V.S. Srikumar v. State of Tamil Nadu & Ors.

W.P. No. 16932 of 1998 filed under Article 226 of the Constitution ofIndia praying to issue writ of mandamus forbearing the respondents fromimplementing the Tamil language in the performance of poojas / archanasin the temples contrary to the Agamic principles.For Petitionerin WP.15791/1998 : Mr. R. VenkatakrishnanFor Petitioner in WP.16932/1998 : Mr. V. RaghavachariFor Respondents : Mr. M.R. Murugesan, Spl.GPCOMMON ORDERK.CHANDRU, J.The short question that arises for consideration in these two writpetitions is as to whether the action of the official respondents inproviding for archanas to be performed in Tamil at the request of thedevotees in addition to the existing practice of reciting archanas inSanskrit, would offend the right to profess Hindu religion guaranteedunder Article 25 of the Constitution of India. 2.In W.P. No. 15791 of 1998, the petitioner claims to be thePresident of the Hindu Temple Protection Committee and seeks for adirection to prevent the respondents State of Tamil Nadu and theCommissioner for Hindu Religious and Charitable Endowments (for short,HR&CE) Department from interfering in any manner with the ceremonies,poojas and mode of performance, daily rituals of temples by customarytraditional mode of worship. 3.In W.P. No. 16932 of 1998, the petitioner, a hereditary archakaof the temple at Uthirakosamangai, Ramnad District, seeks for a prayerto forbear the respondent State and the subordinates from implementingthe Tamil language in performance of poojas / archanas in the templecontrary to the Adamic principles.4.In both the cases, notice of motion was ordered and counteraffidavits have been filed by the State. In view of theinterconnectivity between the writ petitions, the two writ petitionswere taken up for hearing together.5.Heard the arguments of Mr. R. Venkatakrishnan and Mr. V.Raghavachari, learned counsel appearing for the petitioners in W.P. Nos.15791 and 16932 of 1998 respectively and Mr. M.R. Murugesan, learnedSpecial Government Pleader for HR&CE and other impleaded parties and https://hcservices.ecourts.gov.in/hcservices/ have perused the records.Though the matter was heard quite sometimeback, since one of us [K. Chandru, J.] was posted at the Madurai Benchduring the second half of 2007, the orders could not be pronouncedearlier.6.Before we proceed to determine the issue on hand, it isnecessary to first understand the concept of 'Hindu religion'.7.When we think of the Hindu religion, we find it difficult, ifnot impossible, to define Hindu religion or even adequately describe it.Unlike other religions in the world, the Hindu religion does not claimany one prophet; it does not worship any one God; it does not subscribeto any one dogma; it does not believe in any one philosophic concept; itdoes not follow any one set of religious rites or performances; in fact,it does not appear to satisfy the narrow traditional features of anyreligion or creed. It may broadly be described as a way of life andnothing more.8.In defining these concepts, Dr. Radhakrishnan, in his book onIndian Philosophy (Vol. I - page 48) wrote as follows:"Though philosophic concepts and principles evolved bydifferent Hindu thinkers and philosophers varied in manyways and even appeared to conflict with each other in someparticulars, they all had reverence for the past andaccepted the Vedas as sole foundation of the Hinduphilosophy. Naturally enough, it was realised by Hindureligion from the very beginning of its career that truthwas many-sided and different views contained differentaspects of truth which no one could fully express. Thisknowledge inevitably bred a spirit of tolerance andwillingness to understand and appreciate the opponent'spoint of view. That is how "the several views set forth inIndia in regard to the vital philosophic concepts areconsidered to be the branches of the self-same tree. Theshort cuts and blind alleys are somehow reconciled withthe main road of advance to the truth.'' 9.In this context, we have to see, whether the attempt of thepetitioners to bring in agamic injunctions against the authorities topermit the pooja / rituals to be performed in Tamil in addition to theexisting practice, that too, only at the request of the worshippers /devotees, can be countenanced. Agamas are Hindu scriptures laying downthe separate theological disciplines and doctrines for the worship.Agamas guide the faithful who are moved by their devotion to the SupremeGod to worship one of His manifestations.10.While the petitioners are so certain and plead that Devanagariis the only language to communicate with the Gods and there can be no https://hcservices.ecourts.gov.in/hcservices/ interference with that practice and that chanting the manthras inSanskrit is an essential part of religious practice and that the Tamillanguage is not one of recognised form of worship, there has beencounter view points throughout the history of the Tamil Nadu.Even before 10 centuries, which is described by the Historians as the'Bhakthi' Movement or Renaissance Tamil was used as a language topropagate 'Saivism' and 'Vaishnavism'. The "Devaram" and"Thiruvasagam" were created for the purpose of propagating the Saivitephilosophy so that even the common man can understand. Religiousendowments were created to chant the "Devaram" and "Thiruvasagam" knownas the Tamil Vedas in the Saivite temples and never there have been anyprotest before the one which has now been brought to this Court by thepetitioners. 11.In fact, the revolutionary poet Bharathidasan, in hiscompilation of poems titled as Tamil Resurgence (English translation byM.S. Venkatachalam), in an angry outburst in the poem titled as "nfhapyhu;"- (Inside the Temples) wrote as follows:nfhapyhu;Inside the Temples"capu;nghd;w c';fs; jkpH; Do you think that Tamil, which is dearflt[Sf;nf ctg;gjhy; like your life, is not liked by God? ,y;iy nghYk; If your life-like Tamil is used for prayers, won't it be relished by God?"capu;nghd;w c';fs; jkpH;ciuj;jf;fhy; flt[sij xg;ghu; nghYk;"12.Further, he lamented in the same poem which is as follows:"jpUg;goapy; epd;wgo If, by standing just near the sanctum bre;jkpHpy; bgUk;goahu;sanctorummUspr; bra;j we sing the hymns of our hoary bards, And make them reach the ears of our cUg;goia mg;gonamen,Cuwpa[k; goa[iuj;jhy; they will have a sway over all their goa[k; be";rpy;"minds. 13.In fact, the earlier attempt by one of the petitioners havingfailed as will be seen later and similar writ petitions have beenrejected, the petitioners have once again come forward with similarplea, that too, without disclosing the result of the earlier attempts. https://hcservices.ecourts.gov.in/hcservices/

14.The petitioner in W.P. No. 15791 of 1998 contended that thereare two types of Temples in Tamil Nadu, viz., Saivite and Vaishnavite,and both follow the basic Sastras in respect of Agamas for performanceof periodical poojas and other festivals and most of the temples inTamil Nadu have the history of atleast 3 to 4 centuries and there arealso temples which have history over 1000 years. The regular poojas andfestivals were performed traditionally by certain families and thefounders of the temples have made perpetual provisions for theirmaintenance and landed properties were also donated to the temples forcarrying out these poojas. The HR&CE Act 1959 was enacted to controlthe administration of the temples. But in the guise of administration,there is no vested right on the State to interfere with any aspectleading to rituals practiced in the temples including the mode ofworship of idols consecrated therein. 15.It is also stated that the respondent State had ordered thearchakas and gurukkals in the temples under the control of HR&CEDepartment in Tamil Nadu to do archana in Tamil. They are alsocompelling the persons in charge of administration of the temple to dothe 'Kumbabhishekams' only in Tamil language. In paragraph 9 of theaffidavit, the petitioner had averred as follows:Para 9:"The language Devanagari is supposed to be the language tocommunicate with God/ Gods. Apart from that the Saiviteprinciples of the concept of The Lord Shiva and the Idolform of worship is one and the same and cannot bedifferent. One cannot change the form of the Idol andstill claim that it is a particular God. Similarly thelanguage cannot be changed and the new recitals cannot becalled as Mantra. Therefore the change in language goesto the root of the basic faith and belief of Hindusthroughout this country. This cannot be perpetratedagainst the temples."16.The petitioner had also stated that the respondent State hadissued administrative instructions threatening the archakas and poojariseven though they had issued a clarification that there was no compulsionin implementing their orders. In the light of the above, thepetitioner sought for the prayer referred to above.17.Similarly, the petitioner in W.P. No. 16932 of 1998 had statedthat the agamic sanctions cannot be replaced by preference to Tamillanguage and by giving directions, the respondents cannot interferewith the daily rituals substituting recognised form of Sanskrit to oneof Tamil and on 29.8.1997, the Commissioner, HR&CE wrote acircular letter to all the subordinate officers to perform theLaktcharchana and Kodi Archana in Tamil. Likewise, on 18.9.1997, theCommissioner of HR&CE gave a direction to the Joint Commissioners to https://hcservices.ecourts.gov.in/hcservices/ ensure that the Tamil archanas are performed in all the temples. It isalso stated that two Notice Boards have been placed in the templesstating that the archanas would be performed in Tamil and also inSanskrit and it depends upon the wishes of the devotees. According tothe petitioner, agama is not merely concerned with recitation of slogas.But it deals with heavier steps like Town Planning, Architect of temple,Astronomy, Geology, construction of tanks, consecration of idols, dailyworship and other details and, therefore, this cannot be altered by anydirection and Article 25 of the Constitution of India guarantees thecitizen of India to practice, propagate and freely profess any religiousorder subject to the restrictions contained in the said Article. 18.Therefore, they submitted that the persons, who do not believein reciting manthras in Sanskrit, are well advised to construct theirown temples and utter Tamil manthras in those places and in paragraphs19 and 23 of the affidavit, it is stated as follows:Para 19:"I respectfully submit that according to the Manthra insanskrit language is an established and essential part ofworship. The State shall not interfere in such affairsby calling upon the temples to offer Pooja and Archana intamil. Imposition of Tamil on religious worship will notenhance the image of language or capacity of the State inits administration. On the other hand, it will havedetrimental and serious effect."Para 23:"I respectfully submit that the tamil language is not oneof the recognised form of worship and compelling theSaivite to recite the Mantra in Tamil would be against theAgamic principles...."19.In response to the averments made in the affidavit, therespondent State in their counter affidavit in W.P. No. 15791 of 1998had categorically stated that there was no interference with any rightsof any persons and that in terms of the HR&CE Act, the authorities arehaving the power of superintendence and control over the religiousinstitutions and they are strictly adhering to the powers andresponsibilities vested on them. It was also stated that there was nocompulsion on all the archakas and gurukkals to perform the archanas inTamil. The language of the archana is the option of the devotees andperformance of such wish of the devotees is only done by the persons,who are familiar with Sanskrit or Tamil as the case may be and there isno compulsion on the archakas and gurukkals to do archana in Tamil.There was no threat to any person so as to carry any orders of theDepartment. 20.Even the Supreme Court, while disposing of Civil Appeal videorder dated 02.4.1992, had observed that performing archanas in Tamil isdone along with Sanskrit without any interference to traditional form ofworship. They have also quoted from the ancient Tamil Literature https://hcservices.ecourts.gov.in/hcservices/ Tholkappiyam to the effect that what language the learned Saintscommand, that language will be the language of Gods. Even in theTamil Literature Thirumarai describing the worship of God by the Tamilsin the olden days, it is stated that Lord Shiva expresses His desirethat His devotees singing in Tamil which itself considered as archana.In ordering for the six times poojas, the Department was advised by acommittee of scholars and they have not violated any agamic principlesin this regard. After referring to the two orders of this Court andthe Supreme Court, it was stated that there was no violation of anyrights on the parties. 21.Further, it was contended that by G.O. Ms. No. 520 CommercialTaxes and Religious Endowments Department dated 18.11.1997, a Committeewas formed comprising of scholars and experts to compile the archanasfound in religious literature so that uniformity can be maintained inall temples in performance of archanas in Tamil. The Committeesuggested certain measures and the view of all the Religious Heads andMadathipathis were also obtained and all of them unanimously welcomedthe Tamil archana in temples in Tamil Nadu and appreciated the effortsof the Department on the promotion of Tamil archanas. In fact,Agnihothoram Ramanuja Thatachariar, a great Scholar in Vaishnavisham,has stated that archanas are not advocated in Agamas and it is onlyperformed in temples to satisfy the devotees. It is further statedthat Devanagari cannot be the only language to communicate the Gods andfrom time immemorial, both Devanagari and Tamil have been in usage inoffering worship in the temples. 22.Similarly, in the counter affidavit in W.P. No. 16932 of 1998,it was contended by the State that the allegation made by thepetitioner, who was hereditary archaka himself, was imaginary and theDepartment is not concerned about the non-believers and it is onlyconcerned about the believers and the issue was whether the archana inTamil could be performed in the temple by the archakas who haveknowledge in it and if any such devotee wishes any Tamil archana in atemple, that is axiomatic that the person performing Tamil archana mustalso be proficient in the Tamil manthras whenever such alternativerequest is made by the devotees. It is also stated that it is notthe intention of the Government to introduce Tamil in the temples andonly petitioner's averments show his ego in having specific attachmentto a particular language. The Supreme Court itself has neverprohibited the alternative use of Tamil language in the archanas andthat there is a wealth of Tamil religious literature providing forarchanas and religious rituals to be performed using manthras written inTamil. 23.In both the writ petitions, though there is no particularattack against any order, general statements have been made. However,in this respect, it is necessary to recall the reply sent by the StateSecretary to Government dated 10.02.1998 in response to the legal notice https://hcservices.ecourts.gov.in/hcservices/ issued by one of the petitioners, which is verbatim reproduced thoughsome sentences are not clear in the original itself: "2)No circular is issued preventing performing archanasin Sanskrit as mentioned in your letter. I am advised tosubmit that by the circular dt. 18.11.96 by theCommissioner, H.R. & C.E. it was only advised to keep twonotice boards in temples stating that Archanas will be performed in TamilandArchanas will be performed in SanskritFurther all the temples in Coimbatore district archanaswere being performed both in Sanskrit and in Devanagiriaccording to the wishes of the devotees. Similarly, theGovernment has no intention to remove all the traditionalSaivite Archakas and replace them with persons of Poojaristradition in the guise of introducing Tamil archanas.In the letter referred by you, for the purpose of uniformunderstanding to the devotees advised were given to thesubordinate officers only with respect to devotees whorequire archanas to be performed in Tamil. Whileso, theGovernment feels that it is not necessary to recall andwithdraw the circulars issued by the Commissioner. Iam advised to inform the same to you."24.Before proceeding to deal with the rival submissions, it isnecessary to note that similar issues have arisen for consideration ofthis Court and the Supreme Court and those proceedings may be usefullyreferred to.25.In W.P. (C) No. 294 of 1974, etc. batch cases, the SupremeCourt by an order dated 02.4.1992 recorded the agreement between thepetitioner in those petitions and the respondent State, which reads asfollows:"The agama form of worship adopted in temples is inSanskrit which is according to tradition. At the sametime, there is priceless tamil devotional literature inThevaram and Thiruvachakam which is also adopted to suitthe worshippers. Tamil Archanas in this form deservespromotion. In general the traditional Agama form ofworship will be followed. Where the Archakas areproficient in performing archanas in Tamil and wherethere is a demand by the devotees for Tamil Archanas, suchfacility can be extended."[Emphasis added]26.Similarly, when the petitioner in W.P. No. 15791 of 1998,earlier, along with two other persons, filed W.P. No. 8873 of 1982 forsimilar relief, a learned single Judge of this Court, vide order dated https://hcservices.ecourts.gov.in/hcservices/

17.6.1992, dismissed the writ petition with the following observation:"In the identical matters the Division Bench of this courtin W.P. Nos. 2895/1971 1. V.N. Devanathan 2. K. MunirathnaNaidu vs. 1. State by the Secretary, Hindu Religiousand Endowments, Government of Tamil Nadu, fort St. George,Madras – 9 2. The Commissioner, Hindu Religious andCharitable Endowments Board, Madras – 34. 3. TheDeputy Commissioner, Hindu Religious and CharitableEndowments Board, Madras – 34 and 2666/1972 –Dakshinamoorthy Bhattar vs. 1. The Rajah of Sivaganga,Hereditary Trustee of Sivaganga Estate Devasthanam(Somanathaswami Temple at Manamadurai) 2. TheCommissioner for Hindu Religious Endowments Board, Madras,3. The State of Tamil Nadu through the Secretary of HinduReligious and Charitable Endowments, Fort St. George,Madras – 9 have held that the impugned circulars are notviolative of the constitution or any other law and on thatview the abovesaid writ petitions were dismissed by theDivision Bench on 10th January 1974. Respectfullyfollowing the above judgments the present writ petitionhas also to be dismissed and accordingly it is dismissed.No costs."27.It is rather surprising that the petitioner had not disclosedabout the disposal of his earlier writ petition, which was filed withmore or less identical relief, was rejected by this Court and hadsuppressed the same in the affidavit filed in the present writ petition.On this ground, the writ petition is liable to be dismissed. 28.In the order dated 17.6.1992, this Court referred to the orderdated 10.01.1974 passed in W.P. No. 2666 of 1972 in DakshinamoorthyBhattar vs. The Rajah of Sivaganga, Hereditary Trustee of SivagangaEstate Devasthanam (Somanathaswami Temple at Manamadurai) and otherswhere the Court observed as follows:"The impugned circulars have nowhere stated that Archanashould not be done in Sanskrit. Insistance of Archanabeing done in Tamil does not necessarily mean preventionof Archanas being done in Sanskrit. The circulars arenot shown to affect the freedom of conscience or the rightto freely profess, practice and propogate religion,language is no part of religion and it cannot be takenthat unless religious matters are expressed in aparticular language, they ceased to be religion orreligious practices."29.Inspite of that, once again, the petitioner has come forward towake up the issue all over again. Since there is also another writpetition, it is necessary to deal with the legal submissions made bythem in some detail. https://hcservices.ecourts.gov.in/hcservices/

30.The learned counsel appearing for the petitioners relied uponthe judgment of the Supreme Court reported in AIR 1954 SC 282 [TheCommissioner, Hindu Religious Endowments, Madras v. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt] and referred to the followingpassage found in paragraph 19:Para 19:"If the tenets of any religious sect of the Hindusprescribe that offerings of food should be given to theidol at particular hours of the day, that periodicalceremonies should be performed in a certain way at certainperiods of the year or that there should be daily recitalof sacred texts or oblations to the sacred fire, all thesewould be regarded as parts of religion and the mere factthat they involve expenditure of money or employment ofpriests and servants or the use of marketable commoditieswould not make them secular activities partaking of acommercial or economic character; all of them arereligious practices and should be regarded as matters ofreligion within the meaning of Art. 26(b).31.It is not clear as to how this passage can help the case ofthe petitioner. On the contrary, the Supreme Court held in that casethat in regard to matters of religion, the right of management given toa religious body for performing activities pertaining to religion was aguaranteed fundamental right and no legislation can take away that right.32.Thereafter, the learned counsel relied upon the judgment of theSupreme Court reported in AIR 1954 SC 388 [Ratilal Panachand Gandhiand others v. State of Bombay and others]. That was a caserelating to the right of the religious sect or denomination to manageits own affairs in the matter of religion which includes the right tospend trust property or its income. But, however, the followingpassage found in paragraph 12 and 13 may be usefully quoted:Para 12:"It may be noted that 'religion' is not necessarilytheistic and in fact there are well-known religions inIndia like Buddhism and Jainism which do not believe inthe existence of God or of any Intelligent First Cause. Areligion undoubtedly has its basis in a system of beliefsand doctrines which are regarded by those who profess thatreligion to be conducive to their spiritual well being,but it would not be correct to say, as seems to have beensuggested by one of the learned Judges of the Bombay HighCourt, that matters of religion are nothing but matters ofreligious faith and religious belief. A religion is notmerely an opinion, doctrine or belief. It has its outwardexpression in acts as well." https://hcservices.ecourts.gov.in/hcservices/ Para 13:"Religious practices or performances of acts in pursuanceof religious belief are as much a part of religion asfaith or belief in particular doctrines. Thus if thetenets of the Jain or the Parsi religion lay down thatcertain rites and ceremonies are to be performed atcertain times and in a particular manner, it cannot besaid that these are secular activities partaking orcommercial or economic, character simply because theyinvolve expenditure of money or employment of priests orthe use of marketable commodities. No outside authorityhas any right to say that these are not essential parts ofreligion and it is not open to the secular authority ofthe State to restrict or prohibit them in any manner theylike under the guise of administering the trust estate."But in the present case, the State had not come up with any suchdirections. 33.The learned counsel placed further reliance upon the judgmentof the Supreme Court reported in AIR 1958 SC 255 [Sri VenkataramanaDevaru and others v. State of Mysore]. Though the said case aroseunder the right of entry into religious temple, the following passagefound in paragraph 31 may be usefully extracted:Para 31:".... We agree that the right protected by Art. 25 (2)(b) is a right to enter into a temple for purposes ofworship, and that further it should be construed liberallyin favour of the public. But it does not follow from thisthat that right is absolute and unlimited in character. Nomember of the Hindu public could, for example, claim aspart of the rights protected by Art. 25 (2) (b) that atemple must be kept open for worship at all hours of theday and night, or that he should personally perform thoseservices, which the Archakas alone could perform. It isagain a well-known practice of religious institutions ofall denominations to limit some of its services to personswho have been specially initiated, though at other times,the public in general are free to participate in theworship. Thus, the right recognised by Art. 25 (2) (b)must necessarily be subject to some limitations orregulations, and one such limitation or regulation mustarise in the process of harmonizing the right conferred byArt. 25(2)(b) with that protected by Art. 26 (b)."34.The learned counsel further referred to the decision of theSupreme Court in His Holiness Srimad Perarulala Ethiraja Ramanuja JeeyarSwami, etc. v. The State of Tamil Nadu [AIR 1972 SC 1586]. Thiswas with a view to re-enforce the argument that the right conferredunder Articles 25 and 26 of the Constitution of India is not limited tomatters of doctrine or belief and to extend the acts done in pursuance https://hcservices.ecourts.gov.in/hcservices/ of religion and, therefore, the guarantee of rituals, ceremonies andmodes of worship are integral parts of religion. But, however, aboutwhat constitutes as essential part of religion, the Court, in paragraph12 of the judgment, observed as follows:Para 12:"... what constitutes an essential part of a religious orreligious practice has to be decided by the courts withreference to the doctrine of a particular religion andinclude practices which are regarded by the community as apart of its religion."35.In fact, in the very same judgment, the Supreme Court upheldthe right of the State to oversee it that only persons who are fit toperform archanas alone can be appointed. It was held for this purpose,there was nothing wrong in the State prescribing that the archakas topossess Fitness Certificate, lest the archanas performed by suchunqualified persons may defile and pollute the idols which right is notguaranteed on anyone.36.In this context, it is relevant to refer to the followingpassage found in paragraphs 14 and 22 of the same judgment: Para 14:".... It was also open to the Government to make no ruleat all or to prescribe a fitness certificate issued by aninstitution which did not teach the Agamas or traditionalrituals. The result would, therefore, be that any person,whether he is Saivite or Vaishnavite or not, or whether heis proficient in the rituals appropriate to the temple ornot, would be eligible for appointment as an Archaka andthe trustees discretion in appointing the Arckaka withoutreference to personal and other qualifications of theArchaka would be unbridled...."Para 22:".... It is submitted that the Act does not provideguidelines to the Government in the matter of prescribingqualifications with regard to the fitness of an Archakafor performing the rituals and ceremonies in these templesand it will be open to the Government to prescribe asimple standardized curriculam for pujas in the severaltemples ignoring the traditional pujas and ritualsfollowed in those temples. In our opinion theapprehensions of the petitioners are unfounded. Rule 12referred to above still holds the field and there is nogood reason to think that the State Government wants torevolutionize temple worship by introducing methods ofworship not current in the several temples. The rulemaking power conferred on the Government by Section 116 isonly intended with a view to carry out the purposes of theAct which are essentially secular." https://hcservices.ecourts.gov.in/hcservices/ In fact, this passage answers the contention raised by one of thepetitioners that he need not undertake to study the Tamil archana and beproficient with the same in case the devotee requests him to perform thearchanas in Tamil.37.The learned counsel took this Court to the judgment of theSupreme Court in Dr. M. Ismail Faruqui and others v. Union of Indiaand others [1994 (6) SCC 360]. This judgment of the ConstitutionBench does not help the case of the petitioners in dealing with thepresent situation. In that judgment, the Supreme Court, in dealingwith religious practice, made a distinction between religious practiceand what was essential and integral part of that religion. Thefollowing passage found in paragraph 77 of the judgment makes it clear.Para 77: "The right to practise, profess and propagate religionguaranteed under Article 25 of the Constitution does notnecessarily include the right to acquire or own orpossess property. Similarly this right does not extend tothe right of worship at any and every place of worship sothat any hindrance to worship at a particular place perse may infringe the religious freedom guaranteed underArticles 25 and 26 of the Constitution. The protectionunder Articles 25 and 26 of the Constitution is toreligious practice which forms an essential and integralpart of the religion. A practice may be a religiouspractice but not an essential and integral part ofpractice of that religion."38.Thereafter, the learned counsel took this Court through thejudgments of the Supreme Court in Sarla Mudgal (Smt.), President,Kalyani and others v. Union of India and others [1995 (3) SCC 635.This was with a view to drive home the point that the secular ideasfound in Article 44 of the Constitution of India cannot be brought inwithin the guarantee enshrined under Articles 25, 26 and 27 of theConstitution of India. 39.The learned counsel also referred to judgment in PannalalBansilal Pitti and others v. State of A.P. and another [1996 (2) SCC498]. In that case, the Supreme Court dealt with the amendment madeto the Andhra Pradesh Hindu Religious and Charitable Endowments Act,1987. Paragraph 26 of the said judgment may be usefully extracted below:Para 26:"Hindus are majority in population and Hinduism is a majorreligion. While Articles 25 and 26 granted religiousfreedom to minority religions like Islam, Christianity andJudaism, they do not intend to deny the same guarantee toHindus. Therefore, protection under Articles 25 and 26 isavailable to the people professing Hindu religion subjectto the law therein. The right to establish a religious and https://hcservices.ecourts.gov.in/hcservices/ charitable institution is a part of religious belief orfaith and, though law made under clause (2) of Article 25may impose restrictions on the exercise of that right, theright to administer and maintain such institution cannotaltogether be taken away and vested in other party; moreparticularly, in the offices of a secular Government. Theadministration of religious institution or endowment orspecific endowment being a secular activity, it is not anessential part of religion and, therefore, the legislatureis competent to enact law, as in Part III of the Act,regulating the administration and governance of thereligious or charitable institutions or endowment. Theyare not part of religious practices or customs. The Statedoes not directly undertake their administration andexpend any public money for maintenance and governancethereof. Law regulates appropriately for efficientmanagement or administration or governance of charitableand Hindu religious institutions or endowments or specificendowments, through its officers or officers appointedunder the Act."40.The learned counsel placed reliance upon the judgment of theSupreme Court in A.S. Narayana Deekshitulu v. State of A.P. andothers [1996 (9) SCC 548] and the relevant passages found in paragraphs86 to 88 and 90 may be usefully reproduced:Para 86:".... There is nothing which a man can do, whether in theway of wearing clothes or food or drink, which is notconsidered a religious activity. Every mundane or humanactivity was not intended to be protected by theConstitution under the guise of religion. The approach toconstrue the protection of religion or matters of religionor religious practices guaranteed by Articles 25 and 26must be viewed with pragmatism since by the very nature ofthings, it would be extremely difficult, if notimpossible, to define the expression religion or mattersof religion or religious belief or practice."Para 87:"In pluralistic society like India, as stated earlier,there are numerous religious groups who practise diverseforms of worship or practise religions, rituals, ritesetc.; even among Hindus, different denominants and sectsresiding within the country or abroad profess differentreligious faiths, beliefs, practices. They seek toidentify religion with what may in substance be merefacets of religion. It would, therefore, be difficult todevise a definition of religion which would be regarded asapplicable to all religions or matters of religious https://hcservices.ecourts.gov.in/hcservices/ practices. To one class of persons a mere dogma or preceptor a doctrine may be predominant in the matter ofreligion; to others, rituals or ceremonies may bepredominant facets of religion; and to yet another classof persons a code of conduct or a mode of life mayconstitute religion. Even to different persons professingthe same religious faith some of the facets of religionmay have varying significance. It may not be possible,therefore, to devise a precise definition of universalapplication as to what is religion and what are matters ofreligious belief or religious practice. That is far fromsaying that it is not possible to state with reasonablecertainty the limits within which the Constitutionconferred a right to profess religion. Therefore, theright to religion guaranteed under Article 25 or 26 is notan absolute or unfettered right to propagating religionwhich is subject to legislation by the State limiting orregulating any activity — economic, financial, politicalor secular which are associated with religious belief,faith, practice or custom. They are subject to reform onsocial welfare by appropriate legislation by the State.Though religious practices and performances of acts inpursuance of religious belief are as much a part ofreligion as faith or belief in a particular doctrine, thatby itself is not conclusive or decisive. What areessential parts of religion or religious belief or mattersof religion and religious practice is essentially aquestion of fact to be considered in the context in whichthe question has arisen and the evidence — factual orlegislative or historic — presented in that context isrequired to be considered and a decision reached."Para 88:"The court, therefore, while interpreting Articles 25 and26 strikes a careful balance between the freedom of theindividual or the group in regard to religion, matters ofreligion, religious belief, faith or worship, religiouspractice or custom which are essential and integral partand those which are not essential and integral and theneed for the State to regulate or control in the interestof the community."Para 90:"The religious freedom guaranteed by Articles 25 and 26,therefore, is intended to be a guide to a community lifeand ordain every religion to act according to its culturaland social demands to establish an egalitarian socialorder. Articles 25 and 26, therefore, strike a balancebetween the rigidity of right to religious belief andfaith and their intrinsic restrictions in matters ofreligion, religious beliefs and religious practices andguaranteed freedom of conscience to commune with his https://hcservices.ecourts.gov.in/hcservices/ Cosmos, Creator and realise his spiritual self. Sometimes,practices religious or secular, are inextricably mixed up.This is more particularly so in regard to Hindu religionbecause under the provisions of the ancient Smriti, humanactions from birth to death and most of the individualactions from day-to-day are regarded as religious incharacter in one facet or the other. They sometimes claimthe religious system or sanctuary and seek the cloak ofconstitutional protection guaranteed by Articles 25 and26. One hinges upon constitutional religious model andanother diametrically more on traditional point of view.The legitimacy of the true categories is required to beadjudged strictly within the parameters of the right ofthe individual and the legitimacy of the State for socialprogress, well-being and reforms, social intensificationand national unity. Law is a social engineering and aninstrument of social change evolved by a gradual andcontinuous process. As Benjamin Cardozo has put it in hisJudicial Process, life is not a logic but experience.History and customs, utility and the accepted standards ofright conduct are the forms which singly or in combinationshall be the progress of law. Which of these forces shalldominate in any case depends largely upon the comparativeimportance or value of the social interest that will be,thereby, impaired. There shall be symmetrical developmentwith history or custom when history or custom has been themotive force or the chief one in giving shape to theexisting rules and with logic or philosophy when themotive power has been theirs. One must get the knowledgejust as the legislature gets it from experience and studyand reflection in proof from life itself. All secularactivities which may be associated with religion but whichdo not relate or constitute an essential part of it may beamenable to State regulations but what constitutes theessential part of religion may be ascertained primarilyfrom the doctrines of that religion itself according toits tenets, historical background and change in evolvedprocess etc. The concept of essentiality is not itself adeterminative factor. It is one of the circumstances to beconsidered in adjudging whether the particular matters ofreligion or religious practices or belief are an integralpart of the religion. It must be decided whether thepractices or matters are considered integral by thecommunity itself."[Emphasis added]41.In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi andothers v. State of U.P. and others [1997 (4) SCC 606], while dealing https://hcservices.ecourts.gov.in/hcservices/ with the system of worship and also the question of regulating the facts/ archakas (priests), the Apex Court, in paragraph 42 of the judgment,observed as follows:Para 42:".... In view of the settled legal position that thelegislature is empowered to enact the law regulating thesecular aspect of the management of the Temple or thereligious institution or endowment, panda/archaka(priest), by whatever name called, is not integral part ofthe religion and performs all the religious tenets orceremonies in a Temple asservant of the Temple. They owe their existence to anappointment. They are servants of the Temple terminable onthe ground of misconduct or unfitness to perform service,rituals / ceremonies in accordance with Hindu Shastras,customs and practices prevailing in the Temple handed downfrom centuries. On abolition, the right of the holder ofthe office or post stands extinguished. It does not vestin the State but is regulated by the Act...."42.Since the learned counsel for the petitioner argued at length,on the basis of the Agama principles being repugnant to allowingarchanas to be performed in Tamil at the request of the devotees, it isnecessary to go into the question whether the action of the respondentsin permitting the additional facility of Tamil Archanas to be performedby the trained archakas / poojaris also to perform poojas in Tamil wouldoffend such Agama principles and whether such an additional facilitybeing granted, without affecting any of the other religious practices,would be violating any such practice, which is essential and integralpart of religion.43.In this context, it is necessary to refer to the judgment ofthe Supreme Court in Durgah Committee, Ajmer and another v. SyedHussain Ali and others [AIR 1961 SC 1402] and in paragraph 33, thefollowing passages are found:Para 33:".... Whilst we are dealing with this point it may not beout of place incidentally to strike a note of caution andobserve that in order that the practices in questionshould be treated as a part of religion they must beregarded by the said religion as its essential andintegral part; otherwise even purely secular practiceswhich are not an essential or an integral part of religionare apt to be clothed with a religious form and may make aclaim for being treated as religious practices within themeaning of Art. 26. Similarly even practices thoughreligious may have sprung from merely superstitiousbeliefs and may in that sense be extraneous andunessential accretions to religion itself. Unless such https://hcservices.ecourts.gov.in/hcservices/ practices are found to constitute an essential andintegral part of a religion their claim for the protectionunder Art. 26 may have to be carefully scrutinised; inother words, the protection must be confined to suchreligious practices as are an essential and an integralpart of it and no other."44.The Supreme Court, in N. Adithayan v. Travancore DevaswomBoard and others [2002 (8) SCC 106], while considering the scope ofTravancore – Cochin Hindu Religious Institutions Act, 1950 as well asAgamas in relation to appointment of temple poojaris selected fromcommunities other than Malayala Brahmin, held that 'there was no rightbased upon a custom which existed before the Constitution and whichinvolves omission of non-Brahmins from performing poojas in the templeif they are otherwise trained and qualified for doing the same'. Inthis context, it is relevant to refer to the following passage found inparagraph 10 and quoted in approval of the earlier order of the SupremeCourt in Bhuri Nath v. State of J&K [1997 (2) SCC 745]. Thefollowing passage found in paragraph 13 may also be quoted:Para 10:"It has also been held that compilation of treatises onconstruction of temples, installation of idols therein,rituals to be performed and conduct of worship therein,known as “Agamas” came to be made with the establishmentof temples and the institution of Archakas, noticing atthe same time the further fact that the authority of suchAgamas came to be judicially recognized. It has beenhighlighted that: (SCC p. 9, para 11)“Where the temple was constructed as perdirections of the Agamas the idol had to beconsecrated in accordance with an elaborate andcomplicated ritual accompanied by chanting of mantrasand devotional songs appropriate to the deity.”Thereafter for continuing the divine spirit, which isconsidered to have descended into the idol onconsecration, daily and periodical worship has to be madewith twofold object to attract the lay worshippers andalso to preserve the image from pollution, defilement ordesecration, which is believed to take place in ever somany ways. Delving further into the importance of ritualsand Agamas it has been observed as follows: (SCC pp. 19-21, paras 11-12)“Worshippers lay great store by the rituals andwhatever other people, not of the faith, may thinkabout these rituals and ceremonies, they are a partof the Hindu religious faith and cannot be dismissedas either irrational or superstitious. An https://hcservices.ecourts.gov.in/hcservices/ illustration of the importance attached to minordetails of rituals is found in the case of HisHoliness Peria Kovil Kelvi Appan ThiruvenkataRamanuja Pedda Jiyyangarlu Varlu v. PrathivathiBhayankaram Venkatacharlu which went up to the PrivyCouncil. The contest was between two denominations ofVaishnava worshippers of South India, the Vadagalaisand Tengalais. The temple was a Vaishnava temple andthe controversy between them involved the question asto how the invocation was to begin at the time ofworship and which should be the concludingbenedictory verses. This gives the measure of theimportance attached by the worshippers to certainmodes of worship. The idea most prominent in the mindof the worshipper is that a departure from thetraditional rules would result in the pollution ordefilement of the image which must be avoided at allcosts. That is also the rationale for preserving thesanctity of the Garbhagriha or the sanctumsanctorum...."Para 13:"In Bhuri Nath v. State of J&K this Court while dealingwith the validity of the J&K Shri Mata Vaishno Devi ShrineAct, 1988, and the abolition of the right of Baridars toreceive share in the offerings made by pilgrims to ShriMata Vaishno Devi, observed their right to perform poojaas only a customary right coming from generations whichthe State can and has by legislation abolished and thatthe rights seemed under Articles 25 and 26 are notabsolute or unfettered but subject to legislation by theState limiting or regulating any activity, economic,financial, political or secular which are associated withthe religious belief, faith, practice or custom and thatthey are also subject to social reform by suitablelegislation. It was also reiterated therein that thoughreligious practices and performances of acts in pursuanceof religious beliefs are, as much a part of religion, asfurther belief in a particular doctrine, that by itself isnot conclusive or decisive and as to what are essentialparts of religion or belief or matters of religion andreligious practice is essentially a question of fact to beconsidered in the context in which the question arises onthe basis of materials — factual or legislative orhistoric if need be giving a go-by to claims based merelyon supernaturalism or superstitious beliefs or actions andthose which are not really, essentially or integrallymatters of religion or religious belief or faith orreligious practice." https://hcservices.ecourts.gov.in/hcservices/

45.Further, the Court also emphasised in paragraph 16 that whatconstitutes essential part of religion or religious practice will haveto be decided by the Courts only and the following passage found inparagraph 16 may be quoted usefully:Para 16:"The legal position that the protection under Articles 25and 26 extends a guarantee for rituals and observances,ceremonies and modes of worship which are integral partsof religion and as to what really constitutes an essentialpart of religion or religious practice has to be decidedby the courts with reference to the doctrine of aparticular religion or practices regarded as parts ofreligion, came to be equally firmly laid down."46.In the very same judgment, the Court also dealt with at lengthin paragraph 17 that there was no customary right that Brahmins aloneshould be appointed as the archakas / poojaris. What is essential isthe person, who performs poojas, is bound to be qualified and fit personirrespective of the community to which he belongs. The followingpassage found in paragraph 17 may be usefully extracted:Para 17:"Where a temple has been constructed and consecrated asper Agamas, it is considered necessary to perform thedaily rituals, poojas and recitations as required tomaintain the sanctity of the idol and it is not that inrespect of any and every temple any such uniform rigour ofrituals can be sought to be enforced, dehors its origin,the manner of construction or method of consecration. Nodoubt only a qualified person well versed and properlytrained for the purpose alone can perform poojas in thetemple since he has not only to enter into the sanctumsanctorum but also touch the idol installed therein. Ittherefore goes without saying that what is required andexpected of one to perform the rituals and conduct poojasis to know the rituals to be performed and mantras, asnecessary, to be recited for the particular deity and themethod of worship ordained or fixed therefor. For example,in Saivite temples or Vaishnavite temples, only a personwho learnt the necessary rites and mantras conducive to beperformed and recited in the respective temples andappropriate to the worship of the particular deity couldbe engaged as an Archaka. If traditionally orconventionally, in any temple, all along a Brahmin alonewas conducting poojas or performing the job ofSanthikaran, it may not be because a person other than theBrahmin is prohibited from doing so because he is not aBrahmin, but those others were not in a position and, as amatter of fact, were prohibited from learning, reciting ormastering Vedic literature, rites or performance ofrituals and wearing sacred thread by getting initiated https://hcservices.ecourts.gov.in/hcservices/ into the order and thereby acquire the right to performhoma and ritualistic forms of worship in public or privatetemples. Consequently, there is no justification to insistthat a Brahmin or Malayala Brahmin in this case, alone canperform the rites and rituals in the temple, as part ofthe rights and freedom guaranteed under Article 25 of theConstitution and further claim that any deviation wouldtantamount to violation of any such guarantee under theConstitution. There can be no claim based upon Article 26so far as the Temple under our consideration is concerned.Apart from this principle enunciated above, as long asanyone well versed and properly trained and qualified toperform the pooja in a manner conducive and appropriate tothe worship of the particular deity, is appointed asSanthikaran dehors his pedigree based on caste, no validor legally justifiable grievance can be made in a court oflaw. There has been no proper plea or sufficient proofalso in this case of any specific custom or usagespecially created by the founder of the Temple or thosewho have the exclusive right to administer the affairs —religious or secular of the Temple in question, leavealone the legality, propriety and validity of the same inthe changed legal position brought about by theConstitution and the law enacted by Parliament. The Templealso does not belong to any denominational category withany specialized form of worship peculiar to suchdenomination or to its credit. For the said reason, itbecomes, in a sense, even unnecessary to pronounce uponthe invalidity of any such practice being violative of theconstitutional mandate contained in Articles 14 to 17 and21 of the Constitution of India."47.Further, the Court also emphasised in paragraph 18 that theusage found to be pernicious and considered in derogation of law of theland or opposed to public policy or social decency cannot be accepted.The following passage found in paragraph 18 reads thus:Para 18:".... None of the earlier decisions rendered beforeSeshammal case related to consideration of any rightsbased on caste origin and even Seshammal case dealt withonly the facet of rights claimed on the basis ofhereditary succession. The attempted exercise by thelearned Senior Counsel for the appellant to read into thedecisions of this Court in Shirur Mutt case and otherssomething more than what it actually purports to lay downas if they lend support to assert or protect any andeverything claimed as being part of the religious rituals,rites, observances and method of worship and make suchclaims immutable from any restriction or regulation based https://hcservices.ecourts.gov.in/hcservices/ on the other provisions of the Constitution or the lawenacted to implement such constitutional mandate, deservesonly to be rejected as merely a superficial approach bypurporting to deride what otherwise has to have really anoverriding effect, in the scheme of rights declared andguaranteed under Part III of the Constitution of India.Any custom or usage irrespective of even any proof oftheir existence in pre-constitutional days cannot becountenanced as a source of law to claim any rights whenit is found to violate human rights, dignity, socialequality and the specific mandate of the Constitution andlaw made by Parliament. No usage which is found to bepernicious and considered to be in derogation of the lawof the land or opposed to public policy or social decencycan be accepted or upheld by courts in the country."48.Subsequently, the Supreme Court in Guruvayoor Devaswom ManagingCommittee and another v. C.K.Rajan and others [2003 (7) SCC 546]dealt with the question of appointment of Managing Committee in a Templeand struck a note of caution of the Court's power to enter into anydispute of arena and the following passage found in paragraph 64 may beusefully quoted:Para 64: "The Court should be circumspect in entertaining suchpublic interest litigation for another reason. There maybe dispute amongst the devotees as to what practicesshould be followed by the temple authorities. There may bedispute as regards the rites and rituals to be performedin the temple or omission thereof. Any decision in favourof one sector of the people may hurt the sentiments of theother. The courts normally, thus, at the first instancewould not enter into such disputed arena, particularly,when by reason thereof the fundamental right of a group ofdevotees under Articles 25 and 26 may be infringed. Likeany other wing of the State, the courts also while passingan order should ensure that the fundamental rights of agroup of citizens under Articles 25 and 26 are notinfringed. Such care and caution on the part of the HighCourt would be a welcome step."49.In fact, when a writ petition, being W.P. No. 18273 of 1998[Pazha Karuppiah v. State of Tamil Nadu], was filed in publicinterest seeking for a direction that all poojas, prayers, archanas,kumbabhishegam and other rituals should be done only in Tamil, aDivision Bench of this Court dismissed the same by an order dated24.12.1998 and observed that the Court cannot compel the use of aparticular language in exclusion of other languages in the religiousinstitutions of the State at the instance of the petitioner. Inthat case, this Court held that the plea of the petitioner is to violate https://hcservices.ecourts.gov.in/hcservices/ and not to protect the constitutionally guaranteed right to profess,practice and to propagate one's religion.50.In the light of the above and in the light of the earlierdecisions, there is nothing either in the Agamas or in any otherreligious script to prohibit the chanting of Tamil manthras in thetemples run under the administration of the HR&CE Department. Infact, the present attempt by the respondent State is not to replaceeither the existing practice with a new practice nor there is anyencroachment into the time tested practice of the rituals and customaryusages and practices in the temples in Tamil Nadu. 51.On the contrary, the choice is vested with the devotees to seekfor their archanas to be performed at their wishes by chanting themanthras either in Tamil or in Sanskrit. This is not a method ofreplacing the traditional poojas offered 6 times or 4 times, as the casemay be, but only in addition to the regular poojas performed in thetemple. Ultimately, it is the devotees or bhakthas who wish that theirprayers or wishes to be answered by the God and the petitioners cannotinterdict their personal egos in the matter of a facility being providedto the devotees in the State. Their attempt to portray as if the Godcan understand only Devanagari language and Tamil cannot stand on parwith that language is only stated to be rejected and it does not haveany foundation based upon any scripture or religious texts. 52.If the petitions are allowed to have their own way then thefear expressed by Dr. Radhakrishnan in his book "The Hindu View of Life"will come true. At page 11 of the said book, Dr. Radhakrishnan wroteas follows:"To many, Hinduism seems to be a name without any content.Is it a museum of beliefs, a medley of rites, or a meremap, a geographical expression?'' If the petitioners' request for a restrained order is accepted, it willonly result in the Hinduism becoming mere museum of beliefs. 53.In view of the above, both the writ petitions fail andaccordingly, stand dismissed. However, there will be no order as tocosts. Connected Miscellaneous Petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ griTo1. Secretary to Government Government of Tamil Nadu Hindu Religious & Charitable Endowments Dept.Fort St. George Chennai 600 009. 2. The CommissionerHindu Religious & Charitable Endowments Chennai – 34 3.The Deputy Commissioner Hindu Religious and Charitable EndowmentsSivagangai1 cc To Mr.R.Karuppan, Advocate, SR.15793.2 cc To The Government Pleader, SR.15481, 15482.1 cc To Mr.V.Raghavachari, Advocate, SR.15454.W.P. Nos. 15791 & 16932 of 1998 NM(CO)RVL 27.03.2008