under the Preamble and Articles 25 and 26 of the Constitution of India but also is against the fundamental principle of natural justice i.e. “nemo debet esse judex in propria causa” to mean no one should be the judge of their own cause as the officials of HR&CE have to decide about the merits of their own stand in the matters involving confrontation with the temple or religious leaders by themselves.

 

15. No doubt the decision taken by the Officials is subject to the appeal, revision and then to the Civil Court. But it will take more than 3 decades to get the long drawn legal battles to decide the status of the worshippers and the temple decided and till then the position of the religious Institution and the worshippers would be in jeopardy.

 

16. That is why it is said that Section 63 is nothing but an assault on the Preamble and the Fundamental Rights guaranteed under Arts.25 and 26 of the Constitution of India.

 

• Settlement of the Schemes by the JC and DC:-

 

17. When next we go to Section 64, it speaks about the Power of the Joint Commissioner or Deputy Commissioner to settle the schemes in the following words in Clause (1) of Section 64 of the Act:-

“64(1) When [the Joint Commissioner or the Deputy Commissioner, as the case may be], has reason to believe that in the interest of the proper administration of an institution, a scheme should be settled for the institution, or when not less than 5 persons having interest make an application in writing, stating that in the interest of the proper administration of an institution a scheme should be settled for it, (the Joint Commissioner or the Deputy Commissioner, as the case may be), shall consult in the prescribed manner the trustee and the persons having interest and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, settle a scheme of administration for the institution.”

•   Section 64:-

18. Section 64 thus goes one step further as it empowers the Officials of the HR&CE Department to settle even a scheme in the alleged interest of the Religious Institution.

Section 65:-

• 65 speaks about the Powers of the Commissioner to settle the schemes.

          Section 66:-

• 66 speaks about the conferment of powers related to the appropriation of endowments of a Religious Institution on the Deputy Commissioner or the Joint Commissioner as the case may be.

19. A cursory glance at the subsections of Sec.66 would clearly reveal that complete power to deal with Endowments of the Religious Institutions is also given to the Govt., and the Govt., officials.

 Section 67:-

• 67 speaks about the determination and application of properties and funds of defunct Religious Institutions and it is to be noted that the power to declare so also is conferred on the Officials of the Department.

Section 68 and Section 69:-

• Section 68 warrants the Joint Commissioner and the Deputy Commissioner to forward copies of their orders to the Commissioner and Sec.69 provides an appeal to the Commissioner.

 

• Section 70:- Suits :-

20. After that Section 70 comes to play and it gives right to the affected party and Religious Institution to file the suit and an appeal to the High Court.

 

21. A mere perusal of all the sections under Chapter V of Sections 63 to 70 conveys a shocking message that they having been framed in 1959 have to be read down so as to keep the Officials from dealing with the matters touching the character, nature and status of the Endowment, Religious Institutions and the Right of the Worshippers in view of the law laid down by the Hon’ble Apex Court in Seshammal’s case by the Hon’ble Constitution Bench reported in (1972) 2 SCC 11 clarified and followed by the Hon’ble Apex Court in the recent decision in Adi Saiva Sivachariyargal Nala Sangam – Vs- Govt., of Tamil Nadu reported in (2016) 2 SCC 725 and also in view of Section 107 of the Act itself.

 

• Provision dealing with the financial management of the Religious Institutions without touching the religious status of the Institution is valid:-

 

22. The Constitution Bench Judgment in P.Mittal –Vs- Union of India reported in (1983) 1 SCC 51 while dealing with the validity of Aurovillee (Emergency Provisions) Act 1960 taking over the management of Auroville for a limited period, has held that the above Act has taken away the Right of Management of the property alone which is of secular nature and not taking away the Right of Management in the matter of religion of a Religious Denomination under Art.26 (b) of the Constitution of India.

 

23. The words of the Hon’ble Supreme Court at paras 31, 32, 33 , 36 and 37 are relevant to be reproduced and hence they are reproduced below as the Hon’ble Apex Court has clearly described what is Religious Denomination and what is the secular activity:-

“The teachings of Sri Aurobindo have the necessary spiritual content to qualify as a religious doctrine. The world and India treated and respected Sri Aurobindo as a religious teacher and the founder of new religious movement whose principal thesis was the evolution or transformation of humanity into divinity through the practice of Integral Yoga. Although Sri Aurobindo disclaimed that he was founding a religion but the question is not whether he refused to claim or denied that he was founding  a new religion or a new school of religious thought but whether his disciples and the community thought so and there is no doubt that they did. Therefore, ‘Aurobindoism’ can be classified, if not a new religion, as a new sect of Hinduism and his followers can be termed as a religious denomination.”                                   (Paras 31 and 32).

 

24. “That being so, the members of Sri Aurobindo society is certainly a distinct and identifiable section of the ‘religious denomination’. The circumstance that it is engaged in several secular activities and has represented itself as, ‘a non-political, non-religious organization’ and claimed exemption from income tax on the ground that it was engaged in educational, cultural and scientific research cannot detract from the fact that it is a section of a religious denomination within the meaning of Art.26.”

 

25. “But the Act does not offend the right guaranteed by Arts.25 and 26. Auroville is a township not a place of worship. It is a township dedicated, not to the practice and propagation of any religious doctrine but to promote international understanding and world peace, a secular activity undoubtedly conceived and promoted by those belonging to a religious denomination. Auroville has an individuality, distinctly secular, of its own. The management of an international cultural township of Auroville by Sri Aurobindo Society is therefore, not a matter of religion. Questions merely relating to administration of properties belong to a religious group or institution are not matter of religion to which clause (b) of Article 26 applies.”           (Para 36)

 

26. “The Act has also not infringed any rights guaranteed under Art.29 and 30 (Para 37).”

 

• Chapter VII – Encroachments:-

 

27. Then comes Chapter VII which is important Chapter as it deals with Encroachments upon any land, or building, tank, well, spring or water course of Charitable or Religious Institutions or Endowment by any person and the eviction of encroachers including the consequential steps taken for eviction. Incidentally it deals with exchange or lease or mortgage of that property also. For such important matters Section 81 provides for appeal to the Commissioner and Section 83 speaks about the Constitution of the Tribunal for the purpose of Chapter VII touching the Rights and Interest of the valuable properties of the Religions Institutions and thereafter the provision for suit under Sec.84.

 

• The Tribunal – Section 82 and 83 – Reading Down:-

 

28. The above Tribunal is not yet constituted though the Rules under the name “The Tamil Nadu Hindu Religious and Charitable Endowments, Constitution of Tribunals Rules, 1965” also are framed even in 1965 itself. As per Section 83 and those Rules the Tribunal has to be constituted with not more than three persons and if the number of such members is more than one, one of them has to be appointed by the Government as Chairman.

 

29. It is really painful to note that the decision of the disputes related to the encroachment and taking possession of the properties are given to the Joint Commissioners and then Commissioners against the order of the Joint Commissioner or Deputy Commissioner and only the Appeal regarding the compensation aspect is given to the Tribunal.

 

30. In this connection, it is felt necessary and need of the hour to constitute the Tribunal in each and every District Head Quarter under the Head of the Working or Retired District Judge as Chairman with two or more Members from the rank of the retired Subordinate Judicial Officers as Members with the jurisdiction to decide all the matters related to the nature and status of the Religious Institutions, privileges and performances of rituals and poojas in all the Religious Institutions and their properties and the right of the worshippers by conducting the cases like Civil Court of summary nature and take a decision after conducting a summary trial within the maximum period of 6 months.

 

31. Any further appeal can be provided to the Hon’ble High Court as Special Tribunal Appeal STA before the Hon’ble Division Bench of the High Court to avoid any delay and avoid conferment of power on the HR & CE officials to deal with their own actions against the Religious Institutions and the persons concerned with the same as judges of their own cause.

 

32. With a view to safeguard the Right of worship guaranteed under the Preamble and the right to Religious Practices concerned with the Religious Institutions guaranteed under Arts.25 & 26 of the Constitution of India and to avoid the violation of the fundamental principle of Natural Justice, that “no one should be the judge of their own cause” and also to avoid any discrimination, between the Institutions the entrustment of power given to the HR & CE officials to decide the sensitive and complicated legal issues has to be vested with the Independent Tribunals mentioned in Section 82 and Section 83 of the TNHR & CE Act, 1959. Further the doctrine of Judicial Review declared to be the Basic Structure of the Indian Constitution in Kesavanandha Bharathi Case reported in (1973) 4 SCC 225 = AIR 1973 SC 1461 confers the powers only on the Judicial Forum and not on the Executive hierarchy of Officials.

 

33. In Chandrakumar – Vs- Union of India reported in AIR 1997 SC 1125, (2) The Supreme Court Advocates – on- Record Association -Vs- Union of India reported in (2015) AIR SCW 5457, (3) Union of India –Vs- S.K.Sharma reported in AIR 2015 SC 246 and (4) Madras Bar Association –Vs- Union of India reported in AIR (2015) SC 1571, the Hon’ble Apex Court has held that the power of Judicial Review of legislative action as vested in the High Court under Art.226 and in the Supreme Court under Art.32 is part of the Basic Structure of the Constitution and cannot be taken away even by the Constitutional amendment. Hence, it would be proper to confer an appeal remedy before the Hon’ble Division Bench calling it as Special Tribunal Appeal or provide remedy by way of a Writ Petition before the Hon’ble Division Bench under Article 226 against the Order passed by the Tribunal.

 

34. That is the reason as to why the Govt., order providing for the performance of poojas, rights of all sections of the people was challenged before the Hon’ble Apex Court straightaway under Art.32 of the Constitution of India and the same was entertained as the Religious Rights and Fundamental Rights guaranteed under Arts.25 and 26 of the Constitution of India were an issue before the Hon’ble Apex Court.

 

35. So, sections 82 and 83 may be read down to constitute the Tribunals for each and every District under the head of the Principal District Judge or a retired District Judge to deal with all the matters related to the Religious institution including its property rights and also the right of Worship with a provision for appeal as STA before the Hon’ble Division Bench or Writ Petition straightway before the Hon’ble Division Bench to challenge the order of such Tribunal by an affected party.

 

• 34-D – Bar of Civil Suit in Important Matters:-

 

36. As already stated Sec.34-D bars the jurisdiction of the Civil Court in the matter of alienation, lease, mortgage, exchange of the property of the Religious Institutions and confer absolute powers on the Officials of the Department and the Government.

 

37. Section 38(3) says that the order of the Commissioner or the Govt., shall be final in the matter of enforcement of service or charity when the person fails to perform the same and Sec.59 of the Act under Chapter IV provides for the suit in respect of Removal of Trustee of Math or Specific Endowment attached thereto by the Commissioner or any two or more persons having interest.

 

• Section 70 – first provision for the Suit:-

 

38. 70 again provides for the suit after the exhaustion of all the statutory remedies including the appeal before the Commissioner even in the fundamental maters touching the status, character, principles and properties of the Religious Institution and the worshippers which would cause inordinate delay affecting the right of the Institution and the individuals.

• 75-C – Suit Remedy:- (2^nd provision for the Suit)

 

39. 75-C under Chapter VI provides for the suit remedy in case of notified institutions.

 

40. Then in the matter of encroachment, leasehold right, exchange and mortgage of the temple properties appeal alone is provided to the Tribunal and thereafter the Suit remedy also is provided which also would involve inordinate delay and cumbersome procedure.

 

41. That is why Sections 82 and 83 have to be read down to give wider meaning and powers to the Tribunal to include the Judicial Officers in the rank of the retired District Judges, Sub Judges and even the Senior Advocates of the locality with sufficient years of practice to chair the Tribunal for each and every District.

 

42. Unless and otherwise the Tribunals are constituted in such a manner with the time bound disposal power, the fundamental right under Arts.25 and 26 would remain only in paper.

 

43. Now we have to deal with the Principle of Reading Down doctrine well defined in (2009) 5 SCC 625 in Rathinasamy –Vs- State of Tamil Nadu to be adopted to read down Sections 82 and 83 of the Act to constitute the Tribunals with the retired Judicial Officers and the Senior Advocates in each and every District.

 

 

44. So this Hon’ble Court has to take a pragmatic and timely needed approach to put an end to the everlasting disputes between the Officials and the Religious Institutions and the Individuals and the Institution to safeguard the valuable Rituals and Properties attached to those Institutions.

 

45. The power of alienation, lease, exchange, mortgage and other forms of encumbrance of the properties of the Religious Institutions is given to the Officials and it can be done even beyond 5 with the sanction of the Commissioner of HR & CE as per Sec.34 of the Act and the same cannot be questioned even in the competent Civil Court.

 

 

46. That is why it is prayed that this Hon’ble Court may be pleased to read down the provisions regarding the Tribunal and confer wider jurisdiction on the Tribunal with addition of necessary clarification about the Constitution of the same with the existing or retired Judicial Officers including the Advocates to deal with all the matters pertaining to the Religious Institutions in a time bound manner with further appeal in the form of STA to the Hon’ble Division Bench of this Hon’ble Court or a Writ Petition under Article 226 before the Hon’ble Division Bench of the High Court.

 

47. Para 27 to 31 of the Judgment of the Hon’ble Apex Court in M.Rathinasamy and Others reported in (2009) 5 SCC 625 deal with the power and scope of reading down and hence they are reproduced below for the convenience of the Hon’ble Court to adopt the same:-

“27. However, we cannot find any rational basis for giving preference to the direct recruits over those promotee Assistants who are graduates, since the very basis for the distinction sought to be drawn by the respondents is that the direct recruits are graduates and hence intellectually superior to non-graduates. Hence we have to read down the impugned rule in order to save it from becoming violative of Articles 14 and 16 of the Constitution.

28. It is well settled that to save a statutory provision from the vice of unconstitutionality sometimes a restricted or extended interpretation of the statute has to be given. This is because it is a well-settled principle of interpretation that the Court should make every effort to save a statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the legislature is presumed not to have intended to have exceeded its jurisdiction.
29. Sometimes to uphold the constitutional validity the statutory provision has to be read down. Thus, in Umayal Achi v. Lakshmi Achi [AIR 1945 FC 25 sub nom Hindu Women’s Right to Property Act, In re] , the Federal Court was considering the validity of the Hindu Women’s Right to Property Act, 1937. In order to uphold the constitutional validity of the Act, the Federal Court held the Act intra vires by construing the word “property” as meaning “property other than agricultural land”. This restricted interpretation of the word “property” had to be given otherwise the Act would have become unconstitutional.
30. Similarly, in Kedar Nath Singh v. State of Bihar [AIR 1962 SC 955] this Court had to construe Section 124-A of the Penal Code which relates to the offence of sedition which makes a person punishable who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law”. This Court gave a restricted interpretation to the aforesaid words so that they apply only to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence. This was done to avoid the provisions becoming violative of Article 19(1)(a) of the Constitution which provides for freedom of speech and expression.
31. Several other decisions on the point have been given in Justice G.P. Singh’s Principles of Statutory Interpretation (7th Edn., 1999, pp. 414-17).”

 

48. The other provisions under different chapters namely, Chapter VIII of Sections 86 to 91 speaks about the Budget, Accounts and Audit, Chapter IX of Sections 82 to 95 of the Act speaks about the Finance and Chapter X of Sections 96 and 97 speaks about the establishment of Endowments, Administration, Fund warranting narrow interpretation to restrict the power of the Govt., to deal with the same as they like for the betterment of the religious institution.

 

49. Chapter X-A of Sections 47-A, 97-B, 97-C to 97-E speaks about the Devaswam Board , Chapter XI of Sections 98 to 116 of the Act and Chapter XII of Sections 117 to 120-A are not more relevant to the issue involved in the case except Sec.105, 107 and 108 of Chapter XI of the Act.

 

50. As per Section 105 of the Act, Customary Practice, Religious and Spiritual Function of the Religious Institutions including the Math cannot be interpreted to be taken away by other provisions of the Act and as per Sec.107, and none of the provisions of the Act except Sec.106 providing for avoidance of discrimination in the matter of distribution of Theerthams and Prasadams can be interpreted to affect the rights under Article 26 of the Constitution of India.

 

51. In view of both the Sections 105 and 107 in the enactment itself, the officials of under the Act including the Commissioner and the Govt., cannot defeat the rituals, customary religious practices and the fundamental rights guaranteed to the Institutions and the individuals under Arts.25 and 26 of the Constitution of India.

 

52. 108 mandatorily says that no suit or other legal proceedings can be instituted concerned with the Religious Institution in any Court except in accordance with the provisions of the Act.

 

53. In view of the above Sections the role of the Government Officials and the Government in the matter of the Religious Institutions is very very limited in scope.

 

 

54. Further in view of Sections 105 and 107 the power of the Govt., and the Officials are totally limited and they cannot violate the Rituals and Agamas and Customary Practices adopted by the Institutions and the Individuals.

 

55. Now we have to deal with the decisions of the Hon’ble Apex Court and also more than 1000 years old religious verses of Saivist, Vaishnavist and the recent Poet Bharathiyar to find out the value of our Religious Practices and Religious Institutions:-

 

56. In Pradip Jain (Dr.) –Vs- Union of India reported in AIR 1984 SC 1420=(1984)3SCC 654 it is declared that Preamble of the Constitution is framed with great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers.

 

 

57. The words of the Constitutional Bench of the Hon’ble Apex Court while dealing with the validity of Constitutional Amendment guaranteeing certain fundamental rights to reservation, in favour of the Scheduled Castes and Scheduled Tribes candidates in Nagaraj –Vs- Union of India reported in (2006) 8 SCC 212 has held that the Constitution must be construed in wide and liberal manner so that constitutional provision does not get fossilized but remains flexible enough to meet newly emerging problems and challenges.

 

 

58. The words of the majority view of the Hon’ble Judges in Kesavananda Bharathi Sripadgallvara –Vs- State of Kerala reported in AIR 1973 SC 1461=(1973) 4 SCC 225 paras 292, 599, 682, 1164 and 1437 do clearly and loudly convey the message that the objectives specified in the Preamble contain the Basic Structure of the Constitution.

 

59. The liberty guaranteed to the people of India by themselves is Liberty of thought, expression, belief, faith and worship. All the 5 liberties are independent as well as collective. The Constitutional makers are very careful in not using the word religion as used in Arts.25 and 26 of the Constitution of India in the Preamble which forms the basic structure of the Constitution. But they used the word worship which means not only the worship of god but also the nature, birds, animals, human, sky, fire, Air, water, earth and even invisibility. Such a right of worship is a part of the Basic Structure of our Constitution.

 

 

“Worship not necessarily means any religion and it need not have arisen out of any religion or religious practice. A common of our Mother Country the largest democracy in the world can individually worship by calling anyone and    anything God.”

 

60. When one chooses to enter into the Hindu Temple he has to observe and respect the rituals and practices adopted by the particular temple and worship God. When one chooses to enter into other Holy Place meant for other religion he or she has to adopt themselves to the rituals and practices adopted therein and exercise his right of worship.

 

But, it is clear, that the word ‘worship’ used in the Preamble of our Constitution does not have itself any religious or particular form of God or visible things alone but also includes the worship of ‘invisible things.’ The word ‘worship’ by the word itself is sacred and holy and is wider to include everything but can be interpreted to mean everything without affecting public interest and supremacy of our Democracy. Except the above two one cannot restrict the ‘liberty of worship’ of the people of this country as it is a part of the Basic Structure of our Constitution.

 

 

 

 

III. ANCIENT TAMIL LITERATURE:-

1. THIRUMANTHIRAM OF THIRUMOOLAR:-
2. Before entering into the decisions of Hon’ble Apex Court and the Parliamentary enactment dealing with the Right of Worship of the Worshippers it is important and unavoidable to refer to verses 145, 146, 147, 148, 151, 152, 153, 155, 157, 159, 160 and 162 of Thirumanthiram written by Thirumoolar, as they clearly give a true picture of the importance of the Idols, Deities, Temples, Agamas, Vedas and Rituals to be taken care of by each and every Hindu, which are reproduced below:-

 

1. While verse 145 of Thirumanthiram warns that the Sivalinga established in one place should not be shifted to another place in the following words:-

“தாவர லிங்கம் பறித்தொன்றில் தாபித்தால்

           ஆவதன் முன்னே அரசு நிலைகெடும்

           சாவதன் முன்னே பெருநோய் அடுத்திடும்

           காவலன் பேர்நந்தி கட்டுரைத் தானே.”

 

1. Verse 146 warns that none should cause any damage to the temple in the following words:-

“கட்டுவித் தார்மதிற் கல்லொன்று வாங்கிடில்

  வெட்டுவிக் கும்அபி டேகத் தரசரை

  முட்டுவிக் கும்முனி வேதியர்  ஆயினும்

  வெட்டுவித் தேவிடும் விண்ணவன் ஆணையே.”

 

• Verse 147 cautions that in case of failure to conduct poojas as per Agamas and Rituals incurable and intolerable disease would affect the world and the world suffer for want of rain in the following words:-

“ஆற்றரும் நோய்மிக் கவனி மழையின்றிப்

          போற்றரும் மன்னரும் போர்வலி குன்றுவர்

          கூற்றுதைத் தான்திருக் கோயில்கள் எல்லாம்

          சாற்றிய பூசைகள் தப்பிடில் தானே.”

 

 

1. Verse 148 also cautions that lot of worst things would take place in the world and the entire world would go the way of all flesh in the following words:-

“முன்னவ னார்கோயில் பூசைகள் முட்டிடின்

  மன்னர்க்குத் தீங்குள வாரி வளங்குன்றும்

  கன்னம் களவு மிகுத்திடும் காசினி

  என்னரும் நந்தி எடுத்துரைத் தானே.”

 

 

 

1. Verse 151 of Thirumanthiram warns that the persons would destroy themselves in case of their abusing god in the following words:-

“தெளிவுறு ஞானத்துச் சிந்தையின் உள்ளே

           அளியுறு வார்அம ரர்பதி நாடி

           எளியனென் றீசனை நீசர் இகழில்

           கிளியொன்று பூசையால் கீழ்அது ஆகுமே.”

 

1. Verse 152 mandatorily points out the persons who can be able to see god and undoubtedly says that a persons who are kind hearted and godly and of divine qualities can see the god in the following words:-

 

“முளிந்தவர் வானவர் தானவர் எல்லாம்

           விளிந்தவர் மெய்ந்நின்ற ஞானம் உணரார்

           அளிந்தமு தூறிய ஆதிப் பிரானைத்

           தளிர்ந்தவர்க் கல்லது தாங்கஒண் ணாதே.”

 

• Verse 153 warns that no one should pick up a quarrel with god and no one would claim that they themselves are god because of their knowledge with vedas in the following words:-

“அப்பகை யாலே அசுரரும் தேவரும்

           நற்பகை செய்து நடுவே முடிந்தனர்

           எப்பகை ஆகிலும் எய்தார் இறைவனைப்

           பொய்ப்பகை செய்யினும் ஒன்றுபத் தாமே.”

 

• Verse 155 warns that the person who abuses god who gave them knowledge to a world would take birth as dogs and then take birth a worm and then die.

       “ஓர்எழுத் தொருபொருள் உணரக் கூறியச்

           சீர்எழுத் தாளரைச் சிதையச் செப்பினோர்

  ஊர் இடைச் சுணங்கனாய்ப் பிறந்தங் கோருகம் பார்இடைக் கிருமியாய்ப் படிவர் மண்ணிலே.”

 

1. Verse 157 cautions that the mind of the followers and worshippers of god should not be injured and made to suffer in the following words:-

                                        “ஈசன் அடியார் இதயம் கலங்கிடத்

                                             தேசமும் நாடும் சிறப்பும் அழிந்திடும்

                                             வாசவன் பீடமும் மாமன்னர் பீடமும்

                                             நாசம தாகுமே நம்நந்தி ஆணையே.”

 

1. Verse 159 warns that the persons who abuse the followers of god would go to hell in the following words:-

“ஆண்டான் அடியவர் ஆர்க்கும் விரோதிகள்

           ஆண்டான் அடியவர் ஐயம்ஏற் றுண்பவர்

           ஆண்டான் அடியாரை வேண்டாது பேசினோர்

           தாந்தாம் விழுவது தாழ்நர காகுமே.”

 

 

1. Verses 160 and 162 encourage that the Lord Shiva would appreciate his worshippers and devotees as good persons and invite them to his world in the following words:-

“ஓலக்கம் சூழ்ந்த உலப்பிலி தேவர்கள்

           பாலொத்த மேனியன் பாதம் பணிந்துய்ய

           மாலுக்கும் ஆதிப் பிரமற்கும் மன்னவன்

           ஞாலத் திவர்மிக நல்லவர் என் றானே.”

 

“உடையான் அடியார் அடியார்க ளுடன்போய்ப்

           படையார் அழல்மேனிப் பதிசென்று புக்கேன்

           கடையார நின்றவர் கண்டறி விப்ப

உடையான் வருகென ஓலம்என் றாரே.”

 

 

•         Like that various verses of Thirumanthiram of Thirumoolar authoritatively speak about the importance of Hindu God, the Temples, Worhsippers and the Rituals and Vedas even thousands of year before the Commencement of our Constitution.

 

62. When Thirumanthiram of Thirumoolar speaks about the importance of “Lord Shiva” and his Temples, Naalayira Divya Prabandham speaks about the Viashnava Rituals and Agamas for Vaishnava Temple and Vadakalai and Thenkalai.

 

1. DIVYA PRABANDHAM OF VAISHNAVISTS:-

The “Divya Prabandham” is the Divine collection of 4000 hymns sung by Azhwars who lived in the southern part of India before 8th century A.D. The term “azhwar” means, “the one who is ‘immersed in’ and they were immersed in Bhagavath anubavam all the time.” It was the scholar-saint Nathamuni, who in the 10^th Century, retrieved and compiled this divine collection and numerous commentaries have been written by various poorvacharyas for this Divya Prabandham, and it is a life-time exercise to read and understand the inner meanings of the bakthi laden pasurams.

• THE DIVYA DESAMS:

63. The shrines where the divine saints “Azhwars”, said to be the ‘Amsams of Sriman Narayanan’, have sung “the Mangalaasaasanam” which are called as the “Divya Desams.”

There are ‘108 Divya Desams’, and of these 105 are located in India, and one is in Nepal; the remaining two – “Parama Padham” and “Thiruppaarkadal” are in the Celestial World.

The presiding deities in these Divya Desams are found in various Thirukkolams [postures] such as :

• Kidantha Thirukkolam – Sleeping posture [In 27 Divyadesams];
• Veetrirundha Thirukkolam – Sitting posture [In 21 Divyadesams];
• Nindra Thirukkolam – Standing posture [In 60 Divyadesams].
• DIRECTION OF THE HOLY FACE :

64. In these 108 Divya Desams, the Lord Vishnu faces various directions and giving his seva (blessing), which are as follows :
65. Towards the Eastern direction –    79 Divyadesams;
66. Towards the Western direction –    19 Divyadesams;

• Towards the Northern direction –      3 Divyadesams; (and)

1. Towards the Southern direction –      7 Divyadesams.

 In the past, the Kings and the local rulers have patronized by donating funds and jewellery, for the upkeep, maintenance, and conduct of the Utsavams in these temples. It is regrettable; presently, some of these temples are being neglected, and in many cases the funds being squandered. Many temples are in need of financial support even to conduct the daily rituals and they depend heavily on the support from philanthropists, visiting pilgrims and bhaktas.

Fortunately, the members of several Vaishnava and religious groups are undertaking supportive steps, by choosing a temple of their choice, organize the conduct of Nithya Pooja for a day as well participates in the rituals.

• VAISHNAVA AGAMAS :

65. “The Agamas” are the ‘texts derived from various concepts in the Vedas dealing with worship.’ The Agamas describe in detail the various forms of God, the methods of temple worship, home worship, fire sacrifices, offerings and other related ideas. Sri Vaishnava Sampradaya accepts two Agamas only as authoritative and non-conflicting with Vedas; they are :
66. Pancharatra Agama; (and)
67. Vaikhanasa Agama.
68. Of the two, ‘Pancharatra’ is the pradhana (or) the main source of authority for Sri Vaishnavas. ‘Vaikhanasa Agama’ is highly utilized for temple worship only and is restricted to a certain group of Vedic priests.

 

67. Lord Vishnu is the supreme Lord in the Pancharatra Agamas. The Vaishnavas regard the Pancharatra Agamas to be the most authoritative. They believe that Lord Vishnu Himself revealed these Agamas.

 

68. The Asura Madhukaitaba seized the Vedas from Lord Brahma and hid himself into the sea. Lord Vishnu took the Matsyavathara, fought with the Asura within the sea, killed him and got back the Vedas and restored them to Lord Brahma. It took 5 days for the Lord for this purpose. Without the Vedas, the world would have become dark and not knowing how to worship the Lord. So, Lord Vishnu divided Himself into two, one as ‘Guru or teacher’ and the other as ‘Sishya or disciple.’ The guru taught the disciple the methods of worshipping God for five nights. Hence, the teaching was called “Pancharatra or work of the five nights.” They are all about the methods of worship.

 

 

69. Like the Pancharathra Samhitas’, there is another kind of Samhitas called ‘the Vaikhanasa Samhithas’, prescribing the methods of worship in temples. They were taught to Sage Vikasana by Maha Vishnu and through him to the Sage’s descendants. There is not much of a difference between the two, except chanting of some different mantras during the worship.

 

 

70. “Pancharatra” is more universal and used extensively by the Sri Vaishnava Acharyas to propagate worship of Vishnu among the masses.

• WORSHIP PROTOCOL :

71. While in all of the Divya Desams in Tamil Nadu [with the exception of Nilattingal Tundam, Kalvanoor, Tiruvattaaru and Tiruvanpatisaaram] ‘the Vaishnava Agamic [Pancharatra or Vaikanasa]’ protocol of worship is followed; ‘the Kerala Tantram’ is followed in the Divyadesams in Malainadu. Worship services at Badrinath follow a protocol established during the period of Adi Sankaracharya.

• PERUMAL :

72. The Tamil word “perumal” is used by ‘the Vaishnava tradition’ to denote the Supreme Divinity as well as the idol “arca” (i.e.), ‘of the Divine’. The two words which compose to make “perumal” are ‘perum’, which means ‘the great or the gigantic or the supreme’, and ‘al’, which means ‘personality’. The corresponding Sanskrit word is ‘purushottama’. The sandals of Perumal are known as ‘the Sathaari’. The Sathaari is like a crown placed reverentially on the heads of devotees who receive it with humility.

 

• TWO BRANCHES OF VAISHNAVAS :

73. In Sri Vaishnava School itself, two branches of thought had emerged between the time of Sri Ramanuja and that of Sri Vedanta Desika whose contemporary was Pillai Lokacharya. They are called ‘Vadakalai (Northern)’ and ‘Tenkalai (Southern)’, though in reality there is no geographical polarization to justify their nomenclature.

 

 

74. Possibly, this is due to greater importance ascribed by the former to the Vedas, which were in Sanskrit, a language prevalent in the northern part of India, while the latter stressed the importance of the Divya Prabandams of Alwars, which were in Tamil, the language prevalent in the southern part of India. This distinction has, in fact, no meaning since both in temple worship and in the hearths and homes, the two streams have been so integrated and observed by both the branches.

 

75. Swami Sri Vedanta Desika is generally regarded as representing the so-called ‘Vadakalai Sect’. But, since he has produced monumental works in both the ‘Northern Sanskrit’ and the ‘Southern Tamil’, he and his followers could more appropriately be called, ‘Ubhaya Kalai’ [both Kalais] rather than ‘mere Vadakalai’.

 

76. As long as Thiru.Ramanuja was alive, Sri Vaisnavas attached equal importance to both the Sanskrit and Tamil sides of their tradition. They stayed together as one group following the beliefs and practices of the ‘Acharyas and the Azhwars’. After Ramanuja, however, certain teachers tended to emphasize the Sanskrit Vedas, while others emphasized the Tamil Divya Prabandhanas. The move towards the Tamil Divya Prabandhams was natural because Tamil was the mother tongue of the people; but, the consequences of this division between the Sanskrit and Tamil sides of the tradition, led to differences of philosophical interpretation. This in turn eventually led to a split among the Sri Vaisnavas into two groups, the so-called ‘Northerners – the Vadakalai’, and the so-called ‘Southerners – the Tenkalai’.

 

77. In theory, ‘the Vadakalai’ places greater stress on the Sanskrit side of the tradition, whereas ‘the Tenkalai’ give more emphasis to the Tamil side. In actual practice, however, the Vadakalai and Tenkalai connect themselves to Ramanuja through descendent lines running through different theologians. The Vadakalai connects them through ‘Vedanta Desika’, where as the Tenkalai connect them through ‘Pillailokacarya.’

 

78. Article 25 and 26 of the Constitution of India along with the Preamble warns the strict observance of the above Rituals and Agamas.
79. POET BHARATHIYAR – MAHAKAVI OF THIS CENTURY:-

 

79. Mahakavi Bharatiyar in lot of his verses pointed out the importance of God, Devotion and the importance of Rituals under the caption called “Bhakti” in the following words:-

“பக்தியினாலே–இந்தப்

பாரினிலெய்திடும் மேன்மைகள் கேளடி!

சித்தந் தெளியும்,-இங்கு

    செய்கை யனைத்திலும் செம்மை பிறந்திடும்,

வித்தைகள் சேரும் – நல்ல

வீர ருறவு கிடைக்கும்–மனத்திடைத்

தத்துவ முண்டாம்–நெஞ்சிற்

சஞ்சலம் நீங்கி உறுதி விளங்கும்.”

 

80. Again in “Panjali Sabatham” from verse 293 to 302 through “Draupadi” Bharathiyar praised “Lord Kanna” who helped his devotees whenever they are in trouble referring to “Lord Narasimha” also in the following words:-

“ஹரி, ஹரி, ஹரி என்றாள்; – “கண்ணா!

அபய மபய முனக் கபய” மென்றாள்,

கரியினுக் கருள்புரிந் தே – அன்று

கயத்திடை முதலையின் உயிர்மடித்தாய்!

கரிய நன்னிற முடையாய்! – அன்று

காளிங்கன் தலைமிசை நடம்புரிந் தாய்!

பெரிய தோர் பொருளா வாய்! — கண்ணா!

பேசரும் பழமறைப் பொருளா வாய்!

 

சக்கர மேந்தி நின்றாய்! – கண்ணா

சார்ங்கமென் றொருவில்லைக் கரத்துடையாய்!

அட்சரப் பொருளா வாய்! – கண்ணா

அக்கார அமுதுண்ணும் பசுங் குழந்தாய்!

துக்கங்கள் அழித்திடுவாய் – கண்ணா!

தொண்டர்கண் ணீர்களைத் துடைத்திடுவாய்!

தக்கவர் தமைக்காப்பாய், – அந்தச்

சதுர் முக வேதனைப் படைத்துவிட்டாய்.

 

வானத்துள் வானா வாய்  –  தீ

மண், நீர், காற்றினில் அவையா வாய்!

மோனத்துள் வீழ்ந்திருப்பார் – தவ

முனிவர்தம் அகத்தினி லொளிர் தருவாய்!

கானத்துப் பொய்கை யிலே – தனிக்

கமலமென் பூமிசை வீற்றிருப்பாள்

தானத்து ஸ்ரீ தேவி – அவள்

தாளிணை கைக்கொண்டு – மகிழ்ந்திருப்பாய்!

 

‘ஆதியி லாதி யப்பா – கண்ணா

அறிவினைக் கடந்தவிண் ணகப்பொ – ருளே!

சோதிக்குச் சோதி யப்பா – என்றன்

சொல்லினைக் கேட்டருள் செய்திடு வாய்!

மா திக்கு வெளியினி லே – நடு

வானத்திற் பறந்திடும் கருடன் மிசை

சோதிக்குள் ஊர்ந்திடுவாய் – கண்ணா!

சுடர்ப் பொருளே, பேரடற்பொருளே!

 

கம்பத்தி லுள்ளானோ? – அடா

காட்டுன் றன் கடவுளைத் தூணிடத்தே!

வம்புரை செய்யுமூடா” – என்று

மகன்மிசை யுறுமியத் தூணுதைத் தான்

செம்பவிர் குழலுடையான்:- அந்தத்

தீயவல் லிரணிய னுடல் பிளந்தாய்

நம்பிநின் னடிதொழுதேன்:- என்னை

நாணழி யாதிங்குக் காத்தருள்வாய்.

 

வாக்கினுக் கீசனையும் – நின்றன்

வாக்கினி லசைத்திடும் வலிமையி னாய்

ஆக்கினை கரத்துடை யாய் – என்றன்

அன்புடை எந்தை! என் னருட்கடலே!

நோக்கினிற் கதிருடை யாய்  இங்கு

நூற்றுவர் கொடுமையைத் தவிர்த்தருள் வாய்!

தேக்குநல் வானமுதே! – இங்கு

சிற்றிடையாச்சியில் வெண்ணெ யுண்டாய்!

 

வையகம் காத்திடுவாய்! – கண்ணா!

மணிவண்ணா என்றன் மனச்சுடரே!

ஐய, நின்பதமலரே – சரண்

ஹரி, ஹரி, ஹரி, ஹரி, ஹரி! என்றாள்

பொய்யர்தந் துயரினைப் போல் – நல்ல

புண்ணிய வாணர்தம் புகழினைப் போல்

தையலர் கருணையைப் போல் – கடல்

சலசலத் தெறிந்திடும் அலைகளைப் போல்

 

பெண்ணொளி வாழ்த்திடுவார் – அந்தப்

பெரு மக்கள் செல்வத்திற் பெருகுதல் போல்,

கண்ண பிரானருளால் – தம்பி

கழற்றிடக் கழற்றிடத் துணிபுதி தாய்

வண்ணப்பொற் சேலைகளாம் – அவை

வளர்ந்தன வளர்ந்தன வளர்ந்தன வே!

எண்ணத்தி லடங்கா வே;- அவை

எத்தனை எத்தனை நிறத்தன வோ!

 

பொன்னிழை பட்டிழை யும் – பல

புதுப்புதுப் புதுப்புதுப் புதுமைக ளாய்

சென்னியிற் கைக் குவித்தாள் – அவள்

செவ்விய மேனியைச் சார்ந்து நின்றே.

முன்னிய ஹரிநா மம் – தன்னில்

மூளுநற் பயனுல கறிந்திடவே.

துன்னிய துகிற்கூட்டம் – கண்டு

தொழும்பத் துச்சாதனன் வீழ்ந்துவிட்டான்.

 

தேவர்கள் பூச்சொரிந்தார் – ‘ஓம்

ஜெய ஜெய பாரத சக்தி என்றே

ஆவலோ டெழுந்துநின்று – முன்னை

ஆரிய வீட்டுமன் கைதொழு தான்.

சாவடி மறவரெல் லாம் ஓம்

சக்தி சக்தி சக்தி, என்று கரங்குவித்தார்.

காவலின் நெறிபிழைத்தான் – கொடி

கடியர வுடையவன் தலைகவிழ்ந்தான்.”  

 

81. Again under the caption “God God” (Iraiva Iraiva) he said as follows:-

“எத்தனை கோடி இன்பம் வைத்தாய் – எங்கள்

  இறைவா !  இறைவா ! இறைவா !       

(ஓ–எத்தனை)

  சித்தினை அசித்துடன் இணைத்தாய் – அங்கு

  சேரும்ஐம் பூதத்து வியனுல கமைத்தாய்

  அத்தனை உலகமும் வர்ணக் களஞ்சிய

மாகப் பல பல நல் லழகுகள் சமைத்தாய்

                                        (ஓ–எத்தனை)

முக்தியென் றொருநிலை சமைத்தாய் – அங்கு

முழுதினையு முணரும் உணர்வமைத்தாய்

பக்தியென் றொரு நிலை வகுத்தாய் – எங்கள்

பரமா ! பரமா ! பரமா !”                 

(ஓ–எத்தனை)

 

82. The above Tamil Literature thus clearly exhibits the importance of Hindu Gods and how they answer the prayer of the devotees. Further when they point out as to how they are to be installed and towards which side they have to face it cannot be changed in the name of Renovation and Protection.

 

• Now we can enter into the area of the State made law and the Court made law dealing with importance of Worshippers and Religious Practices adopted in the Temple.

 

1. STATE ENACTMENTS AND THE JUDGMENTS:-

 

 

83. The authoritative decision in Siddiq (Ram Janmabhumi Temple) -Vs- Suresh Das reported in (2020) 1 SCC 1 would support more or less the above view at paras 229 and 230 in the following words:-

“Hinduism is an expansive religion that believes divinity in the form of the Supreme Being is present in every aspect of creation. The worship of God in Hinduism is not limited to temples or idols but often extends to natural formations, animals and can even extend to everyday objects which have significance in a worshipper’s life. As a matter of religion, every manifestation of the Supreme Being is divine and worthy of worship. However, as a matter of law, every manifestation of the Supreme Being is not a legal person. Legal personality is an innovation arising out of legal necessity and the need for adjudicative utility. Each conferment of legal personality absent an express deed of dedication must be judged on the facts of the case and it is not a sound proposition in law to state that every manifestation of the Supreme Being results in the creation of a legal person.”                                                                (Para 229)

 

“It is true than an idol is not a prerequisite for the existence of a juristic person. Where there exists an express deed of dedication, the legal personality vests in the pious purpose of the founder. The idol is the material embodiment of the pious purpose and is the site of jural relations. There are instances of the submergence or even destruction of the idol in spite of which it has been held that the legal personality continues to subsist. Even if a testator were to make a dedication to a religious purpose but the idol did not exist at the time the dedication was made or the manifestation of the divine was not in the form of the idol, but in the form of some other object of religious significance, the legal personality would continue to vest in the pious purpose of the dedication itself. However, that is not the situation in the present case. In the case of the second plaintiff in Suit No. 5, there exists no express deed of dedication.”                                                                 (Para 230)

1. PLACES OF WORSHIP ACT, 1991:-

 

84. Apart from the Preamble there is an enactment passed by the Parliament called Places of Worship Act, 1991 and from paras 92 to 105 of the judgment in Ram Janmabhumi Temple case, the importance of the above enactment is discussed. The said Act was enacted in 1991 by parliament and the same protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thoughts, belief, faith and worship. It emphasizes Human Dignity and Fraternity.

 

85. Again observations made by Hon’ble Apex Court in Ram Janmabhumi Temple case reported in (2020) 1 SCC 1at paras 103 & 105 are important and hence they are reproduced below:-

 

“The Places of Worship Act is intrinsically related to the obligations of a secular State. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.”

“Section 4(1) clearly stipulates that the religious character of a place of worship as it existed on 15-8-1947 shall be maintained as it existed on that day. Section 4(2) specifically contemplates that all suits, appeals and legal proceedings existing on the day of the commencement of the Places of Worship Act, with respect to the conversion of the religious character of a place of worship, existing on 15-8-1947, pending before any court, tribunal or authority shall abate, and no suit, appeal or proceeding with respect to such matter shall lie after the commencement of the Act. The only exception in the proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15-8-1947 and such an action was pending at the commencement of the Places of Worship Act.”

1. PLACES OF WORSHIP:-

 

86. In view of the above law and the Parliamentary enactment, the places of worship are given both Constitutional and statutory protection and the government while dealing the same have to keep in mind the basic and fundamental right of worship available to the worshippers.

VII. SABARIMALA CASE:-

1. In popular Sabarimala Case Indian Young Lawyers Association (Sabarimala Temple, In Re) –Vs- State of Kerala &Orsreported in (2019) 11 SCC 1 the Hon’ble Justice Nariman J at para 176.2 to 176.4 held as follows:-

“The fundamental right recognised by Article 25(1) equally entitles all such persons to the said fundamental right. Every member of a religious community has a right to practice the religion so long as he does not in any way, interfere with the corresponding right of his co – religionists to do the same. The content of the fundamental right is the flushing out of what is stated in the Preamble to the Constitution as “Liberty of thought, belief, faith and worship”. Thus, all persons are entitled to freedom of conscience and the right to freely profess, practice and propagate religion will include all acts done in furtherance of thought, belief, faith and worship”.

 

1. In the same case the observations made by the Hon’ble Apex Court in the following paras are also relevant to the quoted purpose of this case and they are reproduced below:-

“476. The role of courts in matters concerning religion and religious practices under our secular constitutional set-up is to afford protection under Article 25(1) to those practices which are regarded as “essential” or “integral” by the devotees, or the religious community itself…”

1. Again at para 505 the Hon’ble Apex Court has declared as follows:-

          “The “essential practices test” in its application would have to be determined by the tenets of the religion itself. The practices and beliefs which are considered to be integral by the religious community are to be regarded as “essential”, and afforded protection under Article 25. The only way to determine the essential practices test would be with reference to the practices followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practice in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practice of that temple.”

1. Again at para 476 and paras 513 to 517 the Hon’ble Apex Court has ruled as follows:-

“476. Judicial review of religious practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalizing religion, faith and beliefs, which is outside the ken of courts.”

“Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons. The form of the deity in any temple is of paramount importance. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. The practice of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple.”

   “Religion is a matter of faith, and religious beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are internal, while expression and worship are external manifestations thereof. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution. The phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that religion.”

VIII. AIR 1958 SC 255 – RELIGIOUS RIGHTS AND AGAMAS:-

91. For considering the value of the fundamental and basic right of worship versus the right of the authorities of the temple or trustees we have to take note of the decision in Sri VenkataramanDevasam –Vs- State of Mysore reported in AIR 1958 SC 255, which readily gave answer to almost all the questions raised above.

 

 

92. In the above case the validity of Sec.3 of the Madras Temple Entry Authorization Act throwing the entry open to all excluded classes of Hindus at the cost of interest of the GanaSaraswati Brahmins was challenged by them on the ground that the above temple was founded for the exclusive use and benefit of Ganasaraswati Brahmins and hence other excluded classes of Hindus cannot be permitted inside in view of the fundamental right guaranteed to them under Article 26 (b) of the Constitution of India.

 

 

93. The Hon’ble Apex Court in its report elaborately discussed the practice of idol usage worship, regulation thereof by the Agamas and the efficacy and enforceability of such Agamas. Paras 17 and 18 of Report deal with the above aspects and they are reproduced below for the purpose of this case:-

   “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 Shaiva 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 be installed and where the several classes of worshippers are to stand and whorship. The following passage from the judgment of SadasivaAiyar,J. in GopalaMoopanar –Vs- DharmakartaSubramaniyaIyer, 1914 SCC Online Mad 104 gives a summary of the prescription contained in one of the Agamas: (SCC OnLine Mad)

 

       ‘……In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbagriham, 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 Iyar, J in Gopala Moopanar –Vs- Dharmakarta Subramaniya Iyer) 1914 SCC Online PC 10. In Sankaralinga Nadan –Vs- Rajeswara Dorai, 1908 SCC Online PC 10 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 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 Article 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 Article 26(b), then Section 3, of Act 5 of 1947, should be held to be bad as infringing it.”

 

94. After observing so, the Hon’ble Apex Court held that the provisions of Art.26(b) are also subject to those contained in Art.25(2)(b) and accordingly dismissed the plea set up by the GanaSaraswati Brahmins in the suit out of which the proceedings arose.
95. AIR 1961 SC 1402:-
96. The above authoritative pronouncement of the Hon’ble Apex Court in 1958 was again reiterated in Durgah Committee –Vs- Syed Hussin Ali reported in AIR 1961 SC 1402.

 

96. Hon’ble Mr.Justice Gangendragadher J as His Lordship then was of the following view at P.1415 , para 33:-

“33…………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 Art.26. Similarly, even practices through 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 Art.26 may have to be carefully scrutinized; 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.”

1. (2004) 2 SCC 770:-
2. Almost after 50 years, the above view was again expressed in the majority view in Commissioner of Police –Vs- Acharya Jagadishwarananda Aradhita reported in (2004) 12 SCC 770 though the minority view in the said case preferred to take a contrary opinion relying, inter alia, on Shiru Mutt reported in AIR 1954 SC 282 and Cantwell –Vs- Connecticut reported in 1940 SCC Online US SC 89 and United States –Vs-Ballard reported in 1944 SCC OnLine US SC 73, Para 57 of the minority opinion containing the discordant note is reproduced below:-

 

“57. The exercise of the freedom to act and practice 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 practicing the religion by outward actions which are as much part of religion as the faith itself. The freedom to act and practice can be subject to regulations. In our Constitutions, 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 Cantwell –Vs- Connecticut, 1940 SCC Online US SC 89, L Ed at pp 1213-18, United States – Vs- Ballard,1944SCC OnLine US SC 73, L Ed at pp 1153, 1154.)”

1. HEREDITARY ARCHAKARS:-
2. The validity of the Amendment Act of 1970 which came into force on 08.01.1971 amending Sec.55 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 by adding Clause (2)55,

          “that no person shall  entitled to appointment to any vacancy referred to in (1) merely on the ground that he is next in the line of succession to the last holder of office was challenged in Seshammal –Vs- State of Tamil Nadu reported in (1972) 2 SCC 11.”

 

 

99. While upholding the validity of the above Amendment the Hon’ble Apex Court was quick to add that the condition to make the appointment from persons beyond next in line to the last holder alone is struck down and nothing else. The Hon’ble Apex Court has clearly clarified that while making appointment of Archakars the Trustee has to necessarily give importance to the usage of a temple which enjoined hereditarily appointments.

XII. SESHAMMAL’S CASE CLEARLY DISTINGUISHED THE SECULAR

   AND NON SECULAR ACT IN THE TEMPLE:-

100. Para 22 of the Constitutional Bench Judgment in that case for our immediate reference is reproduced below:-

 

“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 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 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.”

XIII. (2016) 2 SCC 725 – IT GIVES IMPORTANCE TO THE AGAMAS

AND RITUALS:-

101. What was said in Seshammal’s case is clearly clarified by the Hon’ble Apex Court in Adhi Saiva Sivachariyargal Nala Sangam –Vs- State of Tamil Nadu reported in 2016 (2) SCC 725 in the following words at the end of para 48 at Page No.755:

“What has been said in Seshammal  (1972) 2 SCC 11 is that if any prescription with regard to appointment of Archakas is made by the Agamas, Sec.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 Arts.25 and 26, the law would certainly take its own course. The Constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”

102. In the above case of Adi Saiva Sivachariyargal Nala Sangam reported in (2016) 2 SCC 725,O.No.118, dated 23.5.06 issued by the Govt., of Tamil Nadu was put to challenge and the crux of the said Govt., order attacked by the above petitioners under Art.32 of the Constitution of India is as follows:-

“Any person who is a Hindu and possessing the requisite qualification and Training can be opted as an Archaka in Hindu Temples.”

 

 

 

103. The above Govt., Order was challenged by the Petitioner on the ground that the appointment of an Archaka has to be as per the Agamas governing the particular Temple and any deviation of the said age old custom and usage would be an infringement of a freedom of Religion and the right of religious denominations to manage its own affairs as guaranteed  by Arts.25 and 26 of the Constitution held by the Constitutional Bench Judgment in Seshammal –Vs-  State of Tamil Nadu, reported in (1972) 2 SCC 11.

 

 

104. The Hon’ble Apex Court in the above case clarifying the law laid down the verdict given in Seshammal’s case has held that the Govt., Order dated 23.5.06 by its Blanket Fiat that any person who is a Hindu and possessing the requisite qualifications and Training can be appointed as an Archaka in Hindu Temple has the potential of falling foul of dictum laid down in Seshammal’s case reported in (1972) 2 SCC 11.

 

105. It was further held that the appointments of Archakas 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 in the case. The last but one para 24 of the Judgment in Seshammal’s case is necessarily to be quoted here and accordingly it is quoted below:-

“———————– Moreover if any Rule is framed the Govt., which purports to interfere with rituals and ceremonies of the Temple, the same will be liable to be challenged by those who are interested in the temple worship.

In our opinion, therefore the apprehensions now expressed by the petitioners are groundless and premature.”

 

106. Thus while upholding the appointment of Archaka without following the hereditary order the Hon’ble Apex Court categorically held and took that the appointment should be strictly in accordance with the religious usages and practices of the temples.

 

XIV. CONCLUSION:-

107. From the reading of all the judgments and provisions of law the following indisputable things emerge namely:-
     1.     The right of worship guaranteed to the people of this country is not necessarily to be attached to any particular religion and the same is protected for all the people of this country by the Preamble of our Constitution, whereas Articles 25 and 26 of the Constitution of India, 1950 in part III of the Indian Constitution guarantee the fundamental right to practise and profess any religion subject to other provisions in Part III of the Indian Constitution., Public Order, Morality and health.
     2.     As everyone has got a fundamental right to worship including the worship concerned with their religion in a particular place of worship the authorities are duty bound to renovate and protect the Ancient Temples according to Agamas and Vedhas at the earliest.
     3.     The renovation or protection of the Ancient Temples have to be regulated in a manner known to law and they cannot be undertaken without any guidelines affecting the fundamental rights of the worshippers and the worshippers in accordance with their religious practises.
     4.     As per the Places of Worship Act, 1991 enacted by the Parliament, the monumental and traditional values of the ancient temples cannot allowed to be altered under the guise of protection or renovation. Our Vedic Literature also supports the same.
     5.     As a right to worship forms part of the Basic Structure of the Indian Constitution the same cannot be indefinitely postponed in the name of renovation or protection of the ancient temples. All the attempts have to be made to guarantee that even at the time of renovation or undertaking of protective measures the worshippers should be permitted to visit their place of worship. Inspite of all the possible steps the place of worship cannot be kept open for the worship at the time of renovation or protective measure the authorities have to take all the steps to see they are resorted for the exercise of worship at the earliest not more than 3 months.
     6.     The renovation or protective measure of the temple cannot alter the original structure and placement of the idols. The renovation and protection are to be strictly in conformity with Agamas, Vedas and Rituals. The Government or the Higher Authority on information that the renovation and the protective measures are over in respect of the temple should at the earliest make an inspection and grant permission for celebrating Kumbhabhishekham and active functioning of the temple. The provisions of Hindu Religious and Charitable Endowments Act, 1959 have to be interpreted to confer powers on the authorities to deal with the Right of Worship and Religious Practices only in accordance with the Agamas, Vedas, and Customary Practices supported by the basic law of our country. Any ancient temple can be preserved and closed for the public visit very very rarely in the interest of public only and not otherwise.
     7. HEREDITARY TRUSTEE:-

 

1. APPOINTMENTS TO VARIOUS POSTS IN THE TEMPLES – Necessary to make clear that not only the government officials but also the Trustees and other servants appointed by the Trustees are governed by the Tamil Nadu Government Servants Conduct Rules, 1973 to regulate them and keep them away from politics:-

 

108.         The Trustees, and other Employees of the temple are bound to follow strictly the Tamil Nadu Government Servants Conduct Rules as they are to be followed by the Government Officials even upto the level of the Commissioner. Rule 14 of the Conduct Rules says mandatorily that they have to keep themselves away from politics. In view of that there cannot be any political appointment or appointment of political persons to the posts of Trustees and other posts. Recently an Archakar who does not even know to chant mantras and conduct poojas and who is living with a wife of another man was posted to perform poojas in Thathaiyangarpet Lord Kasi Vishwanathan Temple where in that temple only in entire India “Panchamuga Bairavar” in Yali Vahanam blesses the devotees abundantly is located. Even in the temple he started misbehaving with the female devotees and then on the complaint of common people he was removed a Hereditary Archakar was posted and he is doing all poojas now. Now that is a reason as to why for all the employees including the Archakars, Tamil Nadu Government Servant Conduct Rules are to be made applicable strictly and their failure to follow the same would warrant major punishment under the Tamil Nadu Civil Services (D&A) Rules.

 

109. As Section 54 specifically speaks about filling up of offices of the Hereditary trustee, it is the duty of the Commissioner, Joint Commissioner, Deputy Commissioner, Assistant Commissioners to find out the line of succession and appoint them but most of the cases the hereditary trustees are not appointed and in some temples fit persons are appointed in the absence of hereditary trustees. The Power of Appointment of Office Holders and Servants in Religious Institutions is conferred on the Trustees again without any guidelines for such appointment and penal powers also are conferred under Section 56 on the Trustees again without any guideline.

 

1. In the absence of any guidelines for appointment and dismissal or termination or any punishment, the trustees can, on their own do anything as they like. When Section 25 A speaks about the qualification of trustees along with Section 26 which speaks about the disqualification of the Trustees, Sections 55 and 56 do not speak about the qualification or disqualification of any servant in the temple. Section 60 suggests filling up of vacancies in the Office of Trustee and Hereditary Trustee without any time limit or guideline. Section 63 confers wide powers on the Joint Commissioner or Deputy Commissioner to decide certain disputes or matters even to find out the character of an institution, whether religious or not and the nature of properties and status of the trustees also.

1. READING DOWN TO APPLY THE ABOVE GOVERNMENT CONDUCT RULES:-

 

1. The above 4 sections 25 A, 26, 55, and 56 are to be read down to make all of them to be governed by the Tamil Nadu Government Servants Conduct Rules to maintain strict discipline in the religious institution in public interest and avoid discrimination between the government officials who are governed by the above rules and the trustee and other employees of the temples who are not governed and also to keep the institutions away from the political interference. Recently, two months before an Archakar of Thathaiyangarpet Kasi Vishwanathan Temple who misbehaved with women devotees and who is living with the wife of another man was removed on the complaint from the public. It is just 20 km away Thuraiyur, Tirchy District.

XVI. PREPARATION OF THE REGISTER FOR ALL INSTITUTION AND

        THE PERIODICAL INSTITUTION:-

 

1. Though Sections 29, 30 and 31 of the Act mandatorily speak for Preparation of Register for all institutions and Annual Verification of the same and warranting the periodical inspection of those institutions and their properties under Section 33, such an exercise does not seem to have been done by the officials under the Act.

 

XVII. FAILURE OF THE PART OF THE OFFICIALS AND EXAMPLES –  ODATHURAI AZHAGIYA NARASINGAR AND SRIRANGAM:-

1.  As most of the ancient temples not only in remote villages but also in Trichy town are not taken care of. One of such temples is Odathurai Sri Attrazhagiya Narasingar Temple located by the side of Cauvery River Bridge suffers from the occupation of unlawful encroachers who sell meat in Mandapam, infront of one of the Sannidhis of the temple.  There is no periodical visit of the officers and no action is taken. The said temple owns lots of shops and residential houses in and around Anna Salai stop road and on the road proceeding to Andal Street. They are all occupied by tenants who do not even pay rent or pay rent in pittance and develop the temple properties to that of residential and commercial complex and enjoy for time immemorial.
2. Like that so many village temples are renovated, at the cost of money collected by the public and they are not permitted to perform Kumbhabhishekham and put to use. One such example is Anuhhur Kamatchi Amman Sametha Ehambareshwara Sami Temple.
3. Thus the fundamental rights guaranteed under the Preamble and Part III of the Indian Constitution is out and out infringed either by overdoing or by the non-doing of officials of the Hindu Religious and Charitable Endowmentsdepartment. Under the above narrated circumstances, the heritage and ancient value of the temples become questionable.

 

1. Even the former Joint Commissioner of HR & CE in Srirangam Temple who was continued to be the Joint Commissioner inspite of the strongest observation of the Hon’ble Division Bench had passed several orders interfering with the religious affairs of Srirangam Temple called Boologa Vaikundam, the first Divya Desam and the same is the subject matter of another writ filed by Thiru. Rangarajan pending before the Hon’ble Chief Justice Court. The main complaint is the interference of the HR&CE officials even with more than 1000 years Ahamas and rituals followed by Lord Ramanujar. Like that there are several instances and all are because of the failure on the part of the HR &CE officials to maintain the list of institutions and their properties and make periodical inspection and visit to the temples as per Sections 29, 30 and 31 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

 

 

XVIII. POINTS IN NUTSELL FROM THE ABOVE:-

117. 1.         The Tamil Nadu HR&CE act 1959, though clearly warns the limited role of the officials in religious affairs, officials, under section 25 and 107 of the act, the absence of any guideline for the appointment of trustees and servants of the temples under section 25 A, 26, 55 and 56 of the Act lead to the appointment of any person particularly with political base in the temples.

 

1.         The specific demarcation between the religious affairs and the secular aspect is absent under the Act inspite of Section 107 and it creates often misunderstanding between the officials of the HR&CE and the Archakars on one side and between the Archakars with the help of employees and the Hereditary Trustees or descendants of the founder leaders of the temple on other side. There is no effective provision in the Act to resolve the same. Hence, the Tribunal under section 83 has to be conferred with the judicial power to deal with the same after converting the Tribunal to a Judicial Body.

 

1.          Infact as already discussed in important matters, the jurisdictions of the Civil Courts is barred and is provided as the last resort causing inordinate delay in disposal of the disputes       (Section 34-D, 70 and 108 of the Act).

 

 

 

1. Conferment of unguided powers on the officials of the HR&CE Department particularly under section 59 to 76 of the Act make them to govern the religious institutions as they like.

 

 

 

1.         The Tribunal under sections 82 and 83 could be made a Judicial Body with further appeal in the form of STA or Writ to the High Court Division Bench like the entertainment of the Writ Petitions by Division Bench against the orders of the Central Administrative Tribunal or the State Government Service Tribunals.

 

 

1.         All the employees and trustees concerned with the temples are to be made to be governed by Tamil Nadu Government Servants Conduct Rules.

 

 

1.         In view of the Judicial Pronouncements and Section 107 of the Act, the officials cannot interfere with the Religious Rituals and Affairs of the Temples. It should be made clear to all the Government Officials and Trustees of the Religious Institutions.

 

1.     Periodical inspections have to be made by the Higher Rank Government Officials particularly the Commissioner or Joint Commissioner.

 

 

 

 

1.        Section 34 of the Act conferring power to grant lease of the properties of the Religious Institutions beyond 5 years with the sanction of the Commissioner have to be read down to mean in consonance with the tender period of other government properties for only 3 years subject to renewal with 25% increase in case of no complaint or default.

 

1.         In view of Rule 14 of the Tamil Nadu Government Servant Conduct Rules, no person with Political Background can be appointed as a Trustee or an Employee of the temple in any cadre.

 

118. It is therefore prayed that this Hon’ble court may be pleased  to lay down legal guidelines and issue directions by reading down the provisions mentioned above in view of the Preamble and Article 25 and 26 of the Constitution of India and thus render justice. 

 

 

Dated at Chennai on this 10^th day of February, 2021.

 

 

 

 

                                                            Mr. R.SINGARAVELAN, M.L.,

                                                          Designated Senior Advocate

 

 

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.No. 574 of 2015

(Suo-Motu, PIL)

 

Anuhhur Kamatchi Amman Sametha

Ehambareshwara Sami Temple

 

    Petitioner on Mentioning

—Petitioner

–Vs-

 

Suo Motu Public Interest Litigation

And Government of Tamil Nadu.

— Respondents

 

 

 

 

 

        WRITTEN BRIEF

 

 

 

 

 

 

 

 

   Mr. R.SINGARAVELAN, M.L.,

   Designated Senior Advocate,

   With

            M/s. M.RAJAMANI

           P.BRINDHA

 V.L.AKSHAI SAJIN KUMAR

           K.JANANI &

 R.NIROSHA   

 

 

W.P.No.574 of 2015 (Suo-Motu, PIL) was mentioned by Senior Counsel R.Singaravelan before the Specially Constituted Division Bench comprising of Hon’ble Mr.Justice R.Mahadevan and Hon’ble Mr. Justice P.D.Audikesavalu and submitted his Written Brief on behalf of the Anuhhur Kamatchi Amman Sametha Ehambareshwara Sami Temple. In his submission he touched upon various provisions of the HR&CE Act, 1959 which empowers the Commissioner to interfere in Affairs of the Religious Institutions, Agamas and Rituals of the Temple. Those sections are against the Preamble and Arts. 25 and 26 of the Constitution of India which need to be read down to bring into the line with the demand of the Constitution and various judicial pronouncements of the Hon’ble Apex Court.