# [1997] 2 S.C.R. 1086

- **Citation:** [1997] 2 S.C.R. 1086
- **Court:** Supreme Court of India
- **Decided:** 1997-03-14
- **Case number:** Civil Appeal Nos. 1013~ 1015 of 1987
- **Bench:** K. Ramaswamy, K. Venkatasw~I, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1997-2-s-c-r-1086-15259
- **Pages:** 42

## Headnote

Constitution of India, 1950 :
Articles 25 and 26-Right to profess, practise and propagate religion,
and right to m01iage religious affairs-Provisions of the Uttar Pradesh Sri
Kashi Vishwa11ath Temple Ac~ 1983, providi11g for proper a11d better admi11istratio11 of Temple and its e11dowment-Held, not violative of Articles 25
and 26-Administratio11 of properties belo11ging to religious groups or i11Stit11D tions are not matters of religio11-Believers of Shiva f onn of worship are not
a denominational sect or sectio11 of Hindus but they are Hindus as such,
entitled to protection under Articles 25 and 26--But not e11t1tled to protection,
in particular, of clauses (b) 011d ( d) of Article 26.
E
U.P. Sri Kashi Vishwanath Temple Act, 1983 :
Ss. 4, 5, 6, 13, 14 and 22--Provisio11s of the Act declari11g that ow11ership of Sri Kashi Vishwanath Temple would vest in deity of Sri Kashi
Vishwa11ath a11d administration and govema11ce of the temple 011d its endowment would vest i11 the Board of Trnstees of the Temple--Held, are not
F violative of Articles 25 and 26 of the Constitutio11.
The Temple of Lord Vishwanath at Varanasi, otherwise known as Sri
Adi Visheshwara of Kashi, was until the promulgation of the U.P. Sri
Kashi Vishwanath Temple Ordinance dated January 24, 1983, being
managed by Mahants and Pandas of the Temple. There was mismanage·
G ment of the Temple, and the devotees and pilgrims visiting the temple were
subjected to exploitation. Even the jewellery of Lord Shiva was stolen in
January 1983. The State Government constituted a Committee, which
ret;ommended to the Government to take effective steps for protection and
proper management of the Temple and to provide efficient and proper
H management for orderly visit and prayer by the devotees comirig daily to
1086
. -
·.
SRI ADI VISHESHWARA OF KASH! VISHWANATI-1 TEMPLE"· SfATE 1087
the precincts of the Temple in millions from all over the coimtry and A
abroad. Accordingly, the Ordinance· dated 24.1.1983 was promulgated. The
Government also issued on 28.1.1983 a notification specifying the "ap·
pointed date" under the Ordinance to be 28.1.1983. Thereafter two other
Ordinances were promulgated and, ultimately, the Uttar Pradesh Shri
Kashi Vishwanath Temple Act, 1983 was enacted and it was made operative
w.e.f. 28.1.1983 i.e. the 'appointed date' under the first Ordinance. The Act B
provided, i11ter alia, that ownership of the Temple and its endo~ment would
west in the deity of Shri Kashi Vishwanath, the presiding diety of the
Temple; and the management of the Temple an~ the endowment would vest
in the Board of Trustees for Shri Kashi Viswanatb as defined under s. 4(3)
and constituted under s. 6 of the Act. The Board consisted of 8 non-officials C
well versed in the knowledge and experience in Hindu theology, manage·
ment and administration of Temple, 2 local officials and 5 Secretaries to
· the Government of Uttar Pradesh having diverse experience.
Writ petitions were filed before the High Couri, challenging initially
the Ordinance and ultimately the Act, primarily on the ground that the D
Act infringed writ petitioners' fundamental right enshrined in Articles
25(1) and 26(b) of the Constitution. The High Court upheld the validity of
the Act. Aggrieved the writ petitioners filed the present appeals.
It was contended for the appellants that the Temple was a denominaE
tional temple of Shivaits of which the appellants were members and they
had exclusive right to worship and manage the temple including the right
to perform pooja and ceremonies and to receive offerings made by pilgrims
to Lord Shiva, and the Act infringed their fundamental rights to profess
and practice their religious belief as enshrined in Articles 25 and 26 of the
Constitution; that the Act was violative of their right of livelihood guaranteed by Article 21 of the Constitution; and that the appellants were entitled
to be nominated as members of Board of Trustees of the Temple and
absence of any provision in the Act i

## Text

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A
SRI ADI VISHESHWARA OF KASH! VISHWANATH
B
c
TEMPLE, VARANASI AND ORS. ETC.
v ..
THE STATE OF U.P. AND ORS.
MARCH 14, 1997
[K. RAMASWAMY, K. VENKATASW~I AND
G.B. PATTANAIK, JJ.)
Constitution of India, 1950 :
Articles 25 and 26-Right to profess, practise and propagate religion,
and right to m01iage religious affairs-Provisions of the Uttar Pradesh Sri
Kashi Vishwa11ath Temple Ac~ 1983, providi11g for proper a11d better admi11istratio11 of Temple and its e11dowment-Held, not violative of Articles 25
and 26-Administratio11 of properties belo11ging to religious groups or i11Stit11D tions are not matters of religio11-Believers of Shiva f onn of worship are not
a denominational sect or sectio11 of Hindus but they are Hindus as such,
entitled to protection under Articles 25 and 26--But not e11t1tled to protection,
in particular, of clauses (b) 011d ( d) of Article 26.
E
U.P. Sri Kashi Vishwanath Temple Act, 1983 :
Ss. 4, 5, 6, 13, 14 and 22--Provisio11s of the Act declari11g that ow11ership of Sri Kashi Vishwanath Temple would vest in deity of Sri Kashi
Vishwa11ath a11d administration and govema11ce of the temple 011d its endowment would vest i11 the Board of Trnstees of the Temple--Held, are not
F violative of Articles 25 and 26 of the Constitutio11.
The Temple of Lord Vishwanath at Varanasi, otherwise known as Sri
Adi Visheshwara of Kashi, was until the promulgation of the U.P. Sri
Kashi Vishwanath Temple Ordinance dated January 24, 1983, being
managed by Mahants and Pandas of the Temple. There was mismanage·
G ment of the Temple, and the devotees and pilgrims visiting the temple were
subjected to exploitation. Even the jewellery of Lord Shiva was stolen in
January 1983. The State Government constituted a Committee, which
ret;ommended to the Government to take effective steps for protection and
proper management of the Temple and to provide efficient and proper
H management for orderly visit and prayer by the devotees comirig daily to
1086
. -
·.
SRI ADI VISHESHWARA OF KASH! VISHWANATI-1 TEMPLE"· SfATE 1087
the precincts of the Temple in millions from all over the coimtry and A
abroad. Accordingly, the Ordinance· dated 24.1.1983 was promulgated. The
Government also issued on 28.1.1983 a notification specifying the "ap·
pointed date" under the Ordinance to be 28.1.1983. Thereafter two other
Ordinances were promulgated and, ultimately, the Uttar Pradesh Shri
Kashi Vishwanath Temple Act, 1983 was enacted and it was made operative
w.e.f. 28.1.1983 i.e. the 'appointed date' under the first Ordinance. The Act B
provided, i11ter alia, that ownership of the Temple and its endo~ment would
west in the deity of Shri Kashi Vishwanath, the presiding diety of the
Temple; and the management of the Temple an~ the endowment would vest
in the Board of Trustees for Shri Kashi Viswanatb as defined under s. 4(3)
and constituted under s. 6 of the Act. The Board consisted of 8 non-officials C
well versed in the knowledge and experience in Hindu theology, manage·
ment and administration of Temple, 2 local officials and 5 Secretaries to
· the Government of Uttar Pradesh having diverse experience.
Writ petitions were filed before the High Couri, challenging initially
the Ordinance and ultimately the Act, primarily on the ground that the D
Act infringed writ petitioners' fundamental right enshrined in Articles
25(1) and 26(b) of the Constitution. The High Court upheld the validity of
the Act. Aggrieved the writ petitioners filed the present appeals.
It was contended for the appellants that the Temple was a denominaE
tional temple of Shivaits of which the appellants were members and they
had exclusive right to worship and manage the temple including the right
to perform pooja and ceremonies and to receive offerings made by pilgrims
to Lord Shiva, and the Act infringed their fundamental rights to profess
and practice their religious belief as enshrined in Articles 25 and 26 of the
Constitution; that the Act was violative of their right of livelihood guaranteed by Article 21 of the Constitution; and that the appellants were entitled
to be nominated as members of Board of Trustees of the Temple and
absence of any provision in the Act in that behalf was violative of their
right.
Dismissing th·e appeals, this Court
F
G
HELD : 1.1. Believers of Shaiva form of worship are not a denomina·
tional sect or section of Hindus but they are Hindus as such. Every Hindu
whether a believer of Shiva form of worship or of Pancharatna form of
worship, has a right to entry into the Hindu Temple and worship the Deity. H
1088
SUPREME COURT REPORTS
[1997] 2 S.C.R.
A Therefore, the Hindu believers of Shiva form of worship are not denominational worshippers. They are part of Hindu religious form of worship. They
are entitled to the protection under Articles 25 and 26 of the Constitution.
However they are not entitled to the protection in particular, of clauses (b)
and ( d) of Article 26 as a religious denomination in the matter of management, administration and governance· of the temple under the Uttar
B Pradesh Sri Kasbi Vishwanath Temple Act, 1983. The Act protects the right
to perform worship, rituals or ceremonies in accordance with established
customs·and practices. The Act, therefore, is nut ultra-vires Articles 25 and
26 of tile Constitution. (1118-E]
C
The Commissioner, Hindu Religious Endowments, Madras v. S1i
Lakshmindra Thbtha Swamiar of S1i Shi1Ur Math, (1954] SCR 1005; .77ze
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., [1962] 1 SCR
383; Sri Venkatarama11a Deva/U v. State of Mysore, [1958] SCR 895; Bira
Kishore Deb v. State of 01issa, AIR (1964) SC 1501; S.P. Mittal v. Union of
India, AIR (1983) SC 1, followed.
D
E
State of Rajastltan v. Sajjanlal Panjawal & Ors., [1974] 1 SCC 500,
referred to.
Bramcha1i Sidheswar Slzai & Ors. v. State of West Bengal & Ors.,
[1995] 4 sec 646, held inapplicable.
Law· Lexica11 by P. Ramanatha Iyer (1987), Reprint Edn. p. 3I5,
.
'
'
referred to.
1.2. Artide 26 of the Constitution does not create rights in any
denomination. or a section which it never had. It merely safeguards and
F
guarantees the continuance of a rightwbicb such denomination or the
section had. Ir'the denomination never bad the right to manage property in
favour of a denominational institution as per reasonable terms 011 which
the endowment was created, it cannot be had to have it. It bad not acquired
the said right as a result of Article 26 and that the practice and the custom
G prevailing in that behalr which obviously is consistent with the terms of the
endowment should not be ignored. The Act cannot be treated as illegal, and
the claim that administration and management should be given to the
denomination is inconsistent with Article 26. [1110-G-H, 1111-A)
1.3. Tbe·right to establish and maintain institutions for religious
H and charitable purposes or to administer property or such institutions in
-
-
SRI ADI VISHESHWARA OF KASH! VISHW ANATII TEMPLE I'. STATE 1089
accordance with law was
protected only in respect of such religious A
denomination or any section thereof which appe·ars to extend help equally
to all and religious practice peculiar to such small or specified group or
section thereof as part of the main religion from which they got separated.
The denominational Sects are also bound by the constitutional goals, and
they too are required to abide by law. [1113-G-HJ.
2.1. In all Jyotirlingas in the country, pooja is perforined by the
devotee himself touching the Linga. By custom and usages Lokik Parampara i.e. popular people's belief of performing pooja by touching the Linga,
being timeless usage of Hindu Dharma, besides being flexible enough to
B
be moulded and adopted according. to changing times, is being followed. C
;\ccordingly, the pooja Puddhutti at the Visheshwara Temple is being
followed as part of the great and universal traditions of Hinduism and
every devotee is entitled to enter into Garba Griha, i.e. sanctum sanctp111.m
and himself/herself perform pooja (ceremonies) and no one is restricted
or barred of the same. [1107-E·H]
D
2.2 It is seen from mythological literature that Lord Sri Viswdnath
is swayam blmva (self incarnated). The legislature has. stepped in to
prevent misuse, mismanagement and irreligious acts, actions and con·
duct. In view of the.national importance of Lord ~ri Visheshwara Temple
and the belief and faith every Hind~ has in the presiding deity Lord Shiva E
as well as in other deities installed therein, the legislative object of proper,
efficient, effective and sustained management. of the Temple/endowments
and of the Funds of the Temple, constantly requires to be effectuated and
ensured. The object of the Act. is only to. ensure efficient and effective
performance of the duties of services, conduct of worship, daily or periodical, general or special ritual services, ceremonies and other religious F
observances in accordance with the Hindu sastras, customs and practices
by the archakas; and equally to provide hygienic conditions, proper standard of cleanli~ess, s.anitation, maintena~ce of, morality, public order and
healthy atmosphere; to provide benefit to the pilgrims and worshippers of
accommodation, sanitary conditions therein, proper arrangement and G
facilities for worship, performance of pooja by pilgrims and worshippers.
[1120-B·CJ
"Kaslii Ka ltihas" by Moti Chandra, page 190; "Tirthalisetus" by
Narayan Bhatta (16th Century); "Ti1tha Chi11tamani" by Vaachaspati Mishra
(1460); "Tirtha Prakash" by Mitra Mishra; "P11ra11ic Mahatmya" and "Tirlha H
1090
SUPREME COURT REPORTS
(1997] 2 S.C.R.
A Vivechana Kanda" by Pt. Lakshmi Dhara (12th Century); "Dasha
Kumarachaiita" by Dandini (6th Century); Ska11d Purana, referred to.
2.3. The protection of Article 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 obser·
B vances, ceremonies and modes of worship which are integral part of the
religion. Practice of religious faith according to tenets of Hindu religion,
custom and usage stands protected under the Act. The State is required
under the Act to protect the religious practices of Hindu forms of worship
of Lord Vishwanath, be it in any form, in accordance with Hindu Shastras
C and the customs or usage obtained in the temple. It is not restricted to any
particular denomination or sect. [1116-G, 1118-D]
Bhuri Nath & Ors. v. State of Jammu & Kashmir & Ors., JT (1997) 1
SC 546, relied on. ·
D
2.4. The Act does not invest the Government with any power to
interfere with the religious part of management or day-to-day administra·
tion of the Temple or its endowments. By virtue of ss. 14 and 22, the Act
ensures and enjoins the Board of Trustees for Sri Kashi Vishwanath, the
Executive Committee and the Chief Executive Officer assisted by all the
E stalT, to ensure due and proper performance of worship, services, rituals
and ceremonies, daily or periodical, general or special, of Sri Kashi
Vishwanath and other deities in the Te1i1ple in accordance with Hindu
Shastras, scriptures and usage by the priests as envisaged by s. 23. The
Board, Executive Committee or the Chief Executive Officer or any of the
Officers are prohibited from interfering with the performance of religious
F services or ceremonies etc. [1118-A-B]
3.1. However, the right to religion guaranteed by Articles 25 and 26
is not absolute or unfettered right to propagate religion, but is subject to
legislation by the State limiting or regulating every non-religious activity.
G . The right to observe and practice rituals aud right to manage in matters
of religion are protected under these Articles. But right to manage the
Temple or endowment is not integral to religion or religious practice or
religion as such which is amenable to statutory control. These secular
activities are subject to State regulation. [1117-D]
H
3.2. Administration in properties belonging to the religious groups
..
--
-
SRI ADI VI~HESHW ARA OF KASH! VISHW ANATH TEMPLE v. STA TE 1091
or institution are not matters of religion, to which Article 25 or 26 gets A
attracted. Article 26 does l10t protect the right to management; and they
are not entitled to "the management. (1122-G]
3.3. The Act itself has demarcated and drawn distinction between the
religious arid the secular part of the activities in the Temple; the former
have been· entrusted to the competent priests well-versed in the performah· B '
ces of rituals and ceremonies a·nd services according to· Hindu Shasttas,
customs, usages and practkes as· applicable and. prevailing in the Temple.
The secular functions of administration and management of the Temple,
endowment and the Temple Fund are entrusted to' tlle Board; Executive
Committee and Chief Executive Officer etc., as envisaged ins: 14 of the Act, C
for proper, efficient, honest and truthful administration and mal1ageme11t
with duty and devotion to serve Lord Visheshwara and the pilgrims and
worshippers. Therefore, the Att 'does not infringe the rights ·conferred
under Articles 26(b) and (d) of the Constitution.
(1123-H, 1124-A? 1109-C,, 1124-H]
4.1. The contention that some of. the persons have customary and
hereditary rights as archakas and Mahants, and that the Act extinguishes
their rights and so is violative of Articles 25 and 26(b) and ·(d) of the
Constitution, is untenable and devoid of substance. [1119-B]
D
A.S. Narayana Deekshitulu v. State ofA.P., [1996] 9 SCC 548; PanE
natal Ba11silal Pitti · v. State of A.P,, [1996j 2 SCC 498 and S1i: S1i Sri
Lakshamana Yatendrulu v. Slate of A.P., [1996] 8 SCC 735, referred to.
'Tagore Law Leciittes 011. Hindit Law of religious ii•1d C!wit(lb[e T1ust'
by Justice 11.K. Mukherjee, p. 1, rderred to.
F
4.2. Prnperties and eudcl\vments vest in the Deity; Lurd ~Sri Vis·
wanath. The management of the Temple by Mahant/Panda/Archaka is not ·
their property. The Act has· merely changed the management from Pandas
to the Board. Only the right of management in the Pandas has been ei..tinguished from the appointed day and placed in the Board for better and
proper management. It is not vested in the State nor the State acquired it
for itself. The affairs of Llird Sri Vishwahath Temple by Pandas/Mahants
have become extinct and the Board has assumed the management.'This
entrustment of management cannot be said to constituted acqnisition of the
property or extinguishment of right to property. [1124-C-D]
· H
1092
SUPREME COURT REPORTS
(1997) 2 S.C.R.
A
A.S. Narayana Deekshitulu v. State of A.P., (1969] 9 SCC 548; Pa1111alal Bm1silal Pitti v. State of A.P., [ 1996] 2 SCC 498; Sri Sri Sli Lakshama11a Yatell{/ntlu v. State of A.P., (1996] 8 SCC 705and 17iem1al
Krishnan v. Devasan, AIR (1976) Kerala 68, held inapplicable.
4.3. Since the legislature is empowered to enact the law regulating the
B secular aspect of the management of the Temple or the religious institution
or endowment, Panda/Archaka (Priest), by whatever name called, is not an
integral part.of the religion; and he performs all the religious tenets or
ceremonies in a Temple as servant of the Temple. They owe their existence
to an appointment which is terminable on the ground of misconduct or
C unfitness to perf11rm service, rituals/ceremonies in accordance with llindu
Sastras, customs and practices prevailing in the Temple handed down from
centuries. On abolition, the right of the holders of the office or post stands
extinguished. It does not vest in the State but is regulated by the Act. The
need to pay comiJensation does not arise. [1125•E·F]
D
4.4. However, by operation of Section 22, archakas or pandas found
eligible to perform religious services (pooja) ete. are regulated and they are
entitled to be considered for appointment and to consequential salary. As
regards qualifications of the Archaka (Priest)/Panda/Pujari or Samar·
chaka of the Temple, there is it deal of unanimity among Dharmashastras
E that they s~ould, illter-alia, atleast have a graduation in relevant subject;
and the process of selection should be undertaken by a committee compris·
Ing a minimum of three renowned scholars. Periodical training and con·
tinning education would improve and augment excellance. [1125-G, 1126-C]
A.S. Naraya11a Deekshitu/11 v. State of A.P., [1996] 9 SCC 548, referred
p
to.
4.5. The right to receive offerings from the pilgrims is not a vested
right de hors the service, but is incidental to the service rendered by the
archaka (priest). Therefore, the regulation of rendering service and
prohibition to receive offerings, though may affect the livelihood of a
G pre-existing archaka, it, being a regulatory measure, is sequal or conse·
quential to the abolition. When the service on customary basis is abolished,
concomitently right to receive offerings given by the pilgrims stand extin·
guished and prohibited and is vested in the deity, Lord Shiva. It is not an
acquisition of Jheir right but it has only incidental and consequential
H effect. Rights of persons in service as archakas is not affected; on the other
--
-
SRIAD! VISHESHWARA OF KASH! VISHWANATl!TEMPLEv. STATE 1093
hand, Section 22 of the Act is subject to regulation and extends the right A
to earn livelihood guaranteed by Article 21. [1126-D-F]
5. The Act relates to the individuaUnstitution, namely, Sri Kashi
Vishwanath Temple at Varanasi with particular reference to the mis·
management etc. by the self-same persons. The Comm.ittee.appointed by
the Government had gone into and found the need for the legisl;itive B
interference. As a consequence, it would be difticult to read doW:n S~ction
6 to give any direction to nominate the members .of the family or some of
the appellants as members of the Board. On the other hand, sub-sections
2(k) and 2(1) of Section 6 deal with nomination of eminent Hindu Scholai:s
or local eminent persons having goods knowledge and experie~ce in the C
management and administration of the affairs of the Temple and in
worship, service, rituals .or observance; these persons are therein, made
eligible. U is for the appropriate Government to consider whether or not
any of them would be eligible to be considered for n!Jmination as one of
eight non-official members ~f the Board at the relevant time. Similarly, s.
6 cannot be read down to .. inciude those persons who profess. denomina- D
tional Hindu Shivaites practising as members of the Board. Equally s.
20(1) and s. 20(2) cannot be read down so as to give wider pmvers to
''archaka" defined in s. 4(2), and sections 22(2), 23(2)(b), 24(2) and 25.(8)
cannot be read down so as to confer functional and financial responsibilities on the archaka. [1119-G-H, 1120-A]
6. The Presiclent of the Board inducted statutorily as a member, is
said to have disclaimed interest ~nd abstained from taking responsibility
or interest in the manag~ment of Lord Sri Visheshwar Temple and endowments thereof and is not taking any part therein. ·In that event, the State
Government would take steps to have s: 6(l)(a) so amended as to' bring
into Board another eminent .non-ollicial member and foilow the procedure
of election of the President of the Board. [1120-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1013~
1015 of 1987 Etc.
From the Judgment and Order dated 28.10.86 of the Allahabacl High
Court in C.M.W.P. Nos. 6916, 6915, and 1792 of 1983.
E
F
G
Dr. Rajeev Dhawan, S.~. Javali, D.V. Sehgal, L.R. Singh, Ms. Vimla
Sinha, Yatish Mohan, Ms. Bin.u Mohla, Ranjit Kumar, Ms. Anu Mohla, Ms: H
.. •·
1094
SUPREME COURT REPORTS
(1997) 2 S.C.R.
A Monika Gosain, A.K. Srivastava, R.B. Misra and Sunil Ambwani for the ., .
appearing parties.
·
The .Judgment of the Court was delivered by
B
. K.·~NiWAMY, J. These five appeals by special leave arise from
the Division Bench Judb'lllent of the Allahabad High Court, made on
October 28, 1986 in C.~. Writ Petition No. 1244 of 1984 and batch. The
primary question is as to the constitutionality of the Uttar Pradesh Sri
Kashi Vi.shwanath Temple Act, 1983 (U.P. Act No. 29/83) (for short, the
"Act"), made for ·the management of the Temple of renowned Lord VishC wanath, otherwise known as Sri Adi Visheshwara of Kashi. By and large,
every Hindu b~lieves that without a visit to Kashi for bath in the river
Ganges and prayer offered t~ Lord Shiva, life is incomplete and meaningless and every endeavour is made to visit Kashi at least once in life. The
idol of Lord Shiva at Varanasi on the bank of holy river Ganges is one of
D the five jyotir lingas .. in India believed to be self- incarnated ( swayam
bhuva); other fo~r, viz., (1) Rameshwaram . in Tamil Nadu State;. (2)
Srisaila~ on the banks of river Krishna in Andhra Pradesh; (3) D~arika
in Gujarat State; and ( 4) Onkar in Madhya Pradesh on the ba'1k of river
Narmada, are believed to the jyotir Jingas according to Hindu mythology.
Hindus believe that Lord Brahma is th.e Creator, Lord Vishnu is the
E Protector and Lord Shiva is the Destroyer of evils and wicked. Lord Shiva
is the Commonman's God a;1d it is believed that He is easily accessible by
fervent ,prayer and (ulfils the prayers of devotees. Though there are several
stories on self-inc;arnation of linga (idol) at Vara~asi, the fact remains that
1t 1s very
ancient.. For the last one thousand years, Lord VishF wanat.h/Visheshw!ll"a has been pre- eminent Shiva Linga (idol) at Kashi, the
supreme principal deity. According to the mythological literature, Lord
Avimukteshwara (never forsaken) appears to be the supreme deity in Kashi
since the Gupta ages, i.e., 4th century· A.D. till 12th century A.O. Pandit
Lakshmi Ohara of 12th century in his "Puranic Mahatmya" and ''Tirtha
G
Vivechana Kanda" and Dandini, the great Sanskrit Scholar (6th century)
in his "Dasha Kumaracharita" refer to this aspect of the matter. Mitra
Mishra in his book "Tirtha Praksh" has also stated that Lord Visheshwara
and Lord Avimukteshwara appear to be separately located as is spoken in
"Linga Purana" quoted by Lakshmi Ohara, The ancient name of Kashi
appears to be "Avimukta". The Linga of Lord Visheshwara appears to have
H been located to north of the sacred well, Jnana Vapi while encircling the
.}--
SRIAD!VISHESHWARAOFKASHIVISHWANA1HTEMPLE".STATEIK.RAMASWAMY,J.J 1095
,
-
temple of Avimukteshwara, the shrines of Dandapani, Taraka and A
Mahakaal all of which are also erected near J nana Va pi and Lord Visheshwara Temple. According to Puranic Mahatmya and Kashi Khanda of the
Skanda Purana, the Jyotirlinga was established by Lord Shiva himself when
he went into exile to the Mount Mandara during the reign of the legendary
King Divodasa. Since Lord Shiva himself disguised the Linga, according to B
Mahatmya Lord Shiva never really left the sacrosanct and sacred Temple.
Hence, it became "Avimukta" (Never Foresaken). This was also stated by
Vaachaspati Mishra in his famous Puranic work "Tirtha Chintamani" In
1460 wherein he had stated that "Visheshwara" and "Avimukteshwara" were
merely two names for the same Jyotirlinga. Narayan Bhatta had similarly
mentioned it to be so in 16th century in his work"'Tirthalisetu". According C
to the literature, by 13th to 14th century A.D. and especially, dated 1325
A.D. the Temple called Padameshvara was existing as per "KashtKa Itihas"
page 190 written by Moti Chandra. As stated earlier, .in due course,
Jyotirlinga in this name of Lord Visheshwara gained popularity and
Avimukteshwara Linga was installed in a corner of the temple. Every D
Hindu believes that Lord Shiva is a common man worshipper and perhaps
for that belief Linga of Lord Sri Visheshwara became famous. In the year
1193 A.D., when one of the Lieutenants of Mohd. Gori, namely, Kutubuddin Eibak completely destroyed Lord Shiva's Temple, the Priest (Mahant)
concealed the Idol of Lord _Yishwanath from being defiled and destroyed.
The temple construction was undertaken in .a big way in 1585 by Raja E
Todar Mal, the Finance Minister of Akbar the great, the Mughal Emperor
who was then Governor of Jaunpur. The Temple was constructed accordingly on a large scale consisting of Central Sanctum ( Garba Griha) smf
rounded by eight mandapas or pavilions. Aurangzeb again destroyed the
Temple of Lord Shiva in 1669 A.D. when again the then Priest (Mahant)
removed the idol of Lord Shiva so as to prevent it from being defiled and
destroyed. Thereafter, it was again restored in the year 1777 AD., by Rani
Ahilya Bai Holkar of M.P. who had built the present Temple and installed
F,.'
the present deity. Maharaja Ranjit Singh in 1859 A.D. had renovated it,
covering the dom with gold plates weighing 22 tons of gold. ·
Though it is claimed that .some of the appellants. are the descendants
of Pt. Visheshwar Dayal Tiwari and that the Mahant (Priest) of the Temple
got it re-erected, it is not necessary for the purpose of this case to dwell
G
on the history. Suffice it to state that the management of Temple was in. an
appalling condition. Devoted pilgrims when they visited the Temples were H
1096
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[1997]2S.C.R. i
A subjected to exploitation at the behest of pandas, the precincts were in
most unhygienic condition. Admittedly, the jewellery of Lord Shiva was
stolen which necessitated constitution of the Committee
which had· gone into and recommended to the Government to take steps
for proper management thereof. The theft that took place in the mid-night
B of January 4-5, 1983, 14 years from now, had become cause of concern to
all the Hindus and the residents of Varanasi, in particular for protection
and proper management of the temple. It became necessary lo take effective steps to provide efficient administration and proper arrangements for
orderly visit and prayer by the devotees, thronging daily the precincts of
the tempie in millions coming from every nook and corner of the country
C and abroad. On the basis of the. recommendation of the said Committee
dated January 14, 1983 an Ordinance titled "U.P. Shri Kashi Vishwanath
Temple Ordinance, 1983" was promulgated by the Governor of the State
of Uttar Pradesh on January 24, 1983 whereby the management and control
of the
said Temple was takeff over from the Mahants and Pandas
D (priests); On January 28, 1983, the Government issued a Notification
specifying the "Appointed Date'' under the Ordinance to be January 28,
1983 and another Ordinance No. 9 of 1983, namely, U.P. Sri Kashi Vishwanath temple (Second) Ordinance, 1983 was issued since the first one
was to expire on March 16, 1983 by operation of proviso to Article 213 of
the Constitution. The Government issued al}other Ordinance, viz., OrE dinance No. 20/83 on April 27, 1983, which was replaced by the Act of
Parliament. The appellants, though initially challenged the Ordinance,
pending 'proceedings, the U.P. Act No. 29/1983 came into force after
receiving the assent of the President on October 12, 1983 and was notified
in the State Gazette on October 13, 1983.
F
·By operation of sub-section (2) of Section 1, the Act came into
force w.e.f. January 28, 1983, i.e., on the 'appointed date' under the first
Ordinance. Before the High Court, the Act was assailed by filing a writ
petition, primarily on the ground that it infringes the appellants' fundamental rights enshrined in Articles 25(1) and 26(b) and ( d) of the Constitution.
G One of the learned Judges of the Bench had held that though the Temple
fof Sri Kashi Vishwanath was and is a public Temple of common people,
the presiding deity, i.e., Lord Vishwanath is the Lord of all. It is a
coriimcinman's Temple but it is a denominational Temple of Shivaites of
Hindu community. Another learned Judge held that it is not .a denominaH tional one. However, both the learned judges held that the Legislature was
\
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SRI ADIVISHESBWARA OF KASH! VISHWANATH TEMPLEv. STATE(K. RAMASWAMY.JI 1097
competent to enact the law for management of the Temple along with its A
properties. The learned Judges gave directions to consider taking in some
of lhe representatives of the appellants as members of the Board; they gave
other directions which we would consider at the appropriate places while
dealing with questions separately. The appellants feeling aggrieved by the
decisions of the High Court, have filed the present appeals. The learned
counsel on both sides have filed written arguments, pursuant to this Court's B
direction dated December 13, 1991. After a considerable time having been
taken while matter was before different Benches, it ultimately came up
before this Bench and has been heard at length.
Sri Rajeev Dhavan, learned senior counsel, contended that Lord C
Shiva Temple is a denominational Temple of shivaites of which the appellants are the members. They have their exclusive right to worship and to
manage the Temple including the right to receive offerings given by the
·pilgrims to Lord Shiva, to perform pooja (rituals) and ceremonies in
accordance with prevailing customs and usage in the Temple handed
down from centuries. The Act interdicts to exercise that right and interfere D
with those rights which are part of their religion. The Act prevents them
from managing the Temple and its properties which interferes with their
right to profess and practise any religious belief offending Articles 25 and
. 26 of the Constitution.
We find no force in the contention. The preamble of the Act in
unequivocal language, manifests its intention that the Act is to provide "for
the proper and better administration of Sri Kashi Vishwanath Temple at
Varanasi and its endowment and for matters connected therewith or
incidental thereto". Sub-section (2) of Section 1 gives overriding effect to
E
the Act. It envisages that
the Act "shall have effect, notwithstanding F
anything to lhe contrary contained in any other law for the time being in
force or customs or use, contract, deed or engagement, judgment, decree
or order uf any court or scheme of management settled by any court" .
. Section 5 declares that ownership of the Temple and its endowment G
shall vest in the deity of Sri Kashi Vishwanath. "Temple" has been defined
under Section 4(9) which reads as under :
"'Temple' means the Temple of Adi Vishweshwar, popularly
known as Sri Kashi Vishwanath Temple, situated in the City of
Varanasi which is used as a place of public religious worship, and H
A
B
'
c
D
1098
SUPREME COURT REPORTS
[1997] 2 S.C.R. i
dedicated lo or for the benefit of or used as of right by the Hindus,
as a place of public religious worship of the Jyotirlinga and includes
all subordinate Temples, Shrines, sub-shrines and the ashthan of
all other images and deities, mandaps, wells, tanks and other
necessary structures and land appurtenant thereto and additions
which may be made thereto after the appointed date.
"Endowment" has been defined by Section 4(5) which reads as
under:
'"Endowment' means all properties movable or immovable,
belonging to or given or endowed for the support or maintenance
or improvement of the Temple or for the performance of any
worship, service, ritual, ceremony or other religious observance in
the Temple or any charity connected therewith and includes the
idols installed therein, the premises of the Temple and gifts of
property made or intended to be made for the Temple or the
deities installed therein to any one within the precincts of the
TC(mple."
"Temple Fund" had been defined under Section 4(10) to mean the
temple constituted under Section 23 of the Act. Chapter IV deals with
E "Property and Accounts". Section 23(1) postulates that there shall be
constituted a Fund to be called "Sri Kashi Vishwanath Temple Fund" which
· shali be vested in and administered by the Board and shall consist of the
following,. namely ·
.. "(a) the income derived from the movable and immovable properF
· ties of the Temple;
G
·-.:
(h) the religious offerings made or intended to be made to the
deity of Sri Kashi Vishwanath or any other deity in the Temple;
(c) any contribution by the State Government either by way of
. .. grant or by way of loan;
( d) any donation or charity made by a person in or for the Temple;
( e) any other gift or contribution made by the public, or local
H
authorities or ins.titutions;
,
SRI ADI VISHESHWARA OF KASH! VISHWANATH TllMPLE v. Sf ATE (K. RAMAl>"'W AMY, J.j · 1099
(t) all fines and penalties imposed under the Act;
(g) all recoveries made under the Act."
Thus the. totality of the endowment and the Temple Fund vest in the
Deity, Sri Kashi Vishwanath. Its management is entrusted to the Board of
A
Trustees (for short, the 'Board').
B
Section 4(3) defines "Board" to mean the "Board of Trustees" constituted under Section 6. Sub-section (l) of Section 6 postulates that with
· effect from the appointed date, the administration and governance of the
Temple and its endowments shall vest in a Board called "The Board of
Trustees for Sri Kashi Vishwanath Temple". It shall consists of the memC
hers specified is sub-section (2), namely :
"(a) Dr. Vibhuti Narain Singh who shall also be the President of
the Board;
(b) Sri Jagadguru Sankaracharya of Sringeri;
(c) Secretary to the Government of Uttar Pradesh in the Department .of Cultural Affairs - ex officio;
(d) Secretary to the Government of Uttar Pradesh in the DepartD
ment of Finance - ex officio;
· E
(e) Secretary to the Government of Uttar Pradesh in the Department of Harijan and Social Welfare - ex officio;
(t) Secretary to the Government of Uttar Pradesh in the Judicial/Legislative Department by rotation in such manner as may be F
prescribed - ex officio;
(g) Director of. Cultural Affairs, Uttar Pradesh - ex officio;
(h) Commissioner, Varanasi Division - ex officio;
(i) District Magistrate, Varanasi - ex ot/icio;
G) Vice-Chancellor, Sampurnanand Sanskrit Vishwavidyalaya
Varanasi - ex officio;
G
(k) Two local eminent persons having good knowledge and ex- H
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[1997) 2 S.C.R. .'1
A
perience in the management and administration of the< affairs of
the Temple and any worship, service, ritual or religious observance
made therein to be nominated by the State Government;
B
(I) Three eminent Hindu scholars well-versed in Hindu theology,
to be nominated by the State Government."
Sub-sections {3) to (5) provide as under :
"(3) Where a member. of the Board cannot perform his duties as
such by reason of the fact that he is not a Hindu, the person
available next below him in. this behalf shall be a member of the
C
Board for the time being ..
D
( 4) The Board shall be a body corporate having perpetual succession and may sue or be sued by the name aforesaid.
( 5) The constitution of the Board and every change therein shall
be notified by the State government."
Thus, the Board consists of 8 non-officials well versed in the
knowledge and experience in Hindu theology, management and administration of the Temple, two local officials and five Secretaries have
E diverse experience. All these men of wisdom and experience are imbued
to infuse in proper, efficient and honest administration and management
of the Temple. endowment and the Temple Fund, the property of the Deity
Lord Vishwanath.
It would, thus, be seen that the ownership of the Temple and its
p
endoWment shall vest in the deity of Sri KashiVishwanath, the presiding
deity of the Temple. The management of Temple and the endowment shall
vest in the Board to cater to the welfare of the pilgrims, proper and better
management of the performance of daily and periodical ceremonies and
rituals. By operation of sub- section ( 4) of Section 6, the Board shall be a
body corporate having perpetual succession and it may sue and be sued in
G the
name of the Board. The term of the office of the Board as specified
in Section 7, is 3 years from the date of the notification of the nomination
and some of the members mentioned in the proviso specified in Clauses
(a) and (b) of sub-section (2) shall be life members, Other members are
liable to be removed by operation of sub-section (1) of Section 8 following
H the procegure prescribed in sub-section (2) thereof and the decision of the
SRI ADI VISHESHWARA OFKASHIVISHWANATHIBMPLE». STAIB\K. RAMASWAMY,J.f
1101
Government in that behalf is final under sub-section (3) and (shall not be A
liable to be questioned in any Court of law).
By operation of Section 13, the Board shall be entitled to take and
be in possession of the movable and immovable properties, cash, valuables,
jcwelleries, records, documents, material objects and other assets belonging to or forming part of the Temple and its endowments. Every person, B
by operation of sub- section (2), who has possession, custody or control of
any such movable or immovable property, cash, valuable, jewellery, record,
document, material object or other asset, as mentioned in sub- section (1)
shall, subject to all just exceptions, produce and deliver the saine, when
required, under the Act, to the Chief Executive Officer defined in Section C
4(4) to mean the Chief Executive Officer appointed under Section 16.
Chapter III under the caption 'The Temple Establishment', consists
of Sections 16 to 22 and deals in this behalf. Section 16 empowers the State
Government to appoint a Chief Executive Officer for the Temple. His
conditions of service may be determim:d by the State Government from D
time to time under sub-section (2) thereof. The proviso thereto protects
his pre-existing salary and other conditions of service. Section 17(1) enjoins
that the Chief Executive Officer shall be the Principal Executive Officer of
the Temple and, ·subject to the control of the Board, shall be "responsible
for management to the secular affairs of the Temple and its endowments".
Sub-section (2) thereof provides that subject to the provisions of the Act E
and rules made thereunder, the chief Executive Officer shall do the following duties :
"(a) to carry out the decisions and orders of the Board and the
Executive Committee in accordance with the provisions of this Act; F
(b) to arrange for the proper collection, maintenance and disposal
of the religious offerings in the Temple and to keep a full and
proper account thereof;
( c) lo have custody of and make suitable arrangement for the G
preservation and maintenance of all records, jewelleries, valuables,
moneys, valuable securities and properties of the temple;
·
( d) to record and maintain the minutes. of proceedings of the
Boards.
·H
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[1997) 2 S.C.R.
A
( e) to call for tenders for works. or supplies and to accepts tenders,
the value of amount whereof does not exceed five tholL~and rupees;
(f) to exercise control over the employees of the Temple and take
appropriate action against them in cases of breach of discipline;
B
(g) to do all such things as. may be required for the due performance of his dutie& imposed by or under this Act."
Section 18 deals with emergency powers of the Chief Executive
Officer. Under sub-section (1) thereof, the Chief Executive Officer may
c
direct the execution. of any work or the doing of anything which is not
provided for in the budget for the year or which is, in his opinion,
immediately necessary and unavoidable "for the preservation of the Temple
or its endowments or for the health, safety or convenience of the pilgrims
or worshipers resorting to the temple or for the due performance of the
worship, service, rituals, ceremonies or observances in the Temple and may
D further direct that the expenses of the execution of such work or the doing
of such thing shall be paid out of the Temple Fund". Under sub-section
(2), he is enjoined to forthwith submit the report in that behalf together
with the statement of the reasons for such action, to the Board and the
Executive Committee. The Board shall take such action, after taking into
account the recommendations of the Executive Committee, as it deems fit.
E
Section 19 deals with constitution of the Executive Committee.