# ORS v. THE GOVERNMENT OF TAMIL NADU &ANR

- **Citation:** [2015] 11 S.C.R. 1110
- **Court:** Supreme Court of India
- **Decided:** 2015-12-16
- **Bench:** RANJAN GOGOi, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ors-v-the-government-of-tamil-nadu-anr-30274
- **Pages:** 44

## Headnote

Constitution of India, 1950 - Articles 25, 26 -
Appointments of Archakas in temple - Issuance of G. 0. No.
118 dated 23. 05. 2006 by Tamil Nadu to the effect that, "any
D person who is a Hindu and possessing the requisite
qualification and training can be appointed as ·a Archaka in
Hindu temples - Writ petitions challenging the G. 0. - Held:
Appointments of Archakas will have to be made in
accordance with the Agamas, subject to their due
E identification as well as their conformity with the constitutional
mandates and the principles - Requirement of constitutional
conformity is inbuilt and if a custom or usage is outside the
'protective umbrella afforded and envisaged by Arts 25 and
26, the law would take its own course - Constitutional
F legitimacy must supersede all religious beliefs or practices
- Validity of the G 0. would depend on the facts of each case
of appointment - What is prescribed by one particular or a
set of Agamas for a solitary or a group of temples, would be
determinative of the issue - Exclusion of some and ;nclusion
G of a particular segment or denomination for appointment as
Archakas would not violate Art 14 so Jong such inclusion/
exclusion is not based on the criteria of caste, birth or any
other constitutionally unacceptable parameter -
Determination of th.e contours of a claimed custom or usage
H
1110
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1111
GOVERNMENT OFT. N.
would be imperative and in that light the validity of the said A
G. 0. would be decided in each case of appointment of
Archakas whenever such issue is raised- Tami/.Nadu Hindu
Religious and Charitable Endowments Act, 1959 -
G.O.No.118 dt 23.05.2006.
B
Disposing of the writ petitions, the Court,
HELD: 1.1 Appointments of Archakas will have to
be made in accordance with the Agamas, subject to their
due identification as well as their conformity with the c
Constitutional mandates and the principles. [Para 44]
[1153-B]
1.2 The rights guaranteed by Articles 25 and 26, are
circumscribed and _are to be enjoyed within 0
constitutionally permissible parameters. Often occasions
will arise when it may become necessary to determine
whether a belief or a practice claimed and asserted is a
fundamental part of the religious practice of a group or
denomination making such a claim before embarking E
upon the required adjudication. A decision on such
claims becomes the duty of the Constitutional Court. It
is neither an easy nor an enviable task that the courts
are called to perform. Performance of such tasks is not
enjoined in the court by virtue of any ecclesiastical F
jurisdiction conferred on it but in view of its role as the
Constitutional arbiter. Any apprehension that the
determination by the court of an essential religious
practice itself negatives the freedoms guaranteed by
Articles 25 and 26 will have to be dispelled on the G
touchstone of constitutional necessity. Without such a
determination there can be no effective adjudication
whether the claimed right it is in conformity with public
order, morality and health and in accord with the
undisputable and unquestionable notions of social H
1112
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A welfare and reforms. A just balance can always be made
by holding that the exercise of judicial power to
determine essential religious practices, though always
available being an inherent power to protect the
guarantees u/Articles 25, 26, the exercise thereo_f must
B always be restricted and restrained.[Para 36][1147-F-H;
1148-A-C]
1.3 A plain reading of Article 16(5), fortified by the
debates that had taken place in the Constituent
C Assembly, protects the appointment of Archakas from a
particular denomination, if so required to be made, by
the Agamas holding the field. The debates discloses that
the suggestion that the operation of Article 16(5) should
be restricted to appointment in offices connected with
o administration of a religious institution was negatived.
The exception in Article 16(5), therefore, would cove

## Text

_Characters 0–39,910 of 81,597. This is a partial read: ask again with offset=39910 for what follows._

[2015) 11 S.C.R. i110
A
ADI SAIVA SIVACHARIYARGAL NALA SANGAM &
B
c
ORS.
v.
THE GOVERNMENT OF TAMIL NADU &ANR.
(Writ Petition (Civil) No. 354 of 2006)
DECEMBER 16, 2015
[RANJAN GOGOi AND N.V. RAMANA, JJ.]
Constitution of India, 1950 - Articles 25, 26 -
Appointments of Archakas in temple - Issuance of G. 0. No.
118 dated 23. 05. 2006 by Tamil Nadu to the effect that, "any
D person who is a Hindu and possessing the requisite
qualification and training can be appointed as ·a Archaka in
Hindu temples - Writ petitions challenging the G. 0. - Held:
Appointments of Archakas will have to be made in
accordance with the Agamas, subject to their due
E identification as well as their conformity with the constitutional
mandates and the principles - Requirement of constitutional
conformity is inbuilt and if a custom or usage is outside the
'protective umbrella afforded and envisaged by Arts 25 and
26, the law would take its own course - Constitutional
F legitimacy must supersede all religious beliefs or practices
- Validity of the G 0. would depend on the facts of each case
of appointment - What is prescribed by one particular or a
set of Agamas for a solitary or a group of temples, would be
determinative of the issue - Exclusion of some and ;nclusion
G of a particular segment or denomination for appointment as
Archakas would not violate Art 14 so Jong such inclusion/
exclusion is not based on the criteria of caste, birth or any
other constitutionally unacceptable parameter -
Determination of th.e contours of a claimed custom or usage
H
1110
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1111
GOVERNMENT OFT. N.
would be imperative and in that light the validity of the said A
G. 0. would be decided in each case of appointment of
Archakas whenever such issue is raised- Tami/.Nadu Hindu
Religious and Charitable Endowments Act, 1959 -
G.O.No.118 dt 23.05.2006.
B
Disposing of the writ petitions, the Court,
HELD: 1.1 Appointments of Archakas will have to
be made in accordance with the Agamas, subject to their
due identification as well as their conformity with the c
Constitutional mandates and the principles. [Para 44]
[1153-B]
1.2 The rights guaranteed by Articles 25 and 26, are
circumscribed and _are to be enjoyed within 0
constitutionally permissible parameters. Often occasions
will arise when it may become necessary to determine
whether a belief or a practice claimed and asserted is a
fundamental part of the religious practice of a group or
denomination making such a claim before embarking E
upon the required adjudication. A decision on such
claims becomes the duty of the Constitutional Court. It
is neither an easy nor an enviable task that the courts
are called to perform. Performance of such tasks is not
enjoined in the court by virtue of any ecclesiastical F
jurisdiction conferred on it but in view of its role as the
Constitutional arbiter. Any apprehension that the
determination by the court of an essential religious
practice itself negatives the freedoms guaranteed by
Articles 25 and 26 will have to be dispelled on the G
touchstone of constitutional necessity. Without such a
determination there can be no effective adjudication
whether the claimed right it is in conformity with public
order, morality and health and in accord with the
undisputable and unquestionable notions of social H
1112
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A welfare and reforms. A just balance can always be made
by holding that the exercise of judicial power to
determine essential religious practices, though always
available being an inherent power to protect the
guarantees u/Articles 25, 26, the exercise thereo_f must
B always be restricted and restrained.[Para 36][1147-F-H;
1148-A-C]
1.3 A plain reading of Article 16(5), fortified by the
debates that had taken place in the Constituent
C Assembly, protects the appointment of Archakas from a
particular denomination, if so required to be made, by
the Agamas holding the field. The debates discloses that
the suggestion that the operation of Article 16(5) should
be restricted to appointment in offices connected with
o administration of a religious institution was negatived.
The exception in Article 16(5), therefore, would cover an
office in a temple which also requires performance of
religious functions. [Para 38][1148-F-H]
E
1.4 It would be, incorrect, if not self defeating, to
take too pedantic an approach at resolution either by
holding the principle of res judicata or locus to bar an
adjudication on nierits or to strike down the impugned
G.O. as an executive fiat that does not have legislative
F approval, made explicit by the fact that though what has
been brought by the G.O. dated 23.05.2006 was also
sought to be incorporat~d in the statute by the
Ordinance, eventually, the amending Bill presented
before the legislature specifically omitted the said
G inclusion. The significance of the said .fact, however,
cannot be underestimated. What is sought to be
emphasized is that the same, by itself, cannot be
determinative of the invalidity of the G.O. which would
have to be tested on certain other premises and
H foundation treating the same to be an instance of
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1113
GOVERNMENT OFT. N.
exercise of executive power in an area not covered by A
any specific law. [Para 39][1149-B-E]
1.5 Sheshammal case is not an authority for any
proposition as to what an Agama or a set of Agamas
governing a particular or group of temples lay down with B
regard to the question that confronts the court, namely,
whether any particular denomination of worshippers or
believers have an exclusive right to be appointed as
Archakas to perform the poojas. Much less, has the
judgment taken note of the particular class or caste to C
which the Archakas of a temple must belong as
prescribed by the Agamas. All that it does and says is
that some of the Agamas do incorporate a fundamental
religious belief of the necessity of performance of the
Poojas by Archakas belonging to a particular and distinct D
sect/group/denomination, failing which, there would be
defilement of deity requiring purification ceremonies.
Surely, if the Agamas in question do not proscribe any
group of citizens from being appointed as Archakas on
the basis of caste or class the sanctity of Article 17 or E
·any other provision of Part Ill of the Constitution or even
the Protection of Civil Rights Act, 1955 would not be
violated. What has been said in Sheshammal case is that
if any prescription with regard to appointment of F
Archakas is made by the Agamas, s. 28 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act
mandates the Trustee to conduct the temple affairs in
accordance with such custom or usage. The
requirement of Constitutional conformity is inbuilt and if G
a custom or usage is outside the protective umbrella
afforded and envisaged by Articles 25 and 26, the law
would certainly take its own course. The constitutional
legitimacy, naturally, must supersede all religious beliefs
or P.ractices. (Para 41] (1150-D-H; 1151-A-B]
H
1114
SUPREME COURT REPORTS
(2015] 11 S.C.R.
A
1.6 The difficulty lies in determining whether a claim
of State action in furtherance thereof overrides the
constitutional guarantees under Article 25 and 26 may
often involve what has already been referred to as a
delicate and unenviable task of identifying essential
B religious beliefs and practices, sans which the religion
itself does not survive. It is in the performance of this
task that the absence of any exclusive ecclesiastical
jurisdiction of th!s Court, if not other shortcomings and
adequacies, that can be felt. Moreover, there is some
C amount of uncertainty with regard to the prescription
contained in the Agamas. Coupled with the above i~ .the
lack of easy availability of established works and the
declining numbers of acknowledged and undisputed
0
scholars on the subject. In Shirur Mutt case with regard
to complete autonomy of a denomination to decide as
to what constitutes an essential religious practice, a
view that has also been subsequently echoed by this
Court though as a "minority view". But it is clarified that
E no such view of the Court can be understood to an
indication of any bar to judicial determination of the issue
as and when it arises. Any contrary opinion would go
rise to large scale conflicts of claims and usages as to
what is an essential religious practice with no acceptable
F or adequate forum for resolution. That apart the
"complete autonomy" contemplated in ShirurMuttcase
and the meaning of "outside authority" must not be torn
out of the context in which the views came to be
recorded. The exclusion of all "outside authorities" from
G deciding what is an essential religion practice must be
viewed in the context of the limited role of the State in
matters relating to religious freedom as envisaged by
Articles 25 and 26 itself and not of the Courts as the
arbiter of Constitutional rights and principles. [Para
H 42][1151-B-H; 1152-A-B]
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1115
GOVERNMENT OFT. N.
1. 7 The validity or otherwise of the impugned G.O. A
would depend on the facts of each case of appointment
What is found and held to be prescribed by one
particular or a set of Agamas for a solitary or a group of
temples, as may be, would be determinative of the issue.
It is re-emphasised that the exclusion of some and B
inclusion of a particular segment or denomination for
appointment as Archakas would not violate Article 14 so
long such inclusion/exclusion is not based on the criteria
of caste, birth or any other constitutionally unacceptable
parameter. So long as the prescription(s) under a C
particular Agama or Agamas is not contrary to any
constitutional mandate the impugned G'.O. dated
23.05.2006 by its blanket fiat to the effect that, "Any
person who is a Hindu and possessing the requisite 0
qualification and training can be appointed as a Archaka
in Hindu temples" has the potential of falling foul of the
dictum laid down in Seshammal case. A determination
of the contours of a claimed custom or usage would be
imperative and it is in that light that the validity of the E
impugned G.O. dated 23.05.2006 would have to be
decided in each case of appointment of Archakas
whenever and wherever the issue is raised. The
necessity of seeking specific judicial verdicts in the
future is inevitable and unavoidable; the contours of the F
instant case and the issues arisen. [Para 43][1152-C-H]
2. The submission with regard to the maintainability
of writ petitions cannot be accepted on two counts.
Firstly, it is difficult to appreciate as to why the petitioners G
should be non-suited at the threshold merely because
the G.O. dated 23.05.2006 has not been given effect to
by actual orders of the State Government. The institution
of a writ proceeding need not await actual. prejudice and
adverse effect and consequence. An apprehension of H
1116
SUPREME COURT REPORTS
(2015] 11 S.C.R.
A such harm, if the same is well founded, can furnish a
cause of action for moving the Court. The argument that
the writ petition is founded on a cause relating to
appointment in a public office· and hence not
entertainable as a public interest litigation would be too
B simplistic a S?lution to adoptto answer the issues which
concerns the religious faith and practice of a large
number of citizens of the country and raises claims of
century old traditions and usage having the force of law.
[Para 10] (1122-D-G]
c
D
E
F
G
H
Seshammal and Others, Etc. Etc. Vs. State of
Tamil Nadu 1972 (3) SCR 815: (1972) 2SCC11;
Sanjeev Coke Manufacturing Vs. Mis Bharat
Coking Coal Limited & Anr. 1983 (1) SCR
1000:(1983) 1 SCC 147; N. Adhithyan Vs.
Travancore Devasom Board and Others 2002 (3)
Suppl. SCR 76:(2002) 8 SCC 106; Sastri
Yagnapurushadji and Others Vs. Mu/das
Bhudradas Vaishya and Another 1966 (3) SCR
242; Gopala Mooppanar and Others Vs.
Subramania Iyer and others AIR 1915 Madras
363; The Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt 1954 SCR 1005; Sri
Venkataramana Devaru and Others Vs. State of
Mysore and others AIR 1958 SC 255:1958 SCR
895; Durgah Committee, Ajmer and another Vs.
Syed Hussain Ali and others AIR 1961 SC
1402:1962 SCR 383; Commissioner of Police
and Others Vs. Acharya Jagadishwarananda
Avadhuta andAnother2004 (2) SCR 1019:(2004)
12 sec 770- referred to.
'
ADI SAIVASIVACHARIYARGAL NALASANGAM v.
1117
GOVERNMENT OFT. N.
Case Law Reference
A
1983 (1) SCR 1000
referred to.
Para 12
~002 (3) Suppl. SCR 76
referred to.
Para 13
1966 (3) SCR 242
referred to.
Para 27
B
AIR 1915 Madras 363
referred to.
Para 30
1954 SCR 1005
referred to.
Para 31
1958 SCR895
referred to.
Para 33
c
1962 SCR 383
referred to.
Para 35
2004 (2) SCR 1019
referred to.
Para 35
1972 (3) SCR 815
followed.
Para 44
D
ORIGINALAPPELLATE JURISDICTION: Writ Petition
(Civil) No. 354 of 2014
[Under Article 32 of the Constitution of India]
WITH
E
W. P. (C) Nos. 355, 383 and 384 of 2006
Subramonium Prasad, AAG, K .. Parasaran, P. P. Rao,
Colin Consalves, G Umapathy, Vineet Pandey, R. Mekhala,
F
Rakesli K. Sharma, A. Mukunda Rao, Arjun Singh,
Gaichangpou Gangmei, Sridhar Potaraju, M. Yogesh Kanna,
Sri Vignesh, Swarnendhu Chaterjee, Sabarish Subramanian,
Praburama Subramanian, B. Subrahmanya Prasad, Naresh
Kumar, P. R. Kovilan Poongkuntran, Mahalakshmi Pavani, S. G
Raju, Geetha Kovila_n, V. G. Pragasam, S. Ramamani, B.
Balaji, Rakesh Sharma, R. Shase for appearing parties.
The Judgment of the Court was delivered by
H
1118
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
RANJAN GOGOi, J. 1. Religion incorporates the
particular belief(s) that a group of people subscribe to.
Hinduism, as a religion, incorporates all forms of belief without
mandating the selection or elimination of any one single belief.
It is a religion that has no single founder; no single scripture
B and no single set of teachings. It has been described as
Sanatan Dharma, namely, eternal faith, as it is the collective
wisdom and inspiration of the centuries that Hinduism seeks
to preach and propagate. ltis keeping in mind the above
precepts that we will proceed further.
c
2. Before highlighting the issues that confronts the Court
in the present case the relevant Constitutional provisions in
Part Ill of the Constitution may be taken note of. Article 13, in
clear and uhequivocal terms, lays down that all laws including
D pre-constitution laws which are inconsistent with or in
derogation of the fundamental rights guaranteed by Part 111 are
void. Sub-Article (3) brings within the fold of laws, all Rules,
Regulations, Notification, custom and usage having the force
of law. While the several provisions of Part Ill would hardly
E need to be re-emphasized, specific notice must be had of, in
the context of the present case, the provisions contained in
Articles 25 and 26 of the Constitution. While Article 25 makes
the freedom of conscience and the right to profess, practice
F and propagate the religion to which a person may subscribe,
a fundamental right, the exercise of such right has beer:i made
subject to public order, morality and health and also to the other
provisions of Part Ill. Article 25(2)(b) makes it clear that main
part of the provisions contained in Article 25 will not come in
G the way of the operation of any existing law or prevent the State
from making any law which provides for social welfare and
reform or for throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus. Similarly,
Article 26 while conferring the right on every religious
H denomination to manage its own affairs makes it clear that
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1119
GOVERNMENT OFT. N. [RAN JAN GOGOi. J ]
the right to manage the affairs of any religious denomination A
is restricted to matters of religion only.
3. The provisions of Part Ill, as noted above, therefore
makes it amply clear that while the right to freedom of religion
and to manage the religious affairs of any denomination is
B
undoubtedly a fundamental right, the same is subject to public
order, morality and health and further that the inclusion of such
rights in Part Ill of the Constitution will not prevent the State
from acting in an appropriate manner, in the larger public
interest, as mandated by the main part of both Articles 25 and C
26. Besides, the freedom of religion being subject to the other
provisions of Part Ill, undoubtedly, Articles 25 and 26 of the
Constitution has to be harmoniously construed with the other
provisions contained in Part Ill.
D
4. The necessary facts may now be noticed. In order to
amend and consolidate the law relating to administration and
governance of Hindu religious and charitable institutions in the
State of Tamil Nadu, the State Legislature has enacted the
Tamil Nadu Hindu Religious and Charitable Endowments Act,
E
1959 (hereinafter referred to as 'the Tamil Nadu Act'). A
passing reference may be made, at this stage, to Section 55
of the Tamil Nadu Act which provided that in case where the.
office holders or servants of a religious jnstitution are required
to be filled up on the principle of hereditary succession the
F
person next in line of succession is entitled to succeed. There
were some exceptions to the above rule i.e. where the person
next in line is a minor or suffers from some incapacity. The
aforesaid provision (Section 55) was amended alongwith other
related provisions by theAmendmentAct of 1970 which came G
into force on January 8, 1971. By the aforesaid amendment
the principle of next in line of succession was abolished. The
amendment came to be challenged before this Court which
d:~l!~r.~8 wa:. considered by a Constitution Bench of the Court.
H
1120
SUPREME COURT REPORTS
[2015) 11 S.C.R.
A
In its judgment in Seshammal and Others, Etc. Etc. Vs. State
of f."jmif Nadu' the Constitution Bench, while upholding the
validity of the amendment, dealt with a further question, namely,
though the principle of next in line was validly abolished, whether
the appointment of office bearers or servants of t_he temples
B
are required to be made from a particular denomination/group/
sect as mandated by the Agamas i.e. treatises pertaining to
matters like construction of temples; installation of idols and
conduct of worship of the Deity. The Constitution Bench after
an elaborate consideration of the matter, details of which will
C be noticed subsequently, seems to have answered the
aforesaid question in the affirmative.
5. No controversy surfaced after the Constitution Bench
judgment in Seshammal (supra) until a G.O. No. 118 dated
D 23:05.2006 was issued by the Government of Tamil Nadu,
Department of Tamil Development, Cultural and Endowments
to the effect that, "Any person who is a Hindu and
possessing the requisite qualification and training can be
appointed as a Archaka in Hindu temples". An Ordinance
E (No. 5 /2006) dated 14.07 .2006 followed the aforesaid G.O.
seeking to further amend sub-section (2) of Section 55 of the
Tamil NaduAct. The said provision of theAct i.e. Section 55(2),
by virtue of the 1971 amendment referred to above and the
F 2006 Ordinance, read as follows.
"(2) No person shall be entitled to appointment to
any vacancy referred to in sub-section (1) merely
on the ground that he is next .in the. fine of
succession to the last holder of office." [Change
G
brought about by amendment of S.55(2)]
"or on the ground of any custom or usage".
[Change brought about by Ordinance 512006)
H
1 (1972) 2 sec 11
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1121 ·
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
· 6. The Explanatory statement to the Ordinance in para 4 A
indicated the purpose behind further amendment of Section
55(2) in the following terms.
"Archakas of the Temples are to be appointed without
any discrimination of caste and creed. Custom or usage B
cannot be a hindrance to this. It is considered that the
position is clarified in the Act itself and accordingly, it
has been decided to amend Section 55 of the said Act
suitably".
7. The Ordinance was replaced by The Tamil NaduAct
No. 15 of 2006 which received the assent of the Governor on
29.08.2006. The Act, however, did not contain the amendment
to Section 55 as was made by the Ordinance. In otherwords,
c
the said amendment brought by the Ordinance was dropped 0
from the Amending Act 15 of 2006.
8. The present writ petitions under Article 32 of the
Constitution have been instituted by an Association of
Archakas and individual Archakas of Sri Meenakshi Amman E
Temple of Madurai. The writ petitions were filed challenging
the G.O. No. 118 dated 23.05.2006 and Ordinance No. 5/2006
(at that point of time the Amending Act of 2006 had not come
into effect). As the amendment of Section 55(2) made by the
Ordinance had not been continued by the Amending Act 15 of F
2006 the said part of the challenge (as ag_ainst the ordinance) ·
made in the writ petitions became redundant leaving the legality
and validity of the G.O. 23.05.2006 as the sole issue for
consideration in the present writ petitions.
G
9. Preliminary Objections have been raised to the
maintainability of the writ petitions by Shri P.P. Rao and Shri
. Colin Gonsalves, learned senior counsels appearing for
respondents . It has been urged that the present writ petitions
have not been filed as public interest litigations and in the H
. 1122
SUPREME COURT REPORTS
[2015) 11 S.C.R
A
absence of any specific orders in implementation of the
impugned G.0. dated 23.05.2006 the writ petitions are
premature. It is further contended that even if the writ petitions
are to be considered as Plls the same raise questions with
regard to appointment in public office i.e. Archakas in public
B temples and therefore the writ petitions will also not be
maintainable as public interest litigations. It is further urged
that as and when the G.O. is given effect to by actual
appointment of an Archaka or Archakas, as may be, it will be
open for the petitioners to raise the issue and establish that
C there is a usage or custom or customary practice governing
the temple in question which require the appointment of the
Archaka to be made from a particular denomination.
10. It is difficult for us to acceptthe contentions advanced
D on behalf of the respondents with regard to the maintainability
of writ petitions on two counts. Firstly, it is difficult to appreciate
as to why the petitioners should be non-suited at the threshold
merely because the GO. dated 23.05.2006 has not been given
effect to by actual orders of the State Government. The
E institution of a writ proceeding need not await actual prejudice
and adverse effect and consequence. An apprehension of such
harm, if the same is well founded, can furnish a cause of action
for moving the Court. The argument that the present writ
F
petition is founded on a cause relating to appointment in a
.public office and hence not entertainable as a public interest
litigation would be too simplistic a solution to adopt to answer
the issues that have been highlighted which concerns the
religious faith and practice of a large number of citizens of the
G country and raises claims of century old traditions and usage
having the force of law. The above is the second ground,
namely, the gravity of the issues that arise, that impel us to
make an attempt to answer the issues raised and arising in
the writ petitions for determination on the merits thereof.
H
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1123
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
11. Shri K. Parasaran, learned senior counsel appearing A
for the petitioners has submitted that the issues arising in the
case stand squarely covered by the pronouncement of the
Constitution Bench in Seshammal (supra). In fact, according
to the learned senior counsel, the issues in the present case
are resjudicata; the same having been decided inter-partes B
in Seshammal (supra); the Archakas of the Agamas Temples
and the respondent-State both being parties to the said
decision. Specifically, Shri Parasaran, has urged that in
Seshaminal (supra) the Constitution Bench has
unambiguously held that the appointment of an Archaka has C
to be as per the Agamas governing the particular temple and
any deviation from the said age old custom and usage would
be an infringement cif the freedom of religion and the rights of
the religious denomination to manage its own affairs, as 0
guaranteed, by Article 25 and 26 of the Constitution. The
impugned G.O., by its prescription, as noted, therefore, seeks
to override the declaration of law made by the Constitution
Bench in Seshamma/(supra).
12. Shri Parasaran has further urged that curtailment of E
the freedoms guaranteed by Articles 25 and 26 of the
Constitution can only be made by the legislature and even a
· legislative exercise in this regard is circumscribed by the
limitations contained in both Articles 25 and 26. In the present F
case the amendment of Section 55 of the Tamil Nadu Act as
made by Ordinance No.6 of 2005 has not been continued by
the Amendment Ad No.15 of 2006 (as already noted). The
impugned G.0. has, therefore, to necessarily lose its efficacy.
Reliance herein is placed on the following passage from the G
report in Sanjeev Coke Manufacturing Vs. Mis Bharat
Coking Coal Limited & Anr.2
'(1983) 1sec147.
H
1124
SUPREME COURT REPORTS
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A
"25 ...... ..... The deponents of the affidavits filed into
court may speak for the parties on whose behalf they
swear to the statements. They do not speak for the
Parliament. No one may speak for the Parliament and
Parliament is never before the court. After Parliament
B
has said what it intends to say, only the court may say
what the Parliament meant to say. None else. Once a
statute leaves Parliament House, the Court is the only
authentic voice which may echo (interpret) the
c
Parliament ........ "
13. It was further contended that the G.O. wrongly relies
on the decision in the case of N. Adhithyan Vs. Travancore
Devasom Board and Others3 to justify its·promulgation. The
reliance placed on Adhithyan (supra), in the face of the.law
D laid down in Seshammal (supra), is wholly misplaced. Shri
Parasaran has further argued that the impugned GO has to be
read on its own terms and the validity thereof cannot be saved
by what appears to be a "concession" made by the State in
Para 51 of the counter affidavit to the effect that the State would
E
respect the distinction between Saiva and Vaishanava temples
and the Archakas in each of such temples shall be appointed
from either the Saivas or Vaishanavas, as may be, taking into
account the indoctrination of the concerned Archakas in.the
F Agamas. According to Shri Parasaran, neither all Saivas nor
all Vaishnavas are ipso facto denominational. Only a Saiva
who satisfies the eligibility under the Sivagama and a
Vaishnava satisfying the eligibility under the pancharatna or
vaikhanasa can be referred to as denominations. A person
G who is a member of such denomination alone can be appointed
as a Archaka of a Saiva or a Vaishnava temple, as the case
maybe.
H ' (2002) s sec 1 OB
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1125
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
14. On the other hand, Shri P.P. Rao and Shri Colin A
Gonsalves, learned Senior Counsels appearing for the
respondents have contended that the decision of the
Constitution Bench in Seshamma/ (supra) upholding the
Constitution validity of the Amendment Act of 1970 had opened
the avenue to all qualified Hindus irrespective of caste,
B
denominations, etc to be appointed as Archakas. It is
contended that once the hereditary principle was held to be
flexible, the exclusive right of a particular group to appointment
necessarily stood negated and it is qualification coupled with
merit and eligibility that has to be the crucial test for C
appointment, consistent with Articles 14 and 16 of the
Constitution. Learned counsels have specifically referred to
the Government Order No.1 of 2007 and in this regard the
recommendation of the High Powered Committee appointed 0
for making recommendations for effective implementation of
the impugned GO dated 23.5.2006. It is contended, by referring
to the report of the High P_owered Committee, that the same
demonstrates the lack of familiarity of even temple priests with
the Agamas and their lack of knowledge of such Ag am as and
E
the practices of the Temples as may be prescribed by the
Agamas. It is submitted that not only the contents oftheAgamas
have become uncertain, even assuming otherwise, the same
cannot be an authority to confer legitimacy to a practice which
is inconsistent with and contrary to the provisions of the
F
Constitution, specially those contained in Part Ill thereof. It is
further submitted that the impugned GO is consistent with and
in fact effectuates the Fundamental Right of Equality and equal
opportunity and no contrary practice overriding the said
provisions of the Constitution would be legally acceptable.
G
Learned Counsels have further submitted that there is no
conflict between the judgments in Seshamma/(supra) and N.
Adithayan (supra) and it is possible to read the law deClared
in both the cases in a manner consistent with the Constitutional
requirements and principles.
H
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SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
15. An additional issue has been struck by Shri Gonsalves,
learned Senior Counsel, that the impugned GO needs to be
upheld on the touchstone of the principle enshrined by Article
17 of the Constitution. The exclusive right of a particular group
to enterthe sanctum sanctorum of a temple and perform the
B rituals on the ground that performance of such rituals by any
other person would defile the image is a thought and action
which is prohibited by Article 17 of the Constitution. Violation
and consequently commission of offences under the Protection
of Civil Rights Act, 1955 has also been urged.
c
16. The issues arising and the arguments made centre
around the true meaning, purport and effect of the Constitution
Bench judgment in Seshamma/ (supra) and in the above
context the effect of the decision of the numerically smaller
D
Bench in N. Adithayan (supra). We will therefore proceed to
understand the above position at the outset.
17. The contours of the challenge in Seshammal (supra)
has already been noticed. To repeat, it is the validity of the
E Amendment Act of 1970 which sought to amend, inter alia,
Section 55 of the Tamil Nadu Act that was questioned in
Seshammal (supra). The Statement of Objects and Reasons
for the amendment Act of 1970 is stated as follows:
F
"In the year 1969 the Committee on Untouchability,
Economic and Educational Development of the
Scheduled Castes has suggested in its report that the
hereditary priesthood in the Hindu Society should be
abolished, that the system can be replaced by an
G
ecclesiastical organisation of men possessing the
requisite educational qualifications who may be trained
in recognised institutions in priesthood and that the line
should be open to all candidates irrespective of caste,
creed or race. In Tamil Nadu Archakas, Gurukkals and ·
H
Poojaries are all U/thurai servants.in Hindu temples.
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v. . 1127
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
The duties of 'Ulthurai servants' relate mainly to the A
performance of poojas rituals and other services to the
deity, the recitation of mantras, vedas, prabandas,
thevarams and similar invocations and the performance
of duties connected with such performance and
recitations. Sections 55 and 56 of the Tamil Nadu Hindu B
Religious and Charitable Endowments Act, 1959 (Tamil
Nadu Act 22of1959), provide for appointment of officeholders and servants in the religious institutions by the
trustees by applying the rule of hereditary succession
also. As a step towards social reform Hindu temples C
have already been thrown open to all Hindus
irrespective of caste .... "
18. The arguments in support of the challenge were
threefold namely,
D
"(a) The freedom ef hereditary succession to the office
of Archaka is abolished although succession to it is an
essential and integral parl of the faith of the Saivite and
Vaishnavite worshippers.
E
(b) It is left to the Government in power to prescribe or
not to prescribe such qualifications as they may choose
to adopt for applicants to this religious office while the
Act itself gives no indication whatever of the principles F
on which the qualifications should be based. The .
statement of objects and reasons which is adopted in
the counter-affidavit on behalf of the State makes it clear
that not only the scope but the object of the Amendment
Act is to override the exclusive right of the denomination G
to manage their own affairs in the matter of religion by
appointing Archakas belonging to a specific
denomination for the purpose of worship.
(c) The Amendment Act gives the right of appointment H
1128
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
for the first time to the trustee who is under the control
of the Government under the provisions of the principal
Act and this is the very negation offreedom of religion
and the principle of non-interference by the State as
regards the practice of religion and the right of a
B
denomination to manage its own affairs in the matter of
religion."
19. In the course of a very lengthy discourse and after
considering the works.of learned scholars in the field; the law
c laid down by this Court in respect of Articles 25 and 26 till date
and particularly the efficacy of the Agamas the Constitution
Bench came to the following conclusion.
D
E
F
G
H
"Any State action which permits the defilement or
pollution of the image by the touch of an Archaka not
authorised by the Agamas would violently interfere with
the religious faith and practices of the Hindu worshipper
in a vital respect, and would, therefore, be prima facie
invalid under Article 25(1) of the Constitution."
20. Thereafter, the Constitution Bench by referring to
several earlier pronouncements of this Court specifically
mentioned in para 13 of the Repori identified the main
principles underlying the provisions of Article 25 and 26 of the
Constitution in the following manner.
"The first is that the protection of these articles is not
limited to matters of doctrine or belief they extend also
to acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances,
ceremonies and modes of worship which are integral
parts of religion. The second is that what constitutes an
essential part of a religious or religious practice has to
be decided by the courts with reference to the doctrine
of a particular religion and include practices which are
regarded by the community as a part of its religion."
ADI SAIVASIVACHARIYARGAL NALASANGAM v.
1129
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
21. Applying the aforesaid principles to the facts before A
it the Constitution Bench identified the main thrust of the
arguments made in support of the challeng~ to the amendment
to be with regard to the vesting of powers and authority in the
temple trustee to appoint any person as an Archaka so long
as he was holding a fitness certificate from one of the B
institutions referred to in Rule 12 of the Madras Hindu Religious
Institutions (Officers and Servants) Service Rules, 1964. The
Said Rule 12 required that anArchaka should be proficient in
Mantras, Vedas, Prabandams etc., namely, that such a person ,,
is fit and qualified for performing puja and having knowledge C
of the rituals and other services. The Constitution Bench was
told that the above position admits a situation where the
requirement of Rule 12 can very well be dispensed with (by a
· subsequent amendment of the Rules) thereby resulting in
0
conferment of virtually unguided and unbridled powers to the
trustee to appoint any person as a Arch aka notwithstanding
the fact that worship of the deity by a person other than one
belonging to a particular denomination may have the effect of
defiling the deity. As the temple trustee is to function under the E
control of the State under Section 27 of the Tamil Nadu Act the
question .highlighted before the Constitution Bench was
whether by virtue of the amendment the State had gained a
. right to step into and control the Sanctum Sanctorum of a
temple through the agency of the trustee and the Archaka
F
thereby transgressing the rights granted to a religious
denomination by Articles 25 and 26 of the Constitution.
22. The Constitution Bench noticed that to counter the
above situation the Advocate General of the State of Tamil Nadu G
had contended that the power given to the trustee by virtue of
the amendment to Section 55 was not a unqualified power but·
was subject to the provisions of Section 28 of the Act which is
in the following terms.
H
1130
SUPREME COURT REPORTS
(2015] 11 S.C.R.
A
"Section 28.- Subject to the provisions of the Tamil
Nadu TempleEntryAuthorisationAct, 1947, the trustee
of every religious institution is bound to administer its
affairs and to apply its funds and properties in
accordance with the terms of the trust, the usage of the
B
institution and a/I lawful directions which a competent
authority may issue in respect thereof and as carefully
as a man of ordinary prudence would deal with such
affairs, fund~ and properties if they were his own."
C
In this regard the Advocate General had virtually admitted
that if the usage or practice of the institution required the
'
Archaka of a temple to be of a particular denomination the
said usage would be binding on the trustee and he would be
bound to make appointment under Section 55 in accordance
D
with such usage. The usage, practice or custom requiring an
Archaka to be of a particular denomination, according to the
Advocate General, was founded on religious beliefs and
practices whereas the next in line principle, if is to be regarded
as a usage, was a merely secular usage on which a legislation
E would be competent under Article 25 (2)(a) of the Constitution.
It was, alternatively, contended that if the hereditary principle
is to be understood as a religious practice, alteration thereof
can also be made by a legislation under Article 25(2)(b), such
F
legislation being for the purpose of social welfare and reform.
23.The Constitution Bench in Seshammal (supra)
answered the question by holding that the hereditary principle
which was of long usage was a secular principle and therefore
a legislation to alter the said usage, i.e. theAmendmentAct of
G
1970, was competent under Article 25(2)(a). However, the
Constitution Bench was quick to add that it is to the limited
extent of the above exception alone, namely, the liberty to make
the appointment from persons beyond next in line to the last
H holder that the trustee is released from the obligation imposed
ADI SAIVA SIVACHARIYARGAL NALA SANGAM v.
1131
GOVERNMENT OFT. N. [RANJAN GOGOi, J.]
·on him by Section 28 of the Tamil Nadu Act which otherwise A
requires the trustee to administer the affairs of the temple in
accordance with the usage governing the temple. Para 22 of
the Constitution Bench judgment wherein the aforesaid view
finds mention may be noticed verbatim.
"22. In view of sub-section (2) of Section 55, as it now
stands amended, the choice of the trustee in the matter
B
of appointment of an Archaka is no longer limited by
the operation of the rule of next-in-line of succession in
temples where the usage was to appoint the Archaka C
on the hereditary principle. The trustee is not bound to
make the appointment on the sole ground that the
candidate, is the next-in-line of succession to the last
holder of office. To that extent, and to that extent alone,
the trustee is released from the obligation imposed on D
him by Section 28 of the principal Act to administer the
affairs in accordance with that part of the usage of a
temple which enjoined hereditary appointments.