# SESJIAMMAL 4 OlilS. ETC. ETC v. srATE OF T~MIL NADU

- **Citation:** [1972] 3 S.C.R. 815
- **Court:** Supreme Court of India
- **Decided:** 1972-03-14
- **Bench:** S. M. Sikiu, A. N. G~tOVER, RAY D G p, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sesjiammal-4-olils-etc-etc-v-srate-of-t-mil-nadu-5617
- **Pages:** 20

## Headnote

• .
.
ALEKAR.
The Tc.-mil Nadu Hindu Religious and Charitabl
End
(Tamil Nadu 12 of 1959) a.l' amerrde-d by Anuntling ~ct 0 /'i<;nlf/ls ~g~
55, .56 and J1.6-J:!ereditary right of sc<c,:ession ro offictt of A::i.~
abohrTu!d-JJ VJolat•ve of Arts. 25 and 26 of Constitution.
Section 55 t:>f the Tamil Nadu Hindu Religious . an.d Ch:uitablc Ell·
dowments Act, 195~, gave the trusree of a temple the power to appoint
the officr.l holders_ or. servan~ of the temple and also provided that where
the of!ice or s.erYJce IS hereditary, tlle perwn ne:tt in the lice o( succession
.shall be entitled t1> sw:.cce.d. In Ollly CXQ:pti9Q.il ~as.c:s the trustee was
s:ntitled Lo &part from the principle of ncl!t·in·the line of sua:cs.sioo, but
even iO, the trustee was under an oblijption to appoint a fit ~rson to
perform the service after having due: r~gard"to the dJ.iau of the members of the family.
Section
116(2) (xxiii) of the Act
gave power to
the Government to make rules
pro'Viding for tbe qualification.• 1o bo
pos£-essed by the ~~rs ~U~d ~rvant.s and their conditions o{ oetvio:.
The State GovemmeQt tram.e.d tho Madras Hindu Religious lnstir.wi.oos
(()fliul'$ and Servanr&) Service RuLes, 1964. Rul.c 12 provided that .lLil
An:J}ab, whetb,er bm:ditacy. or non-hereditary whose. duty it L$ !.0 perlorm
Pujai, shall, before succee$1111g t.o the offi~ or ajlpOmtJneot. to dJoe office,
obt;.in a certificate 0( fune&.$ C.or perfQrmmg the dulles of hiS office from
the! head ,:X ill i~Mion imprtttiog instrtu:ti?DS in Apmas cr !Tom the
~ad of i math recognised by the CommiSS!oru:r or from sudl olDer
pef'50il ~ may ~ dcsiiWit.cd by Jh.e Comrmsslon.er.
The 1\J:i Wall ~
l!y the Am«oding Mt· of tno. The Amald·
~ ~
,did away ..-jj:.b t.Q,e heco~dilary ri~ of su=~.on to tbe ~b
~f
.Acchalca. The peti!ioaers ..,ho were Ar.cbalqw of S;uvue and Y~~
temples and Mathadbipatis to wllose Maths LefJIP~S :ll'e J.Ullebed fi.W
~ 5
p:titions in ~is Court contending tha.t the amendment! v•olated ArtS. -
•1111 26 pi tl)(i ~stirutiop .
Pia m~i.Q.a 4le pctiliPna.
JiEJ,..D : (1) Tbe Pr¢ecijdon ~>f ~~ ~ie,~dth;; ~!te~ ~'1ra:
is not limited to matt~s of
octr1noe or
'
·
ull1':Ultee
for
done in p~USuance of religion. IIDd tbere~ore ~nt~~ •ol religi.cn. )Vbat
rituals anJ observa~s ~tc. which ~
-~ ~e~!igi~' pracliee ba.s !JJ be
~1tu1n an 1'5~t!tial part of a '~· Sl
the doctrine of a parocuhr
deJ:ided by .the Courta with r:eJ'l:r~nce to ckd by the community .u J1
religion lndudinjl prnctices wlucb are repr
PJ!I1 of iu religion. {827 B-Dj
196
,
1
&mar l}'rJM TaJrrr Bal/uddirr 8alub v. Th# Stare PI po,rbay, l
~
&up,t. 2 S.C.R. 496, rt'fCI'red to.
.
~A~
m With tile --'lilbii.Wuc,nt 9l fl:IJl tW .,-.:wbe ~~Aga8lJ.$. llws
je tfot !OJJW)Pf, ~j~
QB ntiJalf i¥ele COIJll) the ~
'I'(Of~jppets .aU
(j)
Tilmll ~~Vf • f4NI> !Qjsl ,JlSpec.l, W _,li.aJ;t
I
\ l !
i
I I I
I I I
I
I
I· I
I i
I l
i
,_. J-
EME COURT REPORTj
SUPR
·
[1972] 3 S.C.R..
S16
Deity from pOllution, deftlement or desecration
preserve the image C>~ th~ay take place in a. variety o~ ways and according
Pollution or d~ecrat!on ge becomes defile& Jf there
1.! any departure or
to the Agarnas, an Jma latin to worship.
.~er, in all the temple~ in
violation of the roles re crate~ the Agamas JDSJSted that only the qualified
which iroages are ~~d the sanctum sanctorum after observing certain
Arc~~a ~all step Jnsl ~
Agam~. Hence the A~chaka of such a temdisclp~ !IDJ'?Sed ~ficient in the Jit"uals. appro~nate to the _worship of
ple, besi.des bemg} must also belong to. a particular denommation; be..
the part1cular hDelcl y,of ·a different do;nom1nanoo would defile the image
cause an Arc a a
·
E-Gl
by hi; touch. [825 F-H; 826
s . y~ kataramana Devaru v. The State of Mysore, U958] S.C.R.
895 nn· 'Holin~s Perla Kovil Kelvl A.ppean
Thiruvenkato Ramanuja
Pedda ;fyyangcrlu V arlu v. Prath ivaJhi Blray~f;mam Venka1acharlu, 7J
I .A. 156 and Mohan Lalji v. Gotdhan LolJI Maharaf, 35 Allahabad
P. C. 283, referred to,
(3) Tb:: hereditary principle in the appointr

## Text

_Characters 0–39,868 of 57,358. This is a partial read: ask again with offset=39868 for what follows._

B
c
0
E
F
G
H
SESJIAMMAL 4 OlilS. ETC. ETC.
Y.
srATE OF T~MIL NADU
March 14, 1972
8l$
{S. M. SIKIU, C.J., A. N. G~tOVER, A. N, RAY D G p
AND M. H. BEG, JJ.]
• .
.
ALEKAR.
The Tc.-mil Nadu Hindu Religious and Charitabl
End
(Tamil Nadu 12 of 1959) a.l' amerrde-d by Anuntling ~ct 0 /'i<;nlf/ls ~g~
55, .56 and J1.6-J:!ereditary right of sc<c,:ession ro offictt of A::i.~
abohrTu!d-JJ VJolat•ve of Arts. 25 and 26 of Constitution.
Section 55 t:>f the Tamil Nadu Hindu Religious . an.d Ch:uitablc Ell·
dowments Act, 195~, gave the trusree of a temple the power to appoint
the officr.l holders_ or. servan~ of the temple and also provided that where
the of!ice or s.erYJce IS hereditary, tlle perwn ne:tt in the lice o( succession
.shall be entitled t1> sw:.cce.d. In Ollly CXQ:pti9Q.il ~as.c:s the trustee was
s:ntitled Lo &part from the principle of ncl!t·in·the line of sua:cs.sioo, but
even iO, the trustee was under an oblijption to appoint a fit ~rson to
perform the service after having due: r~gard"to the dJ.iau of the members of the family.
Section
116(2) (xxiii) of the Act
gave power to
the Government to make rules
pro'Viding for tbe qualification.• 1o bo
pos£-essed by the ~~rs ~U~d ~rvant.s and their conditions o{ oetvio:.
The State GovemmeQt tram.e.d tho Madras Hindu Religious lnstir.wi.oos
(()fliul'$ and Servanr&) Service RuLes, 1964. Rul.c 12 provided that .lLil
An:J}ab, whetb,er bm:ditacy. or non-hereditary whose. duty it L$ !.0 perlorm
Pujai, shall, before succee$1111g t.o the offi~ or ajlpOmtJneot. to dJoe office,
obt;.in a certificate 0( fune&.$ C.or perfQrmmg the dulles of hiS office from
the! head ,:X ill i~Mion imprtttiog instrtu:ti?DS in Apmas cr !Tom the
~ad of i math recognised by the CommiSS!oru:r or from sudl olDer
pef'50il ~ may ~ dcsiiWit.cd by Jh.e Comrmsslon.er.
The 1\J:i Wall ~
l!y the Am«oding Mt· of tno. The Amald·
~ ~
,did away ..-jj:.b t.Q,e heco~dilary ri~ of su=~.on to tbe ~b
~f
.Acchalca. The peti!ioaers ..,ho were Ar.cbalqw of S;uvue and Y~~
temples and Mathadbipatis to wllose Maths LefJIP~S :ll'e J.Ullebed fi.W
~ 5
p:titions in ~is Court contending tha.t the amendment! v•olated ArtS. -
•1111 26 pi tl)(i ~stirutiop .
Pia m~i.Q.a 4le pctiliPna.
JiEJ,..D : (1) Tbe Pr¢ecijdon ~>f ~~ ~ie,~dth;; ~!te~ ~'1ra:
is not limited to matt~s of
octr1noe or
'
·
ull1':Ultee
for
done in p~USuance of religion. IIDd tbere~ore ~nt~~ •ol religi.cn. )Vbat
rituals anJ observa~s ~tc. which ~
-~ ~e~!igi~' pracliee ba.s !JJ be
~1tu1n an 1'5~t!tial part of a '~· Sl
the doctrine of a parocuhr
deJ:ided by .the Courta with r:eJ'l:r~nce to ckd by the community .u J1
religion lndudinjl prnctices wlucb are repr
PJ!I1 of iu religion. {827 B-Dj
196
,
1
&mar l}'rJM TaJrrr Bal/uddirr 8alub v. Th# Stare PI po,rbay, l
~
&up,t. 2 S.C.R. 496, rt'fCI'red to.
.
~A~
m With tile --'lilbii.Wuc,nt 9l fl:IJl tW .,-.:wbe ~~Aga8lJ.$. llws
je tfot !OJJW)Pf, ~j~
QB ntiJalf i¥ele COIJll) the ~
'I'(Of~jppets .aU
(j)
Tilmll ~~Vf • f4NI> !Qjsl ,JlSpec.l, W _,li.aJ;t
I
\ l !
i
I I I
I I I
I
I
I· I
I i
I l
i
,_. J-
EME COURT REPORTj
SUPR
·
[1972] 3 S.C.R..
S16
Deity from pOllution, deftlement or desecration
preserve the image C>~ th~ay take place in a. variety o~ ways and according
Pollution or d~ecrat!on ge becomes defile& Jf there
1.! any departure or
to the Agarnas, an Jma latin to worship.
.~er, in all the temple~ in
violation of the roles re crate~ the Agamas JDSJSted that only the qualified
which iroages are ~~d the sanctum sanctorum after observing certain
Arc~~a ~all step Jnsl ~
Agam~. Hence the A~chaka of such a temdisclp~ !IDJ'?Sed ~ficient in the Jit"uals. appro~nate to the _worship of
ple, besi.des bemg} must also belong to. a particular denommation; be..
the part1cular hDelcl y,of ·a different do;nom1nanoo would defile the image
cause an Arc a a
·
E-Gl
by hi; touch. [825 F-H; 826
s . y~ kataramana Devaru v. The State of Mysore, U958] S.C.R.
895 nn· 'Holin~s Perla Kovil Kelvl A.ppean
Thiruvenkato Ramanuja
Pedda ;fyyangcrlu V arlu v. Prath ivaJhi Blray~f;mam Venka1acharlu, 7J
I .A. 156 and Mohan Lalji v. Gotdhan LolJI Maharaf, 35 Allahabad
P. C. 283, referred to,
(3) Tb:: hereditary principle in the appointrr>..ent of an Archaka had
been adopted and accepted from antiquity and bad also been .fu!Jy recognised in the unamended s. 55. But the change effected by the am~nU.
ment to a. 55, namely, the aboliticm of the principle of n~t-in-the·line
~f succe.Mion is however, not invalid, because, the usage is a ~cul~r and
not a religious wage. [833 A-C)
(a) An archah bas never been regarded as a spiritual head however
acromplished and weU-vers.ed in the agamas and rituals he may be. He
is a s:rvant or the temple su&ject to the discipline and qorurol of the
trustee aa recognised by the unamended s. 56 of the Act. Tb:lt being
h~ position the act o! liis appOin'tment by the trustee is essentially secular,
thougll. after ;~~ppointnr.nt he performs some religious functions. '11lat
a~ter hta .appotn~ent. he perfor~s. wonhip is no ground I or holdin~ !!Jat
hta &ppoill~t ~ etther a reilg~ous practic-e or a matter of relig~on.
He owe1 h~ apPQ:Ullm~nt to a se.cular authonty. Any lay founder of a
kmpk: may appotnt him and the Shebail$ and l-fana&'!rs of
temples
e:~~.e~se an e"SeotJany secular function in choosing and appointing tbe
~~fb ... k~ .. '11le ~act that in 11ome tt.'1llples tb.o bereditazy principle w:lS
poi~~e 1D. mili~z the appointn.=nt would DOt· make the su~ive ap-
. men"- anything but sccutur. 1!!32 A-G)
J(aJ~.K~'f':adr~ Alyanagar v. Rmlga Bhattar. I.L. R. 35' Mad. 631,
Naflllbhai Naro ay v • Male han
LaJ Mookerfu, l.L. R. 50 CIIL · 233,
( UM:portcd · ~amdtM v • Trimb"* Balwant BhandaT~ (187B-SO) Vol. 4
Mal!4rane~ pnnted judgments of the Bombay Hight Court p. 169) and
89, referrel
11~~r}eet Koer v. Chundemun- Misser, XVI W~y R.-portn-,
{b} The power i1
appoint any body
. Vtn to tho tr\1.\k:(! under the ~nd•'d s..-..-tiou
~
fic&le untJcr t. 12. ~a!n Arctw.a lo ~oni as he poo;.;.."'<'\i os titn~~.~~
to be read with a. 2.8 nut lln unq~lft.::l.l power, bcc.lU."-' 1M powe~ b
~
tnut~e to lldmlntsl.c<>f ~he Ac~ which cootrol(.:.J it. ~00 ~8 ·d~
~rma of the tru~t or
r
e a!fal~ ?f tho ~rnrh · in ~~rd:.Ul~ wltb
f
the Arc.bab .will h!lv~o~f the Jlllltltulion. Therefore, the ~pP?urtmc:D! ~
E.,~ 111 ~rJancc with :had~ . fro'!l the •rcitlect <knqaunauon,. sed thll
ih--ywo, ln 'tic~ ()f ·th
e l.hrtctlO!l<i 0
thol Agam:u £0VeTlllUg
in
o e nu.tter of llPPoln~n~n~ ' · ~S(l), ~
choi.ce of the trOste the
pcratiQq ot n~t-in-llne of or an ~ch~a Is no Jon~ limited: by w»
SU~1on I.Q tem.ol~ w.bero .the Utla.il'
B
c
D
G
a
SESHAMMAL v. TAMIL NADU (Palekar, /.)
Si7
A
to Qppoint the Archaka on the bertditaiy principle. To that extent the
trustee is released from the obligation imposed on him by s. 28 to ad· ·
tninis1er the affairs in accordance w'ith that Part of the u8age of a templo
which enjoined hereditary appointments . . But the .legislatioa in this fact
does not interfere with any religious practice. [832 H~833 q ·
( 4) The other changes effected .i,n the other provisions of the Act
B
are merely consequential, and therefore, the Amendment Act u t whole
must be regarded as valid. [833 FJ
(5) The rule-making poWer is c;onfeiled by s. 116 on .the. Govern ..
ment with a view to carry out t.lM! purposes of the Act which are ~·
tially secv.tar.
The Act nowhere
givea the indication that one of its
purposes is to eft'ect a change in th,e rituals and ceremonies follOwed iD
the temple&. Section lOS and 107, on the contrary, empha&ize that there
C
ahall not be any contravention of the rights conferred o~ any religious de.
nominations of any section thereof,' by Art. 26 of the Olnstitution. Rule
12 5till holds the 1'leld · ang there is no reason to think that . the State
Government would f~ rules tO revolu>lonise temple WOI$hip by intro-<
ducing methods of worship not cumnt in the several temPfe&. If any
such rule is framed by GOvel'lUDe'nt . Which pt~rports to interfd'e with the
l'ituals and ceremonies of the temples, it will .be liable to be challenged
by those who are interested. in the temple worship. [834 CG)
D
E
ORIGINAL JURISDICTION: Writ Petitions Nos. ·13, 14,. 70, 83,
43.7, 438, 439, 440, 441, 442. 443 and 444 of 19.71.
Undor Article 32 of- the Constitution of India for. the enforce·.
mont of the Fundamental Rights,
R. Gopaltlkrlshnan, for the petitioners (in W.Ps. Nos. 13 and
14 of 1971).
'
.
· K.. Parasaran and K. Jayara~, lor the petition~rs (in W :P. No.
70 of 1971).
.
M. Natesan flJld K. Jayaram, for the petitioners in. (W .P. No.
r· 83 of 1971)..
·
·
· K. Parasa#zn ·an4 M. S. Narasimha11, for the petitioners (in
W.P. ; ~o~ 437 of 19712_.
• . ·V; G... Ramchlmdrt~n aod M.S. Narasimhlln, for the.petitiollel(
(in W.P. ·Nos. 438 ar444·ol.1971).
·
G
· · M. Nt/Jesan and M. S; N~imhan, for th~ Petitioners (in W.Ps.
Nos. 439 and 443 of 1971,.
.
S. Annadurai Ayyangar ~d M. S. Narasimhan, for the petitioners (in W.P. No. 441 Of 1~1)
.
·
.
· : N. A.. Palkhiwa/4,. A. I. Rana and M. S. Naraaimhalt, for tbe
H peti~ (in W.P. No, 442 of 1971).
·
•.
.
.
. .
.
. .
.
i
.
'
M. S. Narl18imlfitn;. 'tor the. petiti~ne~ · .(in "f/.P. No: 440 ·Of
1~:7,1). . .
.
.
'
·. .
..
818
SUPllEMB COURT RBPOUS
[1972] 3 S.C.R..
s. Govind Swaminndhan, AdVocate-General fat the State of
It
Tamil Nadu, S. Moliiin, N. S. Sivan and A. Y. Rartgam, fot the
respottdertt (in all the petitions) .
The Judgment' of the Court was delivered by
Palelwf j. In these 12 petitions under Article 32 of tile
Constitution filed by the hereditary Archakas and Mathadhipatis B
of some ancient Hindu Publi_c temples .in Tamil Nadu the validity
of the Tamil N adu Hindu Religious and Charitable ·Endowments
(Anumdment) Act, 1970 (heteht.after referred to as the Admend·
ment Act, 1970) is called in question, prlndpally, on the ground
that it vif?1ates tli~it freedom of religion se~ured to them under
Articles 25 and 26 of the Constitution. The validity of the C
Amendtnent Act had been also impugned ofi the ground t~at if
ittterfered with certain m.her ftirt~ental rifhts of the petitiobets
but that case was not pressed at the time o the hearing.
Tlie tempies with w~ich ~e are ~oncemod are Saivite and
Vaishnavite temples in Tamil Nadu. Writ Petitions 70, 83, 431, I)
438, 439, 440j 441, 442, 443 artd 444/71
a~ filed by the
Archakas and Wtit Ptdiion!l 13 ind 14/1971 ate :fi1ed by tfte
Mathadhipatis to whose Math some temples are attached. As,
comrttful questiorts were involv~ in all th~se pe,tltiObi, at~ts
were addressed principally in Writ rre~ 13;19'71 and 442/
1971, and we are assured by counsel for both sides that they
covet the points irtvolVed in all the other petitions.
•
. Tbe State Legislature of Tamil Niuiu enacted The Tamil Nadu
~du Religious and Charitable ~ndowments Act, 19S9 'MiDI
(Tamil Nadu Act XXII of 1959) hereinafter referred to as the
Prlft.clpill A~t'. It e~ intb force on n.cotn~t 2, 1959. It
.was an Act to amend and consolidate the law relatmg to tb6 p
administratio~ and governance of Hindu :Religious and Charitable
ittstittitions aii:d ~ildowments in the Sfate of Tamil Nadu. ·It
aPJ>lied to all Hindu religious public institutions and endowments
·in tile Stata: m·TJunil Nadu Mld' re)'tale4 IIIVUal A«5 which :had
previausly governed the adrnfuisttatfon Oi ltind.u Publi~ R•Ilgious
11\Sti~utions. It is su~cient to say here that the provisiODi oi. the
Prlntipal Act appl1M to the temples in the preiltmt petltiOllSI and o
the petitioners have no complaint against any of its provisions.
·Section 55 ot that Act proVided· for ~
appoi~ont of. oftiGe~
l.lolders and servants in such temples and section 56 provided for
thcs pU.ni111uhetlt of
dffi~Jjglders tnd
'S~nt~. ~tion 55,
broadly speaking, gave the t'rttlttee of the temple tht powet to 0
appoint the office--holders or servants of the temple and a1sQ pro--
Vided that wher~ the offic~ 6r s~l'Vict ts h6redifai'y' the pe~ iaHt
in the line of succession shall be entitled to succeed. Iri . only
SESHAMMAL v. TAMIL NADU (Pa/ekar, J.)
119
A exceptiOnal cases the: trustee was entitled to depart from the principles of next-irt·the-line of succession, but even so, the trustee
was under an obligation to appoint a fit person to perform the
functions of the office or perform the service after having due
regard to the claims of the members of the family.
a
Power to make rules was given to Government by sectioa
116 ( 2) ( xxiii) and it was open to the Government to make rules
providing for the qualifications to be possessed by the Officers and
servants for appointment to non-hereditary offit~ in religious
institutions, the qualifications to be possessed by hereditary, servants for succession to office and the conditions of service of all
such officers and servants. Under this rule making power the
C State Govetnment made the Madras Hindu Religioll8 Institutions
(Officers and Servants) Service Rules, 1964. Under these rules
an Archak or Pu jari· of the deity came under the definition of
'Ulthurai, servant'. 'Ultburai servant' is defi:Md as a servant
whose duties relate mainly to the performance of rendering assistance in the perfonnance of pujas, rituals and other services to
D the deity, the recitation of mantras, vedas, prabandas, thevarams
and similar invocations and the performance of duties connected
with such performance of recitation. Rule 12 ptOVided that
every 'ulthurai servant', whether hereditary or non-hctdditary
whose duty it is to perform pujas and recite JIWltnw, vedas, prabandllrtlS, thevarruns and other inva<:ations shall, before stu:ceed-
•
ing, or ap}X)intment to an offi.c:e, obtain a certificate of fitness for
performing his office, from the head of an instltutkm imparting
instruc:tiotls in Aga.m~ and ritualistic matten ~
re®gniSed by
the C'»1lmissionetj by gentral or 11pecial order or from the bead
of a math recognised by the Commissioner, by general or special
order j ot' such other ptr'SOn a& may be designate<~ by the Commisr
sionet, from ilirle to time, for the purpose. By this tult the proper worship in the temple was secured whether the Arehaka or
P~jari was a hereditary Archaka or Pujari or not. Section 107
of the Act emphasized that n<illting conUtined itt the Act Shan,
save as otherwise pr<Mded in section I 06 and in clause ( 2) of
Article 25 of the Constitution, be deemed to oonfet any power or
impose any duty in contravention of the ngbts 001Ifetred on any
G
rellgiou~ denomination Or any section thereof by Article 26 C1f tbe
Constitution. Section 106 deals with ,the removal of discri1nblation in the matter of distribution of prasadam or theerfhatn to the
Hindu worshippers. That was a reform in the right direction aftd
there is no challenge to it. The AcJ as a whole, it is conetded
,did .not interfere with the religious usages and practices of
th~
•
.temples,
The Principal Act of 1959 was amended in ~rtain respects
by the Amendment Act of 1970 which came into forte 011 January
suPREME coURT REPORTS
820
[1972] 3 S.C.It
ts were made to sections 55, 56 and 116 ()f A
.g · 1971.
Amendme~ some consequential provisions were made
the ?rincipal Act ~ndments. The Amendment Act. was enacted.
hi VIeW of those am ocial reform on the recommendation of the
as a st~p tow;rtn~ouchability, Economic and Education:ai -DeveCoronllttee 0
Scheduled Castes. The Statement of ObJects and
loproent ofht_h~ are reiterated in tbe counter~affidavit filed on be· B
Reasons w tc
· Nad •
follows ·
half of the State of Tarotl
u IS as
.
"In the year 1969 the . Committee on Untouchabi·
lit
Economic and Educational Development of .the
s!heduled Castes has ~uggested_ in its re_Port that the
hereditary priesthood m the Hindu Society should be
abolished, that the sy~tem can be
repl~ced ·by ~
e.cclesiastical organisation of men possessmg the requtsite 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, Gurukk.als
and Poojaries are all Ulthurai servants in Hindu tem~
ples. The duties of Ulthurai servants relate mainly _to
the performance of poojas, rituals and other services to
the cteity, the recitation of mantras, vedas, prabandas,
thev~ and similar_invocations·and the performance ·
of dutlc!> connected With such performance and recita·
tio~.. Sections 55 and 56 of the Tamil Nadu Hindu
Relig1?W and Charitable
Endowments
Act,
1959
(Tamil Nadu Act 22 of 1959) provide for appointment
of office holders and servants in the religious institutions
~Y the trustees by applying the rule of heredltacy succes·
~on also. As a step towards social reform Hindu temples
f ve already been thrown open to aU Hindus iqespective ·
o caste ••.•• • "
·
In the light of the r
A_ •
.
·ot the ~--· ·
ecommen~tions of the Committee and in view
Ulw~1S1on of this Court ·
G
,
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St<Ue of Alldhra Prad h & tn
awla Dizsaratlza Rama. · R(JQ v.
~wards social reformes
Ors.(~) and also as a
further step
-ditary principle of a ~
Government coosi<kred that the here·
temple\ should be ~~lit of all office holders in the Hindu G
amend ~tions 55 56
and accordingly it p~
to
gious and Charitabl
and•ll6 of the Tamil Nadu tfindu ReU'
XXII of 19S9).
0 Endowments Act, 19.59 (Tamil Nadu Act
It is tho ~m 1 .
·
introdu
.
P :unt of th~ petiti
l.1ld P ce ~1a1 reform. ln. tho
onet'9 that by purpc;nWtg . to t{
-
uJans, tho State has
mat.ter of apPointment of ArcJial!S
·
U} U9dtf u.c.a.. Y.Jt.
r_::illy lnte.rfertd with the · relfgioU'
SESHAMMAL V. TAMIL NADU (Palekar, /.)
821
A practices of Saivite and Vaishnavite temples; and instead of intro~
ducing social reform, taken measures which would· inevitably
lead to defilement and desecration of the temples.
To appreciate the effect of the Amendment Act, it would be
more convenient to set out the original sections 55, 56 and 116
B of the Principal Act and the same sections as they stand after the
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amendment.
·
Unamended Section
Amended Section
Sec. 55
Stc. SS
Appointment of office-holders and servants Appointment of office-holders and
in relig[ous institutions.
servants in religious institutions.
(1) Vacancies, whether permanent or tem-
(1)
porary, among the office-holders or
servants of a religious institution shall
be filled up by the trustee ·in cases
where the office or service is not here,
ditary.
(2) In cases where the office or service (2)
is hereditary, tho person next in the
line of succession shall be entitled to
succeed.
Vacancies,
whether permanent
or temporary among the office
holders or servants of a religious
institution shall be filled up by
the trustee in all cases.
ExP_lanation :
The expression
'Office-holdm or servants shall
include
archak:as and poojaris.'
No person aball be entitled to
appOintment to any vacancy referred to in n1b-scction (l) merely
on the around that he 11 next in
the line of succeasion to the laat
holder Of Offic:e.
(3) Where, however, there is a dispute (3) Omitted.
respecting the right of succession, or
where such vacancy cannot be filled
up immediately or where the person
entitled to succeed is a minor without
a guardian fit and willing to act as
such or there is a dispute respecting
the person who is entitled to act as
guardian, orwhere
the
hereditary
office.
holder or servant is on account of
incapacity
illness
or
otherwise
unable to perform the .functions
of the office or perform the service, or
is suspended from his office under aubscction (1) of section .56,
the trustee may appoint a fit person
to perform the functions of the office
or perform the service, until the dis·
ability of the office-holder 1lr servant
ceases or another person succeeds to
the office or service, as the case may
be.
822
SUPREME COUJt.T REPORTS
[1972] 3 S.C.lt
Eirpfanatian : Ill tnaklna any appoint·
ment under this subsection, the ~ustee
~hall b!lvc due regard to the clauJ!.S of
members of the family, If any, entttled
to the succession.
(4} Any ~erson aggrieved by an order of
the trustee under suf>.section (3) may,
within one month from the date of
the receipt of the order by him, appeal
against the order to the Deputy Com·
missioner.
s~c. S6
(4) Any person _aggrieved by an
order ~r ~tee ull£1cr s«tion {l)
may Within ~ne montb from tbe
date of receipt of the order by
him appeal against the order of
the Deputy Commissioner.
s~c. S6
Punishment of office-holders and servants Punishment of office-holders and serio rcliglo~ institutions.
vants in religious institutions-
(1) All
Office..holders and servants at·
tached to a religious imtitutioo or
io reCeiPt of anY emolument or prequisite therefrom shaU,
'Whtther tiu of!1ce or S~l"'lct 1.1 heruli·
tory or not, be controlled by the trustee; and tbe trustee may, after followinc the prescribed procedure, if
any, fine, suspend, n:move or dismis.t
~ny of them for the breach of trU3t,
mc:apacity, disobedience of orders
negt~ or duty, misconduct or oth~
auffiaeot awe.
(1) All olfic.e holders and servants
attached to a n:ligious institu.
tioo or in receiPt of any emolu.
rnent or perquisite there!rom aball
be controlled by the Trustee and
the trustee may after followinc
tbe prescribed proce<lun:, it: any,
fine, swpend, remove or diSilliss
any of them for breach of rrust
incapacity, disobcdicnc:e of ord:
ers, neglect of duty, misconduct
or other sufficient cause.
(2) Any oiJiclr-hold.tr or ~ervant punish-
{2)
ed b~ ~ ~lei under sub-eection(l)
m,ay, Wllh'!l Oot trwnth from tho date
Any office liotdcr or servant
punished by a trustee under auf>.
section (l) may within one month
from the date of receipt ot order
by him appeal a&aillst th' order
to tho Deputy Commissioner.
0 the teccJpt of tho order by him ap..
Co
peaJ •f1i!11t the order to tho Deputy
mtnlSS!ooer.
(3) A ~fl:UY olfic:c-holdcr or servant
::ry, WI~ one m~nth from tho date
I bet~
Reletpt by ~
of the order of
IC>Ct.
uty Cornnusstoner under aubCo •oo_ (2), J)refor an ap~J to the
llllnas•oncr •aalnst aucb order.
(3) Omitted.
s,e. 116 Cull()
s~c. 116 (xxl/i)
~
~b"'ment may, by notifica.
(I)
POleS or th~~-to carry out the Pur·
(2) Without pr j d'--
or the t
e u. """ to tho aenerality
on:aotoa power
h
may provldo for-
• sue
rules
(Jr..r/U)
Tbo,..~ i6catfon1 to be
·
0""""" and ee
po~d by tht
to DDI\-ben:<!Jt rvant, for appointment
atltutlons, tho ~ll.l~= In rcllf !oua ln.
~
by heredit
ons to bt 1!01 ..
t~on to offlco an'cfY Jervants for auece...
v~ of all auch 0~C:OndJtloJU of acr.:
and lletvants.
(u/11)
The quall!lcalon.s to be ,a.sessed by
the O!Hoers and servart11 for apPointment to oflk:el 111 rella!ou.s
ln.lltutlon •nd tho condltlom of
M:tvloo o( afJ ruch offic:en and aer•
\lan~.
·
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SESHAMMAL V. TAMIL NADU (Palekar, /.)
823
A
It is clear from a perusal of the above provlsiorts that the
Amendmant Act does away with the hereditary right of succession to the Office of Archaka even if the Archaka was qualified
under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. It is claimed on behalf
of the petitioners that as a result of the Arne.ndment Act., their
B
fundamental rights under Article 25 ( 1) and Article '26 (b) are
violated since the effect of the amendment is as follows :
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(a) The freedom of hereditary succession to the
office of Archaka is abolished although succession to it is an essential and integral part of the
faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications us
they may choose to adopt for ap})licants to this
religious office while the Act itself gives no indication whatever of the principles on which the
qualifications should be based. The statement
of Object& 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 oveNide the e.xdu·
sive right of the denomination to manage their
own affairs in the matter of religio.n by appoint~
ing Archakas· belonging to a specific denoniination for the purpose of worship.
(c) The Amendment Act gives the right of appointment for the first tiine to the trustee who is under
the control of the Government under the provisions of the Prittcipal Act and thH is the very
negation of freedom of religion and the principle of non-interfetance by the State as regards
the practice of religion and the right of a denomination to manage its own affairs in the matter
of religion.
·
Before we turn to these questions, it will be necessary to refer
to certain concepts of Hindu religious faith and practices to
understand and appreciate the position in law. The temples with
which we ate concerned are public religious institutions estabilshed in olden times.
Some of them are Saivite temples and the
others are. Vaishnavitt temples, which means, that in these tem- ·.
ples God Shiva and Vishnu in their several. manifestations are
wotshipped. The image 0f· Shiva is worshipped by his worshlppers who are called Saivites and the image of Vishnu is worshipped
by his worshippers ·who are known as Vaishnavites. The institu·
824
SUPREME COURT REPORTS
(1972] 3 i.C.f
tion of temple worship has an ancient history and, according to
A
Dr. Kane, temples of deities had existed even in the 4th or 5th
ce.ntury B.C. (See: History of Dharmasastra Vol. II Part-ll page
710.) With the construction of temples the institution of Archakas
also came into existence, the Archakas being professional men
who made their livelihood by attending on the images. Just when
the cult of worship of Siva and Vishnu started and developed into B
two distinct cults is very difficult to say, but there can be no
doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such
an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there
was no difference between the two ·deities.
(See page 725 c
supra.)
With the establishment of temples and the institulion of
Archakas, treatises on rituals were compiled and they are known
as 'Agamas'. The authority of these Agamas is recognised in
several decided cases and by this Court in Sri V enkataramana
Devaru v. The State of Mysore(l). Agamas are described in the
last case as treatises of .ceremonial law dealing with such matters
as the construction of temples, installation. of idols therein and
D
conduct of the worship of the deity.
There are 28 Agamas relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama.
The Vaishnavas also had their own Agamas. Their principal Agamas were
the Vikhanasa .and the Pancharatra. The Agamas coptain elaborate rules as to how the temple is to be constructed, where the E
principal deity is to be consecrated, and where the other Devatas
are to be installed and where the several classes of worshippers
are to stand and worship. Where the temple was constructed as
per directions of the Agamas the idol had to ·be consecrated in
accordance with an elaborate and complicated ritual accompanied
by chanting of mantras and devotional songs appropriate to the
11'
deity.
On the consecration of the image in the temple the Hindu
worshippers believe that the Divine Spirit has descended into the
image and from then on the image of deity is fit to be worshipped.
Rules with. regard to daily and periodical worship have been laid
down. for securing the continuance of the Divine Spirit. The
rituals have ·a two-fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or G
Archaka. It is believed that when a congregation of worshippers
partiCipates ·in the worship a particular attitude of aspiration and
devotion is developed and confers great spiritual benefit. The
second object is to preserve the image from pollution, defilement
or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit H
in the image diminishes or even vanishes. That is a situation
(1) [19S8] S.C.R. 89S.
A
B
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SESHAMMAL V. TAMIL NADU (Palekar, /.}
825
which every devotee or worshipper looks
upon with horror.
Pollution or defilement may take place in variety of ways. According to the Agamas, an image becomes defiled if there is any
departure or violation of any of the rules relating to worship.
In
fact, purificatory ceremonies have to be performed for restoring
the sanctity of the shrine [1958 S.C.R. 895 (910)]. Worshippers
lay great store by the rituals and whatever other people, not of the
faith, may think about these rituals and ceremonies, they are a
part of the Hindu Religious faith and cannot be dismissed as either
irrational or superstitious.
An illustration of the importance
attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda
Jiyyangarlu Varlu v. Prathivathi Bhayankaram
Venkatacharlu
and others(l) which went up to the Privy Council. The contest
was between two denominations of Vaishnava worshippers of
South India, the Vadagalais and Tengalais.
The temple was
a
Vaishnava temple and the controversy between them involved the
question as to how the invocation was' to begin at the time of
worship and which should be the concluding benedictary verses.
This gives the measure of the importance attached by the worshippers to certain modes of worship.
The idea most prominent
in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image
which must be avoided at all costs, That is also the rationale for
preserving the sanctity of the Garbhangriha or the sanctum saneforum.
In all these temples in which the images are consecrated,
the Agamas insist that only the qualified Archaka or Pujari step
inside the sanctum sanctorum and that too after observing the
daily disciplines which are imposed upon him by the Agamas.
As
an Archaka he has to touch the image in the course of the worship
and it is his sole right and duty to touch it. The touch of anybody else would defile it.
Thus under the ceremonial law pertain·
ing to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter
it and who can worship and from which place in the temple are
all matters of religion as shown in the above decision of this Court.
The Agamas have also rules with regard to the Archakas.
In
Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled ·
to be. the Archaka.. If he is a Saivite, he cannot possibly be an
Archaka in a Vaishnavite Agama temple to whatever c.aste he may
belong and however learned he may be.
Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple.
Indeed there is no bar to a Saivite worshipping in a Vaishnavite
temple as a lay worshipper or vice versa. What the Agamas pro-
(1) 73 Indian Appeals 156.
826
SUPREME COURT I.EPORTS
[1972] 3 S.C.R.
hibit is his appointment as an Archaka in a temple of a different
denomination.
Dr. Kane has quoted the Brahmapurana on the
topic of Punah-pratistha ·(Re-consecration of images in temples)
at page 904 of his History of Dhannasastra referred to above. The
Brahmapurana says that "when an image is broken into two or is
reduced to particles, is burnt, is n;moved from its pedestal, is
insulted, has ceased to be worshipped, is touched by beasts like
donkeys or falls on impure ground or is worshipped with mantras
of other detities or is rendered impure by the touch of outcastes
and the like-in these ten contingencies, God ceases to indwell
therein." The Agamas appear to be more severe in this respect.
Shri R. Parthasarthy Bhattacharya, whose authority on Agama
literature is unquestioned, has filed his affidavit in Writ Petition
No. 442 of 1971 and stated in his affidavit, with special reference
to the V aikhanasa Sutra to which he belongs, that according to
the texts of the Vaikhansa Shastra ( Agama), persens who are the
followers of the four Rishi traditions of Bhrigu, Atri, Marichi and
Kasyapa and born of V aikhanasa parents are alone competent to
do puja in Vaikhanasa temples of Vishnavites.
They only can
touch the idols and perfonn the ceremonies and rituals.
None
others, however, high placed in society as pontiffs or Acharyas, or
even other Brahmins could touch the idol, do puja or even enter
the Garbha Griha.
Not even a person belonging tQ another
Agama is competent to do puja in Vaikhanasa temples.
That is
the general rule with regard to all these sectarian denominational
temples. It is, therefore, manifest that the Archaka of such a
temple besides being proficient in the rituals appropriate to the
worship of the particular deity, must also belong, according to the
Agamas, to a particular denomination.
An Archaka of a different denomination is supposed to defile the image by his touch
aDd since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image
under any ·circumstances, the Archaka undoubtedly occupies an
important place in the matter of temple worship.
Any State
action which pennits the defilement or poilution of the image by
the touch of an Archaka ~
authorised by the Agamas would
violently interfere with the religious faith and practices of the
Hindu worshipper jn a vital respect, and would, therefore, be
prima facie invalid under Article 25(1) of the Constitution.
This Court in Sardar Syadna Taher Saifuddin Saheb v. The
State of Bombay( 1) has summarised the pOSition in law as follows
(pages 531 and 532).
''The content of Arts. Z5 and 26 of the Constitution
I
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came up for consideration before this Court in the
H
Commissioner, Hindu Religious Endowments Madras
(I) [1962) 2 Suppl. S.C.R. 496.
8
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SESHAMMAL V, TAMIL NADU (Palekar~ J.)
827
v. Sri Lakshmindr(l Thirtha Swamiar of Sri Shirnr
Matt(!); Mahant Jagannath Ramanuj Das v. The State
of Orissa( 2 ); Sri Venkatamona Devaru v. The State of
My~ore(
3); Durgah Committee, Ajmer v. Syed Hussain
Ali(4 ) and several other cases and the main principles
underlying these provisions have by these
decisions
been placed beyond controversy.
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 wor~
ship which are integral parts of religion.
The second is
that whaf 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."
Bearing these principles in mind, we have to approach the
controversy in the present case.
Section 55 of the Principal Act as it originally stood and Rule
12 of the Madras Hindu Religious Institutions
(Officers and
Servants) Service Rules, 1964 ensured, so far as temples with
hereditary Archakas were concerned, that there would be no defile~
ment of the image. By providing in sub-section (2) of section
55 that "in cases, where the office or service is hereditary, the per~
son next in the line of succession shall be entitled to succeed", it
ensured the personal quaJification of the _Archaka that he should
belong to a particular sect or denomination as laid down in the
Agamas. ay Rule 12 it also ensured that the Archaka would be
proficient in the mantras, vedas, prabandams, thevarams etc. and
thus be fit for the prefonnance of the puja, in other words, that
he would be a person sufficiently qu3.lified for perfomring the
rituals and ceremonies. As already shown an image becomes
defiled if there is any departure or violation of any of the rules
relating to worship, and this risk is avoided by insisting that the
Archaka should be an expert in the rituals and the ceremonies.
By the Amendment Act the principle of next~in-the-line of succeasion is abolished.
Indeed it was the claim made in the statement
of Objects and Reasons that the hereditary principle of appointment of office-holders in the temples should be abolished and that
the office of an Archaka should be thrown open to all candidates
trained in recognised institutions in priesthood irrespective of
caste, creed or race. The trustee, so far as the amended section
55. went, was authorized to appoint any l?odY as an Archaka in
(1) {l9S4] S.C.R. 1005.
(2) [1954) S.C.R. 1046.
(3) [1958] S.C.R. 895.
(4) [1962] 1 S.C.R. 383.
828
SUPREME COURT REPORTS
[1972] 3 S.C.R.
an¥ temple 'Yhether Saivite or Vaish.nav.ite .as long as he possessed
a fitness certlflcate from one of the Institutions referred to in rule
12. Rule 12 w~ a rule made by the Government under the
Principal Act.
That rule is always capable of being varied or
cha!!ged. It was also open to the Government to make no rule
A
at all or to prescribe a fitness certificate issued by ap. institution
which did not teach the Agamas or traditional rituals.
The result
would, therefore, be that any person, whether he is a Saivite or
Vaishnavite or not, or whether he is proficient in the rituals appropriate to the temple or not, would be .eligible for appointment as
B
an Archaka and the trustee's discretion in appointing the Archaka
without reference to personal and other qualifications of the
Archaka would be unbridled.
The trustee is to function under
the control of the State, because under section 87 of the Principal
Act the trustee was bound to obey all lawful orders issued under
the provic;ions of the Act by the Government, ~e Commissioner,
the Deputy Commjssioneror the Assistant Commissioner. It was
submitted that the innocent looking amendment brought the State
right int9 the sanctum sanctorum through the agency of the trustee
and the Archaka.
It has been recognised for a long time that where the ritual in
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a temple cannot be performed except by a person belonging to a
denomination, the purpose of worship· will be, defeated : See
Mohan Lalji v. Gordhan Lalji Maharaj(l).
In that case the
claimants to the temple and its worship we,re . Brahmins and the
E
daughter's sons of the founder and his nearest heirs under the
Hindu law.
But their claim was rejected on the; ground that the
temple was· dedicated to the sect following the principles of
Vallabh Acharya in whose temples only the Gossains of that sect
could perfonn the rituals and ceremonies and, therefore, the
claimant$ had no right either to the temple or to perform the worship.
In view of the Amendment Act, end its avowed object there
F
was nothing, in the petitioners' submission, to prevent the·Govemment from prescribing a standardized ritual in all temples ignoring
the· Agamic requirements, and. Archakas being forced on temples
from donommations unauthorised by the Agamas. Since ·such a
departure, as already shown, would inevitably lead to the
defile~
ment of the ilnage, the powers thus taken by the Govemment
G
under the ·Amendment Act. would lcitd to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution.
The force of the above submissions made on behalf of the
petitioners· was not lost on the learned Advoc~to General of Tamil
Nadu who appeared on behalf of the State. He, however, side
tracked the issue by submitting that if we were to . consider in
(1) 35 Allahabad (P.C.) 283 at page 289.
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SESHAMMAL v. TAMIL NADU (Palekar~ J.)
829
i~olation. only the changes introduced in section 55 by the Amend~
ment Act the situation as described on behalf of tht; petitioners
could conceivably arise. 'He did not also admit that he was
bound by eith!r the,. statement of Objects and Reasons or the reite~
ration of the same:in the counter ...