By Anuj A and Aditya AK.The Supreme Court of India recently faced the “unenviable task” of ruling on religious beliefs and practices in Tamil Nadu. In its judgment, it held that temple priests in the state could continue to be appointed according to the age-old Agama Sastras..In Adi Saiva Sivachariyargal Nala Sangam & Ors. v Tamil Nadu, the apex court delved into the limits of State interference with religious customs and usage, the ambit of freedom of religion, and the boundaries of this very freedom. Senior Advocate K Parasaran appeared for the petitioners..In this edition of #Lawyer’s Lingo, we look at seven questions that the judgment answered..1. Agama what?.The Agama Sastras are a set of Hindu scriptures dating back to the Vedic period, with different agamas for different sects. These scriptures prescribe a gamut of issues, right from temple construction. In the 1958 decision of Sri Venkataraman Devaru & Others (quoted in the instant case), the Supreme Court observed that,.“These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated…..and where the several classes of worshippers are to stand and worship…”.For the purpose of the matter at hand, the Agamas contain guidelines on the basis of which Archakas (priests) are appointed in Hindu temples..2. Can the state government interfere with religious practices?.Yes and no. But mostly, no..Article 26(b) of the Constitution guarantees to a religious denomination the freedom to manage its religious affairs sans interference..On the other hand, Article 25(2)(b) states,.“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law… providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”.The provision does not specify whether or not the “throwing open” of the doors refers to allowing any Hindu to become a part of temple administration..3. What was the challenge before the Supreme Court?.A Government Order passed by the state of Tamil Nadu dated May 23, 2006. The order states,.“Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a[n] Archaka in Hindu temples.”.In effect, the appointment of Archakas would not be limited to a particular denomination or sect of Hindus. It was a challenge to this very order that a Bench of Justices Ranjan Gogoi and NV Ramana was hearing..4. What does the law say?.The law in question is the Tamil Nadu Hindu Religious and Charitable Endowments Act of 1959 (the Act)..The state government’s efforts to bring about a change in religious practices date back to 1970, when Section 55 of the Act was amended. Previously, the Section provided that office holders of a religious institution were required to be appointed on the principle of hereditary succession..Post the amendment in 1971, the principle of next in line of succession was abolished. This amendment was challenged before the Supreme Court, and upheld (see section below)..In 2006, the impugned G.O. was passed. In June the same year an Ordinance to amend S.55 of the Act. The ordinance stated that,.“No person shall be entitled to appointment to any vacancy… on the ground of any custom or usage.”.The explanation provided in the Ordinance held that,.“Archakas of the Temples are to be appointed without any discrimination of caste and creed. Custom or usage cannot be a hindrance to this.”.A month later, the Ordinance was replaced by the Tamil Nadu Act No. 15 of 2006. However, this Act did not contain the amendment to S.55 provided in the Ordinance..5. What has the Supreme Court held before in this regard?.The 1970 amendment referred to above was challenged in Seshammal & Ors. v. State of Tamil Nadu. It was argued that the amended section violated the rights guaranteed under Article 26(b)..Upholding the validity of the amendment, a Constitution Bench of the apex court noted,.“Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”.Moreover, the erstwhile Advocate General admitted that the amended Section 55 was not unqualified, and would be subject to Section 28 of the Act, which mandates that the trustees must comply with the usage of the institution..From this provision, the court in the present case inferred that,.“If the usage or practice of the institution required the Archaka of a temple to be of a particular denomination, the said usage would be binding”..In the subsequent decision of N Adithayan v. Travancore Devasom Board, the apex court held that rights claimed solely on the basis of caste cannot enjoy the protection of Article 25 and 26. In the present case, Justice Gogoi emphasizes that this decision is not contrary to what was held in Seshammal..Then, the court referred to a 1954 decision of Shirur Mutt, wherein it was held,.“Under article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion…”.Interestingly, a minority view in a 2004 judgment held the contrary..“The freedom to act and practise can be subject to regulations…Further, in the exercise of the power to regulate, the authorities cannot sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function.”.6. So what is the clincher?.While the Respondents, represented by Senior Advocates PP Rao and Colin Gonsalves, have argued that the existing rule of appointment of Archakas is violative of Articles 14 and 17, the Bench has evoked Article 16(5)..“Nothing in this Article shall affect the operation of any law which provides that an incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”.Therefore, the appointment of the Archaka from a particular denomination would be legitimate and not violative of Article 14. Moreover, the court also points to Constitutional Debates on Article 16(5), which extended its application to an office in a temple which requires performance of religious functions..Further, the matter does not attract Article 17, as it not a caste-based bias as shown in preceding cases. The Court observes that only a particular subset of Brahmins could perform the duties..So things are pretty clear, right?7. .Not quite. It is evident from the order that the Supreme Court does not want to make adjudication on religious practices the norm. So, while ruling in favour of the Agama Sastra custom, the court’s decision on the validity of the order was, however, far from conclusive. The judgment states,.“What then is the eventual result? The answer defies a straight forward resolution and it is the considered view of the court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment. What is found and held to be prescribed by one particular or a set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue.”.As the Court concludes, “the necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable.”.Read the judgment:.Image by Rengeshb
By Anuj A and Aditya AK.The Supreme Court of India recently faced the “unenviable task” of ruling on religious beliefs and practices in Tamil Nadu. In its judgment, it held that temple priests in the state could continue to be appointed according to the age-old Agama Sastras..In Adi Saiva Sivachariyargal Nala Sangam & Ors. v Tamil Nadu, the apex court delved into the limits of State interference with religious customs and usage, the ambit of freedom of religion, and the boundaries of this very freedom. Senior Advocate K Parasaran appeared for the petitioners..In this edition of #Lawyer’s Lingo, we look at seven questions that the judgment answered..1. Agama what?.The Agama Sastras are a set of Hindu scriptures dating back to the Vedic period, with different agamas for different sects. These scriptures prescribe a gamut of issues, right from temple construction. In the 1958 decision of Sri Venkataraman Devaru & Others (quoted in the instant case), the Supreme Court observed that,.“These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated…..and where the several classes of worshippers are to stand and worship…”.For the purpose of the matter at hand, the Agamas contain guidelines on the basis of which Archakas (priests) are appointed in Hindu temples..2. Can the state government interfere with religious practices?.Yes and no. But mostly, no..Article 26(b) of the Constitution guarantees to a religious denomination the freedom to manage its religious affairs sans interference..On the other hand, Article 25(2)(b) states,.“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law… providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”.The provision does not specify whether or not the “throwing open” of the doors refers to allowing any Hindu to become a part of temple administration..3. What was the challenge before the Supreme Court?.A Government Order passed by the state of Tamil Nadu dated May 23, 2006. The order states,.“Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a[n] Archaka in Hindu temples.”.In effect, the appointment of Archakas would not be limited to a particular denomination or sect of Hindus. It was a challenge to this very order that a Bench of Justices Ranjan Gogoi and NV Ramana was hearing..4. What does the law say?.The law in question is the Tamil Nadu Hindu Religious and Charitable Endowments Act of 1959 (the Act)..The state government’s efforts to bring about a change in religious practices date back to 1970, when Section 55 of the Act was amended. Previously, the Section provided that office holders of a religious institution were required to be appointed on the principle of hereditary succession..Post the amendment in 1971, the principle of next in line of succession was abolished. This amendment was challenged before the Supreme Court, and upheld (see section below)..In 2006, the impugned G.O. was passed. In June the same year an Ordinance to amend S.55 of the Act. The ordinance stated that,.“No person shall be entitled to appointment to any vacancy… on the ground of any custom or usage.”.The explanation provided in the Ordinance held that,.“Archakas of the Temples are to be appointed without any discrimination of caste and creed. Custom or usage cannot be a hindrance to this.”.A month later, the Ordinance was replaced by the Tamil Nadu Act No. 15 of 2006. However, this Act did not contain the amendment to S.55 provided in the Ordinance..5. What has the Supreme Court held before in this regard?.The 1970 amendment referred to above was challenged in Seshammal & Ors. v. State of Tamil Nadu. It was argued that the amended section violated the rights guaranteed under Article 26(b)..Upholding the validity of the amendment, a Constitution Bench of the apex court noted,.“Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”.Moreover, the erstwhile Advocate General admitted that the amended Section 55 was not unqualified, and would be subject to Section 28 of the Act, which mandates that the trustees must comply with the usage of the institution..From this provision, the court in the present case inferred that,.“If the usage or practice of the institution required the Archaka of a temple to be of a particular denomination, the said usage would be binding”..In the subsequent decision of N Adithayan v. Travancore Devasom Board, the apex court held that rights claimed solely on the basis of caste cannot enjoy the protection of Article 25 and 26. In the present case, Justice Gogoi emphasizes that this decision is not contrary to what was held in Seshammal..Then, the court referred to a 1954 decision of Shirur Mutt, wherein it was held,.“Under article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion…”.Interestingly, a minority view in a 2004 judgment held the contrary..“The freedom to act and practise can be subject to regulations…Further, in the exercise of the power to regulate, the authorities cannot sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function.”.6. So what is the clincher?.While the Respondents, represented by Senior Advocates PP Rao and Colin Gonsalves, have argued that the existing rule of appointment of Archakas is violative of Articles 14 and 17, the Bench has evoked Article 16(5)..“Nothing in this Article shall affect the operation of any law which provides that an incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”.Therefore, the appointment of the Archaka from a particular denomination would be legitimate and not violative of Article 14. Moreover, the court also points to Constitutional Debates on Article 16(5), which extended its application to an office in a temple which requires performance of religious functions..Further, the matter does not attract Article 17, as it not a caste-based bias as shown in preceding cases. The Court observes that only a particular subset of Brahmins could perform the duties..So things are pretty clear, right?7. .Not quite. It is evident from the order that the Supreme Court does not want to make adjudication on religious practices the norm. So, while ruling in favour of the Agama Sastra custom, the court’s decision on the validity of the order was, however, far from conclusive. The judgment states,.“What then is the eventual result? The answer defies a straight forward resolution and it is the considered view of the court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment. What is found and held to be prescribed by one particular or a set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue.”.As the Court concludes, “the necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable.”.Read the judgment:.Image by Rengeshb
