# SH. A.S. NARA Y ANA DEEKSHJTULU ETC. ETC v. STATE OF ANDHRA PRADESH AND ORS

- **Citation:** [1996] 3 S.C.R. 543
- **Court:** Supreme Court of India
- **Decided:** 1996
- **Case number:** Writ Petition No. 638 of 1997
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sh-a-s-nara-y-ana-deekshjtulu-etc-etc-v-state-of-andhra-pradesh-and-ors-14196
- **Pages:** 97

## Headnote

I
SH. A.S. NARA Y ANA DEEKSHJTULU ETC. ETC.
v.
STATE OF ANDHRA PRADESH AND ORS.
MARCH.19, 1996
[K. RAMASWAMY AND B.L. HANSARIA, JJ.]·
1he Andhra Pradesh Chmitable and Hindu Religious Institutions and
Endowments Act, 1987 :
Sections 34 and 35-Mirasidars, Archakas and other office ho/ders--
Abolition of hereditary rights-Held not unconstitutional-Hereditary succession of Archakas held not a religious usage and thus not covered by Article
25--Power co11fe1Ted on Commissioner to make appointment after abolition
of hereditmy offic,,-Held not without guidelines.
A
B
C
Sections 36-Arclzakas-Prescription of qualifications f01~Held not D
arbitra1y.
Sections 39 and 142--0ffice holders and se1vants--Transfei-Power of
provision held not ultra vires or unjust.
Section 144-Right to shares in Hundi and other Rusums--Abolition E
of-Held not violative of Articles 25 and 26.
Constitution of India, 1950: A1ticles 25 and 26.
Right to freedom of religion-Extent and scope· of-Protection of Articles 25 and 26 held not limited to doctlin,,-Also extends to 1ituals and F
ceremonies which a1~ integral p01t of religion-Difference between 'Religion'
and 'Dha1n1a'-Between secularisni and secula1isation discussed.
In these writ petitions and transfer cases the constitutionality of
Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1987 bas been chat- G
Ienged.
Dismissing the petitions and upholding the validity of the impugned
provisions, this Court
HELD : (Per Ramaswamy, !.)
543
H
544
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A
1. Articles 25 and 26 deal with and protect religious freedom.
B
Religiou as used in those Articles must be construed in its strict and
etymological sense. Religion is that which binds a man with his Cosmos,
his creator or super force. It is difficult and rather impossible to define or
delimit the expressions "religion" or "matters of religion" used in Articles
25 and 26. Essentially, religion is a matter of personal faith and belief of
personal relations of an individual with what he regards as Cosmos, his
Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily
theistic. [607-G-H]
C
2. A religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be conducive
to their spiritual well-being. A religion is not merely an opinion, doctrine
or belief. It has outward expression in acts as well. It is not every aspect
of religion that has been safe-guarded by Articles 25 and 26 nor has the
D Constitution provided that every religious activity cannot be interfered
with. Religion, therefore, cannot be construed in the context of Articles 25
'
and 26 in its strict and etymological sense. Every religion must believe in
.,.
E
F
a Conscience and ethical and moral precepts. Therefore, whatever binds a
man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief
that alone can constitution religion as understood in the Constitution
which fosters feeling of brotherhood, amenity, fraternity and equality of all
persons which find their foot-hold in secular aspect of the Constitution.
Secular activities and aspects do not constitute religion which brings
under its own cloak ever human activity. There is nothing which a man
can do, whether in the way of wearing clothes or food or drink, which is
not considered a religious activity. El'ery mundane or human activity was
not intended to be protected by the Constitution under the guise of
religion. The approach to construe the protection of religion or matters of
religion or religious practices guaranteed by Articles 25 and 26 must be
viewed with pregmatism since by the very nature of things, it would be
G extremely difficult, if not impossible, to define the expression religion or
matters of religion or r

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I
SH. A.S. NARA Y ANA DEEKSHJTULU ETC. ETC.
v.
STATE OF ANDHRA PRADESH AND ORS.
MARCH.19, 1996
[K. RAMASWAMY AND B.L. HANSARIA, JJ.]·
1he Andhra Pradesh Chmitable and Hindu Religious Institutions and
Endowments Act, 1987 :
Sections 34 and 35-Mirasidars, Archakas and other office ho/ders--
Abolition of hereditary rights-Held not unconstitutional-Hereditary succession of Archakas held not a religious usage and thus not covered by Article
25--Power co11fe1Ted on Commissioner to make appointment after abolition
of hereditmy offic,,-Held not without guidelines.
A
B
C
Sections 36-Arclzakas-Prescription of qualifications f01~Held not D
arbitra1y.
Sections 39 and 142--0ffice holders and se1vants--Transfei-Power of
provision held not ultra vires or unjust.
Section 144-Right to shares in Hundi and other Rusums--Abolition E
of-Held not violative of Articles 25 and 26.
Constitution of India, 1950: A1ticles 25 and 26.
Right to freedom of religion-Extent and scope· of-Protection of Articles 25 and 26 held not limited to doctlin,,-Also extends to 1ituals and F
ceremonies which a1~ integral p01t of religion-Difference between 'Religion'
and 'Dha1n1a'-Between secularisni and secula1isation discussed.
In these writ petitions and transfer cases the constitutionality of
Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1987 bas been chat- G
Ienged.
Dismissing the petitions and upholding the validity of the impugned
provisions, this Court
HELD : (Per Ramaswamy, !.)
543
H
544
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A
1. Articles 25 and 26 deal with and protect religious freedom.
B
Religiou as used in those Articles must be construed in its strict and
etymological sense. Religion is that which binds a man with his Cosmos,
his creator or super force. It is difficult and rather impossible to define or
delimit the expressions "religion" or "matters of religion" used in Articles
25 and 26. Essentially, religion is a matter of personal faith and belief of
personal relations of an individual with what he regards as Cosmos, his
Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily
theistic. [607-G-H]
C
2. A religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be conducive
to their spiritual well-being. A religion is not merely an opinion, doctrine
or belief. It has outward expression in acts as well. It is not every aspect
of religion that has been safe-guarded by Articles 25 and 26 nor has the
D Constitution provided that every religious activity cannot be interfered
with. Religion, therefore, cannot be construed in the context of Articles 25
'
and 26 in its strict and etymological sense. Every religion must believe in
.,.
E
F
a Conscience and ethical and moral precepts. Therefore, whatever binds a
man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief
that alone can constitution religion as understood in the Constitution
which fosters feeling of brotherhood, amenity, fraternity and equality of all
persons which find their foot-hold in secular aspect of the Constitution.
Secular activities and aspects do not constitute religion which brings
under its own cloak ever human activity. There is nothing which a man
can do, whether in the way of wearing clothes or food or drink, which is
not considered a religious activity. El'ery mundane or human activity was
not intended to be protected by the Constitution under the guise of
religion. The approach to construe the protection of religion or matters of
religion or religious practices guaranteed by Articles 25 and 26 must be
viewed with pregmatism since by the very nature of things, it would be
G extremely difficult, if not impossible, to define the expression religion or
matters of religion or religious belief or practice. [608-B-F]
3. The right to religion guaranteed under Article 25 or 26 is not an
absolute or unfettered right to propagate religion which is subject to
H legislation by the State limiting or regulating any activity-economic, finan-
j
j
A.S.N. DEEKSHITULU v. STATE
545
cial, political or secular which are associated with religious belief, faith, A
practice or custom. They are subject to reform on social welfare by
appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of
religion as faith or belief in a particular doctrine, that by itself is not
conclusive or decisive. "\Vb.at are essential parts of religion or religious
beliefs or matters of religion and religious practice is essentially a question B
of fact to be considered in the context in which the question has arisen and
the evidence-~actual or legislative or historic-presented in that context is
required to be considered and a dedsion reached. The Court, therefore,
while interpreting Articles 25 and 26 strikes a careful balance between the
freedom of the individual or the group in regard to religion, matters or C
religion, religious belief, faith or worship, religious practice or customs
which are essential and integral part and those which are not essential and
integral and the need for the state to regulate or control in the interest of
the community. (609-C-F]
4. The religious freedom guaranteed by Articles 25 and 26 is intended
to be a guide to community-life and ordain every religion to act according
to its cultural and social demands to establish an egalitarian social order.
Articles 25 and 26, therefore, strike a balance between the rigidity or right
D
F
to religious belief and faith and their intrinsic restrictions in matters or
religion, religious beliefs and religious practices and guaranteed freedom E
of ~onscience to commune with his Cosmos, Creator and r~alise his
spiritual self. Sometimes, practices-religious or secular are instricably
mixed up. This is more particularly so in regard to Hindu religion because
under the provisions of ancient Samriti, human actions from birth to
death and most of the individual actions from day to day are regarded as
religious in character in one facet or the other. They sometimes claim the
religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional
religious model and another diametrically more on traditional point of
view. The legitimacy or the true categories is required to be adjudged
strictly within the parameters of the right of the individual and the G
legitimacy of the State for social progress, well-being and reforms, social
intensification and national unity. (610-C-F]
5. All secnlar activities which may be associated with religion but
which do not relate or constitute an essential part of it may be amenable H
546
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A to State regulations but what constitutes the essential part of religion may
be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc.
The concept of essentiality is not itself a determinative factor. It is one of
the circumstances to be considered in adjudging whether the particular
B matters of religion or religious practices or belief are an integral part of
the religion. It must be decided whether the practices or matters are
considered integral by the community itself. Though not conclusive, this is
also one of the facets to be noticed. The practice in question is religious in
character and whether it could be regarded as an integral and essential
part of the religion and if the Court finds upon evidence adduced before
C it that it is an integral or essential part of the religion. Article 25 accords
protection to it. Though the performance of certain duties is part of
religion and the person performing the duties is also part of the religion
or religious faith or matters of religion, it is required to be carefully
examined and considered to decide whether it is a matter of religion or a
D secular management by the State, whether the traditional practices are
matters of religion or integral and essential part of the religion and
religious parctice protected by Articles 25 and 26 is the question. (611-A-E]
6. The protection of Articles 25 and 26 of the constitution is not
limited to matters of doctrine. They extend also to acts done in furtherance
E of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of the
religion. (621-H; 622-A]
Seshammal & Ors. Etc. Etc. v. State of Tamil Nadu, [1972] 3 SCR 815,
p
The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shiiur Math, [1954] SCR 1005. Ganpat
v. Returning Officer & Ors., [1975] 1 SCC 589, Sri Venkataramana Davarn
& Ors. v. 77ie State of Mysore & Ors., [1958] SCR 895, TJie Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., [1962] 1 SCR 383, Sardar
Syedna Taher Saifuddin Saheb v. TJie Estate of Bombay, [1962] Supp. 2 SCR
G 496, referred to.
7. There is a difference between secularism and secularisation.
Secularisation essentially is a process of decline in religious activity, belief,
ways of thinking and in restructuring the institution. Though secularism
H is a political ideology and strictly may not accept any religion as the basis
i I
A.S.N. DEEKSHITULU v. STATE
547
of State action or as the criteria of dealing with citizens, the Constitution A
of India seeks to synthesise religion, religious practice or matters of
1
religion and secularism. In secularising the matters of religion which are
not essentially and integrally parts of religion, secularism, therefore, consciously denounces all forms of super-naturalism or superstitious beliefs
or actions and acts which are not essentially or integrally matters of B
religion or religion~ belief or faith or religious practices. In other words,
non-religious or anti-religious practices are anti-thesis to secularism
which seeks to contribute in some degree to the process of secularisation
of the matters of religion or religious practices.[609-G-H; 610-A-B]
S.R. Bommai & Ors. v. Union of India & Ors., [1944] 3 SCC 1, C
referred to.
8. There is a distinction between religious service and the person who
performs the service; performance of the religious service according to the
tenets, Agamas, custom and usages prevalent in the temple etc. is an
integral part of the religious faith and belief and to that extent the D
legislature cannot intervene to regulate it. But the service of the priest
(archaka) is a secular pert. The right to perform religious service has
appointment by the owner of the temple or king as its source. The legislature is competent to enact the law taking away the hereditary right to
succeed to an office in the temple and equally to the office of the priest E
(archaka). The hereditary right as such is not integral part of the religious
practice but a source to secure the services of a priest independent of it.
Though performance of the ritual ceremonies is an integral part of the
religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to
perform service in the temple is terminable by an owner for bad conduct, F
its abolition by sovereign legislature is equally valid and legal. Regulation
of his service conditions is sequenced to the abolition of hereditary .right
of succession to the officer of an archaka. [622-H; 623-A-C]
K Seshadri Aiyangar v. Ranga Bhattar, I.L.R. 35 Med. 631, approved. G
9. In a pluralistic society like India, there are numerous religious
. groups who practise diverse forms of worship or practise religions, rituals,
rites etc. It may not be possible to devise a precise definition of universal
application as to what is religion and what are matters of religious belief
or religious practice. That is far from saying that it is not possible to state H
548
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A with reasonable certainty the limits within which the Constitution conferred a right to profess religion. [608-G; 609-A-C]
B
c
10. A very careful distinction is required to be drawn between real and
unreal religion at any stage in the development and preservation of religion
as protected by the Constitution. Within religion, there is an interpretation
of reality and unreality which is completely different experience. It is the
process in which ideal is made rule. Thus perfection of religious exjlerience
can take place only when free autonomy is afforded to an individual and
worship of the infinite is made simpler, direct communion, the cornerstone
of human system. Religion is personal to the individual. Greater the law
bringing an individual closer to this freedom, the higher is its laudable and
idealistic purpose. Therefore, in order that religion becomes mature internally with the human personality it is essential that mature self·enjoyment
must be combined with conscious knowledge. Religious symbols can be
contra-distinguished from the scientific symbols and both are as old as
man himself. Through scientific symbols there can be repetition of dogD matism and conviction of ignorance. True religion reaching upto the full
reality of all knowledge, believes in God as the unity of the whole. (579-D·G]
Swami Vivekananda, "The Complete Works" Vol. I p. 124, Sbri
Aurobindo, "Ihe Human Cycle, the Ideal of Human Unity War end SelfE Detennination" Chapter XVII, Shri Aurobindo, 'Magnum opus Life Divine",
Mircea Eliasde, "Encyc/opeadia of Religion" Vol. 12, John Macmurray,"Reason and Emotion" (Faber and Faber Publication)p. 40, Julian Huxley, "Evolution After Da1win" Vol. III p. 259, Robert Ernest Hume, "Ihe
Thirteen P1incipal Upanishads" p. 30, Swami Vivekananda, Lecture on
''Religion and Science" Inc01porated in "The Complete Works" Vol. VI, Sixth
F
Edition) p. 81, Fredeiick Copleston, SJ. ''.A Hlsto1y of P1ilosophy" Vol. VI,
Shri Acharya Pada "Sarva Vedantha Sindhanta Sh/okas" 857-862, Richard
Dawkins "The Blind Watchmaker", referred to.
11. To one who is devoted to the pursuit of knowledge, the observance
G of rituals is of no use since the observance of rituals and the devotion of
knowledge cannot co-exist. There is considerable incompatibility between
knowledge and rituals inasmuch as their natures are entirely antithetical.
(587-C·D]
12. It is essential that the value of law must be tested by its certainty
H in reiterating the Core of Religious Experience and if a law seeks to
f
I
I
A.S.N. DEEKSHITULUv. STATE
549
separate the non-essential from the essential so that the essential can have A
a greater focus of attention in those who believe in such an experience, the
object of such a law cannot be described as unlawful but possibly somewhat
visionary. [604-G-H]
13. Law is a social engineering and an instrument of social changes
evolved by a gradual and continuous process. History and customs, utility B
and the accepted standards of right conduct are the forms which singly or
in combination shall be the p~ogress of law. Which of these forces shall
dominate in any case depends largely upon the comparative importance or
1
value of the social interest that will be, thereby, impaired. There shall be
symmetrical development with history or custom when history or custom C
has been the motive force or the chief one in giving shape to the existing
rules and with logic or philosophy when the motive power has been theirs.
One must get the knowledge just as the legislature gets it from experience
and study and reflection in proof from life itself. [610-F-H; 611-A)
Banjamin Cardozo, '
1Judicial Process" referred to.
D
14. The word 'Dharma' or 'Hindu Dharma' denotes upholding, snpporting, nourishing that which upholds, nonrishes or supports the
stability of the society, maintaining social order and general well-being and
progress of mankind; whatever conduces to the fulfilment of these objects E
is Dharma, it is Hindu Dharma and ultimately "Sarva Dharma Sambhava".
Dharma is that which approves oneself or good consciousness or springs
from due deliberation for one's own happiness and also for welfare of all
beings free from fear, desire, disease, cherishing good feelings and sense
of brotherhood, unity and friendship for integration of Bharat. This is the
core religion which the Constitution accords protection. [605-A-C)
F
15. Dharma, according to the old concept, is a purely secular institution. Dharma is that which sustains tbe society. Dharma is that by which
people at large are held together. Therefore, Dharma embraces every type of
righteous conduct covering every aspect of life essential for the sustenance
and welfare of the individual and the society and includes those rules which G
guide and enable those who believe in God and heaven to attain moksha
(eternal bliss). Rules of Dharma are meant to regulate the individual
conduct, in such a way as to restrict the rights, liberty, interest and desires
of an individual as regards all matters to the extent.necessary in the interest
of other individuals, i.e. the society and at the same time making it H
550
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A obligatory for the society to safeguard and protect the individual in all
respects through its social and political institutions. Shortly put, Dharma
regulates the mutual obligations of individual and the society.
(602-E-F; 591-G-H; 592-A]
Justice M. Rama Jois, "Legal and Constitutional Histo1y of India
B
(Vol.I) pages I to 4, Prof. Om Prakash, "Religion and Society in Ancient India
"1985 Edn.,Dr. Sha11kar Dayal Shanna, "Dhamia-A Legal Discipline-Select
Speeches a11d Writi11gs, (/11dian Bar Review Vol. XX (3 & 4) 1993 Special
Issue), Dr. S.D. Shanna, "Dr. Zakir Hussain Memo1ial Lecture delivered at
Visva Bharati Shanti Niketa11 on 29th April, 1989, Dr. S.D. Shanna, "Law and
C Morality Sustain the World" address delivered on 25th September, 1993 at the
•
Fim Convocation of the National Law School of India University, Bangalore,
Valmiki Ramayana, Ayodhya-kanda versa-10, Sarga- 109, Markandeya
Purana Swaniy Ranganathananda, lecture on 'Science, Den1ocracy and
Religion' delivered on August 28, 1954 in Ramakrishna Mission Institute of
Culture, Calcutta, published under the title 'Eternal Values for a Changing
D Society', p. 637; V.D. Mahajan, "Chief Justice Gajendragadhar" - His life,
ideas, papers and addresses in Chapter on
11Secula1isn1, its inzpact all law and
life in India; V.R. Krishana Iyer "Religion and Politics" 1991 Edition; B.K.
Mukherjee, Tagore Law Lectures on Hindu Law of Religious and Charitable
Tmst, page 1; Shri Suniti Kumar Chatterje, "171e Cultural Heritage of India,
Institute of Culture, Vol. IV at page xv; Dr. V. Vardacharyamaharshya, 'Sri
E Panchratraparamyam page 21; E. Krishnamacharya, "Jayakhyasamhita of
Pancaratra Agnia, p.22; Pandi V. Krishnamacharya, "Laksluni-tantra
1
~ a
Pancharatr Agama, p. I, referred to.
16. Though after appointment the archaka performs worship, it is no
p
ground to hold that the appointment is either religious practice or a matter
of religion. Though an archaka is normally a well-versed and accomplished
person in the Agamas and rituals necessary to be performed in a temple, he
is the holder of an office in the temple. He is subject to the disciplinary
power of a trustee or an appropriate authority prescribed in the regulations
or rules of the Act. He owes his existence to an order of appointment-be it in
G writing or otherwise. He is subject to the discipline at par with other
members of the establishment. Though after appointment, as an integral
part of the daily rituals, he performs worship in accordance with the
Agamas Sastras, it is no ground to hold that his appointment is either a
religious practice or a matter of religion. It is not an essential part of
H religion or matter of religion or religious practice. Therefore, abolition of
I
I
AS.N. DEEKSHITULUv. STATE
551
the hereditary right to appointment under Sectio11 34 of the A;P, Charitable A
and Hind11 Religious Institutions and enduments is not violative of either
Article 25(1) or 26(b) of the Constitution. (624-A-D]
17. Article 25 (2) permits regulation of any secular activity associated
with the religious practice. Appointment of an archaka is a secular activity.
Hereditary right which governs the appointment of archaka is a secular B
usage which could be regulated by law. The mere fact that in some temples
elsewhere the hereditary principle is being followed would not denude the
power of the legislature to enact the Act abolishing hereditary rights and
emoluments attached thereto. (566-D, F-G]
c
18. A conjoint reading of Sections 13 and 142 of the Act preserves
the existing customs, performances·, religious worships, ceremonies and
poojas according to Sampradyamas and Agamas followed in such institu·
lions. Section 142 issues an injunction against an officer from interfering
with such observance. Yet it would not, by operation thereof, amount to D
revival of what has been expressly abolished under Section 34(1)(b) of the
Act. Abolition of hereditary principle on the basis of custom or usage to a
holder of an office for continuance in that office is one facet, and perfor~
mance of ceremonies, practices, customs or usages is another. Both cannot
be mingled in the same water. Both are distinct and separate from each
other. It would, therefore, be incongruous to accept the contention of E
petitioners that the right to continuance in office on the basis of custom
and usage independently survives. The further coniention that interference
with matters based on custom or usage relating to 'religious instituti.on,
as defined in Section 2(23) amounts to interference with the freedom of
conscience and free practice of relig_ion and, therefore, it is violative of F
Article 25(1) and is untenable in law. Being secular actions they are not
integral part of the religion or religious matters. J626-H; 627-A-D)
19. The contention that as per rules laid down in Agamas, the archaka
of particular denomination alone is entitled to enter sanctun1 sanctonun and
touch the image of God and therefore, persons belonging to that particular G
family, sect or denomination alone are entitled to perform pooja or
ceremonial rituals of daily worship and that the abolition of hereditary
right amounts to interference with the religion offending Article 25(1)
cannot be acceded to. What is relevant is not that the candidate who seeks
to serve as archaka must be from that family etc., but must be an ac· H
552
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A complished person in Agama rules having faith and devotion in that form
of worship and also proficiency to perform rituals and rites, ceremonial
rituals appropriate to the temple according to its customs, usages,
Sampradayams etc. In other words, the faith and belief in the religion,
customs, usages or Sampradayams in that particular Agamas and
B proficiency in performance of the rituals to the image of God in those
particular rituals are conditions precedent to be eligible to hold office of the
archaka. One who fulfils those pre-conditions is eligible to be considered
and appointed to the office of archaka or other similar ollices. The regulation of this secular activity, therefore, does not offend any faith or belief in
the performance of those duties by a person other than one hailing from the
C family, sect/sub-sect or denomination hitherto performing the same. Earlier, the field of choice to appoint a particular archaka was confined and
limited to that family, sect/sub-sect or denomination, but after the statutory
regulation the field of choice is widened and all eligible candidates including
those available from the family etc. will be considered, competency is tested
D and when one is found qualified, appointment is made to the office of
archaka according to the prescribed procedure. The abolition of hereditary
principle under Section 34 is not violative of either Article 25(1) or 26(b) of
the Constitution. [627-E; 628-A-E)
20. It is true that the position of the office of Pedda Jeeyanagar or
E Chinna Jeeyanagar as a religious head in the context of methadhipathi of
Ramanuja Sect was upheld by the Privy Council, yet as regards his right
in the Lord Venkataramana temple, he performs the office as a nominee
and, therefore, he also owes his existence to the nomination which is
entithesis to hereditary succession. Every Mirasidar or Gamekar equally
F cannot claim hereditary right to continue to perform the duties from
generation to generation. They all are servants or members of the establishment liable to disciplinary jurisdiction. Consequently, they stand along
with the priest (archaka) of the temple of Sri Balaji. It is true that
hereditary rights of archaka or other office-holders are in vogue in most
of the State Act and no attempt therein appears to have been made to
G abolish them, yet their inaction or omission to amend the law is no ground
to hold that the legislature lacks the power to do so or that they are in
violation of the Constitution. Therefore, the abolition of their rights do not
violate either Article 25(1) or 26(b) or the Constitution. [624-E-G)
H
21. The abolition of the emoluments attached to the office is not
•
f
(
A.S.N. DEEKSHITULUv. STATE
553
invalid in law. So long as the statute did not intervene regulating the A
secular appointment of an archaka, the appointment according to prevail-
/
ing usage or custom was upheld by the courts. Consequently, the right to
succession or appointment remained valid. But with the statutory intervention, unless the custom or usage is held an integral part of the religion,
the legislature has power to regulate the appointment of an archaka or B
other otnce-holder. In view of the settled legal position that the appointment of an archaka is a secular act, the previous custom or practice or
usage in making an appointment to ollice of an archaka is regulated under
tl1e Act. As an object in that behalf the hereditary right or custom or usage,
prevalent in that behalf, was statutorily abolished. [624-H; 625-A, C-E]
Gazu/a Dasaratha Rama Rao v. State of Andhra Pradesh & Ors., AIR
(1961) SC 564, referred to.
c
22. As a corrollary to the abolition, legislature is competent to
prescribe qualifications for archakas in Section 36 supplemented by the D
rules made in that behalf. So, the prescribed qualifications are valid
qualifications for appointment. [566-H; 567-B]
23. There is no force in the contention that prescription of the
qualifications to the archaka is arbitrary, unjust and unfair. It is true that
prior to the Act came into force, the succession to the office was based on
hereditary principles. But Section 37 of the predecessor Act 17 of 1966
prescribes qualifications of archaka which are in pari mate1ia with those
prescribed in Section 36 of the Act. It is common knowledge that many an
archaka are not highly educated but have working knowledge in the
performance of ritual and daily pooja to the presiding Deity of the temple
and other Deities installed in the temple. To obviate deficiency in learning
etc., Agama training schools in the respective regions, viz., Andhra Telengana and Rayalseema were established and training in fact is imparted to
the candidates. The recognition of the qualifications by the Commissioner
E
F
is one of the conditions, but the rules have been made in this behalf. Rules
provide elaborate procedure. Competent persons having specialised G
knowledge in the respective subjects set the question papers and evaluation thereof is done by equally competent persons on the subjects. As
regards the recitation and clarity of pronounciation of Vedic mantras, the
candidates are adjudged by the expert persons well-versed in Vedic
mantras and Agama sastras. A pandit in that branch of speciality is in H
554
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A service of the department. With his assistance and of other persons, the
Commissioner would adjudge the suitability of respective candidates.
Similarly the word 'Sapthavyanams' i.e. seven bad habits, has been
clarified in the Explanation of Appendix to Section 36. Therefore, the
authority would have no difficulty in adjuding whether a candidate is free
B from seven vices or any of them. If there is any error of judgment or denial
of appointment on that basis in any individual case that would be a matter
for consideration in an appropriate forum. The provisions, therefore, are
not arbitrary, unjust or unfair. (631-B-G]
24. The Act regulates administration and maintenance of charitable
C and Hindu religious institutions and endowments in their secular administration. There is no force in the contention that there are no proper
guidelines in the Act to exercise the power and wide discretion has been
conferred on secular authority, i.e. the Commissioner to decide as to who
should be appointed to the offices abolished under Section 34. It is settled
D law that existence of rules is not a condition for the Act to become
operative. The rules made under the predecessor Act 17 of 1966 are in
vogue. Section 35 prescribes procedure for appointment of office- holders
and servants. Section 36 prescribes qualifications. Section 37 regulates
disciplinary conduct. The rules have been made in exercise of the power
E
F
under Section 155 to supplement these provisions. Three schools to impart
education in Agama Sastras etc. are established one each in Andhra,
Telengana and Rayalseema regions. Thus, apart from the provisions in the
Act, there are rules which elaborately provide for training facilities and
conducting examinations in the prescribed manner. The Act, therefore, is
not arbitrary. The procedure prescribed therefore is neither vague nor
arbitrary. (628-F-H; 629-A-B)
25. Section 144 abolishes only shares in hundi collections and other
rusums but not Nitya Naivadyam, i.e. cooked rice etc. offered to the Deity
as per Dittam. The said section was enacted keeping in view the provision
of payment of salary to the archakas and other servants. The provisions,
G therefore, are not violative either of Article 25 or 26. (567-E)
26. Chapter VIX of the Act eXclusively deals with the management of
TID. So long as hereditary archakas, mirasidars or office-holders had
their hereditary right, as a part of their rendering service they were entitled
H to a share in the Prasadam or collections offered to the presiding Deity or
•
' '
I
f
A.S.N. DEEKSHITULUv. STATE
555
other Deities of the temple as per the custom or usage prevailing in the A
/
particular temple or agree~ent between the management and the officeholders. But on abolition thereof, as a corrollary, the right to a share in
collections, Prasadam etc. also ceased to operate and also stood abolished.
Apart from the hereditary right, they have no independent right to a share
in the offerings etc. Therefore, with the abolition of the hereditary right, B
the right to receive customary payment associated with an office equally
stood abolished under Section 144. Section 144 is consequential to Section
34 and other similar rights like Section 16 of the Act. Resultantly, the right
to receive a share in the Prasadam etc. stood abolished. Holder of an office
is entitled to payment of salary prescribed under the rules for services
rendered by an archaka etc. Consequently, the right to a share by cus- C
tomary practices or usages or under a contract with management also
stood abolished. They are regulated by making payment of the monthly
salary to tlie holder of an office in accordance with the scales prescribed
under the rules made thereunder. [630-C-F]
27. The gamekars (who prepare food items offered to God including D
Laddus) are species of mirasiders doing service to Lord Deity on
hereditary principle. Though they perform the duty of preparing food etc.
according to Agama prescription, usages and practices obtaining in each
temple, their rights being founded on hereditary principle stood abolished.
This abolition, in respect of Archaka and other service holders having been E
upheld, the case of gamekars cannot independently stand on any higher
footing. Therefore, abolition of their rights nuder Sections 34 and 144 is
equally valid in law. [630-H; 631-A-B]
28. There is no force in the contention that the power of transfer p
under Section 39 is within the grinding teeth of Article 25(1) of the
Constitution. Section 13 and 142 would take care of the apprehended
catastrophe. On mere apprehension, Section 39 cannot be declared to be
ultra vires. If in any individual case any transfer was effected of a person
who had no accomplishment of Agamic rules, customs, practices or
s"mpradayams applicable to that particular temple, it would be con- G
....
sidered and dealt with accordingly. It cannot be expected that the Commissioner would act in violation thereof and would act in a way
inconsistent with Sections 13 and 142. Each case would be considered on
its own merits and correctness of snch transfer would be tested in appropriate proceedings. Therefore, on that score alone, Section 39 cannot H
556
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A
be declared arbitrary' or ultra vires or unjust. (631-H; 632-B·D]
B
c
29. The principles in fixing the scales of pay and method of payment
of salary introduced by the rules are required to be adjudge. Jn the absence
of any material it is di!licult for this Court to give any finding in that
behalf. However, liberty is given to place necessary material evidence
before the Government which would constitute a Committee to go into the
question to rationalise the pay-scales of all the archakas in different
temples and the modality for payment of salary to them. After approval of
the rules by the State Government, the respondents should place the same
before the Court for further approval. (632-F-H]
30. The State exercising its secular power regulates appointment of
archakas. Equally the Archaka along with his family, is required to be kept
with daily comfort so that he would continue to dedicate himself to perform
the ritual worship of the Deity. The State is required to determine his
service conditions, scale of pay and other emoluments according to the
D grade of the temple in which he works and to regulate the period of duty
and of service. That apart, welfare measures in addition should be initiated
as a measure of social welfare to the archaka and other employees of the
temple and pandits working in the temple and under the supervision of the
Commissioner. Therefore, the State should come forward with a scheme to
E provide the archakas, other employees and their family members like
suitable accommodation, education by way of refresher courses and courses in Agamas in the respective region, medical facilities, educational
facilities to their children, loans for construction of their own honses, and
wherever accommodation in the temple is available letting the same to them
F
on reasonable rent, group insurance scheme, unforeseen contingencies like
accident, death etc., rehabilitation of the widow or educated unemployed
youth or snch other measures as may be incidental and part of economic
welfare. For other items appropriate scheme should be formulated. Accord·
ingly the State Government is directed to constitute a Committee. It would
be open to the representatives of the archakas etc. to place their views and
G material before the Committee in the formulation of the scheme. After the
scheme is formulated, the Government would take a decision thereon and
would place the duly approved scheme before this Court within six months
from the date of this judgment for fnrther action thereon. (633-B-H; 634-A]
31. To effectnate the scheme, tentatively a consolidated fund of Rs. 75
H crores shonld be set up as corpus and procedure should be evolved by the
I
AS.N. DEEKSHITULU v. STA TE
557
Government as to In which nationalised Bank or income yielding Govern- A
ment Securities the same would be deposited; as to who would operate and
disburse the income accrued from the fund from time to time. Subject to
fnrther revision, if any, in the above consolidated fund, the TID is directed
to deposit a sum of Rs. 20 crores into the fund during the financial year
1996-97 by end of June, 1996. In each financial year, a sum of Rs. 10 crores
be deposited till the corpus of Rs. 75 crores is reached. The Government is B
also directed to call upon other major temples with annual income of Rs.
20 lakhs or more, to contribute to the said fund of Rs. 75 crores. During
the financial year 1996-97, a sum of Rs. 5 crores by each of the major temple
may be directed to be deposited and in subsequent four years, a sum of Rs.
1 crore every may be directed to be deposited. It would also be open to the C
Government to seek donations from other charitable institutions within or
outside the State of Andhra Pradesh or from non-resident Indians. The
State Governments would also approach the Income-Tax Department and
the Government of India to exempt from income-Tax the said donation as
well as the income derived by way of interest or otherwise on the corpus of
or further amounts deposited into the fnnd. [634-A-F]
D
Per Hansaria, !. (Concurring) :
1. This concurring note is only to highlight one facet of this case which
has its own importance. The same is the difference between "religion", a E
word used in Articles 25 and 26 and "Dharma" known to our psyche. Very
often the words "religion" and
11Dharma" are used to signify one and the
same concept or notion; to put it differently, they are used inter-changeably,
This, however is not so. The word "religion" as used Articles 25 and 26 of
the Constitntion cannot be confined, cabin crabbed to what is generally
thought to be religion. The word religion in the two articles has really been
used, not as is colloquially understood by the word religion, but in the sense
of it comprehending out concept of dharma. The English language having
had no parallel word to dharma, the word religion was used in these two
articles. It is a different matter that the word dharma has now been accepted even in English language. [635-H; 636-A-D]
Webster's New Collegiate Dictionary; Oxford Dictionary; referred to.
2. The word "religion" in Articles 25 and 26 has to be understood not
in a narrow sectarian sense but encompassing our ethos of"Serve BhawanF
G
tu Sukhinah". Let us strive to achieve this; let us spread the message of H
558
SUPREME COURT REPORTS
[1996] 3 S.C.R.
A
our dharma by availing and taking advantage of the freedom .guaranteed
by Articles 25 and 26 of our Constitution. (639-G]
B
3. The essential aspect of our ancient though concerning law was the
clear recognition of the supremacy of dharma and the clear articulation
of the status of 'dharma', which is somewhat akin to the modern concept
of the rule of law, i.e. of all being sustained and regulated by it. (637-E]
4. Having love for all human beings is dharma. Helping others ahead
of one's personal gain is the dharma of those who follow the path of selfless
service. Defending one's nation and society is the dharma of soldiers and
C warriors. In other words, any action, big or small, that is free from
selfishness is part of dharma. The signs and symptoms of dharma are that
which has no room for narrow-mindedness, sectarianism, blind faith, and
dogma. The pnrity of dharma, therefore, cannot be compromised with
sectarianism. A sectarian religion is open to a limited group of people
whereas dharma embraces all and excludes none. This is the core of our
D dharma, our psyche. (639-B, E-F]
Rig.