SESJIAMMAL 4 OlilS. ETC. ETC.

Y. srATE OF T~MIL NADU March 14, 1972

8l$

{S. M. SIKIU, C.J., A. N. GtOVER, 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!tinthe 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: rgard"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 ~Ud 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 hecodilary 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 mi.Q.a 4le pctiliPna.

JiEJ,..D : (1) Tbe Pr¢ecijdon ~>f ~~ ie, dth;; ~!te~ ~'1ra: is not limited to matts of octr1noe or ' ull1':Ultee for done in p~USuance of religion. IIDd tbereore nt~~ •ol religi.cn. )Vbat rituals anJ observas tc. which -~ e~!igi~' pracliee ba.s !JJ be ~1tu1n an 1'5t!tial part of a '~· Sl the doctrine of a parocuhr deJ:ided by .the Courta with r:eJ'l:rnce 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'(Ofjppets .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>~ thay take place in a. variety o~ ways and according Pollution or decrat!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 Achaka of such a temdisclp~ !IDJ'?Sed ficient in the Jit"uals. appronate 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 'Holins Perla Kovil Kelvl A.ppean Thiruvenkato Ramanuja Pedda ; fyyangcrlu V arlu v. Prath ivaJhi Blrayf; 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 amnU. ment to a. 55, namely, the aboliticm of the principle of nt-in-theline f succe.Mion is however, not invalid, because, the usage is a culr 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

ater hta .appotnent. he perfors. wonhip is no ground I or holdin~ !!Jat hta &ppoillt etther a reilgous practic-e or a matter of religon.

He owe1 h~ apPQ:Ullmnt to a se.cular authonty. Any lay founder of a kmpk: may appotnt him and the Shebail$ and l-fana&'!rs of temples

e:~~.ese 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. miliz the appointn.=nt would DOt make the suive 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 Wy 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 unqlft.::l.l power, bcc.lU."-' 1M powe~ b tnute to lldmlntsl.c<>f he Ac~ which cootrol(.:.J it. ~00 ~8 d~ rma of the trut or r e a!fal~ ?f tho rnrh in ~rd:.Ul~ wltb f the Arc.bab .will h!lvof 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 llPPolnnn~ ' ~S(l), choi.ce of the trOste the pcratiQq ot nt-in-llne of or an cha Is no Jon~ limited: by w"

SU~1on I.Q tem.ol~ w.bero .the Utla.il'

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 ptrports 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

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 ofthe 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 petitionrs (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... Ramchlmdrtn aod M.S. Narasimhlln, for the.petitiollel( (in W.P. Nos. 438 ar444ol.1971). ·

G · M. Nt/Jesan and M. S; Nimhan, 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. petitine~ .(in "f/.P. No: 440 Of

1~:7,1). . . . . ' ·. . ..

818 SUPllEMB COURT RBPOUS

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 tliit freedom of religion seured to them under Articles 25 and 26 of the Constitution. The validity of the C Amendtnent Act had been also impugned ofi the ground tat if ittterfered with certain m.her ftirtental rifhts of the petitiobets but that case was not pressed at the time o the hearing.

Tlie tempies with wich 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 thse pe, tltiObi, atts 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 At'. It e~ intb force on n.cotnt 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: mTJunil Nadu Mld' re)'tale4 IIIVUal A"5 which :had previausly governed the adrnfuisttatfon Oi ltind.u Publi~ R•Ilgious

11\Stiutions. It is sucient 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 appoiont of. oftiGe~ l.lolders and servants in such temples and section 56 provided for

thcs pU.ni111uhetlt of dffi~Jjglders tnd 'Snt~. 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 sl'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-irtthe-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

Pjari 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 stp tow; rtnouchability, Economic and Education:ai -Deve- Coronllttee 0 Scheduled Castes. The Statement of ObJects and loproent ofht_h~ are reiterated in tbe counteraffidavit 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 sytem can be replced 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_invocationsand 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 ~--· ecommentions of the Committee and in view Ulw~1S1on of this Court G ,

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

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.

sc. 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.

sc. 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 Sl"'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 mnth from tho date I bet~ Reletpt by of the order of IC>Ct. uty Cornnusstoner under aub- Co •oo_ (2), J)refor an ap~J to the

llllnas•oncr •aalnst aucb order.

(3) Omitted.

s, e. 116 Cull()

sc. 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 pod by tht to DDI\-ben:<!Jt rvant, for appointment atltutlons, tho ll.l~= In rcllf !oua ln. by heredit ons to bt 1!01 .. ton 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 ap- Pointment to oflk:el 111 rella!ou.s ln.lltutlon •nd tho condltlom of M:tvloo o( afJ ruch offic:en and aer• \lan~. ·

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 :

(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

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.

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.

SUPREME COURT I.EPORTS

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

came up for consideration before this Court in the H Commissioner, Hindu Religious Endowments Madras

(I) [1962) 2 Suppl. S.C.R. 496.

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

Myore( 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 nextin-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.

SUPREME COURT REPORTS

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

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

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

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 theGovemment 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 Advocto 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.

E f ,

SESHAMMAL v. TAMIL NADU (Palekar~ J.) 829

iolation. 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 ... affidavit filed on behalf of the

State.

His submission was that we have to take the Principal Act as it now stands after the .amendment and see what is the true effect of the same.

He contended that the power given to the

trust~ under the amended section 55 was not an unqualified power "because, jn his submission, that power had to be read in the context of secti'on 28 whiCh controlled it.

Section 2 8 ( 1 ) provides as follows :

"Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act1 1947, the trustee of eVfEY

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 institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence. would deal with such aft'airs, funds and properties if they were his own."

The learned Advocate General argued that the trustee was boum.

under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archak.a or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and. he would be bound to make the appointment under section 55 in accordance with the usage of appointing one from the particular denomination.

There was nothing in section 55, in his submission, which released him from his liability to make the appointment in accordance with the said usage. It was true that the principle of the next-in-line of succession was not binding on bim when making the appointment of a new Archa}{a, but in his submission, that principle. is no part of the usage, the real usage being to appoint one from the denomination. Moreover the amended section, according to him, does not require the trustee to. exclude in every case the hereditary principle if. a qualified successor is available and there was . no

reason why the trustee should not make the appointment of the nel:t heir, if found competent.

He, however, agreed, that there was no such legal obligation on the trusteew.tder that .. section.

He further contended that if the next in-linef-succession principle is regarded as a usage of any particular temple it would be merely a secular usage on which legislation was competent under Article 2S(2)(a) of the Constitution.

Going further, he contended that if the. hereditary principle was regarded as a religious 7-L1061Sup Cl/72

[1972) 3 S.C.R.

p1tice that would be also amenable to legislation under Article A

~5{2) (b) which. penn!ts egislation for the purpose of social welfare and reform.

He 1nv1ted attention to the report of the Hindu Religious Endowments Commission ( 1960-1962) headed by Dr.

C. P. Ramaswami Aiyar and submitted that there was a crying need for reform in this direction since the hereditary principle of appoin!ment of Arcakas had led to grave malpractices practically 8 destroymg the sanctity of worship in various religious institutions.

We have found no. difficulty in agreeing with the learned Advocate General that section 28 ( 1 ) of the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act.

In a Saivite or a Vaishnavite temple the appointment of the Archaka. will have to be made from a specified denomination, sect or group in accordance. with the directions of the Agamas governing those temples.

Failure to do so would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of wh.ich would be to defile the image.

The question, however, remains whether the trustee, while making appointment from the specified cJenomination, sect or group in accordance with the Agamas, will hi bound to follow the hereditcuy principle as a usage peculiar to the temple.

The learned Advocate-General contends that there is no such invariaple usage.

It may be that, as a matter of. convenience, an Archa.ka's son being readily available to perform the wru:ship may have been selected for appointment as an Archaka from times immemorial.

But that, in his submission, was not a.

usag~, The principle of next-in-line of succession has faile<; l when

the svccessor was. a female or had refused to accept the appointment or was u, nder some disability.

In all such cases the Archaka was appointe~ from he .Particulr. denomination, sect or roup and tbe. worship was earned on With the lp. of such a. subsbute. lt, however, appears .to us that it is now too .late in the day to contend .that the hereditary principle in appointment was not a usag~.

F'ot whatever reasons, whether of convenience or othetwise, $is hereditary principle might have beeu adopted, thre .cap be · n<,> doubt that the principle had been a.ccepted from antiquicy and had G aliop beei) ft; ily recognised in the unamended sec(ion 55 of the

Prlncipl Act.

Sub-section (2) of section 55 provid.ed.tat where the :office or .service is. hereditary, the person next in the line of succession shall beentitled.to succeM and only a limited nghtwa£ given under. sul;>section. ( 3) to te trustee to apoint a suhstiutc ..

Even. io such cases the explanatto, n to sub-secti_on ( 3) provted that in maln_g'th.e appoinmentof the .substitute the t1Jl.e bouiQ have d1,1e regard to the.clatms of th.e rne'!'bers o( the fan:n~, tf ny, entitled to the successton.

Therefore, it cannot be den~ as a

s£Sl1AMMAL V. TAMIL NADU (Pafekar, /.) .

1 t that there are several temples in Tamil Nad A a~ ointment of an Archaka is governed by the usa where . the

:~cession. The rea~ question, therefore, is whethr ~JceedJtary

hould be regarded e1ther as a secular usaoe or a rei' . usage s l 't . b . . e JgiOus usage If it is a secu ar usage, 1 ts o v10us. legJslation would be . ·

ible uner. Arti.cl~ 25 ( 1) (a) and n it is a religious usage l'~,:;~

8 be penmsstble If It falls squarely under sub-section 25(1)(b).

Mr:. PJlkhivala on behalf of the petitioners insisted that the

:; ppointmnt of a. pe:son. to. a religiou~ ffice in accordance with the hereditary pnnctple IS Itself a rehgwus usage and amounted to a vital religiou:; practice and hence falls within Articles 25 and

26. In his submission. priests, who are to petfonn religious cere- C monies may be chosen by a temple on such basis as the temple

chooses to .1dopt. It may be election. selection, competition. nomination or hereditary succ:essioo.

He, therefore, contended that any lav. which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed by Articles 25 and 26 of the Constitution.

In b.\s submission the right to select o u priest h;, s an immediate bearing on religious practice and the

light of a denomination to manage its own affairs in r:PUtters . of religion. The priest is more important than the ritual and nothing could more vital than chasing the priest. .Under the rtext of

ocial refonn_ he contt":nded, the Stlte cannot refonn a rehgt, o~ out ofe'!"tence and if any denomination has accepte~ e heredl~ E J'tllctple for c.hosing its priest that would be a rehgtous practtcd Vttal .w the religious faith and cannot be caned on the gt'()~d that It leads to social refonn. Mere substltuo~ of on~ f.Ile 00 of ppointment of the priest by another was. m hts submiSSIOn, \Octal refonn.

•· · h ppointed has to r . 14 1s true that a priest or ao. Archaka w en .a . hether the perfo.nn sorne rcugious (unctions but the questton .15 w or a reliappomtment of a prie!t is by itself a secu.lar funuof the spiri

~Jous Practice:.

Mr. Palkhival;1 gave the lluratio~ a Hindu sect 1.uat h~:; W o[ a math bclonoing to a denommatton ° 'clca. that lrke th Sh ~- norrvr at the 1 d d e :tnkaracharaya nnd expressed h d recommen .e c . uch. a spiritual head could be ch.osen by a nlet the traditions i the State thouh in conflict wlth the usage ~. a 5uccsot .of 0 the particular tnstitution.

Where, for ~:taJ1?P by giving 111111

~ Mathadhipati is chosen by the MathadJ; ipan osen by his inuneun:tra:de.eksha or where the Mathadhipadu IS x~a-ardinar)' .cor th~ S e dJclples it would be he contende • e _.~ of appotnttne~ late t . • ' ther muue d. d' thlS lt ~. 11o Mo Interfere and direct diat some 0 • 1 reform to eB t we

rna~ st ollowed o'; l the $rou?d of s~::er of religiOfl rtng a ne one as an Ul.Struston Jn. the 01 we are cA' • hn' th~ atfnuct such an illustration i!i tnapt whn 'Tbe Afch:tka

e appointment of an Archa\ca of a temP e.

I \I

I I 1.1 I

I .·

' ..

never been regarded as a spiritual bead of any institution.

He may be an accomplished person, well versed in the Agamas and rituals necessary to be perfonned in a temple b:ut he does not have the status of a spiritual head.

Then again the assumption made that the Archak:a may be chosen in a variety of ways is not correct. The Dharam-karta or the Sheibait makes the appointment and the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar( 1) that even the position

t)f the hereditary Archaka of a temple is that of a servant subject to tha disciplinary power of the trustee. The trustee can enquire into the .conduct of such a servant and dismiss him for misconduct.

As a servant he is subject to the discipline and control of the lrustee as recognised by the unamended section 56 of the Principal Act which prov_ides "all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or , not,

be controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of-them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause." That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may1lppoint the Archaka. The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka.

That the son of ail Archaka or the son's son has been continued in the offi-ce from generation to generation does not make any difference -to the principle of appointment and no such hereditary Archaka can claim any right to: the office.

See : Kali Krishna Ray v. Makhatz Lal Mookerjee( 2 ); Nanabhai Narotamdas v.

Triinbak Balwant Bhandare(8 ) and Maharanee lndur; eet Keoer v; Chundemun Misser(4 ). Thus the appointinent of an Archaka

i., a seular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointmt:nt the trustee is limited in res~ pect of the sources of recruitinent. Instead of casting his. net wide for electing a proper: candidate, he appoints the next heir of. the last bolder of the office. That after his appointment the Archaa

f10ffi1s worship is no ground for holding that the app9inttnent is either a religious practice or a.matter of religion.

ln view of sub-section (2) of section 55, as it now stands ame, nded, the choice of the trustee in the matter of appointment of

(1). I.LR. 35 Madras 631.

(2) I.L.R. SO Cal. 233.

(3) (18'78-SO)Vol. 4 Unreported Printed Judgments of the Bombay High Court

' . page 169.

(4) XVl Weekly Reporter, 99.

SESHAMMAL v. 'PAMIL NADU (Paltkar, J.) 8'33

an Archaka is no longer limited by the operation of the rule of

next~!nline of succession in temples where the usage was to appomt the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate is the nextin-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 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. The legislation in this respect, as we have shown, -does not inter(ere with any religious pratice or matter of gion and, therefore, is not invalid.

We shall now take separately the several .amendments which were challenged as invalid. Section 7 of the Amendment Act

amended section 55 of the Principal Act and the important change wJP, ch was impugned on bdhalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka.

We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The other

chaagac; effected in the other provisions of the Principal Act appear to us to be merely consequential. Since the. hereditary principle w~ done away with the words "wJwther the office or service is hereditary or not" found in section 56 of the PrinCipal Act have been oniitted by section 3 of the Amendment Act. By section 4 of the latter Act clause (xxiii) of sub--section (2) in section 116

is suitably amended with a view to deleting the. reference to the

qualifications of hereditary and non-hereditary offices which was the:re in clause (xxili) of the Principal Act. The change is only

consequential on the amendnient of section. 55 of the Principal Act.

Sec:; tion.s S and 6 of the Amendment Act are also conseqtial on the a.m.endment of sections 55 and 56. These are-all tbe sections in .the Amendment Act and in our view the Amend ment. Act as. a whole. must be regarde(i aa valid.

. If was, however. subniitted .. before us that the State had tak.en r under section 116(2) clause (xxill) to prescribe qualifications to be.~ by the Archakas and,. in view of avowed ob]ect of the State Government to create a class of Archakas irres

pective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which w~ in conflict with Agam.as.

Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, proper provision has been made for qualifications of tile Archakils and the petitioners have no objection to that rule.

The rule still continuac; to be in force.

But the petitioners apprehend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with

[1972) 3 S.C.R.

Agamic injunctions. For example t present e tnhurai ser~ A vant whose duty it is to perfofll_l pujas and. rectte vedtc mantras etc. has to obtain _the !Jtness rtlficae fo: rus Office from e ~~ of institutions wh1ch 1mpart mstructlo~ 1_n Agaas and ntualisttc mattas.

The Government, however, .It IS sumJtted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals an~ direct that the_ Achka B candidate should produce a fitness certificate from n mstltUtiOI} which does not specialize in teaching Agamas a, nd ntuals. It is

submiued that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonie$ in

these temples and it will be open to the Government to prescribe C a simple s_tandardized curriculum for pujas in the several temples

ignoring the traditional pujas and rituals followed in those temples.

In our opinion the apprehensions of the petitionen are unfounded.

Rult- 12 referred to above still holds the field and tllero is no good r .:ason to think: that the State Government wants to revolutioni.e temple wonhip by introducing methods of not current in the several temples. The rule making power COl\- ll

fned oo the Government by section 116 is only intended with a.

vew to carry out the ptupOSes of the Act which are essenlial!y fo.eW!ar.

Tbe Act no whet gives the indication. that one of the purpmtt; of the Act is to effect ll change in the rituals and e~· monies f~Jo_wed in the tompie$. On the other hand, section 107 oC the Pnnctpal Act empha&izes that nothing contained in the Act E woukl deemed to confer any power or impose any duty 1ft contraventtoo <!f the ribts conferred on any rdi!,\005 denominatiOn or any twn thereof by Article 26 of the Constitution. Simiar}y !le(:llon 105 ovide, that nothing cont2ined ln the Act sbfttl rna; ave a, otberwtSe expresoJy provided in me Act or the ndes which nder, ffect. aay honour, emolmnetrt trr perquisite to r

. . ~an 111 enttUcd by custom or otherwise ift any reUgtous lruitJtUtJOn, or i~ estabti!.lbed usaae in -o.ro y <ldK'r matter. Moreover if an

I . e-· • r;, whkh pufllOm t .' Y ru e lS framed by the Government tempk& the Ia 0

•tetter~ ..-ith the rituals and cere'rno!rieS of the intere5tl!d WJfi lrable to be chaUented by those who are apprdlt:ns!: now temple wcmhip.

In our opinion. therefore; 1fte (i prcnnature. epressed by the petitioners are groundless if\tl

lnlhe resuiL tbe5e ...... . . • c<U.C there !>haJj 1'w'dlllons fa1l blU: tn the circtml.8tlHl~ oi the no or er a& to cos~

V.P.S.

RAY

M. H. BEG, JJ.

Arts. 25 and 26

Section 55

Section 116(2)

s. 55

s. 56

s. 28

s. 116

Art. 26

Article 32

Constitution of India

R. Gopaltlkrlshnan

K.. Parasaran

K. Jayara~

M. Natesan

K. Jayaram

M. S. Narasimha11

r 83 of 1971).. · K. Parasazn an4 M. S. Narasimha11, for the petitioners (in

W.P. ; o~ 437 of 19712_.

S. Annadurai Ayyangar

M. S. Narasimhan

N. A.. Palkhiwa/4

A. I. Rana

M. S. Naraaimhalt

M. S. Narl18imlfitn

Govind Swaminndhan

S. Moliiin

N. S. Sivan

A. Y. Rartgam

Palelwf

Article 32

Admend ment Act, 1970

Articles 25 and 26

Tamil Nadu Act

Section 55

section 56

Service Rules, 1964

Section 107

Article 25

Article 26

Section 106

sections 55, 56 and 116

Tamil Nadu

Sections 55 and 56

Charitable Endowments Act, 1959

Tamil Nadu Act

Tamil Nadu Act

SESHAMMAL V. TAMIL NADU

sections 55, 56 and 116

Sec. 55

SESHAMMAL V. TAMIL NADU

Service Rules, 1964

Article 25

Vishnu

Shiva

Kane

Siva

G Archaka

SUPREME COURT I.EPORTS

R. Parthasarthy Bhattacharya

V aikhanasa Sutra

Bhrigu

Atri

Marichi

Kasyapa

Article 25(1)

SESHAMMAL V

TAMIL NADU

Lakshmindr(l Thirtha Swamiar

Section 55

Service Rules, 1964

section 55

section

55

SUPREME COURT REPORTS

section 87

Vallabh Acharya

Articles 25 and 26

section 55

section 55

Section 2

section 55

section 55

Article 2S(2)(a)

Hindu Religious Endowments Commission

C. P. Ramaswami Aiyar

section 28

section 55

section 28

section 55

section 25(1)(b)

PJlkhivala

Articles 25 and

26

Articles 25 and 26

section 56

section 55

an Archaka

section 28

Section 7

section 55

section 56

section 3

section 4

section 116

sections 55 and 56

section 116(2)

Service Rules, 1964

section 116

section 107

Article 26


SIBVGOVIND

THE STATE OF MADHYA PRADESH March 14, 1972

. [A, N. GROVER AND M. H. BEG, JJ.J

Crin1inal trial-Enha11cen1e11t-Enlu1nce11u!nt of sentence by appellate Court-Principles goierning.

A question of scnteno.:: is a matter of di~•cretion. It is well settled that when cliscreti.on has been properly exercised along accepted judicial Jines, an appellate court should not interfere to the detriment of anaccused person.

Such interference 'Viii be justified only by strong reasons \Vhich must be disclosed on the fact of the jud_gimnt.

Jn a matter "f enhancement there should not be interfen.:ncc wllen the sentence passed

imposes substantial punishment.

Jnterfen!nc.e is only called for when: it is manifestly inadequate. [839 BJ

Where the trial court after taking into acC:Ount a11 the circumstances anJ nlso the discr;!pancies in the pro=ecution v!Jrsion convicted the appellant to one year's imprisonment under s. 366, Pen:ll Code, and the High court in appeal, enhanced the sentence to seven years' im:i.1)risonment.

HEl:D : that the High Court !>ad not noticed a number of facts duly <:onsidered by the trial court and. therefore, the exercise of the power of enhancement could not be justified. [839 OJ

Bed Raj v. The State of Uttar Pradesh, [19551 2 S. C.R. 583; and AlamRir & Anr. v. The State of Bihar, L19S9J Supp. I S.C.R. 464, refernd to.

Nabi Bux mrd Or.r. v. The State of Madhya Pradesh, A.l.R. 1972 S .C. 495, distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 of 1972.

Appeal by special leave from the judgment and order dated January 25, 1971 of the Madhya Pradesh High Court, Indore Bench.in Criminal Appeal No. 391 of 1969.

S. K. Gambhir, for the appellant.

G M. N. Shroff, for the respondent.

The Judgment of the Cqurt was delivered by

Beg, J, Shiv Govind, the appellant , has obtained SJieelal Leave to appeal against only that part of the Judgment and order of the High Court of Madhya Pradesh by which his sentence of H one year's Rigorous 'Im:priSOll!llent, passed by the Additional Sessions' Judge, lnilote, upon " conviction under Section 366 Indian Penal Code, was enhanced to seven years' Rigorous Imprisonment

' '

and a fine of Rs. 100 / -, and, in default of payment of fine, to three A months' further rigorous imprisonment.

The appellant, aged about 20 yearn at the time of ihe alleged offence of 9th of August, 1969, was the youngest of three persons who were jointly charged and tried for offence$ punuhable under Section 366 and 354

I.P.C.

....

The prosecution case was : Kumari Seema, a girl below 18 years of age, was offered a lift on his bicycle by the accused, Kamal Singh, aged 30 ye; irs, while she was returning to her home from her School on 9th August, 1969.

The girl.hesitated.· But,

as she reposed confidence in Kamal Singh, whom she looked upon as her uncle, she accepted the offer.

Kamal .Singh took Kumari Seema on his bicycle to the Regal Cinema where she part-took of C some. refreshment ordered by Kamal Singh.

Meanwhile, the appellant Shiv Govind and the accused Punam, aged 26, arrived in a car.

Kamal Singh asked Kumari Seema to go with the two younger men in their car.

Seema refused.

Theo, Kamal Singh asked her to go on his bicycle to Y ashwant Talkies.

She complied with this request.

At this Cinema, Kamal Singh deposited his Cycle at the Cycle stand.

The appellant Shiv Govind and his companion Punam had followed in their car.

The three men succeeded in persuading Seema, despite her initial refusal, to sit in the car and to go for a short pleasure trip in it on the definite assurance that. she will soon be reached home. . After the girl had

sat in the car she was driven to a place called Mandow, a number J: of miles away from Indore, and was made to alight at a tourist's bungalow.

There two rooms were engaged by the accused.

Kamal Singh occupied one of the two rooms and the girl was closeted in the other room with the appellant and his companion Punam, who.were both drunk.

One of the two youngmen caught hold of the hands of the girl while the other tried to undress her with the object of raping her.

Kumari Seema, at this point, F feigned sudden indisposition. so that the two youngmen had to bring her out into the gallery for fresh air.

She managed to escape while the accused went inside to fetch some water for her.

She rushed into the house of one Babula! Kamdar and complained to:him about the incident. This led to a COlillllunication of information Of the offences to the Police which went to the tourist's bungalow and arrested the three accused who were brought to Police Station Nalcha where a First Information Report was lodged.

The Trial Court had examined evidence given. in support of the case stated aoove.

This 4nc1uded modi.cal evidenco on Uie questionof the age of the girl, beeause, while the prosearticn :alleged that she was below 16 years of age, the acc11Sed pleaded tb8t she was above 18 years of age. 13vidently, the case of the accused

J:I

SHIV GOVIND V. STATE (Beg, J.) 837

was that Kumari Seema was a consenting party to whatever took . place.

Although the girl was attending a School, the entry of her age in the School Register was not disclosed.

Despite some discrepancies in the evidence relating to the age of the girl, the trial court came to the conclusion that it was between 16 to 19 years.

It relied mainly on expert evidence of Doctors who had used the

ossification test.

The Trial Court had also noticed the discrepancies between the prosecution version, as set out above by Kumari Seema in her evidence in Court, and the story given out by her in the First . Information Report where she had stated that she had joined the

party of the accused at the crossing of Bijasan Road.

The earlier version suggested that the girl had herself gone to meet the party

of the accused by appointment.

The consent of the girl was, however, immaterial in view of the finding of the Trial Court about the age of the girl.

The fact that she was taken to Mandow, where something happened at 'the tourist's bungalow which she disapproved of, was corroborated by the evidence of Babula! Kamdar, and Kailash Sharma, in addition to the two police constables of Mandow-OUt-post.

The Trial Court which had the advantage of watching the demeanour of the girl, had come to the conclusion that, although the girl may have tried to improve her version and pretend that she was unwilling to accompany Kamal Singh, who had come in a car for her according to the first version, yet, the charge under Sec. 3661.P.C., was established against each of the three accused and the charge under Sec. 354 I.P.C. was established against Shiv Govind, appellant, and his companion Piinam. The three accused were, therefOte, convicted under Sec. 366, and each was sentenced to one year's rigorous imprisonment. The two accused Shiv Govind and Punam were also eoilvicted under Sec. 354 l.P .<:., and sentenced to four months rigorous. imprisonment, but the two sentences were ordered to .run concurrently.

When the case came up in appeal to the High ourt; a notice of enhancement of the sentence under Sec, 366 I.P.C. was issued to each of the three appellants, and their sentences were enhaDced, as indicated above, after the appellants had•been heard.

It is only Shiv Govind who has appealed to this Court. Shiv Govind had also applied under Sec. 561A. Criminal Procedure Code to the High Court, after the dismissal of his appeal and enhancement of the sentence by the High Court, claiming the benefit of Sec. 6 and 11 of the Probation of Offender's Act. B\lt, this application was rejected by the learned Judge who had enhanced the stntence passed upon the appellant, although }le

found that the report of the Probation Officer about the conduct of the accused while undergoing the sentence, which was sent for, was favourable to the appellant. It appears from the two Judgments given by the learned Judge who enhanced the sentence of .the appellant and who subsequently dismissed the application under Sec. 56 IA Criminal Procedure Code also, that the view taken by him was that, having regard to the facts and circumstances and of the case and the offence committed by the appellant, :the enhanced sentence was deserved by him.

We have, therefore, examined the Judgment of the High Court under appeal before us in order to discover the special reasons which induced the learned High Court Judge to differ from the opinion of the Trial Court about the appropriate sentence to be imposed upon the appellant The only reason given by the learn- .ed Judge for enhancing the sentence was that Kumari Seema had reposed confidence in Kamal Singh, whom she regarded as an Unde, so. that she could not expect foul play from him. The learned. Judge thought the girl's trust and confidence in l(amal Singh explained why she did not protest when she was taken in the car and then made to get down at the tourist's bungalow. It s.eems, however, from the account of the occurrence given in the

Judgment under appeal, that the learned Judge was shocked by !he plight of K umari Seema, due to the perfidy of Kamal Sinjh, and by a -contemplation of the possible consequences to her if she had not behaved in a .particularly brave and intelligent ma~ 80 as to escape from her predicament.

The learned Judge mentioned that the girl had risked her life to escape.

We, however, find. that there was no suggestion in the evidence anywhere that any threat to the life of Kumari Seema was ~Id out.

There was no evidence that the girl had seriously struggled to escape or had raised shouts for help which would have brought people around to lier aid.

Nor was there any evidence that the accused tried to obstruct her or to chase her when she escaped from the tourist's bongalow allegedly by resorting to a ruse.

The High Court was .so .improssed by the girl's uncorroborated version of her own heroism, which did not tally with her first version in the First Jnfonnation Report, that it overlooked the infinnities in the girl's .evidence discussed by the trial court. We find the trial court's view

of the whole case to be quite balanced and objective.

We do not thillk that the severer view of the High Court could be reasonably j1111ified.

It seems clear to us that the High Coun had overlooked the principles, laid down 'by this Court repeatedly, which shoUld

SHIV GOVJND v. STATE (Beg, J.) 839

govern the exercise of powers of the High Court to enhance sentences imposed by trial courts.

Jn Bed Raj v. The State of Uftar Pradesh(') this Court observed at page 588-589 :-

"'A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh v. State of Punjab (1954 S.C.R. 146, 156) and Nar Singh v. State of Uttar Pradesh [1955(1) S.C.R. 238, 241].

In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.

InterfP.rence is only called for when it is manifestly inade- 1Juate.

In our opinion, these principles have not been ; Jbserved.

It is impossible to hOld in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.

In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence l should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored''.

We think that what was laid down by this Court in Bed Rai's case (Supra) is fully applicable to the case before us.

We may also mention the similar views expressed by this Court in Alamgir & Anr., v. The State of Bihar( 2 ).

We may observe that decision of this Court in Nabi Bux and Ors. v. The State of Madhya Pradesh("), is distinguishable from the case before us.

In that case the High Court had enhanced a sentence having regard to all the facts and circumstances justifying the enhancement. In the case before us we find that the High Court had not noticed a number of facts duly considered by the trial Court so that the exercise of power of enhancement of the sentence under Sec. 366 I.P.C. could not be reasonably justified here.

Consequently, we allow this appeal by setting aside the order of enhancement of sentence by the High Court of Madhya Pradesh

and restore the sentence of one year's rigorous imprisonment

(I) [1955] (2) S.C.R. p. 583. (2) [1959] Supp. (I) S.C.R. 464. (J) A.l.R. [1972]S.C. 495.

passed upon the appelant by the learned Sessions Judge for the offence under Sec. "366 I.P.C. of which the appellant was convicted.

The concurrent sentence of four months rigorous imprisonment under Sec. 354 I.P.C., which was not interfered with by the High Curt, is maintained.

We understand that the appellant has alfeady undergone more than one year's imprisonment awarded to him and that he is in jail as his application for bail was rejected.

If this is so, the appellant will be released forthwith unless wanted in some other case.

K.B.N.

Appeal allowed.

SIBVGOVIND

THE STATE OF MADHYA PRADESH

March 14, 1972

N. GROVER

M. H. BEG, JJ

s. 366

S. K. Gambhir

G M. N. Shroff

Beg

Shiv Govind

Section 366

Indian Penal Code

Section 366 and 354

I.P.C

Kumari Seema

Kamal Singh

Kamal .Singh

Kumari Seema

Punam

Seema

Mandow

Indore

Punam

Babula! Kamdar

Police Station Nalcha

Babula! Kamdar

Kailash Sharma

Sec. 3661

Sec. 354

I.P.C

Piinam

Sec. 366

Shiv Govind

Sec. 354

I.P.C

Sec. 561A

Criminal Procedure Code

Sec. 6 and 11

Sec. 56

IA Criminal Procedure Code

K umari Seema

Kamal Sinjh

Bed Rai

Sec. 366

I.P.C

High Court of Madhya Pradesh

I.P.C

Sec. 354

I.P.C

K.B.N.