http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 61

Vs.

RESPONDENT:
STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT: 19/03/1996

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)

CITATION:
1996 AIR 1765 JT 1996 (3) 482
1996 SCALE (2)911

ACT:

HEADNOTE:

JUDGMENT:
WITH
WRIT PETITION NOs. 1063, 1090, 1374 OF 1987 AND 173/90 AND
TRANSFER CASE NOS.168/88, 170-76/88, 2/90, 37 & 38/90 3/93
AND 4/93
J U D G M E N T
K. RAMASWAMY, J.
This and connected writ petitions and transfer cases
concern the constitutionality of Sections 34, 35, 37,39 and
144 of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act (for short, the ‘Act’)
abolishing hereditary rights of archaka, mirasidars,
gamekars and other office-holders and servants like
hereditary Karnam of Dwarka Thirumalai Temple in West
Godavari District. The facts in Writ Petition No.638/87 are
sufficient for consideration of questions raised in this
batch of cases.
The petitioner is one of the Chief Priests (archaka) in
an ancient and renowned Hindu temple at Thirumala Tirupathi
known in entire south-Asia and abroad as venkateswaraswamy
temple and in north-India as Balaji temple in whose praise
saint Annamacharya spent his life in singing devotional
songs - a practice devolved by custom and usage from over a
century. According to the petitioner, the office of archaka
is succeeded from forefathers in accordance with the
Vaikhanasa Agama Shastre rules which govern the temple on
the principles of "heirs in line of succession" among four
families, viz., Paidapally family, Gollapalli family,
Pethainti family and Thirupathanna Garu family. The
petitioner belongs to the Paidapally family. According to
the petitioner, being Hindu vaishnavas, they render
Archaktwam service in the holy temple of Lord Venkateswara
situated on the top of seven hills or Saptagiri, Thirumalai.
The temple is presided over by Lord Venkateswaraswamy known
by different names.
Religion is inspired by ceaseless quest for truth which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 61
has many facets to release and free the soul from ceaseless
cycle of birth and death to attain salvation. Hindus believe
that worship consists of four forms of which idol worship is
one such form. Mode of worship varies among persons of
different faiths. It is an assimilation of the individual
soul with the infinite. For its attainment diverse views and
theories have been propounded and one of them is idol
worship. Hindu creed believes that the Supreme Being
manifests Himself with three aspects as Brahma, the Creator,
Vishnu, the Preserver and Shive, the Destroyer and
Renovator. Those who believe and are devoted to the worship
of Vishnu are known as Vaishnavas and those who worship
Shiva are called Saivites.
Vaishnavas believe that God had manifested Himself in
different incarnations. In other words, manifesting Himself
into flesh and the very contrary of avatare which is
expressive, absolute and immaculate. The finite forms of
His avatara are hot forms of material impurity but of
imperium purity, the purity of Suddhasattva. Vaishnava
believes in Deity Vishnu who has manifested Himself in 10
avataras. Lord Vishnu descends in one avatrara ‘Archavatar’.
It is a Deity in the form of idols in the temple.
The institution of temple should be in conformity with
the Agamas co-existing with the institution of temple
worship. Construction of temple and the institution of
archakas simultaneously came into existence. The temples are
constructed according to the Agama Shastra. In accordance
with the Agama Shastra, archaka as professional man, attends
on idols. He is associated with existence of temple over
centuries as part of its establishment. The authority of
Agama is judicially recognized in several precedents of
various courts including this Court. Agamas are treaties of
ceremonial law dealing with matters such as construction of
temples, installation of idols therein and conducting
worship of the Deity. 28 Agamas relate to the Shiva temples.
The Agamas of Vaishnavas are Pancharatra Agamas containing
elaborate rules regulating how the temple should be
constructed, whereat the principal Deity is to be
consecrated, where the other Devatas (idols) are to be
installed and place where worshippers should stand and
worship the Deity Though Agamas prescribed class
discriminatory placement for worship in the temples, it
became obsolete after the advent of the Constitution if
India which, by Articles 14, 15, 17, 21, 25 and 26,
prohibits discrimination on grounds only of caste, class,
sect etc.
The consecration of idol should be done by the priest
according to elaborate and complicated rituals accompanied
by chanting of mantras and devotional songs appropriate to
the Deity. Hindu worshippers believe that the divine spirit
has descended in the Deity’s images and if efficacy and
power of the Lord are transmitted into the Deity, the image
of the Deity becomes fit to be worshiped. Rules have been
provided to conduct periodical or daily worship for securing
continuance of the divine spirit in the image. According to
Marishi Maharishi in his discourse to his disciple on need
for worship for salvation had ordained that worship of Deity
in the temple will bring all the benefits. The purpose of
the temple is to provide opportunity for public worship of
the Deity. When congregation of worshippers participate in
the worship, a particular attitude of separation of devotion
gets developed and confers great spiritual benefit.
The priest preserves the image from pollution,
defilement or desecration. By performing rituals, rites and
reciting hymns he makes Lord present in definable and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 61
describable way and Vishnu manifests in the hearts of the
devotees. It is the religious belief of Hindu worshippers
that when the image is polluted or defiled, the divine
spirit in the image is diminished or even vanished.
According to the Agamas, an image becomes defiled if there
is any departure or violation of any of the rules relating
to worship. It would then become necessary to perform
purificatory ceremonies to restore the sanctity of the
shrine. The performance of rituals thus plays a great role
to sustain the faith of the layman in the Deity. Therefore,
the Agama rules are part of Hindu religious faith. Any
departure from the traditional rules of worship would result
in pollution.
Only qualified archaka is entitled to step inside the
sanctum sanctorum (Garbhagriha) after observing daily
discipline imposed upon him by the Agamas. It is his sole
duty to perform daily rituals and ceremonies according to
Agama prescriptions touching the Deity. Touch of the image
of the Deity by any other person would defile the idol.
Therefore, the Agama assigns that duty to the archaka alone
as part of religious practice. He performs Archana and other
services on behalf of the "Severities" or worshippers. The
services of archaka, therefore, are integrally and
inseparably connected with the performance of daily rituals
in pooja (worship) to the Deity.
Consequently, devotees of the respective Vaishnavite or
Saivite temples alone are entitled to be archakas in the
respective temples. In a Saivite temple, a Vaishnavite
cannot be an archaka and vice versa, though there is no bar
for them worshipping either Deity as a lay worshipper.
Therefore, any other archaka is not competent to do pooja in
Vaishnavite temple according to Vaikhanasa Agama Shastra.
This is the general rule applicable to all the temples. Even
among vaishnavitas there is further distinction between
pancharatra and vaikhanasa system of performing rites. It
is, therefore, clear that archaka of a temple, besides being
proficient in the rituals appropriate to the worship of the
particular Deity according to Agamas, must also belong to a
particular denomination. Thereby, archaka occupies an
important place in religious part of temple worship.
Unlike other temples, Thirumalai Lord Venketeswaraswamy
temple has peculiar features of its own, namely, certain
special ceremonies and rites distinct for this temple should
be done strictly, as mandated by the Vedas and Agamas by the
archakas who profess and practise Vaikhanasa Agamas and
succeed to the office of archaka hereditarily and are
governed by the Vaikhanasa Agama and are of Vaishnavite
faith. The principle of heredity thereby became part of
usage.
The management of the temple prior to the statutory
intervention was in the hands of Dharmakartas (Pedda
Jeengar). Equally, there classes of persons like Chinna
Jeengar, Acharya, Purrushas and Gamekars were in charge of
making prasadams, like Laddu and doing other forms of
services like maintenance of the temple by shepherd
community and other local communities, are part of the
hereditary system.
All of them are given certain rights known as "Mirasi
rights". they earn their livelihood through these mirasi
rights which include lands given by the temple for
performance of services. Besides, archkas have shares out of
the offerings made to the temple, while persons in charge of
preparing prasadams will get percentage of share out of the
sale of prasadams. All persons in charge of various
activities of the temple succeed hereditarily. The right of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 61
management was acquired by birth and every person born in
the respective classes is entitled to a share in the
perquisites incidental to management. The temple is managed
by these persons by turns among them. Dharamkarthas and
archakas had framed rules for management of the temple. Even
after the statutory take-over of the management by the
Endowment Department or Government, custody of the
properties, particularly jewels, remained with archakas and
the custody changed hands to each family according to turns
from time to time. Head priest remained in charge of doing
pooja for a particular period; when his family got the
charge once in four years or eight years, he would be in
charge of all the valuables. Thought the value of the
jewellery and other valuables of the temple was of several
crores, there was never any complaint of any sort regarding
their custody and management of the jewellery and other
valuables. All the functions done by archakas constitute an
integral and inseparable part of the management of the
temples and religious ritual practices and usages. Even the
food offerings and preparation of Prasadams, i.e., Dittam,
are part of the religious practice evolved in the temple and
are to be prepared by persons well versed in the Agama
Shastras.
The State Government had constituted a commission
headed by Justice Challa Kondaiah, former Chief Justice of
Andhra Pradesh, as its Chairman; the composition thereof
changed and ultimately a three-member Commission consisting
of the Chairman, Dr. C. Annarao, former Chairman of
Thirumala Tirupathi Devasthanams (for short, the ‘TTD’) for
a decade having first-hand personal experience in the
working of the system and management of TTD; and Shri A.V.
Suryarao, an advocate, Joint Commissioner of Endowment
Department having expert knowledge in working out the Madras
Act Telangana Act and the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1966 [for
short, ‘predecessor Act 17 of 1966] and known for his
devoted service, as Member Secretary, came in existence. The
Commission submitted its report in three printed volumes
which have been placed before us and copiously relied upon
and referred to. It had recommended abolition of hereditary
archakatwam service and trusteeship etc. On its basis, the
Act was made, which has come into force w.e.f. May 23, 1987
after it received Presidential assent. It repealed its
predecessor Act 17 of 1966.
Shri K. Parasaran, learned senior counsel, who
addressed leading arguments on behalf of the petitioner and
which were adopted by other learned counsel, contended that
abolition of hereditary rights created by the founders in
rendering services to the temples by archaka etc. in
charitable or religious institutions and endowments is an
interference with religious practices and customs which are
part of religion. The Act should not look at archakas or
other office-holders in isolation; they should be considered
in its pragmatic whole whose impact would be to destroy the
concept and content of Hindu religious belief itself. The
scheme of the Act as such is an unwarranted and outrageous
interference with the religion, that is to say, it aims to
abolish all existing religious offices, religious usages and
practices and confers on the secular State power to decide
as to who should be appointed as archaka, mirasidar and
other office-holders destroying the existing customs, usage
and traditions which are integral part of religion. Articles
25 and 26 of the Constitution deal with guarantee not only
of matters of doctrine and beliefs but also the practices of
it, to be ascertained with reference to the tenets and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 61
doctrine of the religion itself as is evidenced by custom
and usage. Where the religious affairs and ceremonies are
carried on in accordance with a particular Agama Shastra,
deviation therefrom is impermissible. The archaka is part of
the temple worship and the rights of an archaka are
succeeded by heredity from generation to generation treating
him as an original Acharya. As followed in Vaikhanasa Agama
the daily rites, rituals and ceremonies performed by them
extend to daily worship, offerings of food and performance
of special ceremonies in a particular way with all piety and
devotion as integral part of religion.
Archakatwam service would thus form part of religious
service integrally connected with the religion. Therefore,
Sections 16, 34 to 37, 39 and 144 of the Act are ultra vires
Articles 25(1) and 26(b) of the Constitution. They do not
relate to public order, morality, health or matters relating
to economic, financial, political or other secular
activities associated with religious practices nor do they
relate to social welfare or reform. Therefore, they are not
saved either by Article 25(2) or 26 of the Constitution.
The emoluments attached to the office are for discharge
of daily obligations by an archaka and the right to a share
in the collections is beneficial interest attached to the
office. The deprivation thereof denudes the archaka or
office-holders of the means to discharge the duties and
would destroy the character of worship itself. The
reimbursement by way of payment of salary is calculated to
make archaka unfit to discharge his duties, integral to
worship. The restriction imposed are offensive of Article
25(1) and being arbitrary, unjust and unfair, violative of
Article 14. Making the archaka a servant under the State
Department is contrary to the code of conduct laid down by
Agamas for an archaka, an integral part of religious
practice. Therefore, it cannot be a subject matter of any
legislation. Even if a legislation comes under social
welfare, public order, morality or health or any other
field, it can only regulate and restrict the secular
activity but cannot altogether alter or abolish or totally
change the system which had formed an essential part of the
religion. Therefore, the law taking away the hereditary
right from the petitioners offends Articles 25(1) and 26.
The Commissioner who is a bureaucrat has no competence
or qualifications to judge or test the qualifications, merit
or work of an archaka who learns the Agama Sutras by heart
from child-hood. Being born in the hereditary family, they
would learn recitation of slokas and mode of performance of
worship as per Agama. The Commissioner cannot regulate by
law nor has he competence to test his qualification or
suitability for appointment. Therefore, though being secular
act, hereditary right of an archaka may be abolished since
qualification for appointment flows from the Agamic rule,
only descendants of particular family are competent to
conduct worship and they alone have the right to appointment
and they cannot be tested nor can their competence be
determined by the Commissioner.
Public interest requires that rites or rituals must be
performed by an archaka and public duty towards the general
worshippers demands that archaka who is interested in ritual
form of worship would alone be appointed as priest. They
would be available only in the families of archakas from
generation to generation. Payment of share in the offerings
is part of religious practice and usage. No question of
money consideration or emoluments in that behalf for the
performance of his duties, would arise. Archaka is entitled
to the share in Parsadams, laddus and collections in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 61
prescribed manner as part of religious customs and usages.
The scheme under the Act and rules are wholly misconceived
and repugnant to the established religious practice.
There is nothing in the Act to show that it was enacted
in the interest of public order, morality and health, which
alone are relevant factors to restrict freedom of religion
or religious practices guaranteed by Article 25(1) of the
Constitution. The State cannot, under the pretext of making
secular law, regulate or restrict activities which are
integrally associated with religious purposes.
Vaishnava archaka cannot be transferred to and posted
even in another similar Vaishnava temple situated elsewhere
as no two temples perform same ceremonies and rituals in the
same order. The Pedda Jeengar and Chinna Jeengar are
religious heads and importance of their office was
judicially recognized by the Privy Council. Therefore, their
offices are hereditary and cannot be abolished under the
Act. A Brahmachari cannot be appointed as an archaka which
is antithesis to the Agama Shastra. He cited the instance of
performance of rituals by hereditary archakas in Padmawati
and Lord Venkateswaraswamy temples. He place voluminous
evidence of prevalence of the hereditary system in different
States and those Acts did not abolish the system. He placed
strong reliance on the decision of this Court in Seshammal
and Ors. etc. etc. vs. State of Tamil Nadu [(1972) 3 DCR
815], apart from the leading judgment in The Commissioner
Hindu Religious Endowments, Madras vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Math [(1954) SCR 1005].
Shri P. P. Rao, learned senior counsel for the State,
contended that the Act made a clear distinction between
matters of religion and religious practices and secular
activities of a religious institution or endowments.
Sections 13, 23 and 142 of the Act have taken care to
preserve all the existing religious usages, practices and
sampradayams as valid. Apart from preserving them, the Act
mandates the officers not to violate their practice. The Act
seeks to regulate only the administration and maintenance of
secular part of the religious institutions or endowments.
The Act does not affect any honour to which any person
including archaka or Jeengars are entitled by custom. The
Act does not interfere with the performance of any religious
worship or ceremony, nor does it object to any religious
institution’s functioning according to the Sampradayams and
Agamas followed by them.
Article 25(2) permits regulation of any secular
activity associated with the religious practice. Appointment
of an archaka is a secular activity. Archakas, Jeengars and
others are employees of TTD. Though the Pedda Jeengars and
Chinna Jeengars have the status of Mathadhipathi in relation
to their Math, in relation to TTD, their status is only that
of employees. The Commission had gone into these aspects and
recommended for their abolition. There had been compromise
with the TTD by hereditary archakas and mirasidars on May
30, 1979 to receive emoluments at certain rates which would
establish that sharing of food offerings and laddus etc. is
not part of religious practice. The archakas and gamekars
have not been rendering any service personally but only
through their deputies working for and on behalf of head
priests for consideration. The hereditary nature of the
right, therefore, became irrelevant. Vaikhanasa Agama
nowhere mandates that the members of the families referred
to in the writ petition alone are entitled to perform the
service, though they belong to Vaikhanasa sect and are
Srivaishnavites. Hereditary right which governs the
appointment of archaka is a secular usage which could be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 61
regulated by law. The mere fact that in some temples
elsewhere, the hereditary principle is being followed would
not denude the power of the legislature to enact the Act
abolishing hereditary rights and emoluments attached
thereto.
As a corollary to the abolition, legislature is
competent to prescribe qualifications for archakas (in
Section 36) supplemented by the rules made in that behalf.
The Commissioner of Endowment Department, with the guidance
and assistance of scholars in the Agamas, discharges
statutory functions. Training in those subjects as provided
in the rules and recommended by scholars in Vedas is
imparted in schools established in three places in Andhra,
Rayalseema and Telengana regions; examinations are conducted
as per questions set out by the scholars in the respective
subjects and assessed by them. So, the prescribed
qualifications are valid qualifications for appointment. The
rules laid down only a preferential claim for Brahmachari
while all others are treated alike in adjudging the claims
of all qualified archakas. The power to transfer archakas is
regulated by Section 39. It must be read in the light of the
guidance found in Sections 13 and 142. Therefore, archakas
who are competent and well-versed in rituals, rites, pooja
as per existing religious usages and customs of that
particular institution alone would be transferred. Rule 7 of
the Rules made in the predecessor Act 17 of 1966 in this
behalf expressly preserved and regulated the said
safeguards. They would continue to be in force by operation
of Section 155(2) of the Act, till new rules are made in
that perspective. Since customary emoluments attached to the
service have been abolished, regular salary and other
allowances are admissible to them.
Independently, the archakas are entitled to what has
been offered actually to the Deity and not to the Prasadams.
Section 144 abolishes only shares in hundi collections and
other rusums but not Nitya Naivadyam, i.e., cooked rice etc.
offered to the Deity as per Dittam. Section 144 was enacted
keeping in view the provision of payment of salary to the
archakas and other servants. The provisions, therefore, are
not violative either of Article 25 or 26.
With a view to appreciate the respective contentions,
it is necessary to understand the scope, content and effect
of the impugned provisions of the Act. Section 2(3) defines
"charitable endowment", Section 2(4) "charitable
institution" and "charitable purpose" has been defined under
Section 2(5). Section 2(15) defines "hereditary office-
holders". "Religious institution" has been defined under
Section 2(23), "Temple" under Section 2(27) and "Thirumala
Tirupathi Devasthanams" under section 2(28). Section 34
abolishes hereditary rights in mirasidars, archakas and
other office-holders and servants and reads thus :
"34. (1) (a) Abolition of
hereditary rights in Mirasidars,
archakas, and other office-holders
and servants:-
(1)(a) Notwithstanding anything in
any compromise or agreement entered
into or scheme framed or sanad or
grant made or judgment, decree or
order passed by any Court,
Tribunal or other authorities prior
to the commencement of this Act and
in force on such commencement, all
rights, whether, hereditary,
contractual or otherwise of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 61
person holding any office of the
Pedda Jeeyanagar. Chinna Jeeyangar,
a Mirasidra or an archaka or Pujari
or any other office or service or
post by whatever name it is called
in any religious institution or
endowment shall on the commencement
of this Act stand abolished.
(b) Any usage or practice relating
to the succession to any office or
service or post mentioned in clause
(a) shall be void;
(c) All rights and emoluments of
any nature in cash or kind or both
accrued to an appertaining to any
office or service or post mentioned
in clause (a) and subsisting on the
date of commencement of this Act
shall on such commencement stand
extinguished.
(2) Every office-holder and
servant mentioned in clause (a) of
sub-section (1) holding office as
such on the date of commencement of
this Act shall, notwithstanding the
abolition of the hereditary rights,
continue to hold such office or
post on payment of only such
emoluments and subject to such
conditions of service referred to
in sub-section (3) and (4) to
Section 35."
Section 35, consequently, provides procedure for appointment
of office-holders and servant etc. and Section 36 prescribes
qualifications for archakas. Section 37 deals with
discipline among them and prescribes disciplinary procedure
for the office-holders and servants. Section 38 gives power
to the Commissioner etc. in certain cases and Section 39
regulates transfer of office-holders and servants. Section
40 directs office-holders or servants not to be in
possession of jewels etc. except under conditions mentioned
thereunder. Section 144 abolishes shares in hundies and
other rusums which reads thus :
"144. Abolition of shares in Hundi
and other rusums:- Notwithstanding
any judgment, decree or order of
any Court, Tribunal or other
authority or any scheme, custom,
usage or agreement, or in any
manual prepared by any institution
or in any Farmana or Sanad or any
deed or order of the Government to
the contrary governing any
charitable or religious institution
or endowment, all shares which are
payable or being paid or given or
allowed at the commencement of this
Act to any Trustee, Dharmakartha,
Mutawalli, any office-holder or
servant including all offerings
made in the premises of the Temple
or at such places as may be
specified by the Trustee, all
Prasadams and Panyarams offered
either by the Temple or devotee,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 61
and such other kinds of offerings,
all shares in the lands of the
institution or endowment allotted
or allowed to be in possession and
enjoyment of any archaka, office-
holder or servant towards
remuneration or otherwise for
rendering service and for defraying
the ‘Paditharam’ and other expenses
connected with the service or
management of the temple, shall
stand abolished with effect on and
from the commencement of this Act."
Chapter XIV deals with application of the Act to Thirumala
Tirupathi Devasthanams, constitution of Board, powers and
functions of the Board of Trustees etc., making the Act a
complete code as regards the management and maintenance of
the institutions or endowments belonging to Deity.
The concept of Hindu religious faith and practice
referred to in the judgments in the narration of the facts
needs preface with inner depth of religion as revealed by
(1) Swami Vivekananda’s scholastic concepts in his "The
Complete Works", Vol I, at page 124; and (2) broad spectrum
of self-realizations by Sri Aurobindo. Swami Vivekananda had
stated that:
"Each soul is potentially divine.
The goal is to manifest this
divinity within by controlling
nature, external and internal. Do
this either by work, or worship, or
psychic control, or philosophy- by
one, or more, or all of these- and
be free. This is the whole of
religion. Doctrines, or dogmas, or
rituals, or books, or temples, or
forms, are but secondary details.
Religion is based upon faith
and belief, and, in most cases,
consists only of different sets of
theories, and that is the reason
why there is difference in form."
Thereafter, at page 341 he had stated that:
"Get rid, in the first place, of
all these limited ideas of God and
see him in every person - working
through all hands, walking through
all feet, and eating through every
mouth. He lives, through all minds
of his thinking. He is self-
evident, nearer unto us than
ourselves. To know this is
religion, is faith, and may it
please the Lord to give us this
faith."
Shri Aurobindo, one of the illustrious revolutionary
patriots and philosophers of Bharat, in his "The Human
Cycle, the Ideal of Human Unity Way and Self-Determination"
had on Chapter XVII ‘Religion as the Law of Life’ elucidated
its real content and purpose thus:
"The absolute and transcendent, the
universal, the One is the secret
summit of existence and to reach
the spiritual consciousness and the
Divine the ultimate goal and aim of
our being and therefore of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 61
whole development of the individual
and the collectivity in all its
activities, reason cannot be the
last and highest guide; culture as
it is understood ordinarily, cannot
be the directing light or find out
the regulating and harmonizing
principle of all our life and
action. For religion is that
instinct, idea, activity,
discipline in man which aims
directly at the Divine, while all
the rest seem to aim at it only
indirectly and reach it with
difficulty after much wandering and
stumbling in the pursuit of the
outward and imperfect appearances
of things. The whole root of the
historic insufficiency of religion
as a guide and control of human
society lies in confusion of
religion with liberty, creed, sect,
cult, religious society are such."
At page 166 he elaborated that:
"It is true in a sense that
religion should be dominant thing
in life, its light and law, but
religion as it should be and is in
its inner nature, its fundamental
law of being, a seeking after God,
the cult of spirituality, the
opening of the deepest life of the
should to the indwelling Godhead,
the eternal Omnipresence. On the
other hand, it is true that
religion when it identifies itself
only with a creed, a cult, a
Church, a system of ceremonial
forms, may well become a retarding
force and there may therefore arise
a necessity for the human spirit to
reject its control vower the varied
activities of life. There are two
aspects of religion, true religion
and religionism. True religion is
spiritual religion, that which
seeks to live in the spirit, in
what is beyond the intellect,
beyond the aesthetic and ethical
and practical being of man, and to
inform and govern these members of
our being by the higher light and
law of the spirit. Religionism, on
the contrary, entrenches itself in
some narrow pietistic exaltation of
the lower members or lays
exclusive stress on intellectual
dogmas, forms and ceremonies, on
some fixed and rigid moral code, on
some religio-political or religio-
social system. Not that these
things are altogether negligible or
that they must be unworthy or
unnecessary or that a spiritual
religion need disdain the aid of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 61
forms, ceremonies, creeds or
systems. On the contrary, they are
needed by man because the lower
members have to be exalted and
raised before they can be fully
spiritualized, before they can
directly feel the spirit and obey
its law."
(Emphasis supplied)
At pages 168-69 he added that:
"Only by the light and power of the
highest can the lower be perfectly
guided, uplifted and accomplished.
The lower life of man is in form
undivided, though in it there is
the secret of the divine, and it
can only be divinished by finding
the higher law and the spiritual
illumination....................The
spiritual man who can guide human
life towards its perfection is
typified in the ancient Indian idea
of the Rishi, one who has lived
fully the life of man and found the
word of the supra-intellectual,
supra-mental, spiritual truth.:
In Chapter XXXIV at pages 541-42, he opined that:
"Humanitarianism has been its most
prominent emotional result.
Philanthropy, social service and
other kindred activities have been
its outward expression of good
works. Democracy, socialism,
pacificism are to a great extent
its by-products or at least owe
much of their vigour to its inner
presence.
The fundamental idea is that
mankind is the godhead to be
worshiped and served by man and
that the respect, the service, the
progress of the human being and
human life are the chief duty and
chief aim of the human spirit. No
other idol, neither the nation, the
State, the family nor anything else
ought to take its place; they are
only worthy of respect so far as
they are images of the human spirit
and enshrine its presence and aid
its self-manifestation. But where
the cult of these idols seeks to
usurp the place of the spirit and
makes demands inconsistent with its
service, they should be put aside.
No injunctions of old creeds,
religious, political, social or
cultural, are valid when they go
against its claim."
At page 543, he mentioned that:
"One has only to compare human life
and thought and feeling a century
or two ago with human life, thought
and feeling in the pre-war period
to see how great an influence this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 61
religion of humanity has exercised
and how fruitful a work it has
done. It accomplished rapidly many
things which orthodox religion
failed to do effectively, largely
because it acted as a constant
intellectual and critical solvent,
an unsparing assailant of the thing
that is and an unflinching champion
of the thing to be, faithful always
to the future, while orthodox
religion allied itself with the
powers of the present, even of the
past, bound itself by its pact with
them and could act only at best as
a moderating but not as a reforming
force. Moreover, this religion has
faith in humanity and its earthly
future and can therefore aid its
earthly progress, while the
orthodox religions looked with eyes
of pious sorrow and gloom on the
earthly life of man and were very
ready to bid him bear peacefully
and contentedly, even to welcome
its crudities, cruelties,
oppressions, tribulations as a
means for learning to appreciate
and for earning the better life."
At pages 546-47, he concluded his thoughts on brotherhood
thus:
"Yet is brotherhood the real key to
the triple gospel of the idea of
humanity. The union of liberty and
equality can only be achieved by
the power of human brotherhood and
it cannot be founded on anything
else. But brotherhood exists only
in the soul and by the soul; it can
exist by nothing else. For this
brotherhood is not a matter either
of physical kinship or of vital
association or of intellectual
agreement. When the soul claims
freedom, it is the freedom of its
self-development, the self-
development of the divine in man in
all his being. When it claims
equality, what it is claiming is
that freedom equally for all and
the recognition of the same soul,
the same godhead in all human
beings. When it strives for
brotherhood, it is founding that
equal freedom of self-development
on a common aim, a common life, a
unity of mind and feeling founded
upon the recognition of this inner
spiritual unity. These three things
are in fact the nature of the soul;
for freedom, equality, unity are
the eternal attributes of the
Spirit. It is the practical
recognition of this truth, it is
the awakening of the soul in man
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 61
and the attempt to get him to life
from his soul and not from his ego
which is the inner meaning of
religion, and it is that to which
the religion of humanity also must
arrive before it can fulfil itself
in the life of the race."
At page 594, he stated as under:
"Later religions gave a name and
some body of form and quality to
the one unknown Godhead and
proclaimed an ideal law which they
gave out as his word and scripture.
But the dogmatism of a partial and
unlived knowledge and the external
tendencies of the human mind
darkened the illuminations of
religion with the confusions or
error and threw over its face
strange masks of childish and cruel
superstitions. Religion too by
putting God far above in distant
heavens made man too much of a worm
of the earth, little and vile
before his Creator and admitted
only by a caprice of his favour to
a doubtful salvation in supar human
words. Modern thought seeking to
make a clear riddance of these past
conceptions had to substitute
something else in its place, and
what it saw and put there was the
material law of Nature and the
biological law of life of which
human reason was to be the faithful
exponent and human science the
productive utilizer and profiteer.
But to apply the mechanical
blindness of the rule of physical
Nature as the sole guide of
thinking and seeing man is to go
against the diviner law of his
being and maim his higher
potentiality. Material and vital
Nature is only a first form of our
being and to overcome and rise
beyond its formula is the very
sense of a human evolution. Another
and greater Power than hers is the
master of this effort, and human
reason or human science is not that
Godhead, but can only be at best
one and not the greatest of its
ministers."
Dr. S. Radhakrishnan, the philosopher - President of India,
had stated, as quoted by this Court in Shirur Math’s case,
that religion is a specific attitude of self, itself no
other, though it is mixed up generally with intellectual
views, aesthetic forms and moral valuations. Religion is
absolutely a matter of faith with individuals or communities
and it is not necessarily theistic.
Taittiriya Upanishad says in Brahmananda Valli, Serial
No. 7, that in the beginning all this Universe was Non-
Existent and Un-manifest, from which this Manifest Existence
was born itself, none other created it. Therefore, they say
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 61
that it was well and beautifully made. Shri Aurobindo says
in his magnum opus Life Divine: World-existence is the
ecstatic dance of Shiva which multiplies the body of the God
numberlessly to the view; it leaves that while existence
precisely where and what was, ever is and ever will be; its
sole absolute subject is the joy of the dancing. In Rig
Veda, the Hymns of Bharadwaja, spoke about universal Force
that "The heights of heaven were measured into form by the
eye of this universal Force, they were shaped by the
intuition of the Immortal."
The world is the creation of the brhat conscient energy
of the Supreme Spirit "apraketam salilam sarvam idam tapasas
tan mahina ajayata ekam". (Out of all the ocean of
inconscience it is that one spiritual Existent who is born
by the greatness of his own energy). Braht Vedic thinkers,
like ancient Greeks, in their search for the first ground of
all changing things, looked upon water, air, fire etc. as
the ultimate elements out of which the variety of the world
is composed. In the pluralistic stage several Gods like
Pavana, Indra, Agni etc. were looked upon as the authors of
universe. In monoistic philosophy there exist unsolved
question whether God created world out of His own nature and
its existence is an absolute reality which we cannot call it
either as existent or non-existent. For to Deussen the
central Uphanishadic thought declares that the world in
space and time is an appearnce, an illusion, a show of God.
To know God, we must reject the world of appearance. What
inclines Deussen to this view in his own belief that the
essence of every true religion is the repudiation of the
reality of the world. Having come to that conclusion on
independent grounds, he is anxious to find support, as Prof.
S. Radhakrishnan argues, for his doctrine in the philosophic
systems of ancient India, the Upanishads and Sankara,
ancient Greece, Parmenides and Plato, and modern Germany,
Kant and Schopenhauer. Shri Aurobindo conceived of the
Absolute Reality, as a triune principle thus: "The Absolute
Reality is the Satchidananda, that is, Existence-
Consciousness Force-Bliss. The Absolute as a Pure existent
is no doubt the fundamental reality, but movement, energy,
process is equally a reality".
The fundamental desire of man to make peace with His
inner-self and bring to bear an experience of transmutation
of the current personality into a vibrant, center of energy
of deep fulfillment and happiness. Article 25 [1] of the
Constitution guarantees freedom of conscience and right to
freely profess, practise and propagate religion. To what
extent inner layers of religion in the Hindu dharma are
protected by Articles 25 and 26 is the core question from
which a deduction could be drawn whether the Act interferes
with them violating Articles 25 [1] and 26.
The very attempt to define religion to find some
distinct or possible unique essence or set of qualities that
distinguish religion from the remainder of human life, is
primarily a Western speculative, intellectualistic and
scientific disposition. It is also the product of the
dominant Western religious mode or custom of religious
people. Even the Western thinkers recognize their cultural
bias in the concept of religious assumptions of theism
permeating their thought. Encyclopedia of Religion by Mircea
Eliasde [Vol.12] states that religion is the organization of
life around the depth dimensions of experience - varied in
form, completeness, and clarity in accordance with the
environing culture. If religiousness is a depth-awareness
coming to distinctive expression in the forms we call
religion, how is religiousness distinguished from various
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 61
other types of awareness such as the aesthetic and ecstatic
- what Abraham Maslow [1964] calls "peak experiences" and
Marghanita Laski [1961] terms "non-religious ecstasy" - and
the states of "altered consciousness" produced by various
psychosomatic techniques or drugs? On Hindu religion, at
page 290 it is stated that "yet deep within ritualism there
is inherent the concern for accuracy and faithfulness. This
is the essentially sacramental nature of ritual that arises
from its nature as an ordered symbol system. Thus both
symbol and ritual are perceived as intrinsic embodiments of
the sacred essence, the supersensible and indescribable
ultimate of a religion. Thus ritual and symbol bring the
real presence of the religious depth-dimension into the
lives of its experiments and in so doing become incredibly
precious".
At page 292, it is further stated under the caption
"Religion and Modernity" that "the question whether
religion, at least, in its traditional forms, will survive
the ongoing cultural changes of modern times is often
discussed. Certainly many traditional and current
formulations, and perhaps entire traditions, will radically
change or even disappear. Yet it also seems that as soon as
one form of religion disappears, another rises to take its
place". Without asserting a religious instinct in mankind,
it may perhaps be said that man is incessantly religious in
one way or another and that the human situation and human
nature make it inevitable so. The immense mysteries and
uncertainties of the world and man’s own inquiring and
evaluating self-consciousness make inevitable a reaching out
for some sort of ultimate values and realities - which is
yet another name for the religious quest.
Religion is thus eternal and in development is in
search of God throughout history, building into a fuller
religious life. The eternal religion remains unchanging but
the form and content keep changing with the change of times
with the experience of the past keeps to preserve to the
fullest religious life. But as Shri Arobindo put it the
religiousness of man descends him into lower levels and due
to confusion predominance is given to forms like rituals
etc. So John Macmurray in "Reason and Emotion" [Faber and
Faber Publication] at page 40 states thus:
"...religion is also the
consciousness of life in God; that
which we seek for is also there
always eternally in us. It is this
eternal aspect of religion which is
expressed in the religious
recognition of equality in all
human life at any stage of its
development; in the knowledge that
all distinction of superiority and
inferiority are relative
distinctions; and that ultimately
all persons and all personal
experience are of equal, because of
eternal or infinite, worth. Just so
in love between two persons, if it
is a real love, there is a sense in
which it is always perfect and
complete, and this, as we know very
well, is not in contradiction with
the fact of development in that
love; it is indeed, the condition
of the development".
Julian Huxley in his "Evolution After Darwin" Vol. III page
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 61
259 under the subject "The Evolutionary Vision" has stated
thus:
"Once we truly believe...that man’s
destiny is to make possible greater
fulfillment for more human beings
and fuller achievements by human
societies, utility in the customary
sense becomes subordinate. Quantity
of material production is, of
course, necessary as the basis for
the satisfaction of elementary
human needs-but only up to a
certain degree. More than a certain
number of calories of cocktails or
T.V. sets or washing machines per
person is not merely unnecessary,
but bad Quantity of material
production is a means to a further
end, not an end in itself.’
The Upanishads teach us that India has sought in religion
not an absolute or finished dogma to believe in, but a
method and means to pierce the veil that hides every present
meaning and mystery of existence. Robert Ernest Hume in his
"the Thirteen Principal Upanishads" at page 30 footnote
states that "the earnestness of the search for truth is one
of the delightful and commendable features of the
Upanishads".
Swami Vivekananda in his lecture on "Religion and
Science" incorporated in "The Complete Works" [Vol.VI, Sixth
Edition] had stated at page 81 thus:
"Experience is the only source of
knowledge. In the world, religion
is the only science where there is
no surety, because it is not taught
as a science of experience. This
should not be. There is always,
however, a small group of men who
teach religion from experience.
They are called mystics, and these
mystics in every religion speak the
same tongue and teach the same
truth. This is the real science of
religion. As mathematics in every
part of the world does not differ,
so the mystics do not differ. They
are all similarly constituted and
similarly situated. Their
experience is the same; and this
becomes law."
In Volume II, Ninth Edn. at page 432, Swamiji said that :
"There are two worlds: the
microcosm and the macrocosm, the
internal and the external. We get
truth from both these by means of
experience. The truth gathered from
internal experience is psychology,
metaphysics and religion; from
external experience, the physical
sciences. Now a perfect truth
should be in harmony with
experience in both these worlds.
The microcosm must bear testimony
to the macrocosm and the macrocosm
to the microcosm; physical truth
must have its counterpart in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 61
internal world, and internal world
must have its verification
outside;"
Swami Vivekananda in his "The Complete Works" Vol.1,
Eleventh Edn. at page 366 said that:
"The foundations have all been
undermined; and the modern man,
whatever he may say in public,
knows in the privacy of his heart
that he can no more "believe",
believing because it is written in
certain books, believing because
people like him to believe, the
modern man knows it to be
impossible for him. There are, of
course, a number of people who seem
to acquiesce in the so-called
popular faith but we also think.
Their idea of belief may be better
translated as "non-thinking
carelessness". This fight cannot
last much longer without breaking
to pieces all the buildings of
religion".
x x x x x x
"Is religion to justify itself by
the discoveries of reason, through
which every other science justified
itself? Are the same methods of
investigation, which we apply to
sciences and knowledge outside, to
be applied to the science of
religion? In my opinion this must
be so, and I am also of opinion
that the sooner it is done the
better. If a religion is destroyed
by such investigation, it was then
all the time unless, unworthy
superstition; and the sooner it
goes the better. I am thoroughly
convinced that its destruction
would be the best thing that could
happen. All that is dross will be
taken off, no doubt, but the
essential parts of religion will
emerge triumphant out of this
investigation. Not only will it be
made scientific-as scientific, at
least, as any of the conclusions of
physics or chemistry-but will have
greater strength, because physics
or chemistry has not internal
mandate to vouch for its truth,
which religion has."
Swami Vivekananda in his "The Complete Works", Vol. VI,
Sixth Edn. at page 81 said that:
"Religion deals with the truths of
the metaphysical world just as
chemistry and the other natural
sciences deal with the truth of the
physical world. The book one must
read to learn chemistry is the book
of (external) nature. The book from
which to learn religion is your own
mind and heart. The sage is often
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 61
ignorant of physical science
because he reads the wrong book-the
book within; and the scientist is
too often ignorant of religion
because he, too, reads the wrong
book-the book without."
Again in his The Complete Works, (Vol.V, Eight Edn.), pages
192-93, he says that:
"The basis of all systems, social
or political, rests upon the
goodness of men. No nation is
greater or good because Parliament
enacts this or that, but because
its men are great and good. ...
Religion goes to the root of the
matter. If it is right, all is
right ... One must admit that
law, government, politics are
phases not final in any way. There
is a goal beyond them where law is
not needed..... All great Masters
teach the same thing. Christ saw
that the basis is not law, that
morality and purity are the only
strength."
From that perspective, this Court is concerned with the
concept of Hindu religion and dharma. Very often one can
discern and sense political and economic motives for
maintaining status quo in relation to religious forms
masquerading it as religious faith and rituals bereft of
substantial religious experience. As sure, philosophers do
not regard this as religion at all. They do not regard this
as religion at all. They do not hesitate to say that this is
politics or economic masquerading as a religion. A very
careful distinction, therefore, is required to be drawn
between real and unreal religion at any stage in the
development and preservation of religion as protected by the
Constitution. Within religion, there is an interpretation of
reality and unreality which is completely different
experience. It is the process in which ideal is made rule.
Thus perfection of religious experience can take place only
when free autonomy is afforded to an individual and worship
of the infinite is made simpler, direct communion, the
cornerstone of human system. Religion is personal to the
individual. Greater the law bringing an individual closer to
this freedom, the higher is its laudable and idealistic
purpose. Therefore, in order that religion becomes mature
internally with the human personality it is essential that
mature self-enjoy must be combined with conscious knowledge.
Religious symbols can be contra-distinguished from the
scientific symbols and both are as old as man himself.
Through scientific symbols there can be repetition of
dogmatism and conviction of ignorance. True religion
reaching upto the full reality of all knowledge, believes in
God as the unity of the whole.
According to Hindu belief, Vishnu as preserver is
stated to take five forms, viz, Para, Vyuha, Vibhava, Arca
and Antaryamin. Para is the transcendental form. Vibhava
includes the ten divine descends [avatara] and also thirty
nine forms which He takes from time to time. Arca represents
God in the form of idol, which He though formless, takes
this finite form to show favour to His devotees. The form of
Antaryamin is to remain within the self and control it by
directing it to lead a virtuous way of life, in accordance
with the residues of the deeds done by it. Temple,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 61
therefore, forms an integral part of Hindu religion and the
idol installed therein forms the main symbol of religious
worship manifesting the dignity of God.
The purpose of religious experience, as stated earlier,
is to integrate human life, socially, materially and
morally. It must, therefore, produce a share of material
goods and bear a pinnacle for human experience. The dualism
of Spirit and Matter, should be kept clear. John Macmurray
has stated in this behalf thus:
"Worship is certainly specifically
religious, and it is an attitude of
mind which is not compatible with
science. Science does not worship,
It enquires, and analyses,
classifies and does sums. On the
other hand, religion is not merely
worship; and worship may be merely
superstitious. If superstitious
worship is religion, then astrology
and palmistry are sciences.
Religion cannot simply sit down and
worship anything and everything; it
must claim reality for what it
worships; and it must made some
statement about this reality and
assert not merely that it is true
but that it is supreme truth. A
religious temper which is
indifferent to any truth,
scientific or otherwise, it ipso
facto, superstitious. Religion is
not merely the worship of God, but
the knowledge of God, for if it
does not known its God then God is
a figment of the imagination and it
worships it knows not what. All
honest religion necessarily
involves a strenuous effort to know
the supreme reality, and the
knowledge of God must involve all
knowledge in its scope."
(John Macmurray: Reason & Emotion,
Faber & Faber).
The ultimate experience of
religious consciousness is
described beautifully in Audi
Shankara’s Shri Daksinamurti
Stotram wherein the expression:
"Darpanadrisyamananagari" is used.
The expression refers to the
teacher showing a reflection of a
city as seen in a mirror. In
Panchadasi, XIII - 101, the sloka
says:
Nishchhidra Darpne Bhati
Bastugarbham Brihat-jagat, Satchit
Sukhe Tatha Nana jagadgarbhamidam
Biyat.
(In a flawless mirror, the
expansive space with all the things
in it, is seen. Similarly, in this
mass of Existence and Consciousness
is seen this space comprising the
variegated universe.)
Religious experience is a general nature. All manifestation
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 61
of religious experience to whatever organized religion they
belong are ultimately co-experiences by which the mind is
stilled, purified, the prana controlled and by which
"parmeshwarachaitanya" appears. In manasollasa (ix: 21-3-)
it has been observed that :
Chitte nishchaltan yate prano
bhawati nishchallah Chittshya
nishchal twaya yogam
sadhyamavyaset.
The above ‘shloka’ says that the signs such as the control
over the five elements and the siddhi are indicative of the
progress in the path leading upto the various ways in which
the bimbarupa, i.e., the parmesvara-chaitanya appears.
It is also useful to recollect the beautiful shloka in
the Geeta where Lork Krishna says:
Ananyash Chintayanto man ye janah
paryupaste Tesham nityabhiyuktnam
yogakshmeam Bahamyaham.
(those men, who, meditating on
Me as non-separate, worship Me all
round - t them who are ever devout,
I secure gain and safety.)"
Thus there can be no doubt that religious experience is an
internal experience and the Deity in a temple is supposed to
provoke that inner experience. The image of the Lord in a
temple, after prana pratishtha is done, is a center of
reference, a symbol of the Great Consciousness whose
attainment is ultimately the pinnacle of religious
experience. The nature of a religious experience can be
shadowgraphed by peace, tranquility and joy ‘that passeth
understanding’. It would also be relevant to note that a
temple based upon any ‘sampradaya’ must resemble a true
symbol of the Infinite Grace, the nature of which is rightly
called as a the amalgam of being, consciousness and bliss.
That is why in Manasollasa (ix-47) it has been said:-
Sachchidanandrupai
Bindunadantaratmane
Adimadhyantshunyay Gurunam Gurbe
Namah.
(Obesance to Him, the Guru of
the Gurus who is Being,
Consciousness and Bliss; who dwells
in Bindu and Nada; who has no
beginning, middle or end.)
Material fruits, namely, sons, grand sons, houses, lands,
money, grain, all in plenty which accrue in Swaraga are
considered to be lesser benefits and lesser lights to
achieve in comparison to the true empire, namely, the
identity of the Self with the Supreme Being (Slokas X-2, 3,
19 and 21 Manasollasa).
According to Hindu belief, worship of God is of four
kinds, viz., Japa-chanting Gayatri mantras (sloka) or
Asthakshara; Homa - giving oblation into the fire; Archana -
worship of God in the form of Idol in the temple; and Dhyana
- concentration on God alone. Of these four, Archana gained
an established form of worship in temple.
The reason for adorning a Deity image in a temple,
therefore, is to produce chitta suddhi generating and
ensuring the necessary emotion for the sustenance as
‘tatparata’, the Supreme Devotion, parabhakti, which is the
‘abhedbhavana,’ culminating in the attainment of
‘sarvatmatva,’ thus in itself becoming.
How does this great spendid religious experience
transform the life of a man form a mere temporal pursuit of
limited vision into an expanasive pursuit of equality,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 61
seeing one’s own self in the others and ultimately losing
one’s ego and dissolving it into the subaudited symphonic
testament of love, joy and peace? The ascent form an
empirical experience of personal life which is the first
assertion of a religious experience is to be followed right
up to the stage of mutual communion, i.e., of the individual
self with relationship outside becomes inevitable.
John Macmurray once again in "Reason and Emotion" says
thus:
There is, then, a definite field of
empirical experience which is the
field of religion. It is the field
of personal life - not, of course,
the field of individual isolation.
When Professor Whitehead says that
religion is what a man does with
his solitariness he is saying what
is almost the reverse of the truth;
although he is, unlike many
philosophers, moving in the right
universe of discourse. Religion is
what a man makes of his personal
relationships. This field of
personal relationships is the
center of every human life. That is
a mere statement of fact. But it
does not follow that every human
life realizes itself religious
nature. In his personal
relationships a man is in the field
of religion. Whether he achieves
reality in this field depends on
whether he is able to achieve
objectivity and mutuality. We may
live in relation to other persons
as if the relation were not a
personal one, it always is
personal, whatever we do about. But
we may behave as if it were not.
All failure of this kind is a
failure to realize in action - and,
consequently, in reflection - the
real nature of the relationship
between persons. It involves the
loss of personal objectivity. In
relation ship to another person we
isolate ourselves and so fall into
subjectivity and become
individualists. When that happens,
the relationship is treated in
action and in thought as of a sub-
personal type. There are two
possibilities. One is that the
relation is treated as of the
material type; in which case the
other individual is treated as an
instrument or a means. Slavery is
the crudest form of this type of
unreality in personal
relationships, but it includes any
relationship in which individuals
use one another as instruments. The
second type of unreality falsifies
the personal relationship by making
it organic. In that case the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 61
relationship is treated as
functional and becomes a co-
operation for the achievement of a
common purpose. Any conception of
human relationships which grounds
them upon the existence of a common
purpose which each serves in his
own way involves unreality o this
type. Such conceptions of human
relationships are properly
described as irreligious, because
they deny the reality of the
relationship as a communion of
persons. It is not enough to insist
that human nature is essentially
social, since society may take any
of these forms. What makes the
society real is that the relations
between the persons concerned are
essentially religious, that is to
say, grounded in mutual communion,
and the equality which this
implies. For without equality,
there can be no mutuality. I do not
mean, of course, that in a true
society organic and material
relationships between persons are
non-existent, but only that they
are dependent relations falling
within and grounded in the relation
of friendship. The material and the
organic are unreal in independence.
Their reality lies in their
dependence upon the personal and
their inclusion within it."
The author very beautifully describes the experience of God
thus:
"The dualism of mind and matter
reflects itself all too easily in
the dualism between secular and
sacred, natural and supernatural,
the human and the divine. The
result is that we think of God as
isolated from the world and,
therefore, that the religious life
involves a turning away from man to
God, from this world to another
world, so that religion becomes
something apart, instead of the
fundamental activity of human life.
But now, having made that point
clear, I should like to indicate in
closing how essential to the view
that I have outlines is the idea of
God. All experience at any level is
the experience of the finite in the
infinite. Even a triangle, as
Spinoza pointed out, can only be
seen, or imagined, as a limitation
of infinite space. At the material
level, we apprehended all materials
objects as finite and dependent
upon the material infinite. This is
not matter of reflection but of
immediate common experience.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 61
Similarly we apprehend all
organisms as finite dependents of
infinite life. And when we come to
the personal field it is not
different. I have already insisted
that our apprehension of our
dependence upon what is not
ourselves. We can now see that it
is an apprehension of our own
dependence and the dependence of
all other finite persons upon
infinite personality. God as
infinite personality is the primary
natural experience of all persons.
One might almost say, if it were
not for the traditional limitation
of our use of language, that God is
the first perception."
The experience of God is not simply a transcendental
doctrine (theologia transcendentalis), it is not simply an
unregulated usage for satisfaction of the intellect but is
an affirmative experience. Even Kantian believers who
conceive God as supreme and absolute perfection, find in
Indian philosophy that religion is not the subject matter of
inclusion or exclusion by the process of rational psychology
but the subject matter of human experience. On the
conception of God as supreme and absolute perfection in a
brilliant summary of Kant’s philosophy Frederick Copleston,
S.J. in Volume VI; (A History of Philosophy) says:
"We have, therefore, three
principal Ideas of pure reason,
namely, the soul as permanent
substantial subject, the world as
the totality of casually related
phenomena, and God as absolute
perfection, as the unity of the
conditions of objects of thought in
general. These three Ideas are not
innate. At the same time they are
not derived empirically. They arise
as a result of the pure reason’s
natural drive towards completion
the synthesis achieved by the
understanding. This does not mean,
as has already been mentioned that
the pure reason carried further the
synthesizing activity of the
understanding considered as
constituting objects by imposing
the a priori conditions of
experience known as the categories.
The Ideas of pure reasons are not
‘constitutive’. But the reason has
a natural drive towards unifying
the conditions of experience, and
this it does by proceeding to the
unconditioned. in the three forms
already mentioned. In doing this it
obviously passes beyond experience.
Hence the Ideas of the pure reason
are called by Kant ‘transcendental
Ideas’, though he later goes on to
speak of the third Idea, that of
God, as the ‘transcendental Ideal’.
For God is conceived as supreme and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 61
absolute perfection."
Johnson said rightly that sublimate is produced by
aggregation and not by dispersion. In that lies a great
truth. It must not be forgotten that all rituals ultimately
are only means to the state of knowledge. Thus seers and
thinkers have in fact reduced rituals to the bare minimum
and sometimes even decried them because a non-essential
adherence to them is only bound to be an obstacle or
impediment in the attainment of true knowledge. It would be
very useful to note that if religious experience is an
internal experience, rituals beyond evoking the necessary
environment and atmosphere and as it were painting sea scope
of purity must yield to the unrelenting pursuit of true
knowledge which is identical with true religious experience.
The pursuit of knowledge, the knowing of the being, eve, has
been described by eminent philosophers as incapable of
sustaining observance of rituals. The belief is that
observance of rituals and the devotion to true knowledge
cannot co-exist.
Shri Acharya Pada in the Sarva Vedantha Sidhanta
shlokas 857-862 says:-
Gyan nistha tatparasya nait
karmopyujyate Karmano Gyan
nishthaya na sahsthiteh Paraspar
Birudhyatwat Tayor Hhinna
Swabhhbaiyoh Kartitwa Bhawana
Purbam karm gyanam vilakshanam
Dehatma-bvudherbichhitye gyanam
karm Bibridhaye Agyanam Mulakam
Karm Gyanantu bhai nashkam. Gyanen
karmano yogah katham sidhyati
berina Sahyogo na ghatate yatha
timirtejsoh Nimeshonmesyorwape
tatheb gyan karmnoh Pratichi
Pashyatah punshah kutah
prachibeloknam Pratyam
Pravamchittasya Kutah Karmani
yogyata.
(When the mind becomes
motionless, in that case, the life
also becomes unmovable. Hence the
yoga with meditation should be
practised for the control of chita
(mind). One devoted to the pursuit
of knowledge no longer remains fit
for action. The co-existence of
knowledge and action is not to
succeed. Due to their being
mutually contradictory in nature,
involvement in action with a sense
of self-performance causes the
absence of knowledge. But the
renouncement of the sense of
bodily-self, goes for the promotion
of knowledge. The action and
knowledge emanating from the
ignorance, are destroyers of both.
How there can be the union of
knowledge and action inasmuch as
they are incompatible? It is
impossible to conjure darkness and
light together, one at the same
time. The knowledge and action
cannot be combined. Likewise one
cannot keep one’s eyes closed and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 61
open at the same time, one who is
looking western side, cannot see
towards eastern direction.
Whereform there can be the
competence for work or action when
one’s heart and soul is set on the
devotion of knowledge in opposite
direction.)
It thus follows that to one who is devoted to the pursuit of
knowledge, the observance of rituals is of no use since the
observance of rituals and the devotion of knowledge cannot
co-exist. There is considerable incompatibility between
knowledge and rituals inasmuch as their natures are entirely
antithetical. It is only he who regards himself as the agent
of action that can perform the rituals; but the nature of
knowledge is altogether different and it dispels all such
ideas. All the wrong ideas beginning with the identification
of Self with the physical body etc., are eradicated by
knowledge, while they are reinforced by action. Ignorance of
Atman is at the root of action, but the knowledge of Atman
destroys both. How is it possible for one to perform the
prescribed rituals while engaged in the pursuit of knowledge
inasmuch as they are incompatible! It is as much impossible
as the co-existence of light and darkness. One cannot keep
one’s eyes open and closed at the same time. It is equally
impossible to combine knowledge and rituals. Can one who is
looking westward look eastward? How is one whose mind is
directed towards the innermost Atman fit to take part in
external activities?
In the celebrated Gitabhashya (XVIII-55) Sri
Acharyapada says:-
Na hi purpsamudram jigmisoh
Pratilomyen Pratyaksamudram
Jigmisuna Saman Margtwam Sambhati.
Pratyagatma-bisai-Pratyaya santan
karmabhinibeshashch Gyannistha, Sa
cha Pratyaksamudragamanvat Karmana
Sahvabitwen birudhyati. Parbat
Sarsapyoribantarbani birodhak
Pramanwidam Nishchitah. Jasmat
Sarbkarmsanyasenaib Gyananistah
karya iti sidham.
The meaning being:
"He who wishes to reach the
eastern ocean should not indeed
travel in the opposite direction
i.e. by the same road as the one
chosen by the person who wishes to
go to the western ocean. And the
devotion to knowledge consists in
an intent effort towards
maintaining a continuous stream of
the consciousness of the Inner
self. There would be contradiction
if it were to be conjoined with
ritual which is like going towards
the western ocean. It is a firm
conviction of experts in the
pramanasastra that the difference
between the two is as wide as that
between a mountain and a mustard
seed. Hence the conclusion that the
devotion to knowledge is to be
adhered to only by renouncing all
action."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 61
The truth of religious experience is that true knowledge is
an indication of a complete understanding of contradictions,
just as physics, which means study of simple things, yet
appears to be a complicated subject. A beautiful
illustration finds place in Richard Dawkins’s passionate
(Darwanian) book named "The Blind Watchmaker":-
"I said that physics is the study
of simple things, and this, too,
may seem strange at first. Physics
appears to be a complicated
subject, because the ideas of
physics are difficult for us to
understand. Our brains were
designed to understand hunting and
gathering, mating and child-
rearing; a world of medium sized
objects moving in three dimensions
at moderate speeds. We are ill-
equipped to comprehend the very
small and the very large things
whose duration is measured in
picoseconds or gigayears, particles
that don’t have position, forces
and fields that we cannot see or
touch, which we know of only
because they affect things that can
see or touch. We think that physics
is complicated because it is hard
for us to understand, and because
physics books are full of difficult
mathematics. But the objects that
physicists study are still
basically simple objects. They are
clouds of gas or tiny particles, or
lumps of uniform matter like
crystals, with almost endlessly
repeated atomic patterns. They do
not, at least by biological
standards, have intricate working
parts. Even large physical objects
like stars consists of a rather
limited array of parts, more or
less haphazardly arranged. The
behavior of physical, non-
biological objects is so simple
that it is feasible to use existing
mathematical language to describe
it, which is why physics books are
full of mathematics."
No wonder, the concept of justice too based on a sense of
equality, whether distributive or corrective, always carries
with it a connotation of a sacred and religious
dispensation. If ultimately the Atman which resides in all
beings is that one auspicious and pure which alone remains
over, there can be no manner of doubt that all beings are
necessarily equal. The Atman, irrespective of the body and
its temporal abode with attendant of earthly appellations,
is the same for all. It is described by Shri Shri
Acharyapada in the opening verse of the Dasasloki:-
Aibam Samanyatoahan Pratyayasidhe
Chidatmani vadivipratipattebhih
samdidhe, aham pratyayasalambam
Visheshnirnayayah Vagwanacharyah:
Na Bhumirna Toyam Na Vayur na
Kham Nendriyam Na Tesham Samuhah.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 61
Anekantikatwatsushuptyek Sidhah
Stadekkobashishtah Shivah
Kewaloham.
"I am neither the earth, nor
the water, nor the fire, nor the
air, nor the space, nor any organ,
nor their aggregate, because they
are variable by nature, while Atman
is that whose existence is proved
by the unique experience of deep
sleep. I am that One, Auspicious
and Pure which alone remains over.
The concept of ‘dharma’ has been explained by Justice M.
Rama Jois in his Legal and Constitutional History of India
[Vol.I] at pages 1 to 4 thus:
"Mahabharata contains a discussion
of this topic. On being questioned
by Yudhistira about the meaning and
scope of Dharma, Bhishma stated:
Tadrishoayamanu Prashno yatra
Dharmah Sudurlabhah
Duskarah Pratisamkhyatum
Jatkenatra Vyavasyati
Prabhavarthai Bhutanam
Dharmapravachanam
Kritam
Yah Syatpravabe Sanyuktah sa Dharma
Iti
Nishchayah.
It is most difficult to define
Dharma. Dharma has been explained
to be that which helps the
puliftment of living beings.
Therefore that which ensures
welfare (of living beings) is
surely Dharma. The learned rishis
have declared that which sustains
is Dharma.
Taittiriya Samhita states:
Dharma Vishwasya Jagatah Pratistha
Loke Dharmistham Praja upsarpanti
Dharmen Papamapnudati
Dharme sarban Pratisthitam
Jasmed Dharman param Badanti.
Dharma constitutes the
foundation of all affairs in the
world. People respect one who
adheres to Dharma. Dharma insulates
(man) against sinful thoughts and
actions. Everything in this world
is founded on Dharma. Dharma,
therefore, is considered supreme.
Jaimini 1.2:
Sa hi Nihshraisen Purusam
Sanyunakteeti Pratijanimahe
Tadabhidheeyate Chodana
Lakshanartho
Dharmah.
Dharma is that which is
indicated by the vedas as conducive
to the highest good.
Madhavacharya, the Minister to
Hakka and Bukka, founder kings of
Vijayanager Empire, in his
commentary on Parashara Smriti, has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 61
briefly and precisely explained the
mening of Dharma as follows:
Abhyudaya Nihshraise
Sadhantwen Dharayate - Iti Dharmah.
Sa Cha Lakshan-Pramabhyam
Chodanasutrairvyavasthapitah.
Dharma is that which sustains
and ensures progress and welfare of
all in this world and eternal bliss
in the other world. The Dharma is
promulgated in the form of
commands.
Therefore, Dharma embraces every type of righteous conduct
covering every aspect of life essential for the sustenance
and welfare of the individual and the society and includes
those rules which guide and enable those who believe in God
and heaven to attain moksha (eternal bliss). Rules of Dharma
are meant to regulate the individual conduct, in such a way
as to restrict the rights, liberty, interest and desires of
an individual as regards all matters to the extent necessary
in the interest of other individuals, i.e., the society and
at the same time making it obligatory for the society to
safeguard and protect the individual in all respects through
its social and political institutions. Shortly put, Dharma
regulates the mutual obligations of individual and the
society. Therefore, it was stressed that protection of
Dharma was in the interest of both the individual and the
society. A ‘State of Dharma’ was required to be always
maintained for peaceful co-existence and prosperity of all.
Though Dharma is a word of wide meaning as to cover the
rules concerning all matters such as spiritual, moral and
personal as also civil, criminal and constitutional law, it
gives the precise meaning depending upon the context in
which it is used. When Dharma is used in the context of
duties of the individual and powers of the King (the State),
it means constitutional law [Rajadharma]. Likewise when it
is said theat Dharmarajya is necessary for the peace and
prosperity of the people and for establishing an egalitarian
society, the word Dharma in the context of the word Rajya
only means law, and Dharmarajya means Rule of Law and not
rule of religion or a theocratic State. Dharma in the
context of legal and constitutional history only means
Vyavahara-dharma and Rajadharma evolved by the society
though the ages which is binding both on the king [the
ruler] and the people [the ruled].
In "Religion and Society in Ancient India" Prof. Om
Prakash [1985 Edition] has stated that the concept of dharma
aims to maintain orderly society regarding every human being
as the creation of God and treating him on a footing of
equality. Th least rehyme of the Rig Veda throws light on
the Rig Veda concept of dharma laying down "that all human
beings should move together, speak together and their minds
be of one accord". Samgachhdhwam Sambaddwam Sambo Manasi
Sanatnam Deva Bhagan Yathaturbe Sanjananam Upasate - Rv.X,
191, 2.] At page 5, he states that the concept of dharma was
not static. Its content changes with the changing contexts
of time, place and social environment. Dharma is that which
holds together all living beings in a harmonious order.
Virtuous conduct contribute to social welfare and vice is
its bane. In the Sutra literature both these aspects of
dharma are discussed under four sections which he elaborated
in his book. At page 8, the author states that "the above
discussion makes it clear that dharma in India does not
force men into virtue but trains them for it. It is not a
fixed Code of mechanical rules but a living spirit which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 61
grows and moves in response to the development of the
society. Even the State in India is a swervant of dharma. It
was not above morality. Its function is not to alter or
annul dharma but only to administer it. Dharma is essential
because it promotes individual security and happiness as
well as the stability of the social order".
In "Dharma - a Legal Discipline - Select Speeches and
Writings of Dr. Shankar Dayal Sharma, the present President
of India [Indian Bar Review Vol.XX (3&4) 1993 Special Issue]
in his Centenary Speech of Swami Vivekananda in the
Parliament of Religions, he emphasised "time-honoured
philosophy of oneness and harmony within pluralism, the
recognition of, respect for, and acceptance of different
paths of logical and intuitive access to Absolute Truth". He
reiterated what Swami Vivekananda had said one century ago
at Chicago: "We believe not only in universal toleration,
but we accept all religions as true" and concluded that "if
India is to grow to her full potential as a strong, united,
prosperous nation, a nation attuned to the highest moral and
ethical values, true to the genius of her cultural and
spiritual heritage, we shall all have to strive each day to
build harmony, justice and creative endeavour. Indeed, in a
very real way, it is our duty so to strive". He exhorted the
youth of the country to be the vanguard of that mission.
In his Dr. Zakir Hussain Memorial Lecture delivered at
Visva Bharati Shanti Niketan on 29th April, 1989, Dr. S.D.
Sharma stated thus:
"We in India, however, understand
Secularism to denote ‘Sarva Dharma
Samabhava’: an approach of
tolerance and understanding of the
equality of all religions".
x x x x x
The Bhagwad Gita indicates
this explicitly in the following
Shlokas:
Ye yatha main prapadyante
tamptathaiva bhajamy-aham pama
vartmuvartante manusyah nartha
sarvasag
In whatever way men identify
with Me, in the same way do I carry
out their; men pursue my path, in
all ways. (Bh.G.IV.11)
Yo yo yam yam tanum bhaktah
Sraddhayarcitumicchati. Tasya
tasyacalam sraddhan tam-eva
vidhamyaham)
Whatever form any devotee with
faith wishes to worship. I make
that faith steady. (Bh.G.:VII.21)
This philosophical approach of
understanding, co-existence and
tolerance is the very spirit of our
ancient thought. The Rig Veda
enjoins :
Samagacchadhvam Samvedadhavam
Sam Vo Manamsi Janatam Deva Bhagam
Yatha Purve Samajanna Upasate.
(Rg. Veda 10.191.2)
"Behave with others as you
would with yourself. Look upon all
the living beings as your friends,
for in all of them there resides
one soul. All are but a part of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 61
that universal soul. A person who
believes that all are his soulmates
and loves them all alike never
feels lonely. Divine qualities of
such a person such as forgiveness,
compassion and service, will make
him lovable in the eyes of his
associates. He will experience
intense joy throughout his life".
The Yajurveda states:
Mitrasaya ma caksusa Sarvani
Bhutani Samiksantam. Mitrasyacham
caksua sarvani bhutani samikse.
Mitrasya caksusa samiksamahe.
(Yaju. Veda 38.18)
"May all beings look on me
with the eyes of a friend; May I
look on all beings with the eyes of
a friend. May we look on one
another with the eyes of a friend."
In his address "Law & Morality Sustain the World" delivered
on 25th September, 1993 at the First Convocation of the
Nation Law School of India University, Bangalore, Dr. S.D.
Sharma expounded the meaning of ‘dharma’ thus:
"What does Dharma mean? The word is
clearly derived from the root
‘Dh.r’- which denotes: ‘upholding’,
‘supporting’ ‘nourishing’ - that
which upholds is Dharma. In the
Vana Parva of the Mahabharata,
Verse-58 in Chapter 69 (Dharma is
for the stability of society, the
maintenance of social order and the
general well-being and progress of
humankind. Whatever conduces to the
fulfillment of these object is
Dharma; that is definite.)
The Brhadaranyakopanisad identified Dharma with Truth, and
declared its Supreme status:
Sa naib Vyabhawatchhreyo
Rupamatyasrijat Dharman
Jadetatkshtrasya Kshatram
Yaddharmastasmasd Dharmat Param
Nasti. Atho Abaliyan Samashaste
Dharmen Yatha Ragya. Aibam yo bai
sa Dharmah Satyam bai tat tasmat
Saryam. Badantmahur Dharmam wa
badntnam. Satyam badutityetadhyai
bai tadubhayam bhawati.
"There is nothing higher than
dharma. Even a very weak man hopes
to prevail over a very strong man
on the strength of dharma, just as
(he prevails over a wrong-does)
with the help of the King. So what
is called Dharma is really Truth.
Therefore, people say about a man
who declares the truth that he is
declaring dharma and about one who
declares dharma they say he speaks
the truth. These two (dharma and
truth) are this"]
A similar thought is expressed in the Ayodhya-kanda of the
Valmiki Ramayana, in verse-10, Sarga-109
Satyamebanrishamasam ch Raj Brittam
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 61
Sanatanam Tasmat Satyatmakam Rajyam
Satya Lokah Pratisthitah.
[From the ancient times the
constitutional system depends on
the foundantion of Truth and social
sympathy. Truth is the fundamental
basis of the State; indeed the
whole universe rests on Truth.]
The Rig Veda states that the Law and Truth are eternal -
born of sacrifice and sublimation:
Ritam cha Satyam Chabhidadhat
Tapsodhyajayat.
The Niti Vakyamrit begins with
the statement:
Ath Dharmarth Falai Rajyaya
Namah.
The Yajnavalkya Smriti states:
Shrutih Smritin Sadacharah
Swasya cha Priyamatmanah Samyakam
Kalpjah Kamo Dharmamulormidam
Smritam.
(The Sruti, the Smriti, the
approved usages, that which is
agreeable to one’s in most self or
good conscience, and has sprung
from due deliberation, are ordained
as the foundation of Dharma.)
The Markadeya Purana expresses the purpose of Dharma as:
Sarblok Priyo Nityamubachaidahar
Nisham Nandantu Sarb Bhutani
Snidyantu Vijanepwapi Swastyastu
Sarb Bhurtesu Nirantakani Santu cha
Ma Vyadhirastu Bhutanamadhyon
Bhawantu cha Maitrimashesh Bhutani
Tushyantu Sakle Jane Shibmastu D
wijatinam Pritirastu Parasparam.
(Ch/188,Verse 12-17)
(That all persons may be
happy, may express each other’s
happiness, that there may be
welfare of all, all being free from
fear and disease; cherish good
feelings and sense of brotherhood,
unity and friendship)
It is this stress on the identification of Dharma with Truth
and social well being, Duty and Service that impelled
Yudhisthira to express his own ambition, as Dharmaraja, in
the words:
Na Twaham Kamaye Rajyam Na Swargam
Na Punarbhawam Kamye Dukh Taptanam
Praninam Artnashnam.
(I seek no kingdoms nor
heavenly pleasure nor personal
salvation, since to relieve
humanity from its manifold pains
and distresses is the supreme
objective of mankind).
It is in this context that the phrase Dharm Vijayah ‘Victory
of Dharma’ could be understood, as employed by the Mauryan
Emperor, Ashoka, in his rock edict at Kalsi which proclaimed
his achievement in terms of moral and ethical imperatives of
Dharma, and exemplified the ancient dictum Yato Dharmastato
Jayah (where there is Law, there is Victory).
In the midst of unity in diversity among Indians having
different religious and cultural hues, for their
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 61
assimilation as integrated citizens, all endowed with human
rights, dignity of person, equality of status, liberty of
faith and worship with fraternity, the religious
spirituality fosters them as a strong unifying social entity
with personal identity. Swamy Ranganathananda, a noted
philosopher, in his lecture on ‘Science, Democracy and
Religion’ delivered on August 28, 1954 in Ramakrishna
Mission Institute of Culture, Calcutta, published under the
title ‘Eternal Values for a Changing Society’ had stated at
pahe 637 that "With the intensification of the pace of
industrialization, our centuries-old static feudal society
is being profoundly disturbed; social mobility is fast
breaking down caste and other old forms of social
relationships, and faster still, the social sanctions behind
them. Virtues that sustained a static age are found to be
utterly inadequate to the demands of a dynamic society".
Everywhere, old values, old edifices and old social and
economic groups are crumbling down. This is just the
beginning of the industrialization. Complacency is not a
solution in the profound transition period. Indian
spiritualism had responded successively to all changes on
the strength of her tenacious loyalty to fundamental
spiritual values, which India placed at the foundation of
her national culture. It is this faith in ritual values,
which has been tested in good and evil fortune. Science is
characterized as a keen spirit of inquiry and deep passion
for truth. Science has enabled the human mind to unravel
secret after secret from nature and increase enormously
man’s knowledge of the world in with he lives. Speaking on
democracy in India he said that democracy has come to stay.
How does India proposes to assimilate the democratic values
to her cultural heritage? Democracy should have a content of
universal value which is something more than the merely
political, social or national. The value is the *
without that content, our democracy will be nothing fornthen
a mere carbon copy of what happens in the democratic
countries of the West. The science and democracy are shaping
the growth and development of human culture and civilization
with the development of science, an amount of force and
power, scientific and political is itching for a fight
creating new tensions, creating instability and insecurity.
The nation has to handle the force and the power in such a
way as not to result in corruption in the wielers and in the
confusion to harm the people at large. India holds science
and spirituality, harmonious and hospitable co-existence
fostering human values. Vedantha enables the Indians to
digest the forces generated by science. The spiritual
meaning of democratic living and fulfillment, i.e.,
spiritual oneness of humanity taught by ancient and modern
Indian seers has to be received and reactivated in men’s
thinking and day to day living and its powerful influence
brought to bear on these new and ever newer forms of
scientific and social power, thereby giving them a higher
direction and a loftier, spiritual and human purpose. This
is the central message of religion. It is a message which
requires to be specially emphasized.
Religion became identified with untested beliefs and
dogmas and got shattered in the progress of scientific
inquiry. But the mental make-up of Indians proceed from our
long cultural experience; therefore, our spiritual religious
experience is not hostile to scientific spirit but
sympathetic and hospitable to it. Science will have no
opposition from philosophy or religion in India. Human
welfare partly depends upon the knowledge and control of
human environment, natural and social. Vedantha has always
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 61
given an honored place to science as also to politics in
this period of human welfare. Man is more than a political
animal. He is also more than an intellectual being. He has
depth and heights which cannot e compressed in a purely
materialistic or positivistic philosopher. Swamy
Ranganathananda further stated as under:
"... democracy should have a
content of universal value which is
something more than the merely
political, social, or national. It
is obvious that value is the
ethical and spiritual content.
Without that content, our democracy
will be nothing more than a mere
carbon copy of what obtains in the
medocratic countries of the West."
"In the background of these
agitating questions lies the great
spiritual heritage of India. Those
who are acquainted with its
vitality hold the hope that India
can yet show the world how to
understand, assimilate, ant express
human values which form the theme
of democracy everywhere. India’s
spirituality can enable Indians and
the peoples of the world to digest
the formidable forces that are
being generated and placed in man’s
hands today. The spiritual meaning
of democratic living and
fulfillment, as taught by India’s
ancient and modern sers-in other
words, the religion of the
spiritual oneness of humanity has
to be revived and reactivated in
men’s thinking and day to day
living, and its powerful influence
brought to bear on these new and
ever newer forms of scientific and
social power, thereby giving them a
higher direction and a loftier
spiritual and human purpose.
This is the central message of
religion. It is a message which
requires to be specially emphasized
in the world in which we are living
today. The ‘religion’ carries to
some at least of the modern world a
bit of bad odor. It is unfortunate
.e It is due to the fact that
religion became identified with
untested beliefs and dogmas. And
these got shattered in the progress
of scientific inquiry. In the
history of Europe, religion has
often functioned as an ‘enemy’ of
science. But that experience is not
universal or invariable; it is a
story with its background in the
West only and not in India. Our
entire mental make-up proceeding
from our long cultural experience
is not only not hostile, but is
very sympathetic and hospitable to,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 61
the scientific spirit. In his book,
the Discovery of India, our Prime
Minister, Shri Jawaharlal Nehru,
has expressed the view that
science, which has much leeway to
make in India compared to Western
countries, is bound to make
increasing advances here in the
future because of the hospitality
of the Indian national heritage to
science."
"That science is a fundamental
force and that it does have a great
message for all men is understood
in Inaia, no less than elsewhere.
Human welfare partly depends upon
the knowledge and control of the
human environment, natural and
social. Vedanta has always given an
honored place to science, as also
to politics, in this sphere of
human welfare. But Vedanta has also
taught India that these two do not
constitute the whole scope of human
welfare. Man is more than a
political animal; he is also more
than an intellectual being. He has
depths and heights which cannot be
compassed in a purely materialistic
or positivistic philosophy. Indian
thought recognizes no compartments
or divisions in the human
personality leading to mutual
exclusion and hostility in human
aspirations and values, such as
pleasure and profit, science and
art, morality and religion."
"The unity of man emphasizes
the synthesis of his interest.
While accepting the great
importance of science and politics
for man, Vedanta evaluates them in
terms of his total needs and
aspirations. Man seeks things of
utility for the sake of things
without utility. Science through
technology can give and has given
man things of utility in abundance;
politics can give him things of
utility of another order, a stable
social order, the venue of his
life’s experiments. But neither
science not politics can give man
peace or happiness, joy or a sense
of fulfillment. These non-
utilitarian values proceeds from
religion and morality. Science and
politics can create only conditions
for their emergence, but cannot
create them directly. Without this
spiritual direction, the forces
generated by science and politics
nourish the lawer self of man and
become sources of sorrow and
discord, division and instability
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 61
for man and society. A knowledge
which leads to the increase of
sorrow is not knowledge but
ignorance, the offspring of
spiritual blindness. It is
spiritual awareness alone that
transforms all knowledge into
wisdom, and into forms of peace and
happiness, love and service."
"The transformation of the
world which science and politics
seeks is powerless to ensure human
welfare without the transformation
of human nature itself, which
religion seeks through a discipline
of the whole personality, it is
only such spiritually disciplined
individuals and groups that can
ensure for humanity at large the
values of life, liberty, and the
pursuit of happiness, of liberty,
fraternity, and equality. The peace
and happiness of man and the
stability and ordered progress of
civilizations depend entirely upon
the intensification of the
spiritual awareness of humanity.
With this spiritual awareness for
foundation, the structure of
civilization raised by science and
democracy becomes structure of
civilization raised by science and
democracy becomes strong and
steady; without it, it sways in
periodic crises to topple doen
eventually. Without the inspiration
of religion, civilization shall
ever remain an unstable structure."
"Besides the integral unity of
man and his interests, Vedanta also
proclaims the unity and solidarity
of all existence. The objective of
Vedanta is the happiness and
welfare of man; not man as divided
into sects, creeds, castes, and
classes, but man as man wherever he
may be found. Based on this unitary
and universal view of man upheld in
her philosophy, religion in India
taught that man, in the course of
his development, in the course of
his self-expression, generates
various forces, physical or mental,
social or political, and that the
development of these forces needs
to be matched by a corresponding
development of his inner spiritual
resources, which alone can provide
the factors of stability to an
evolving personality or social
system."
"True democracy is
inconsistent with a narrow self-
sufficient nationalism or
sectarianism; it must tend to reach
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 61
out to the universal. Breaking the
barriers of caste and creed, race
and se, high and low, the
democratic ides, deriving its
sustenance from the divinity in
man, marches on, without
obstruction, to the realization of
the universal. Swami Vivekananda
desired India to uphold this ideal
of the universal in her religion
and politics, science, and
literature. He desires India to
strive for the evolution of a
Vedantic civilization where science
and politics would be utilized to
lead man to higher and higher
levels of self-expression; and
merely desired it, but he also
demonstrated that India, among all
the nations, had the requisite
historically acquired capacity to
make that contribution to world
civilization."
In "Chief Justice Gajendragadkar" - his life, ideas, papers
and addresses - by V.D. Mahajan, in Chapter on "Secularism,
its impact on law and life in India" it is stated that
presonal law is a secular institution and has to be based on
rational and secular considerations. This position is
consistent with the real, ancient, pristine view of Hindu
law. Dharma, according to the old concept, is a purely
secular institution. Dharma is that which sustains the
society. Dharma is that by which people at large are held
together. At page 234 the author quoted Dr. Gajendragadkar
stating that though the Constitution guarantees freedom to
all religions, it recognizes that in certain aspects, and
under certain conditions, religious practices may impinge
upon socioeconomic problems and the Constitution has made it
clear that wherever socioeconomic problems or relations are
involved, the State will have a right to interfere in the
interests of public good. Articles 25 and 26 of the
constitution provide for the right to freedom of religion
and though the Indian Constitution is secular and does not
interfere with religious freedom, it does not allow religion
to impinge adversely on the secular rights of citizens of
the power of the State to regulate socioeconomic relations.
In "Religion and Politics" by Justice V.R.Krishana Iyer
[1991 Edition] it is stated at page 204 that "secularism in
India has a spiritual foundation not because of a profusion
of competing religions and Gods but because of the
realisation that the universal essence of all of them is
that service of man is the worship of God and the reverence
for all creation is compassion which springs from the
recognition of the divinity immanently everywhere. Our
composite cultural heritage comceives of a synthesis between
these two great values. One does not contradict the other
but complements the other. True secularism is humanism in
action and perceives divinity in everyone. True spirituality
is not refuge in other worldliness and has a factor of
universality where even on the material plane every human
being is seen as of equal value and potential as every other
member of the human family. We have to steer clear of all
narrow religious denominations and communal classifications
by emphasizing that in secular affairs all will be dealt
with on the same footing, whether one belongs to the
‘minority’ or the ‘majority’ community". At page 205 the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 61
author has stated that "Equality and fraternity, basic to
national unity and amity, is impossible without the broad
base of Human Rights. So it is that today we have to be
eclectic and accept not religion with the capital ‘R’ but
soul force which resides in everyone’s bosom..... We need a
social order whose life-breath is secularism, whose dynamics
is social and economic justice. It is our fundamental duty
to be secular in politics, not in rhetoric nor in cosmetics,
but in every fibber of our being and every manner of living.
May be, we have promises to keep and miles to go before we
sleep".
The Preamble of the Constitution sets out secularism,
equity, fraternity, liberty of worship and faith and dignity
of persons as integral scheme of the Constitution in its
march to establish an egalitarian social order. Fundamental
Rights and Directive Principles seek to resuscitate them. In
S.R. Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC
1], larger Bench of nine Judges has held that secularism is
basic structure of the Constitution. Religious tolerance and
equal treatment of all religious groups and protection of
life, property and place of worship are essential parts of
secularism. Profession, actions and conduct of persons
should be consistent with secularism and they need to be
measured in that perspective.
Religion in development is man in search of God.
Throughout the history man endeavors in building into a
fuller religious life from the experience of the past and
also with the consciousness of life in God that he seeks for
He is always eternally in him. It is the eternal aspect of
religion which is expressed in the religious recognition in
every human life, at any state of its development in the
pursuit of knowledge or self-consciousness or self-
realisation and of personal experience of eternal or
infinite worth, there are two aspects of religion true -
religion and religions. True religion is c religion that
seeks to live in the spirt, in what is beyond the intellect,
beyond the aesthetic and ethical and practical being of man
and to inform and govern these members’ life by higher light
and law of the spirit. This is Vedanatha. Religions
entrenches itself in some narrow piestic exaltation of the
lower members, or lays exclusive stress on intellectual
dogmeas, forms and ceremonies on some fixed and rigid moral
code on some religio-political or religio-social system,
which are not always necessary or worthy for a spiritual
religion and which disdain the aid of the forms, ceremonies,
creeds or system. The fundamental desire of man is to make
peace with his inner life. The spiritual religion is a form
of the fundamental desire of man to make peace with his
innerself and bring to bear the experience of
transplantation of his current personality into a vibrant
ready sense of knowledge of fulfillment and happiness. The
experience of the man has to be propelled and to be
brightened rather than dimmed by the myriad tribulation of
knowing the system of rituals or feelings of inferior and
inaccessible or unnecessary to realize the Supreme Being.
The need to over-come this is the pursuit of spiritual
religion.
The importance of rituals in religious life is relevant
for evocation of mystic and symbolic beginnings of the
journey but on them the truth of a religious experience
cannot stand. The truth of a religious experience is far
more direct, perceptible and important to human existence.
It is the fullness of religious experience which must be
assured by temples, where the images of the Lord in
resplendent glory is housed. To them all must have an equal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 61
right to plead and in a manner of such directness and
simplicity that every human being can approach the doors of
the Eternal with equality and with equalaccess and thereby
exercise greater freedom in his own life. It is essential
that the value of law must be tested by its certainty in
reiterating the Coare of Religious Experience and if a law
seek to separate the non-essential from the essential so
that the essential can have a greater focus of attention in
those who believe in such an experience, the object of such
a law cannot be described as unlawful but possibly somewhat
visionary.
The word ‘Dharma’ or ‘Hindu Dharma’ denotes upholding,
supporting, nourishing that which upholds, nourishes or
supports the stability of the society, maintaining social
order and general well-being and progress of man kind;
whatever conduces to the fulfillment of these objects is
Dharma, it is Hindu Dharma and ultimately ‘Sarva Dharma
Sambhava’.
In contra distinction, Dharma is that which approves
oneself or good consciousness or springs from due
deliberation for one’s own happiness and also for welfare of
all beings free from fear, desire, disease, cherishing good
feelings and sense of brotherhood, unity and friendship for
integration of Bharat. This is the core religion which the
Constitution accords protection.
In Ganpat v. Returning Officer & Ors. [(1975) 1 SCC
589], this Court has held that religion is essentially a
highly personal matter and Hinduism is so tolerant and Hindu
religious practices so varied and eclectic that one would
find it difficult to say whether a person is practising or
professing Hindu religion or not. Religion has undergone
several changes, but the fundamental, moral and religious
ideas of the Hindus which lie at the root of religious and
charitable institutions, remain substantially the same. The
Hindu is inclined to believe the divine in every
manifestation, whatever it may be, and it doctrinally
tolerant. Therefore, the Hindu is disposed to think
synthetically and to regard other forms of worship, strange
Gods, and divergent doctrines as inadequate rather than
wrong or objectionable; he tends to believe that the highest
divine powers co-complement each other for the well-being of
the world and mankind. Religion, therefore, is one of the
personal beliefs, is more a cultural attitude towards a
physical thinking in that way of life and is worship of the
image of God in different manifestation.
In Shirur Matt’s, a locus classics on constitutional
religion and protection of Articles 25 and 26 of the
Constitution, this court had laid down that a religion may
not only lay down a code of ethical rules for its followers
to accept, it might prescribe rituals and observances,
ceremonies and modes of worship which are regarded as
integral parts of religion, and these forms and observances
might extend even to matters of food and dress.
In Sri Venkataramana Devaru & Ors. v. The State of
Mysore & Ors. [(1958) SCR 985], this Court surveyed the
historical background in enacting the Madras Religious and
Charitable Endowment Act ( 29 of 1951) which is a pre-cursor
to predecessor Act 17 of 1966. The question therein was:
whether Sri Venkataramana of Moolky Petta was a private or a
public temple or a denominational institution? This Court
had held that with the growth and importance of temple and
of worship therein more and more attention came to be
devoted to the ceremonial law relating to construction of
temple and conduct of worship of the Deity and numerous
other trusts that came to be established for its existence.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 61
While explaining the expression "matters of religion" used
in Article 26(b), this Court said that practices which are
regarded by the community as part of its religion and under
the ceremonial law pertaining to the temples, who are
entitled to enter into them for worship and where they are
entitled to stand for worship and how the worship is to be
conducted are all matters of religion. In The Durgah
Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.
[(1962) 1 SCR 383 at 411-412], another Constitution Bench of
this Court explained the connotation of the above statement
of law thus:
"While we are dealing with this
point it may not be out of place
incidentally to strike a note of
caution and observe 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 though religious may have
sprung from merely superstitious
beliefs and may in that sence be
extraneous and unsessential
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."
The Act regulates administration and maintenance of
charitable and Hindu religious institutions and endowments
in their secular administration. It lays emphasis on
preserving Hindu dharma and performance of religious
worship, ceremonies and poojas in religious institutions
according to their prevailing Sampradayams and Agamas.
Section 13 enjoins that the Commissioner and every other
functionary under the Act "shall not interfere with and
shall observe the forms, usages, ceremonies and practices
obtaining in and appropriate to the religious institution or
endowment". Section 23(1) equally obligates the trustee that
he "shall administer its affairs in accordance with the
terms of the trust, the usage of the institution or
endowment and all lawful directions" issued in respect
thereof. Section 142 puts that "nothing in the Act shall
affect the performance or interfere with religious worship,
ceremonies and poojas in religious institutions" according
to Sampradayams and Agama followed in such institution.
Section 50 (1) enjoins propagation of Hindu Dharma.
In Sardar Syedna Taher Saifuddin Saheb v. The Estate of
Bombay [(1962) Supp. 2 SCR 496 at 521], Sinha, C.J. had
held, in his separate but concurring judgmetn, that what are
matters of religion and what are not is not an easy question
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 61
to decide. It must vary in each individual case according to
the tenets of the religious denomination concerned. The
expressions ‘matters of religion’ engrafted in Article 26(b)
and ‘activities associated with religious practice’ do not
cover exactly the same ground. What are exactly "matters of
religion" are completely outside State interference,
subject, of course, to public order, morality and health.
But activities associated with religious practice may have
many ramifications and varieties - economic, financial,
political and other such activities as are contemplated in
Article 25(2) covering a field much wider than that covered
by either Article 25(1) or Article 26(b). No demarcation can
be classified as to which are essentially and purely of a
religious character and those which are not essentially
such. Considering the question whether ex-communication is a
part of religious practice, on the facts in that case,
majority had held that it offends Article 25(1) and
accordingly the provision was declared unconstitutional.
Articles 25 and 26 deal with and protect religious
freedom. Religion as used in these Articles must be
construed in its strict and etymological sense. Religion is
that which binds a man with his Cosmos, his creator or super
force. It is difficult and rather impossible to define or
delimit the expressions "religion" or "matters of religion"
used in Articles 25 and 26. Essentially, religion is a
matter of personal faith and belief of personal relations of
an individual with what he regards as Cosmos, his Maker or
his Creator which, he believes, regulates the existence of
insentient beings and the forces of the universe. Religion
is not necessarily theistic and in fact there are well-known
religions in India itself like Budhism and Jainism which do
not believe in the existence of God. In India, Muslims
believe in Allah and have faith in Islam; Christians in
Christ and Christianity; Parsis in Zorastianism; Sikhs in
Gurugranth Sahib and teachings of Gurunanak Devji, its
founder, which is a facet of Hinduism like Brahamos,
Aryasamaj etc.
A religion undoubtedly has its basis in a system of
beliefs and doctrine which are regarded by those who profess
religion to be conducive to their spiritual well-being.
Areligion is not merely an opinion, doctrine or belief. It
has outward expression in acts as well. It has outward
expression in acts as well. It is not every aspect of
religion that has been safeguarded by Articles 25 and 26 nor
has the Constitution provided that every religious activity
cannot be interfered with. Religion, therefore, be construed
in the context of Articles 25 and 26 in its strict and
etymological sense. Every religion must believe in a
conscience and ethical and moral precepts. Therefore,
whatever binds a man to his own conscience and whatever
moral or ethical principle regulate the lives of men
believing in that theistic, conscience or religious belief
that alone can constitute religion as understood in the
Constitution which forsters feeling of brotherhood, amenity,
fraternity and equality of all persons which find their
foot-hold in secular aspect of the Constitution. Secular
activities and aspects do not constitute religion which
brings under its own cloak every human activity. There is
nothing which a man can do, whether in the way of wearing
clothes or food or drink, which in not considered a
religious activity. Every mundane or human activity was not
intended to be protected by the Constitution under the huise
of religion. The approach to construe the protection f
religion or matters of religion or religious practices
guaranteed by Articles 25 and 26 must be viewed with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 61
pragmatism since by the very nature of things, it would be
extremely difficult, if not impossible, to define the
expression religion or matters of religion or religious
belief or practice.
In pluralistic society like India, as stated earlier,
there are numerous religious groups who practise diverse
forms of worship or practise religions, rituals, rites etc.;
even among Hindus, different denominats and sects residing
within the country or abroad profess different religious
faiths, beliefs practices. They seek to identify religion
with what may in substance be mere facets of religion. It
would, therefore, be difficult to devise a definition of
religion which would be regarded as applicable to all
religions or matters of religious practices. To one class of
persons a mere dogma or precept or a doctrine may be pre-
dominant in the matter of religion; to others, rituals or
ceremonies may be pre-dominant facets of religion; and to
yet another class of persons a code of conduct or a mode of
life may constitute religion. Even to different persons
professing the same religious faith some of the facts of
religion may have varying significance. It may not be
possible, therefore, to devise a precise definition of
universal application as to what is religion and what are
matters of religious belief or religious practice. That is
far from saying that it is not possible to state with
reasonable certainty the limits within which the
Constitution conferred a right to profess religion.
Therefore, the right to religion guaranteed under Article 25
or 26 is not an absolute or unfettered right to propagating
religion which is subject to legislation by the State
limiting or regulating any activity - economic, financial,
political or secular which are associated with religious
belief, faith, practice or custom. They are subject to
reform on social welfare by appropriate legislation by the
State. Though religious practices and performances of acts
in pursuance of religious belief are as much a part of
religion as faith or belief in particular doctrine, that by
itself is not conclusive or decisive. What are essential
parts of religion and religious practice is essentially a
question of fact to be considered in the context in which
the question has arisen are the evidence - factual or
legislative or historic - presented in that context is
required to be considered and a decision reached.
The Court, therefore, while interpreting Articles 25
and 26 strikes a careful balance between the freedom of the
individual or the group in regard to religion, matters of
religion, religious belief, faith or worship, religious
practice or custom which are essential and integral part and
those which are not essential and integral and the need for
the State to regulate or control in the interest to the
community.
There is a difference between secularism and
secularisation. Secularisation essentially is a process of
decline in religious activity, belief, ways of thinking and
in restructuring the institution. Though secularism is a
political ideology and strictly may not accept any religion
as the basis of State action or as the criteria of dealing
with citizens, the Constitution of India seeks to synthesis
religion, religious practice or matters of religion and
secularism. In secularizing the matters of religion which
are not essentially and integrally parts of religion,
secularisms, therefore, consciously denounces all forms of
super-naturalism or superstitious beliefs or actions and
acts which are not essentially or integrally matters of
religion or religious belief or faith or religious
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 61
practices. In other words, non-religious or anti-religious
practribute in some degree to the process of secularisation
of the matters of religion or religious practices. For
instance, untouchability was believed to be the part of
Hindu religious belief. But human rights denounce it and
Article 17 of the Constitution of India abolished it and its
practice in any form is a constitutional crime punishable
under Civil Rights Protection Act. Article 15(2) and other
allied provisions achieve the purpose of Article 17.
The religious freedom guaranteed by Articles 25 and 26,
therefore, is intended to be a guide to a community-life and
ordain every religion to act according to its cultural and
social demands to establish an egalitarian social order.
Articles 25 and 26, therefore, strike a balance between the
rigidity of right to religious belief and faith and their
intrinsic restrictions in matters of religion, religious
beliefs and religious practices and guaranteed freedom of
conscience to commune with his Cosmos, Creator and realise
his spiritual self. Sometimes, practices religious or
secular, are instricably mixed up. This is more particularly
so in regard to Hindu religion because under the provisions
of ancient Samriti, human actions from birth to death and
most of the individual actions from day to day are regarded
as religious in character in one facet or the other. They
sometimes claim the religious system or anctuary and seek
the cloak of constitutional protection guaranteed by
Articles 25 and 26. One, hinges upon constitutional
religious model and another diametrically more on
traditional point of view. The legitimacy of the true
categories is required to be adjudged strictly within the
parameters of the right of the individual and the legitimacy
of the State for social progress, well-being and reforms,
social intensification and national unity. Law is a social
engineering and an instrument of social change evolved by a
gradual and continuous process. As Banjamin Cardozo has put
it in his "Judicial Process", life is not a logic but
experience. History and customs, utility and the accepted
standards of right conduct are the forms which singly or in
combination shall be the progress of law. Which of these
forces shall dominate in any case depends largely upon the
comparative importance or value of the social interest that
will be, thereby, impaired. There shall be symmetical
development with history or custom when history or custom
has been the motive force or the chief one in giving shape
to the existing rules and with logic or philosophy when the
motive power has been theirs. One must get the knowledge
just as the legislature gets it from experience and study
and reflection in proof from life itself. All secular
activities which may be associated with religion but which
do not relate or constitute an essential part of it may be
amenable to State regulations but what constitutes the
essential part of religion may be ascertained primarily from
the doctrines of that religion itself according to its
tenets, historical background and change in evolved process
etc. The concept of essentiality is not itself a
determunative factor. It is one of the circumstances to be
considered in adjudging whether the particular matters of
religion or religious practices or belief are an integral
part of the religion. It must be decided whether the
practices or matters are considered integral by the
community itself. Though not conclusive, this is also one of
the facets to be noticed. The practice in question is
religious in character and whether it could be regarded as
an integral and essential part of the religion an if the
Court finds upon evidence adduced before it that it is an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 61
integral or essential part of the religon, Article 25
accords protection to it. Though the performance of certain
duties is part of religion and the person performing the
duties is also part of the religion or religious faith or
matters of religion, it is required to be carefully examined
and considered to decide whether it is a matter of religion
or a secular management by the State. Whether the
traditional practices are matters of religion or integral
and essential part of the religion and religious practice
protected by Articles 25 and 26 is the question. Whether
hereditary archaka is an essential and integral part of the
Hindu religion is the crucial question?
Justice B.K. Mukherjea in his Tagore Law Lectures on
Hindu Law of Religious and Charitable Trust, at page 1
observed:
"The popular Hindu religion of
modern times is not the same as a
religion of the Vedas though the
latter are still held to be the
ultimate source and authority of
all those held sacred by Hindus. In
course of its development, the
Hindu religion did undergo several
changes, which reacted on the
social system and introduced
corresponding changes in the social
and religious institution. But
whatever changes were brought about
by time it cannot be disputed that
they were sometimes of a
revolutionary character - the
fundamental, moral and religious
ideas of the Hindu which lie at the
route of their religion and
charitable institution remained
substantially the same and the
system that we see around us can be
said to be a evolutionary product
of the spirit and genus of the
belief passing through different
ways of their cultural
development".
The basis of Hindu Dharma is two-fold. The first is the
Vedas and the second are the Agamas. Vedas, in turn, consist
of four texts, namely, Samhitas, Bramhanas, Aranyakas and
Upnishads.
Samhitas are the collections of mantras. Bramhanas
explain the practical aspects of the rituals as well as
their meanings. They explain the application of the mantras
and the deeper meanings of the rituals. Aaranyakas go deeper
into the mystic meanings of the rituals, and Upnishads
present the philosophy of the Vedas.
From the point of view of content, they are viewed as
Karma Kanda (sacrificial portion) and Jnana Kanda which
explain the philosophical portion. The major portion of the
Vedic literature enunciates the vedic sacrifices or the
rituals which inevitably cultivate in the philosophy of the
Upanishads. That is why the Upanishads are called Vedantha
or culmination of the Vedas.
The essence of the Vedic religion lies in Vedic
sacrifices which not only purify the mind and the heart of
those who participate in the sacrifices but also reveal the
true and unfragmented nature of the Karman (Action).
Erroneously, Western scholars explained the Vedic sacrifices
in terms of either sympathetic magic or an act of offering
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 61
the fire to Gods emulating the mundane act of offering
gifts. Thus, for them Vedic religion is a primitive religion
and Vedic Gods are simply representing insentient
departments of Nature; but it is not so. On the contrary,
the term used for Vedic Gods is "Deva" which literally means
"the shining ones". The adorable ones - bestowing grace on
the worshippers. The root ‘Div’ also means that Devas are
the embodiment of unfragmented consciousness, which is
ultimately one and non dual. Likewise, the Vedic sacrifice
is an act of re-enactment of the cosmic creation; in our
mundane life, our life of action is simply a life of
fragmented act. This is because of Raga Dvesha whereby the
perception is limited. The fragmented acts emanate from our
deep rooted attraction and hatefulness. The Vedic sacrifice
moves towards "Poorna", i.e., plenitude and thus overcoming
the problem of fragmented action in our lives. Onwards, the
seeker moves towards the knowledge of self or the Brahaman.
So many Upasanas are taught in the Vedas but not elaborated.
The Agamas have elaborated these Upasanas such as Madhu
Vidya and Dahra Vidya.
Upanishads speak of Para Vidya and Apara Vidya. Apara
Vidya deals with Jnana through various methods. Agamas
explain these Para Vidyas. The Agamic texts contain four
parts, namely, Vidya Pada, Kriya Pada, Charya Pada and Yoga
Pada.
Each text of the Agamas has the first portion, called
‘Samhita’ which contains the four parts namely the Vidya
Pada, Driya Pada, Charya Pada and Yoga Pada. Vidya Psada
offers an elaborate enunciation of the philosophy, whereas
Kriya Pada deals elaborately with the act of worship.
Worship is viewed as Samurta Archana. In other words, the
Gods are endowed with form the this form of worship
culminates into Amurta or Nishkala Archana by which one
worships and realizes the formless. These are the steps to
be treated upon one after another.
The temples are taken to be sanctified space where
entire unfragmented Space and time, in other words, the
entire ‘Universe’ are deposited and the image of the Deity
is worshipped symbolizing the "Supreme". Although the
Deities appear to be many, each and every Deity is again
viewed as the Supreme One and, therefore, the Supreme
Reality is one and non-dual. The multiplicity of the Gods
has been effected in order to offer the paths which are
required according to the entitlement and evolution of each
and everyone. That is why the progress towards the ultimate
evolutionary goal of man depends upon his level of
comprehension and his capacity to learn. This is the whole
concept of a Guru who knows precisely the extent of
spiritual evolution of the seeker and would know what is the
stage from which the seeker has to proceed.
Hinduism cannot be defined in terms of Polytheism or
Hennotheism or Monotheism. The nature of Hindu religion
ultimately is Monism/Advaita. This in contra distinction to
Monotheism which means only one God to the exclusion to all
others. Polytheism is a belief of multiplicity of Gods. On
the contrary, monism is a spiritual belief of one Ultimate
Supreme and manifest Himself as Many. This multiplicity is
not contrary to Non-Dualism. This is the reason why Hindus
start adoring any Deity either handed down by tradition or
brought by a Guru or Swambhuru and seek to attain the
Ultimate Supreme.
The construction of the temple, the nature of the
sculpture and the specific way of worshipping the Deity are
taught in the respective Agamas, namely, Vaishnava, Saiva,
Shakti, Skanda, Saura (Surya) and Ganpatya. The Vaishnava
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 61
Agamas are divided into pancharatra and Vaikhanasa, whereas
Saiva agamas are seen as non-dualistic, dualistic-cum-non-
dualistic and dualistic together. Each sect follows its own
Agamic tect in constructing the temples, chiseling and
consecring the Idol, the Images, as well as performing
worship. In was believed that the priest knew the texts,
receiving uninterruptedly from their predecessors in the
family or from Guru. This succession either through family
or through the Guru is called Parampara. It has now taken
shape in Agama schools established by the State wherein
Agamic education is taught. Purohit, thus educated, becomes
an accomplished priest fit to perform rituals according to
particular Agama and Sampradaya. The dispensation of these
rituals in accordance with the Agamic Shastras is meant for
enlightened ones and not as a common rule. The entire Indian
history of art owes its development of Agamic texts which
elaborate rules of temple architecture, image making,
ritualistic celebrations, music, paintings and dane etc.
The entire life is thus woven around the temples and
the rituals taking place all over the year. This is to
symbolise the philosophy that these actions are religious.
Worship is a mystic act by which the devotee identifies
himself with the Deity which in turn represents the Cosmic
Supreme. Thus the form of worship varies from simple
‘panchopachara’ pooja to ‘Shodhasopchara’ pooja. The
offerings of articles is related to elements of nature
identifying ourselves with the Cosmos. The entire basis of
Agamas isto support the fundamental supposition of Hindu
philosophy that there is the unity of external and internal
as well as the Pinda and Bramhanda. Whatever appears as
Darkness externally, is ignorance internally. Whatever is
light externally, is knowledge internally. This is the
reason why in the Agamic way of worship,, there are
practices identifying the limited self with the Cosmos, and
internalising of the external image. This principle is
reflected in:-
"Devobhootva devam Yajet"
In fact the devotee is first expected to transform himself
in to the Deity and then approach the Deity and the
purificatory exercise is meant to prepare one for being one
with the Deity.
‘Nyasa’ means depositing the entire Cosmos worship may
be simplistic or elaborate. It is believed that the ‘Kala’
or the ‘power’ increases along with increase in investment
of worship. The logic: "The increased worship is effected
into the wider participation - individual as well as social.
This is the gradual expansion of the grade bestowed on the
greater number of the men and women as well as all
creatures. Therefore, right from Panchopchara to
Devaupachara to Shodashaupchara and to Rajopachara, all
forms of worship have got their won importance. It is a
matter of only one’s capability. There is a definite
correspondence between Vedic and Agamic worship. Agamic
worship is worship of image in or outside a temple. The
Mandapa of the temple corresponds to the Vaidika in the
Vedic rituals, the Yupa or the post outside the Mandapa
corrosponds to the "Dhuaja". Offerings of articles in the
Agamic worship correspond to offering of the Ahuti in Vedic
Sacrifice.
Temple has become the most important center of
activities - religious, cultural and social among the
people, in particular rural India. Temple is conceived in
the likeness of human body. Parts of the temple are named
accordingly, by which the organic unity of the temple is
emphasized. Obviously, therefore, religious people endow
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 61
their property for upkeep of temples or propagation of
religion. Majority people in India are dedicated to Vishnu,
Shiva, Shakti, Ganpathi and Hanuman of Hindu Gods. The
cardinal principle underlying idol worship is for one of
four modes for self-realization. Daily routine life in
performing rituals to Deity will be gone through with minute
accuracy of Abishek (bathing), changing of clothes,
offerings of food and the retirement (rest). Religion,
therefore, has occupied a significant place and role in the
public life in our country. Hindus, therefore, believe that
religion is an essential and powerful factor in raising
humanity to higher level of thought and being. The priest
(archaka or by whatever name called) would conduct rituals
to the Deity as per prescribed Agamas, formas, practices and
sampradayams.
Shri Suniti Kumar Chatterji in his Preface to the
Cultural Heritage of India, Institute of Culture, Vol.IV at
page xv had stated thus:
"Men are equal on the basis of
their common humanity, though no
two individuals are the same in
their intellectual and spiritual
framework, as much as in their
physical complexion. There are some
people who are intellectually
strong, and there are others who
are easy to move emotionally. And
there is a larger group which
reacts to impulses and instincts
more than to anything else. To
people of these three main types of
outlook, and those of other types
also, religion, both as an
individual experience and practice
and as a social vehicle carrying
the individual members of a
particular society in their
progress in life, must ipso facto
present a bewildering series of
diversities. The scriptural
religions like Islam and
Christianity theoretically insist
on dogmas and a uniform and
unalterable reed. Yet we have in
Christianity so many different
sects, sometimes with notions and
ideologies which go counter to one
another. And Islam too recognizes
the seventy-two firgahs or
sectarian organizations. Christ is
quoted to have said, ‘In my
Father’s house are many mansions’.
Could we not legitimately take it
to mean that a great latitude was
allowed by him in the sum total of
the faith and behavior of the
elect, all together forming the
entire body of the faithful who
believed in Christ? Similarly, in
spite of the preaching in Islam of
the path of orthodoxy as embodied
in a literal interpretation of the
Word of God, Kalam Ilahi, which is
the Quran, one of the Hadith or
traditional sayings as ascribed to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 61
the Prophet runs like this:
"Thruqu-Ilahi ka-’adadi’ anfasil-
makhluqali" - the ways of God are
like unto the breathing of all
created beings. There are many
people who therefore consider that
it would be nothing less than
blasphemy to assert that the
ultimate Reality can be approached
only by one path - and that path
presumably is the one which the
person making such an assertion
believes in."
On the ‘Vaikhanas Early History And Literature’ at page 160-
161, it is stated that the Vaikhanasa Sastra sets great
store by purity of conduct, as is evident from Kalidasa’s
Sakuntala (I. 22), where King Dusyanta inquires whether
Sakuntala observes Vaikhanase-Vrata. Vaikhanasa were
entrusted with the management of temples and their land and
property. They entered into agreements with the revenue
officers and the assemblies in matters relating to the
cultivation of assigned lands and sometimes also of
unassigned lands. They were the hereditary trustees of Visnu
temples, managed their properties, and conducted the divine
service. Shrines of Ramanuja and the Alvars were added, and
in the associated temples in Tirupati town and Tiruchanur,
the pancharatra form of worship was introduced. Jiyars
(monks of the Ramanuja school) took charge of the Balaji
temple, where the services were performed by Vaishnavas of
that School. Yet pooja to Balaji (Sri Venkateswaraswamy) in
the sanctum sanctorum continues to be done by the Vaikhanasa
according to the Vaikhanasa Sastra which is purely in
Sanskrit. There are more temples in South India today under
the Vaikhanasa Agama than under the Pancharatra. Devotion
(bhakti) and self-surrender (Prapatti) to His will are
together the master keys to open the gates of divine grace.
Vaikhanasa’s chief contribution to spiritual life is the
emphasis on the worship, service, and adoration of the lord
of in the acre (image) form in which He ‘decends with a non-
material body’, and in which He is present eversince as the
surest means of liberation. Vaikhanasas place grater
emphasis on acre worship.
Brighu Kriyaadhikaare states that according to
Vaikhanasa Sastra, the Priest (Acharya) must be one who is
well-versed in Vedic lore, of dharmic persuasion, thirsting
for Janana (wisdom), gentle having control over senses, pure
and attached with total dedication to the worship of Lord
alone. The priest shall carry on daily rituals of worship
and all rites according to sastric injunctions. In
Vaikhanasa Prakirnadhikara at page 443, it is tated that an
Acharya (fully qualified man) alone should be appointed as
the priest. It also indicates dismissal of a priest if he
was fund having deflected from his duty and appointment of
another person in his place. At page 269 it states that the
priest must be provided with Dakshina (money for officiating
priest) for his sustenance and maintenance of himself and
his family so as to keep the priest in comfort and free from
want. It also speaks of employment of an archaka for life.
At pages 302 and 303, it is stated that the owner of the
temple should appoint one or two archakas according to his
capacity. The archakas must be of Vaikhanasa and haying the
qualities mentioned above and free from vices. He is
enjoined to divide his earnings into three equal parts
keeping for himself 2/3rd share for maintenance of himself
and his family and 1/3rd share for carrying out dharmik
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 61
purposes. He is also directed to enjoy the gifted land
according to the stipulations.
In Prakirnadhikara, (para 12) it is mentioned that the
income from property of the temple be divided into three
parts - first part to be retained for himself and his
family; the second part for the temple; and the third one
for the construction of the temple - taking care of the
residence of the archaka. In Kashayappa Jhanakanda, para 21
also mentions the same. The Agama text intended to avoid
confusion in procedures of worship by insisting upon the
hereditary character of priesthood (either in the family or
through teacher pupil line). Prakiranadhikara (17 & 39) says
that when a priest is already performing rituals no other
priest must enter the sanctum sanctorum. Only one person
must do all the things himself prohibiting others to
participate. The order of Guru was described as binding as
an order of a king. The right to live in comfort on the
provisions made by the owner of the temples was intended to
keep the priest above want so as to attend his duty without
worry and the same finds mention in Prakirnadhikar, paras
17, 84 and 86. It is also insisted that Guru (priest) or in
his absence his son or grandson or great grandson or brother
or his disciple or his disciple’s disciple or a Brahmachari
should be chosen in succession. As is found in
Prakirnadhikara, the selected priest must be well-vbersed in
Vaikhanasa Statra with qualities lide gentleness
controlling senses, purity, character and devotion to the
worship of Shri Maha Vishnu etc. The idea is that one devoid
of divinity cannot get into any association with divinity.
Shri Paramaprush in Chapter II prescribes in para 35
appointment of archaka. The owner of the temple without
executing a gift of land in the aforementioned manner fixes
monthly salary to the archaka, failure thereof leads to
ruination of the owner’s life. The owner should not feel
jealous of the earnings of the archaka and his prosperity.
It does not specify that archaka should belong to the
specific denomination or group of which are temple service
is done traditionally according to Agamas. According to
Brighu Kriyaadhikara (302-304) Viriti Kalpapnam, a permanent
settlement has to be made for their maintenance and the
worship of Deities is done properly by qualified priest.
In ‘Sri Panchartraparamyam’ by Dr. V.
Vardacharyamaharshya at page 21, he has stated that the
Sanskaras like Niseha must be performed according to one’s
own sutra or by the method of Pancharatra as might have been
followed by one’s own family hierarchy. At page 70 he has
further stated that in Lakshmitantra in Telugu manuscript
all priests do not have the right to perform worship in
temples. Only panchratra followers who know the kunna and
madhyandina sahta are entitled to perform the worship in
Vishnu temples; only such great munis (Rishis) in the line
of succession have right to perform rituals. In
Jayakhyasamhita of Pancaratra Agama by E. Krishnamacharya at
page 22, it is stated that priest of Vaishnava cult has the
right to perform worship by heredity. In Satvata-Sanihita at
page 411, the way the abhiseka (the ablution) may be done by
the principle priest, is mentioned. Others who had
initiation (Diksha), disciple of Guru, or the son, or
disciple with good qualities mentioned above are eligible to
perform pooja. In this way the abhiseka would be done only
by those who are born in the family of Acharyas. The right
of karsana etc. vests only in such persons. In "Laksmi-
tantra", a Pancharatra Agama by Pandit V. Krishnamacharya,
it is stated at page 1 that in the Vaikhanasa system only
those priests who by the tradition of heredity belong to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 61
Vaikhanasa sutra perform the worship for sacraments like the
birth ceremonly, naming ceremony etc. and follow the rules
prescribed therein, i.e., the Vaikhanasa sutras. At page 2,
he has stated that in the Pancharatra system all priests
have a right to worship the images (established in their
houses) for their own benefits. But for conducting worship
in the temple particularly in famour temples only the
descendants of the priests properly initiated (Diksha)
especially by family traditions, are entitled to be the
priests. Others have only a secondary right. The special
initiation to others is not prohibited. This is the current
tradition. It is stated in Padma Samhita that for conducting
worship for others, Brahmins only are entitled to perform
worship. At page 165, he has stated that there afterwards
the text prescribed that in the matter of performing worship
for others only the descendants of the family of Kashyapa
etc. have the right, which is not universal. But that text
is found only in the manuscript in Telugu script. There is
some ‘scope to conclude that this portion might have been
contrived by some elements who wanted to establish their own
exclusive right to perform worship for others in the
temples. That portion is also against arrangements
prevailing these days. In a narrative dialogue, he has
stated that Rishi Marich is stated to have said that ‘O
Padma’ only those who are initiated inthe Diksha spoken by
you have a right to do the worship of Vishnu. All others
have no right in that worship. The worship for others should
be performed by persons born in the best gotra of the
Kashyap Muni etc. If the worship for others is done by other
Bhagavatars on account of ignorance, there will be much fall
of the kings and the country. Therefore, through all efforts
one who is born in Kashyapa family duly initiated, though
illiterate, should be appointed as priest by the
Bhagavatars. He who collectivate pure behaviour is the most
deserving to perform worship.
The Agamas, thus, are a stream of traditions which have
grwon along with the tradition of the Vedas. Many earlier
works of Agama literature are fairly ancient in times. They
are not anti-Vedic but the worship of God in the form of
Idol. In the Vedic tradition, a very limited number of
Brahmins were conversant with the ritualistic lore but under
Agama they performed rituals visualizing the Deity whom they
invoked by Mantras. Vedas deprived others including women
and Sudras of the opportunity to participate in the rituals.
But Agamas provide opportunity to all to perform worship of
the God. Purity, good conduct, devotion and dedication is
insisted upon. In Mahabhartha, it is ordained thus:
Na Jatir na Kulam Tat Na Swadhyayo
Na cha Shrutam Karnane Durjatwasya
Brittameb he Karnam.
"Not by caste, not by ancestry
nor by scholarship nor by study of
Vedas does one acquire the twice-
born status. One acquirs it only by
virtue of his work".
As far as Vaishvanism is concerned, the Agamas are of
two types - Vaikhanasa and Pancharatra. While the former is
based purely on Vedic traditions, the latter has Tantric
character. Vaikhanasa and Pancharatra followers have been
known to be attacking each other on the ground of acquiring
more powers and emoluments in cash and kind from the
temples. The Vaikhanasa turned to the Pancharatra Agamas for
information on several religious issues. The Vaishnavas is
much indebted to the authority of the Pancharatra Agamas.
The Agamas categorise worship as Svartha, i.e., for self in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 61
one’s own home and Prartha, i.e., one performed by the
priest for others in a temple. The priests in order to be
eligible have to undergo Diksha, which is described
elaborately in the Agamas. Some of the Agamas state that
while worship for oneself can be performed by any oen who is
initiated into the ritual but the worship to be performed
for others in a temple has to be by the priest who has
inherited authority of acting as priest by family
succession. Krishnarcharya has rationalized the synthesis
between Vaikhanasa and Pancharatra.
From the Vaikanasa literature referred to above the
following prominent features would emerge:
Temples were constructed by private owners or kings. In
the respective Agamas of either Vaishnava or Saiva form of
worship, priests appointed are from amongst the sects who
have implicit faith, devotion, dedication of a man of good
character, integrity and pierty. He must also be an
accomplished man to perform ritual in ceremonial form of
worship steeped with profound knowledge in Agama rules,
proficiency in recitation and performance of rituals
accurately and systematically with total identification and
personification. The right to work as priest is traceable to
an appointment for life. The priesthood was systematised
among the families of priests having faith and devotion
initiated with Diksha and learning in the respective Agamas.
They succeeded from generation to generation subject to good
conduct and were terminable due to acts of misconduct.
Hereditary succession is not an eyorable rule. Due to non-
availability of persons from the family eligible to be
priest, outsiders would also become eligible. Normally,
succession to the priesthood upto the lifetime of the priest
is open to his successors. In some instances, priests from
same Gotra were inducted and in their absence, even the
disciples of the Guru and others were initiated. The
property dedicated to the temple or income derived from the
offerings of devotees was enjoyed by the priest for himself
and his family maintenance and the temple. The object,
thereby, appears to be to keep the priest above want and
free from family worries to enable him to dedicate himself
totally to perform daily rituals to the Deity. Generally,
the person acquainted with same Agama rules and Sampradaya,
practising and professing same religious faith and hailing
from the same sect remained in the same temple or similar
temples elsewhere.
The protection of Articles 25 and 26 of the
Constitution is not limited to matters of doctrine. They
extend also to acts done in furtherance of religion and,
therefore, they contain a guarantee for rituals and
observances, ceremonies and modes of worships which are
integral parts of the religion. In Seshammal’s case [supra]
on which great reliance was placed and stress was laid by
the counsel on either side, this Court while reiterating the
importance of performing rituals in temples for the idol to
sustain the faith of the people, insisted upon the need for
performance of elaborate ritual ceremonies accompanied by
chanting of mantras appropriate to the Deity. This Court
also recognized the place of an archaka and had held that
the pries would occuphplace of importance in the performance
of ceremonial rituals by a qualified archaka who would
observe daily discipline imposed upon him by the Agamas
according to tradition, usage and customs obtained in the
temple. Sri P.P. Rao, learned senior counsel also does not
dispute it.
The main controversy is only of hereditary succession
as an archaka. The question is: whether abolition of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 61
hereditary right to perform such service is an integral part
of the religion? Sri Parasaran contended that sine this
Court in first Shirur Math’s case had held that the doctrine
of a particular religion or usages and practices would
include food and dress, priest being an inseparable part of
the Agamas without whom the ceremonial temple worship would
not start, archaka becomes part of idol worship and a part
of religious practice. Therefore, the abolition of
hereditary right to perform ceremonial worship by the priest
would be an affront to matters of religion offending
Articles 25(1) and 26(b) of the Constitution. He contended
that in Seshammal’s case what was upheld by this Court was
the doing away of the line of succession on hereditary basis
but not hereditary right itself. This Court had upheld
hereditary right as such and given acceptance to legislative
sanction to doing away with the line of succession to
hereditary descendant from the same family and gotra. On the
other hand, Sri Rao contended that the office of archaka is
not done away with. Archaka is an important employee of the
temple to conduct daily ritual ceremonies in accordance with
the Agamas, customs, practices or Sampradayams prevalent in
the concerned themple. His service is akin to that of any
other employee of the temple. The hereditary right offends
Articles 14, 15(1) & (2) and 16(1) of the Constitution.
There is a distinction between religious service and
the person who performs the service; performance of the
religious service according to the tenets, Agamas, customs
and usages prevalent in the temple etc. is an integral part
of the religious faith and belief and to that extent the
legislature cannot intervene to regulate it. But the service
of the priest (archaka) is a secular part. As seen earlier,
the right to perform religious service has appointment by
the owner of the temple or king as its source. The
legislature is competent to enact the law taking away the
hereditary right to succeed to an office in the temple and
equally to the office of the priest (archaka). The
hereditary right as such is not integral part of the
religious practice but a source to secure the services of a
priest independent of it. Though performance of the ritual
ceremonies is an integral part of the religion, the person
who performs it or associates himself with performance of
ritual ceremonies, is not. Therefore, when the hereditary
right to perform service in the temple is terminable by an
owner for bad conduct, its abolition by sovereign
legislature is equally valid and legal. Regulation of his
service conditions is sequenced to the abolition of
hereditary right of succession to the office of an archaka.
Though an archaka integrally associates himself with the
performance of ceremonial rituals and daily pooja to the
Deity, he is an holder of the office of priest (archaka) in
the temple. So are the other office-holders or employees of
the temple. In Seshammal’s case, this Court had upheld the
legislative competence to take away the hereditary right as
such.
The real question, therefore, is: whether appointment
of an archaka is governed by the usage and whether
hereditary succession is a religious usage? If it is
religious usage, it would fall squarely under Article
25(1)(b) of the Constitution. That question was posed in
Seshamal’s case wherein this Court considered and held that
though archaka is an acomplished person, well-versed in the
Agamas and rituals necessary to be performed in a temple, he
does not have the status of a head of the temple. He owes
his appointment to Dharmakarta or Shebait. He is a servant
of the temple. In K. Seshadri Aiyangar v. Ranga Bhattar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 61
[I.L.R. 35 Madras 631], the Madras High Court had held that
status of hereditary archaka of a temple is that of a
servant, subject to the disciplinary power of the trustee
who would enquire into his conduct as servant and would be
entitled to take disciplinary action against him for
misconduct. As a servant, archaka is subject to the
discipline and control of the trustee. The ratio therein was
applied and upheld by this Court and it was held that under
Section 56 of the Madras Act archaka is the holder of an
office attached to a religious institution and he receives
emoluments and perks according to t he procedure therein.
This Court had further held that the act of his appointment
is essentially a secular act. He owes his appointment to a
secular authority. Any lay founder of a temple may appoint
an archaka. The Shebait or Manager of temple exercises
essentially a secular function in choosing and appointing
the archaka. Continuance of an archaka by succession to the
office from generation to generation does not make any
difference to the principle of appointment. No such
hereditary archaka can claim any right to the office. Though
after appointment the archaka performs worship, it is no
ground to hold that the appointment is either religious
practice or a matter of religion. It would thus be clear
that though archaka is normally a well-versed and
accomplished person in the Agamas and rituals necessary to
be performed in a temple, he is the holder of an office in
the temple. He is subject to the disciplinary power of a
trustee or an appropriate authority prescribed in the
regulations or rules or the Act. He owes his existence to an
order of appointment - be it in writing or otherwise. He is
subject to the discipline at par with other members of the
establishment. Though after appointment, as an integral part
of the daily rituals, he performs worship in accordance with
the Agamas Sastras, it is no ground to hold that his
appointment is either a religious practice or a matter of
religion. It is not an essential part of religion or matter
of religion or religious practice. Therefore, abolition of
the hereditary right to appointment under Section 34 is not
violative of either article 25(1) or 26(b) of the
Constitution.
It is true that the position of the office of Pedda
Jeeyanagar or Chinna Jeayanagar as a religious head in the
context of matadhipathi of Ramanuja sect was upheld by the
Privy Council, yet as regards his right in the Lord
Venkataramana temple, he performs the office as a nominee
and, therefore, he also owes his existence to the nomination
which is antithesis to hereditary succession. Every
Mirasidar or Gamekar equally cannot claim hereditary right
to continue to perform the duties from generation to
generation. They all are servants or members of the
establishment liable to disciplinary jurisdiction.
Consequently, they stand along with the priest (archaka) of
the temple of Sri Balaji. It is true that hereditary rights
of archaka or other office-holders are in vogue in most of
the State Acts and no attempt therein appears to have been
made to abolish them, yet their inaction or omission to
amend the law is no ground to hold that the legislature
lacks the power to do so or that they are in violation of
the Constitution. In fact, it is not the submission of Sri
Parasaran that the legislature lacked competence to enact
Sections 34 and 144 of the Act. Therefore, the abolition of
their rights do not violate either Article 25 (1) or 26 (b)
of the Constitution.
The next question is: whether abolition of the
emoluments attached to the office is invalid in law? Shri
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 61
Parasaran has forcefully and with vehemence at his command
repeatedly argued that appointment of archaka and right to
receive emoluments or share in the offerings is an integral
usage and practice prevalent in Makras Province from
centuries. In Seshammal’s case, the usage was not an issue
since the hereditary right or usage or practice was not
avoided in the Madras Act. Section 34(1) (b) has done away
with the appointment on usage or custom; when the
appointment is on the basis of usage and custom which
acquired the status of law and is a part of religious
practice, Section 34(1)(b) is unconstituttional. It is true
that in Seshammal’s case the issues whether appointment of
an archaka should made on the basis of custom or usage
prevalent in an institution or whether such appointment is
in contravention of Article 25 [1] or 26 [b] of the
Constitution were not directly addressed. So long as the
statute did not intervene regulating the secular appointment
of an archaka, the appointment according to prevailing usage
or custom was upheld by the courts. Consequently, the right
to succession or appointment remained valid. But with the
statutory intervention, unless the custom or usage is held
an integral part of the religion, the legislature has power
to regulate the appointment of an archaka or other office-
holder. In view of the settled legal position that the
appointment of an archaka is a secular act, the previous
custom or practice or usage in making an appointment to the
office of an archaka is regulated under the Act. As an
object in that behalf the hereditary right or custom or
usage, pervalent in that behalf, was statutorily abolished.
In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh
& Ors. [AIR 1961 SC 564] the question arose: whether the
hereditary right to hold office of village Munsiff under the
Madras Hereditary Village Offices Act, 1895 was
constitutionally valid? A Constitution Bench of this Court
held that the appointment on grounds of ‘descent’ violates
the fundamental right under Articles 14, 15 and 16 [1] of
the Constitution. In that context, after elaborate
consideration, the Court had held that what goes with the
office is its emoluments - whether in the shape of land,
assignment of revenue, agricultural produce, money, salary
or any other kind of remuneration. They are granted or
continued in respect of or annexed to the office by the
State. Apart from the office, there is no right to the
emoluments. In other words, when a person is appointed as
Village Munsiff, it is an appointment to the office by the
State to be remunerated either by use of land or by money or
salary etc. When the emoluments consisted of land, the land
did not become the family property of the person appointed
to the office whether by virtue of an hereditary claim to
the office or otherwise. It was an appendage to the office,
inalienable by the office-holder and designed to be the
emoluments of the officer into the hands of whosoever the
office might pass. It does not take out from the purview the
office under clauses [1] and [2] of Article 16 of the
Constitution. An office has its emoluments and it would be
wrong to hold that though office is an office under the
State, it is not within the ambit of Article 16 to take away
the emoluments attached to the office, because prior to the
Constitution the law recognized a custom by which there was
a preferential right to the office in the members of a
particular family. The customary pre-existing right of the
family to the property in the shape of emoluments of the
office is not independent of or irrespective of the office.
There was no pre-existing right apart from the office. It
was accordingly held that appointment on principle of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 61
descent was violative of Article 16 [1] and [2] of the
Constitution.
It deserves to be noted that Section 13 contains an
injunction to the officer mentioned therein and every other
person exercising the power or performing the functions
under the Act that they shall not interfere with and shall
observe the forum, usages, ceremonies and practices
obtaining in and appropriate to the religious institution or
endowment in respect of which such powers are exercised or
functions are performed. In Shirur Math’s case this Court
had upheld similar State action where the offending
provision was in conformity with the rules, practices,
usages or customs of the Math in dealing with the right of
the head of the Math. Similarly, Section 142 preserves
continuance of existing customs etc. by a savings class as
under:
"Savings:- Nothing in this Act
shall -
(a) affect any honour to which any
person is entitled by custom, the
performance of or interference with
the religious worship, ceremonies
and poojas in religious
institutions according to the
sampradayams and Agams followed in
such institutions. or (b) authorise
any interference with the religious
or spiritual functions of the head
of a math including those relating
to the imparting of religious
spiritual service."
A conjoint reading thereof preserves the existing customs,
performances, religious worships, ceremonies and poojas
according to Sampradayams and Agamas followed in such
institutions. Section 142 issues an injunction against
officer from interfering with such observances. Yet it would
not, by operation thereof, amount to revival of which has
been expressly abolished under Section 34(1)(b) of the Act.
Abolition of hereditary principle on the basis of custom or
usage to a holder of an office for continuance in that
office is one facet, and performance of ceremonies,
practices, customs of usages is another. Both cannot be
mingied in the same water. Both are distinct and separte
from each other. It would, therefore, be incongruous to
accept the contention of petitioners that the right to
continuance in office on the basis of custom and usage
independently survives. The further contention is that
interference with matters based on custom or usage relating
to ‘religious institution’ as defined in Section 2(23)
amounts to interference with the freedom of conscience and
free practice of religion. Therefore, it is violative of
Article 25(1) and is untenable in law. As held earlier,
being secular actions they are not integral part of the
religion or religious matters.
It is next contended that as per rules laid down in
Agmas, the archaka of particular denomination alone is
entitled to enter sanctum sanctorum and touch the image of
God. A touch by a person of different denomination defiles
the image of God. Therefore, persons belonging to that
particular family, sect or denomination alone are entitled
to perform pooja or ceremonial rituals of daily worship and
that the abolition of hereditary right amounts to
interference with the religion offending Article 25(1). Ex-
facie the argument being attractive, we had put a pointed
question to Shri Parasaran that when with the advancement of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 61
education and the liberty of a person to pursue liberal
higher education of his choice to improve his excellence,
persons born in a particular sect or denomination acquire
liberal education and migrate, as is usual, to a foreign
country and settle themselves in profitable avocation, and
no other person from that particular family, sect/sub-sect
or denomination having knowledge, proficiency and
accomplishment is available, what would happen to the
preference of rituals in that particular temple. The
counsel, after due consideration, was frank to submit that
in that eventuality the management of the institution has to
seek a suitable person from outside the family, sect/sub-
sect or denomination. With increased modern facilities for
liberal higher education and learning and ample
opportunities to improve excellence to seek advantageous
avocation, a child in traditional Vedic family may not fall
in line with father to practise his archakatwam, avocation
or services and no one can compel him to do so. Therefore,
what would be relevant is not that the candidate who seeks
to serve as an archaka must be from that family etc., but
must be an accomplished person in Agama rules having faith
and devotion in that form of worship and also proficiency to
perform rituals and rites, ceremonial rituals appropriate to
the temple according to its customs, usages, Sampradayams
etc. In other words, the faith and belief in the religion,
customs, usages or Sampradayams in that particular Agamas
and proficiency in performance of the rituals to the image
of God in those particular rituals are conditions precedent
to be eligible to hold office of the archaka. One who
fulfils those pre-conditions is eligible to be considered
and appointed to the office of archaka or other similar
offices. The regulation of this secular activity, therefore,
does not offend any faith or belief in the performance of
those duties by a person other than one hailing from the
family, sect/sub-sect or denomination hither to performing
the same. Earlier, the field of choice to appoint a
particular archaka was confined and limited to that family,
sect/sub-sect or denomination, but after the statutory
regulation the field of choice is widened and all eligible
candidates including those available from the family etc.
will be considered; competency is tested and when one is
found qualified, appointment is made to the office of
archaka according to the prescribed procedure. We,
therefore, hold that abolition of hereditary principle under
Section 34 is not violative of either Article 25(1) or 26(b)
of the Constitution.
It is next contended that there are no proper
guidelines in the Act to exercise the power and wide
discretionary been conferred on secular authority, i.e., the
Commissioner to decide as to who should be appointed to the
offices abolished under Section 34. The State has no
jurisdiction either to exercise adjudicatory power or
legislative power in matters relating to freedom of
conscience. We find no force in the contention. It is
settled law that existence of rules is not a condition for
the Act to become operative. The rules made under the
predecessor Act 17 of 1966 are in vogue. Section 35
prescribes procedure for appointment of office-holders and
servants. Section 36 prescribes qualifications. Section 37
regulates disciplinary conduct. The rules have been made in
exercise of the power under Section 155 to supplement these
provisions. Three schools to impart education in Agama
Sastras etc. are established one each in Andhra, Telangana
and Rayaiseema regions. Vide GOMS 2920 dated December 19,
1958 Board of Examiners from Specialist Pandits was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 61
constituted to impart training and conduct examinations and
papers were set out on each subject; GOMS No.1252 dated
November 30, 1971 prescribes rules to conduct examinations
in Agamas; Vide GOMS No.1051 dated September 20, 1976
Advisory Board, consisting of eminent Pandits in several
Agama specialities, was constituted to regulate examination
system. Thus, apart from the provisions in the Act, there
are rules which elaborately provide for training facilities
and conducting examinations in the prescribed manner. The
Act, therefore, is not arbitrary. The proceduce prescribed
therefor is neither vague nor arbitrary.
Yet another serious contention of Sri Parasaran is that
the archaka and other office-holders have a right to a share
in the Prasadam offered to the Lord. It cannot be
characterised either as an economic, political or secular
activity associated with religious practice. Food offered to
God becomes Prasadam. The devotee as well as office-holders
are eligible and entitled to a share in the Prasadam. The
archakas are entitled to remuneration from the worshippers
for services rendered to the worshippers. For instance, 1/2
of each broken coconut is offered to the Deity as Neyvedyam.
Similarly, in Anjitasawas, worshippers make payment for such
services. Devasthanams/temple charges fee from devotees, and
from it archakas are entitled to their share as they render
services to the Deity. They are entitled to separate
remuneration for the services they render to the worshipper.
The denial thereof, therefore, is unconstitutional, unjust
and unfair. He placed strong reliance on a decision of the
Madras High Court in Tirumalai Tiripati Devasthanam
Committee, by its Commissioner v. Archakam Seshachalam
Dikshithulu & 2 Ors. [1990 (1) LW 34 at 37 - Journal
Section]. Shri Rao resisted the contention and pointed out
that the archaka and other mirasiders had under a contrsact
certain percentage of shares in the offerings to the Lord
Venkteshwaraswamy. The statute has nullified the contract
and introduced principle of payment of salary for services
rendered. Prasadam is actually offered to the Lord at the
time of worship and a part thereof is given for personal
consumption. The archaka or other service holders have no
right to a share in other collections. The decision of the
Madras High Court has no application to the facts of this
case.
Having given our anxious consideation to the pespective
contentions, we find that there is no force in the
contentions of Sri Parasaram. Lord Venkteswaraswamy Temple
of TTD has its centuries old history. It had its golry with
the patronage of Cholla Kings, Pallava Kings, Vijayanagara
Kings who donated large tracks of lands for its maintenance
and upkeep. Equally, it supported the plunder by the French
invaders and British empire who used its income as part of
public exchequer. It has regained its resplendent glory with
immense faith and devotion the people have in Lord
Venkteswaraswamy who visit daily in lacs, wait in queue for
a day for darshan for a few seconds. Its income grew from
voluntary offerings in Hundi and sale of Prasadams (food)
and Laddus (Sweet-meat). Its administration and management
is a systematised feature. The Act and the predecessor Act
17 of 1966 regulated the same in providing every facility to
the pilgrims and devotees and cared to minimise
inconvenience to devotees during darshan-stay in the
precincts or outside-wait at Thirumalai and at Tirupathi
down the hills. Chapter VIX of the Act exclusively deals
with the management of TTD. It is seen that so long as
hereditary archakas, mirasidars or office-holders had their
hereditary right, as a part of their rendering service they
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 61
were entitled to a share in the Prasadam or collections
offered to the presiding Deity or other Deities of the
temple as per the custom or usage prevailing in the
particular temple or agreement between the management and
the office-holders. But on abolition thereof, as a
corollary, the right to a share in coliections, Prasadam
etc. also ceased to operate and also stood abolished. Apart
from the hereditary right, they have no independent right to
a share in the offerings etc. Therefore, with the abolition
of the hereditary right, the right to receive customary
payment associated with an office equally stood abolished
under Section 144. Section 144 is consequential to Section
34 and other similar rights like Section 16 of the Act.
Resultantly, the right to receive a share in the Prasadam
etc. stood abolished. Holder of an office is entitled to
payment of salary prescribed under the rules for services
rendered by an archaka etc. Consequently, the right to a
share by customary pactices or usages or under a contract
with management also stood abolished. They are regulated by
making payment of the monthly salary to the holder of an
office in accordance with the scales prescribed under the
rules made thereunder. The Division Bench of the Madras High
Court had gone into the question prior to the abolition of
the rights. Therefore, principle laid therein no longer
operates in view of the statutory interposition abolishing
those entitlements.
The gamekars (who prepare food items offered to God
including Laddus) are species of mirasidars doing service to
Lord Deity on hereditary principle. Though they perform the
duty of perparing food etc. according to Agama prescription,
usages and practices obtaining in each temple, their rightsd
being founded on hereditary principle stood abolished. This
abolition, in respect of archaka and other service holders
having already been upheld, the case of gamekars cannot
independently stand on any higher footing. Therefore,
abolition of their rights under Sections 34 and 144 is
equally valid in law.
It was next contended that prescription of the
qualifications to the archaka is arbitrary, unjust and
unfair. We find no force in the contention. It is true that
prior to the Act came into force, the succession to the
office was based on hereditary principles. But Section 37 of
the predecessor Act 17 of 1966 prescribes qualifications of
archaka which are in pari materia with those prescribed in
Section 36 of the Act. It is common knowledge that many an
archaka are not highly educated but have working knowledge
in the performance of ritual and daily pooja to the
presiding Deity of the temple and other Deities installed in
the temple. To obviate deficiency in learning etc.. A gams
training schools in the respective regions, viz., Andhra,
Telengana and Rayalseema were established and training in
fact is imparted to the canndidates. The recognition of the
qualifications by the Commissioner is one of the conditions,
but we have seen the rules made in this behalf. Rules
provide elaborate procedure. Competent epersons having
specialised knowledge in the respective subjects set the
question papers and evaluation thereof is done by equally
competent persons on the subjects. As regards the recitation
and clarity of pronunciation of Vedic mantras, the
candidates are adjudged by the expert persons well-versed in
Vedic mantras and Agama sastras. A pandit in that branch of
speciality is in service of the department. With his
assistance and of other persons, the Commissioner would
adjudge the suitability of the respective candidates.
Similarly, the word ‘Sapthavyanams’, i.e., seven bad habits,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 61
has been clarified in the Explanation of Appendix to Section
36. Therefore, the authority would have no difficulty in
adjudging whather a candidate is free from seven voices or
any of them. If there is any error of judgment or denial of
appointment on that basis in any individual case that would
be a matter for consideration in an appropriate forum. The
provisions, therefore, are not arbitrary, unjust or unfair.
Yet another serious contention of Sri Parasaran is that
the power of transfer under Section 39 is within the
grinding teeth of Article 25 (1) of the Constitution. It is
his contention that each temple has its own rules laid down
by Agamas, practices and customs prevalent in that temple;
archakas will have special knowledge of working in the
temple; an archaka transferred to another temple or
transferee-substitute bereft of that knowledge inthe
performance of rituals defile the image of the presiding
Deity, leading to serious repercussions and, therefore,
Section 39 is ultra vires the Constitution. We find no force
in the contention. It is seen that Sections 13 and 142,
which have already been adverted to, would take care of the
apprehended catastrophe. On mere apprehension, Section 39
cannot be declared to be ultra vires. If in any individual
case any transfer was effected of a person who had no
accomplishment of Agamic rules, customs, practices or
sampradayams applicable to that particular temple, it would
be considered and dealt with accordingly. It cannot be
expected that the Commissioner would act in violation
thereof and would act in a way inconsistent with Sections 13
and 142. Each case would be considered on its own merits and
correctness of such transfer would be tested in an
appropriate proceedings. Therefore, on that score alone,
Section 39 cannot be declared arbitrary or ultra vires or
unjust.
In Andhra Pradesh there are as many as 32,201 temples
out which 7761 temples are assessible institutions; the
remaining 24,440 temples have income of less than Rs.
1,000/- per annum, only 582 out of them have income of more
than Rs.10,000/- per annum. Only around 8 temples have
income of more than Rs.20,00,000/- per annum. All the
archakas or employees in these categories of 24,440 small
temples would be deprived of their livelihood by abolition
of their hereditary rights and introduction of graded scales
of pay. This information has been furnished in the written
arguments submitted by Shri Markandya but we did not have
the occasion to have them verified during the course of
hearing. It would be seen that the principles in fixing the
scales of pay and method of payment of salary introduced by
the rules are required to be adjudged. In the absence of any
material it is difficult for us to give any finding in that
behalf. Suffice to stated that liberty is given to place
those necessary and material evidence before the Government
which would constitute a Committee consisting of Deputy
Secretary, Finance Department. Joint Secretary to the
Government, Revenue (Endowment Department) and Joint
Commissioner, Endowment Department. The Committee would go
in the question to rationalize the pay-scales of all the
archakas in different temples and the modality for payment
of salary to them. After approval of the rules by the State
Government, the respondents should place the same before the
Court for further approval.
Though we have upheld abolition of hereditary right to
appointment as an archaka or other office-holders, the
evidence from Vaikhanasa literature and other material
indicate that archaka should bestow his total dedication to
the Deity in the performance of daily rituals; at the same
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 61
time, he and his family members must be kept in comfort.
The property endowed for his services or the income derived
from the offerings or the payment of salary, if any, is
identified as a source for his living in comfort. The State
exercising its secular power regulates appointment of
archakas, as upheld hereinbefore; equally, he, along with
his family, is required to be kept with daily comfort so
that he would continue to dedicate himself to perform the
ritual worship of the Deity. As indicated earlier, the State
is required to determine his service conditions, scale of
pay and other emoluments according to the grade of the
temple in which he works and to regulate the period of duty
and of service. That apart, welfare measures in addition
should be initiated as a measure of social welfare to the
archakas and other employees of the temple and pandits
working in the temples and under the supervision of the
Commissioner. Therefore, the State should come forward with
a scheme to provide the archakas, other employees and their
family members like suitable accommodation, education by way
of refresher courses and courses in Agamas in the respective
region, medical facilities, educational facilities to their
children, loans for construction of their own houses, and
wherever accommodation in the temple is available letting
the same to them on reasonable rent, group insurance scheme,
unforeseen contingencies like accident, death etc.,
rehabilitation of the widow or educated unemployed youth or
such other measures as may be incidental and part of
economic welfare. The extent of the similar facilities
already existing and provided for may be excluded from c
scheme. For other items appropriate scheme should be
formulated.
In that behalf the State Government is directed to
constitute a Committee consisting of the Additional
Commissioner, Endowments Department, a Joint
Secretary/Deputy Secretary [Endowment] Revenue Department;
two representatives of the archakas to be nominated by their
associations and one representative of other
officer/servants of the temples. It would be open to the
representatives of the archakas etc. to place their views
and material before the Committee in the formulation of the
scheme. The Committee will undertake an indepth study into
the schemes and formulate the same. After the scheme is
formulated, the Government would take a decision thereon and
would place the duly approved scheme before this Court
within six months from today for further action thereon.
We are of the view that to effectuate the scheme,
tentatively a consolidated fund of Rs.75 crores would be set
up as corpus and procedure would be evolved by the
Government as to in which nationalize Bank or income
yielding Government Securities the same would be deposited;
as to who would operate and disburse the income accrued from
the fund from time to time. Subject to further revision, if
any, in the above consolidated fund, the TTD is directed to
deposit a sum of Rs.20 crores into the fund during the
financial year 1996-97 by end of June 1996. Each financial
year, a sum of Rs.10 crores be deposited till the corpus of
Rs.75 crores is reached. The Government is also directed to
call upon other major temple like Narasimhaswamy temple.
Yadagirigutta; Sri Malikarjunaswamy temple, Karimnagar; Ugra
Narasimhaswamy temple, Visakhaptam; Satyanarayanaswamy
temple. Annavaram; and Kanakaduragmba temple, Vijayawada
etc. with annual income of Rs.20 lakhs or more, to
contribute to the said fund of Rs.75 crores. These temples
may deposit the amount in annual instalments spread over a
period not exceeding five years. During the financial year
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 61
1996-97, a sum of Rs.5 crores by each of the major temple
may be directed to be deposited and in subsequent four
years, a sum of Rs.1 crore every year may be directed to be
deposited. In case of any difficulty, the Government would
be at liberty to seek from this Court further directions or
clarification or modification in that behalf. It would also
be open to the Government to seek donations from other
charitable institutions within or outside the State of
Andhra Pradesh or from non-resident Indians. The State
Government would also approach the Income-Tax Department and
the Government of India to exempt from the income-tax the
said donations as well as the income derived by way of
interest or otherwise on the corpus of or further amounts
deposited in the Fund.
When the matter had come up for admission, on June 22,
1987, this Court had directed status quo as to the rights of
the hereditary archakas, trustees and mirasidars as on the
date the Act had come into force. This Court had further
directed that the archakas, trustees and mirasidars "shall
keep an account of the offerings, both in cash and in kind,
and the value thereof as may be taken by the hereditary
archakas, trustees, mirasidars as their remuneration, salary
and perquisites as used to be taken by them immediately
before the commencement of the Act and submit the same to
the Executive Officer or to the Commissioner of Religious
Endowments, as the case may every month by the 15th day of
the next succeeding month. The first of such accounts shall
be submitted by 15th July, 1987 for the month of June,
1987". On October 13, 1987, the said order was modified to
the extent of archakas receiving more than Rs.10,000/- as
monthly emoluments. Direction was given to furnish security
either by way of bank guarantee or immovable property
security as ordered for archakas and gamakars in the main
case. By further order dated August 25, 1987, an order was
made to protect the interests of the TTD and two working
groups, viz., archakas and gamekars thus:
"Therefore, as an interim
arrangement we direct that archakas
shall furnish a consolidated
security of Rs.20,00,000/- [Rupees
twenty lakhs] either by way of bank
guarantee or by way of property
security to the satisfaction of the
Additional District Judge. Tirupati
within four weeks hence. Similarly,
the other group who is incharge of
preparing prasadams will furnish
either bank guarantee or property
security to the satisfaction of the
same Additional District Judge of
Tirupati of Rs.20,00,000/- [Rupees
Twenty lakhs] within the same
period. This amount has been fixed
taking into consideration the
possibility of this case being
disposed of by this Court in course
of 1988."
Though liberty was given to obtain further directions if the
cases would not be disposed of by the year 1988, we do not
find that any further directions were given by this Court.
This Court had reiterated the interim direction dated June
22, 1987 referred to hereinabove.
In view of the fact that writ petitions and transfer
cases are being disposed of, it would be open to the
Executive Officer of TTD etc. to work out the payments made
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 61
to the archakas, mirasidars and gamekare etc. and also the
rights consistent with the law and would take action
accordingly.
The writ petitions and the transfer cases are dismissed
subject to the above directions. In the circumstances of the
case, however, the parties are directed to bear their own
costs.