Government Rules Hindu Temples 52mh

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> namely that “Dharma is the King of Kings” which means Dharma is supreme. He said that our Constitution which is being adopted by the Constituent Assembly occupies the supreme place as Dharma. This fundamental principle of our Constitution as declared by Dr. Radhakrishnan in the Constituent Assembly was reiterated by the Supreme Court of India in Keshavananda Bharati’s case – AIR 1973 SC 1461 which was decided by the largest bench of the Supreme Court, in which they declared that the supremacy of the Constitution was an element of basic structure of the Constitution. The author has clearly and rightly stated that our Constitutional equilibrium can be preserved only by obeying its provisions strictly. The survival of our democracy and the unity and integrity of the Nation depends upon the realization that constitutional morality is no less essential than constitutional legality, which in other words means ‘Dharma’ or righteousness. The author has rightly pointed out that the highest court of the Country, namely the Supreme Court is guided by the principle <<ÆoÁz á™|ÀooÁz \Æ:>> “Yatho Dharmasthatho Jayaha”. The author however expresses that in certain cases this principle has not been followed by the Supreme Court. It is well known that the Supreme Court has considered the fundamental rights incorporated in Articles 25 and 26 of the Constitution Government Rules Hindu Temples

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with reference to the autonomy of temple management by the temple authorities as also the extent of State control having due regard to the grounds specified in Article 25 and 26 of the Constitution, which read:25. Freedom of Conscience and free profession, practice and propagation of religion :- (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law: (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. 26. Freedom to manage religious affairs: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion;

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(c) to own and acquire movable and immovable property; and (d) to ister such property in accordance with law. The Supreme Court has considered all these matters thoroughly in the earliest case of Shirur Mutt. Subsequently in the case of Narayana Dixitulu relating to Tirupati temple case, the Supreme Court has explained the scope and ambit of the word ‘Dharma’ as follows: “The concept of ‘dharma’ has been explained by Justice M. Rama Jois in his Legal and Constitution History of India (Vol. I), at pp 1 to 4 quoting the following verse from Mahabharata:-

áÁ∫mÁtΩ á™|FnÆÁ“Ïá|™Áz| áÁ∫Æoz ü\Á: @ ÆoΩ ÀÆÁtΩ áÁ∫mÃÊÆÏMoÊ Ã á™|Fuouå≈YÆ: @@ Dharma sustains the society Dharma maintains the social order Dharma ensures well being and progress of Humanity Dharma is surely that which fulfills these objectives [Karna Parva Ch. 69, Verse-58] ………… Dharma embraces every type of righteous conduct covering every aspect of life essential for the sustenance and welfare of the individual and the society. [para 60] “The word Dharma or Hindu Dharma denotes upholding, ing, nourishing that which upholds, nourishes or s the stability of Government Rules Hindu Temples

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the society, maintaining social order and general well-being and progress of mankind; whatever conduces to the fulfillment of these objects is Dharma; it is Hindu dharma. [para 79] The Supreme Court has also elucidated the matter in the Chidambaram temple case [2014 (5) SCC 75]. If this is adhered to strictly and the Department works in a regulatory mode the staffing needs will stand rationalized. The author is right when he says that there is an urgent need to consider the matter relating to temples, temple servants by convening a meeting of representatives of Shrines, temples and religious leaders for evolving a new legal and organizational structure ensuring governance of temples and other religious places to protect our temple and religious institutions from Governmentization and commercialization, which may lead to destroying the purpose for which the temples have been established. The author recommends the Central Government to implement C.P. Ramaswamy Iyer Commission Report on temple istration. It should be noted that the author has considered the whole subject thoroughly. I had also an occasion to consider the subject of management of Hindu temples in the State of Karnataka. There is one matter for which paramount importance should be given by all those involved in the management or istration of temple which is referred to in Manu Smriti, which reads:-

Ãƒz| Á™zƒ ∆Á{YÁåÁÊ Es|∆Á{YÊ ú∫Ê À™woÊ @ ÆÁzDsz| ∆ÏuYu“| Ã ∆ÏuYå|™w˚Áu∫ ∆ÏuY: ∆ÏuY: @@ ‘Of all cleanliness, cleanliness in financial matters is of utmost importance. If a person who does not practice purity in financial dealings or matters cannot become clean by taking bath any number of times a day”. [Manu Smriti Ch. 5-506] Government Rules Hindu Temples

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The author of the book is the son of Dr. M.V. Soundararajan belonging to the family of hereditary archaks of the famous Sri Chilkur Balaji Venkateswara Swamy Temple of Telangana State who had played a major role in the movement to reform the temple system and also highlighting the pitiable state of the Archak community leading eventually to the amendment of the draconian Andhra Act. In this Foreword, I would like to point out that temple worship constitutes the National and moral strength of our Nation from several centuries. Though in various temples, God is worshipped in the form of idols male or female, giving innumerable names, the fundamental belief of the people of this Nation has been ‘God is one names are many’ as has been indicated in the following samskrit verse:

EÁN˛Á∆ÁnúuooÊ oÁzÆÊ ÆsÁ TXZuo ÃÁT∫™Ω @ Ãƒ|tzƒå™ÀN˛Á∫: Nz˛∆ƒÊ üuo TXZuo @@ Just as the rain water coming down to the earth from the sky reaches the same ocean, obeisance to God by any name, destination is the same - the one God by whatever name He/She is called. The above verse was quoted by Swami Vivekananda at his historic speech at Parliament of Religions at Chicago in 1893. Therefore, if the people have to live with peace and harmony, temple worship should be strengthened. The temples are also centers for providing ‘Dharmic’ and cultural education by means of bhajans and music devoted to God, Harikhatas, Upanyasas, Purana Shravana, dance and drama etc., to propagate our cultural and spiritual values. It is the archaks who conduct many of these activities. It is the manner in which they conduct various programmes and who personally maintain very good character and conduct, that attracts disciples in thousands and millions and develop and strengthen the faith in God.


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Therefore, there can be no two opinions on the questions that while ‘Bhakti’ of the people constitute the ‘shakti’ of a deity/idol in any temple, the power and reputation of the temple mainly depends upon the quality of the archaks. That is why, there is the famous saying:

EY|N˛ÀÆ üßÁƒzå u∆¬Á ßƒuo ∆ÊN˛∫: “By the merit of Archak, stone idol becomes Shiva” In this book, every effort has been made to ensure the improvement of temples to the satisfaction of people in general and devotees in particular. The author who hails from the family of devoted and reputed archaks has made every effort to highlight the essential needs of the temples. One thing which must be done is temple should be wholly freed from political interference and must follow the universal ideal of <<Ãƒz| ßƒãoÏ ÃÏuQå:>> ‘‘Sarve Bhavantu Sukhinaha’’. Required atmosphere should be created and maintained in every temple. Everyone who serves in a temple in any capacity whether as a Trustee or Manager or Executive Officer or archak or in any other capacity should totally eschew greed and selfishness. This will go a long way in eradicating many social and economic evils with which the Nation is afflicted with. Now a days, it is a matter of common knowledge that while temple visiting and worshipping is increasing, there is moral degradation. Therefore, not only the method of worship and faith of the people in God should be strengthened through various other activities through which real character building education is imparted to more and more people so that they develop dharma’ abiding nature in all their day to day activities. Then only we feel satisfied that we have achieved the last prayer made in every temple every day <<¬ÁzN˛ÁÀÃ™ÀoÁÀÃÏuQåÁz ßƒãoÏ>> ‘‘Lokah Samastah Sukhino Bhavantu’’. In sum, I say that this book is a valuable and everlasting contribution for preserving and protecting Dharma through strengthening Temple worship.


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PREFACE This publication is an analysis of the strange relationship between the Hindu Temples and the Secular State. This publication is based on my Dessertation submitted in Partial fulfillment of the Requirement for the award of research Degree of MASTER OF LAW (Constitutional Law) of Osmania University. The Spiritual purpose of a temple (Refer Appendix-II) is to increase devotion in devotees leading to their salvation which is the very purpose of life. The Spiritual purpose of the temples today has been sacrificed at the altar of commercialization more so in the Government controlled temples as they are now run with a materialistic purpose of increasing income from devotees. The Spiritual purpose of a temple can only be preserved by following the traditions, customs and usage through a spirit of devotion to the Almighty. The post-independence data shows that the Government, which has not been able to fight politicisation and corruption inherent in itself cannot be trusted to ister affairs of Hindu temples cleanly. The Courts in adjudication on the legislations allowing Governmental control have allowed this to happen by not recognizing the fundamental fact that whether it is a so called secular or a religious activity it needs to be done with devotion an essential and integral part of religion without which the spiritual purpose is lost. The Government being a secular entity cannot exhibit devotion, so the very concept of Government controlled temples means destruction of the spiritual purpose impacting purpose of life of millions of devotees protected under Art 21 read with Art 29(1), Art 25 and Art 26 of the Constitution. The destruction of the Spiritual purpose of a temple amounts to a conversion of the place of worship and would also be in violation of the provisions of the Places of Worship (Special Provisions Act, 1991) which mandates the preservation of the same as it existed prior to 1947. This book is an attempt for triggering introspection in all stake holders so that the Spiritual purpose of the temples continues to be protected for generations to come through suitable corrective steps at this crucial Government Rules Hindu Temples

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juncture in their history. The analysis and criticism of the past Supreme Court judgements and the forward looking actionable suggestions given in this book are to be taken in the spirit of the Hon’ble Court’s own observation in the matter of Rustom Cawasjee Cooper... vs Union of India (1970) 2 SCC 298 so that it enhances the confidence of devotees in the institution and the institution of justice gets close to its own ideal of <<ÆoÁz á™|ÀooÁz \Æ:>> (Yatho Dharmastatho Jayaha) . “There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in possession of all truth or hold that wherever others differ from then, it is so far error. No one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others.” When our Constitution was adopted in 1950, we thought that this country has made a historic entry into the world of Sovereign Nations with a written Constitution but the happiness was short lived with the Courts requiring to adjudicate on the various Legislations enacted to ister the Hindu temples…. In his classic book “We the People” Shri Nani Palkhivala ends the Chapter titled ‘States are not vassals of the Union’ with the following important quotation “We must get away from the fallacy of ‘the legal solubility of all problems’. In a Constitution what is left unsaid is as important as what is said. Our Constitutional equilibrium can be preserved only by Obedience to the Unenforceable. The survival of our democracy and the unity and integrity of the nation depend upon the realization that Constitutional morality is no less essential than Constitutional legality. Dharma (Righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it.” Further the Government Rules Hindu Temples

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book ends with the following thought provoking quotation “Certain ideals and values which open up a larger meaning to human existence will always be beyond the pale of law; and that is why a lawyer has to be well versed in other subjects if he desires to aim at excellence.” “The law the lawyers know about Is property and land; But why leaves are on the trees, And why the waves disturb the seas, Why honey is the food of bees, Why horses have such tender knees, Why winters come when rivers freeze, Why Faith is more than what one sees, And Hope survives the worst disease And Charity is more than these, They do not understand.” The Supreme Court of India is guided by the principle <<ÆoÁz á™|ÀooÁz \Æ:>> “Yatho Dharmastatho Jayaha”. It is a matter of deep regret that the Hon’ble Supreme Court has not adhered strictly to this principle while deciding most of the cases relating to the interpretation of Art 25 and Art 26 and in upholding the fundamental rights enshrined therein. Legislative excesses aimed at a particular religion brought out frequently and deliberately were allowed, with the result the Hindu Religion whose very foundation is the temple system is facing an existential crisis. There is an urgent need to relook at the Essential Practices Doctrine followed by the Hon’ble Supreme Court and suggestions relating to the same are given as an outcome of this study. It is important that the warning given by Shri Nani Palkhivala to the Supreme Court continues to ring in our ears “Under the pretext of social reform the State cannot reform a religion out of existence”. The sound of the bell of the Alampur temple (Yoga Narasimha Swamy Temple Alampur Mahabubnagar District now in Telangana State) on which Shri Bheemasena Chary, the Archaka of Alampur temple sacrificed his life should also continue to ring in our ears for ages to come. It is important when Legislations are challenged under Art 32 that the Supreme Court should confine itself to the Constitutionality of the provisions. If the Legislation is Unconstitutional it should be struck Government Rules Hindu Temples

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down. It is for the Legislature to cure the defects in its Law it is not the business of the Court under Art 32 to suggest remedies. While the entire case file of the A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) * (referred as Narayana case) Judgement is analyzed in the Appendix-I of the thesis this point was not stressed in the thesis as the Writ Petition 290 of 1998 of Telanagana Archaka Samakhya and connected Petitions were pending in the Supreme Court. An analysis of the case file of Writ Petition 290 of 1998 makes it clear that the Supreme Court in the Narayana Case put the cart before the horse by not ascertaining the veracity of the claim of the Petitioner Organization that the impugned 30/87 Andhra Pradesh Endowments Act would cause violation of the Fundamental Rights of Archaka community, serious damage to the Religion and cause large scale closure of low income temples before delivering the judgement. Instead, the Supreme Court delivered its Judgement upholding the Constitutionality of the 30/87 AP Endowments Act and constituting a Committee to the statement of the Petitioner Organization. What should have been done is for the Court to first the claim and then only deliver its Judgement on the Constitutionality of the Act. Subsequently, the Supreme Court appointed Committee upheld the contention of the Petitioner Organization that the Act would cause severe damage to low income temples and made certain recommendations which the Court recorded in its order in {(1997) 5 SCC 376} = AIR 1997 SC 3702 asking the Government to amend the Legislation since the Constitutionality was already upheld in Narayana judgement. Unfortunately the Government did not act on this for several years causing closure of several temples, great hardship to the Archaka Community leading to impoverishment of the families and driving several of them to penury and some to even commit the act of suicide as predicted by the Petitioner Organization to the Supreme Court in 1995 itself (Refer Appendix IV). The learned judges quoted many philosophers even people belonging to other religions but unfortunately there was not a single quotation in the Judgement of Sri Ramanuja who travelled length and breadth of this country and sacrificed his life to bring about reforms in the temple system. It is noteworthy that the case was pertaining to thousands of temples belonging to Sri Government Rules Hindu Temples

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Ramanuja’s Vishishtadwaita philosophy and Sri Madwacharya’s Dwaita philosophy and the Judges have quoted Adi Shankara’s Advaita philosophy that too out of context and used it as a basis of the judgement against the very principle of Articles 25 & 26 of the Constitution(refer Appendix-I). The Andhra Pradesh Government itself

acknowledged that the Archaka families became impoverished and temples virtually shut down and traditional rituals as per custom and usage discontinued in several village temples due to the operation of the draconian 30/87 Endowments Act in its Statement of Objects and Reasons to the Amendment Act 33 of 2007 also reproduced in the thesis (The submission to Justice Sri Krishna Committee titled “Temple System at Cross roads” by Dr. M.V. Soundararajan and referred to in the thesis gives a detailed historical of the above). The Supreme Court did not monitor the implementation of its orders and did not take up the hearing of WP 290 of 1998 and connected cases for a long time when the issues were brought to its notice. Finally on Dec 11th 2013 in response to the IA filed by the Petitioner Organization the Supreme Court after noting that the Act was already amended expressed its inability to get into the non-implementation aspect and also did not order any compensation to the affected Archaka families and the Religion in general as sought in the IA for the destruction wrought about due to the draconian 30/87 Endowments Act. The IA filed and the Supreme Court Order delivered on Dec 11th 2013 is included as Appendix-III in this book as an appropriate remedy for introspection and it is for the reader to judge whether justice has been delivered to the Archaka community by the Supreme Court as per the mandate of the Constitution and its own principle <<ÆoÁz á™|ÀooÁz \Æ:>> (Yatho Dharmastatho Jayaha). Art 39-A. of the Constitution of India mandates that “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”. Shri Nani Palkhivala had remarked in an interview that the Hon’ble President represents the Nation’s Dharma and he is the keeper of the Country’s conscience. It is Government Rules Hindu Temples

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thus not a mere coincidence1 but seemingly a divine message that on 11th Dec 2013 the Hon’ble President Shri Pranab Mukherjee who himself comes from the family of hereditary pujaris signed on the Andhra Pradesh Reorganization Bill initiating the process of formation of the Telangana State as an appropriate remedy. The retired Supreme Court Judge Justice Sri Krishna who was the chairman of the committee looking into the demand for Telangana State on 4.8.2010, when appraised of the Archaka and Temple issues in the form of a presentation by the Temples Protection Movement Convenor Dr. M.V. Soundararajan, remarked that in his opinion the principle <<ÆoÁz á™|ÀooÁz \Æ:>> (Yato Dharmastatho Jayaha) should be displayed in front of the Judges in the Supreme Court Courtroom as against the current practice of displaying it behind the Judges. Temple System today is at Cross Roads due to excessive and oppressive Legislations in the Southern States of Kerala, Tamil Nadu, Andhra Pradesh, and Karnataka to be followed shortly by Maharashtra, Rajasthan and Gujarat. Malistration by the Governmental Machinery due to draconian Legislations, which have given enormous powers to the Bureaucrats to undo or do anything in a Temple, be it Religious, or Secular activity is the sole cause of this situation. To set up an Institution and safeguard it, is an onerous task but, to destroy the same is very simple; Legislate on it. That would sound the death knell for these Religious Institutions. Through the Endowments Legislations, the Government feigns to bring in various regulatory measures over management and istration of Hindu Religious Institutions under the pretext that vast funds available to such Religious Institutions are ill managed and there is 1. i. Coincidentally the draconian 30/87 AP Endowments Act was ed without referring to a Select Committee as demanded by Religious leaders on 9.4.1987 exactly 20 Years hence on 9.4.2007 the amendment Act was referred to a Select Committee (Report Excerpts in Appendix III) resulting in amendment Act 33 of 2007. ii. Coincidentally the report of the Dharmika Parishad Committee on Service Issues of Temple Employees (excerpts in Appendix III) was delivered to the A.P. Government on 5.1.2011 the same day Justice Sri Krishna Committee report was made public.


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no uniform organisational framework for temples. The first question is, can Government step in to regulate the functioning of any Religious Institution? Haven’t we been guaranteed freedom of religion under Articles 25 and 26 of the Indian Constitution? Now, according to Article 26 :– Every religious group or denomination has right :– (i) To establish and maintain institutions for religious and charitable purposes; (ii) To manage its own affairs in matters of religion; (iii) To own and acquire movable and immovable property and (iv) To ister such property in accordance with law. Thus from Clause (ii) and (iv), we may deduce that the religious institution enjoys full autonomy in matters of ‘religion’ and at the same time the property to be managed by the institution or trust must be in accordance with law. In case of Ratilal v. State of Bombay (1954), the Apex Court has laid down that regulation by the State cannot interfere with things, which are essentially religious. That also implies that State can intervene in matters, which are not essentially religious. Also it may interfere if any religious practice offends against public health or morality. So, State may, if it feels, intervene in and regulate istrative and financial aspects of the institution. But at the same time, it may be noted that discriminating /managing /reforming /patronizing any religion is totally outside the parameters of Government jurisdiction. The Governmental control does not necessarily translate into better protection, transparent and efficient management. On the contrary, it is resulting into temples and mutts losing their properties. It cannot be denied that matters relating to spirituality and religion require the guidance of qualified religious persons. What competence and specialisation that government possesses for controlling every aspect of Hindu religious centers? Government mismanagement resulting in deliberate and irreversible liquidation of endowment lands clearly results in denying the temple, mutt or any other religious institution its vital functions.


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In strict legal sense Government might be able to justify its interference in management of temples or trusts for healthier utilization of large funds they possess. Unfortunately, it is not happening now. Hinduism itself is a Religious Denomination and granting autonomy to religious institutions within Hinduism calling them Hindu denominations is wrongly interpreting the Law. When such institutions enjoy full freedom, self-governance and autonomy due to considerations other than good governance cannot be allowed. This discrimination is simply unjustifiable- socially and also legally. This certainly can be labeled as gross misuse or abuse of State powers. The Karnataka High Court’s Division Bench said the same thing very vociferously. Discriminating within the Religion mentioning a term called Denominational Temples and giving them Autonomy and destroying thousands of other ones through Political Trust Boards is Unconstitutional. This is the very reason why the High Court struck down the 1997 Karnataka Endowments Act. Unfortunately in Andhra Pradesh, this type of Discrimination by the name of Denominational Temples is rampant. With the landmark Judgment given by the Supreme Court in the Chidambaram Sabhanayagar Nataraja Swamy Temple case [2014 (5) SCC 75], the State control of Hindu Religious Institutions has become a centre point for debate in istrative and Legal circles. The Central Government via concurrent list is duty bound to monitor the State Legislations and control them from becoming Unconstitutional. In this context it is pertinent to reiterate that a Central Legislation similar to that of Central Wakf Act of 2013 be enacted to solve all the problems faced by temples and other Hindu Religious institutions, thereby protecting the right to worship to all citizens of this country equally without any damage to the traditional and cultural values and practices. In the Wakf Act, encroachment of Wakf land is liable to criminal punishment. Such provisions are absent in the State Legislations for Hindu Religious institutions. As per the Wakf Act, Lands encroached by state agencies have to be immediately returned to Muthavallis or Wakf board. Nothing of


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this sort is existing in the Hindu religious endowments Act 30/87 of A.P or Telangana. Lakhs of acres of prime temple lands are under encroachment due to this laxity. As one of the suggestions of the Study it is proposed that similar to the Wakf Board the Central Government should ensure through the Central Endowments Act that a Dharmika Parishad is constituted in each State, which includes Religious Heads, Retired Judges of merit, Devotees of Repute, archakas and other stake holders to regulate the general Temple istration in each State. This is also a demand articulated by over 40 Peetadhipathis in the TTD Dharma Prachara Sadas in 2008 as recommended by Justice Jois Committee and already part of the Endowments Act of Andhra Pradesh, Karnataka and Telangana unfortunately not yet implemented due to strong opposition of the bureaucracy. As the Secular Government has miserably failed to protect and preserve the properties of the Religious Institutions it is an urgent need of the hour for having an autonomous body such as the Dharmika Parishad with all the powers of the Government under the Act to not only protect and preserve the properties of the Religious Institutions but also to augment the same. In the light of the Supreme Court judgement in the Chidambaram Temple Case all the appointments of Executive Officers/Managers in temples should be relooked at and the Officers should be recalled. This will not only improve the devotional atmosphere in temples bringing back peace and prosperity to the state, it will also improve the financial position of temples as the contribution towards Endowments istration Fund from which the salaries of the Executive Officers is paid can be substantially reduced from its current 12% levels allowing more funds with temples so that the devotee community can use the same for promoting devotional activities in the temple. It is apt to note here that in general the Orders and Observations of the Supreme Court are implemented overnight by the Endowments Departments if they are in favour of the State Control of Religious Denominations but the Orders and Observations which are in favour of more autonomy or for archaka


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welfare etc. are not implemented in the same spirit. There is always an undue delay like in the Andhra Pradesh scenario or non-implimentation at all or circumvention by amendments as was done in Tamil Nadu. There is an urgent need for the Supreme Court to monitor the implementation of its judgements and a beginning should be made with the Chidambaram Temple Judgement. Once the direction of the Hon’ble Supreme Court elucidated in the Chidambaram temple case [2014 (5) SCC 75] is adhered to strictly and the Department works in a regulatory mode the staffing needs will come down considerably; The salaries of the Departmental staff can then be met by the Government from the consolidated fund itself. The Endowments istration Fund, which has accumulated huge surplus over years can then be used to provide better emoluments to the Archakas and those office-holders in temples who are connected with the worship and internal religious affairs of the low income temples who are in an impoverished and pitiable state. The property rights of Hindu Religious Institutions under Article 26 are fundamental rights just as the property rights of religious institutions belonging to other religious denominations or sections thereof. While the fundamental property rights given to individual citizens under Article 19 (1) (f) is no longer there, the rights under Article 26 continues to guarantee property rights to religious denominations. Based on Hon’ble Supreme Court of India’s ruling that Wakf properties are entitled to rents at prevailing Market rates, properties of Hindu Temples and Mutts and endowments should also get such prevailing rates. The Government, which has been responsible for the istration of temple and endowment properties, should compensate the institutions for poor collection of rents and for unsustainable alienation of those properties. Lack of uniform organisational framework for temples and religious institutions is the matter of concern today and it is a countrywide phenomenon. The urgent need of the hour is convening an assembly of representatives of shrines, temples, Hindu community and religious leaders etc. for clearly defining the new legal and organizational framework ensuring Government Rules Hindu Temples

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community governance of temples and other religious places to protect our Temples and Religious institutions from Governmentalization and commercialisation. Another urgent need is to create conditions in each and every temple to practice priest hood as per customs and norms of that respective temple and ensure continuance of the hereditary family providing motivated and committed priests for generations to come as in the past. Every temple should have a Bhaktha Samajam and the most active and devout should be choosen in Trust Boards instead of Political Trust Boards. The time is ripe for the Central Government for implementing the C P Ramswamy Iyer Commission’s report on Temple istration which addresses many of the above points. The Commission spent 3 years meeting people from different sections in the entire length and breadth of the Country and submitted its report in 1965. This report, which was serialized in VAK a monthly magazine under the title ‘Forgotten Report’, is the panacea for eliminating the evils in our Temple system and saving the same from further destruction. It is pertinent to note here that even the Communist Chinese Government is also reviving religious institutions at war footing. I sincerely thank my college Principal and my research guide Dr. C.S.S. Prasad for providing valuable suggestions and for the study entitled “STATE CONTROL OF RELIGIOUS DENOMINATIONS – PROBLEMS AND PERSPECTIVES”. Dr. C.S.S. Prasad played a unique role of even softening the language used to mention certain conclusions arrived during the study which was a first of its kind. My sincere thanks to him. I sincerely thank all Professors and my college Librarian in particular, who were instrumental in bringing out my LLM Thesis on basis of which this book is written. I sincerely thank Justice Dr. M. Rama Jois, Former Chief Justice of Punjab and Haryana High Court, Former Governor of Jharkand and Bihar, Former Member of Parliament (Rajya Sabha) for writing a foreword which is thorough in highlighting the main spiritual purpose of


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this book ‘Protect Temples to Protect Dharma’. I sincerely thank Justice Sri Krishna Retired Judge of Supreme Court for granting permission to carry his quotation on the Supreme Court principle <<ÆoÁz á™|ÀooÁz \Æ:>> (Yatho Dharmastatho Jayaha) which was the motivation for the cover page of the book. I sincerely thank Sri Subodh Markandeya Senior Counsel Supreme Court for reviewing this book and providing valuable suggestions. I sincerely thank Sri T.R. Ramesh, President, Temple worshipers Society for his valuable suggestions. I would like to specially mention the role of my father Dr. M.V. Soundararajan, M.Com., LL.B., Ph.D., Former Registrar, Osmania University who was the force behind me to pursue my Master of Law. My mother Vasumathi, silent, optimistic, religious had a prayer for me always. A sentence for her is too little I can do. My elder brother Lakshminarasimhan who was the reference manual for Agama Samhithas and my younger brother Murali for his dedicated Legal research which helped me in this publication. Mr. Sridhar for DTP and print corrections. I thank my friends, colleagues and others for their to complete the research study. A special thanks is due for my wife Sudha who stood by me in all my sudden changes in life. This book belongs to her as well.... -0-0-0-


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CHAPTER-1

INTRODUCTION 1.1

BACKGROUND

Religion is deeply rooted in man and his blood since many centuries ago. Still Religion has been dominating man and his way of thinking and behaviour. Within the framework of human rights, religion is considered as an inherent and individual right of the man. Therefore religion is a very personal matter in man and his life. Within the Eastern Philosophical traditions we can find a great thinker and the religious man who was not limited to the East and the one who spread that new ideal of the religion to the Western world. He is Swami Vivekananda. He was born in 1863 and expired in 1902. Within that short period he did excellent contribution to the tradition of the Vedântic 1 religion. To Swami Vivekananda, Religion is not just a talk and doctrines or theories, nor is it sectarianism. Religion cannot live in sects and societies. It is a relationship between soul and God. He explains that religion does not consist in erecting temples or building churches or attending public worship. As well as it cannot be found in the books or in words or in lectures or in organizations. Religion consists on realization. Religion does not consist in subscribing to a particular creed or faith but in spiritual realization. Therefore, spiritual realization is religion. He said that “I shall try to bring before you the Hindu theory that religions do not come from without, but from within. It is my belief that religious thought is in man’s very constitution, so much so that it is impossible for him to give up religion until he can give up his mind and body, until he can give up his thought and life.”

1 What Religion is; In the Words of Swami Vivekananda, Adviata Ashrama, Kolkata,1972, p.20


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Religion is inseparable with man and his life. Another thing is that, it is within man. Each and every one should understand God within their soul through self-realization. Religion is the manifestation of the divinity already within man. Therefore, it is not necessary to have doctrines or dogmas and intellectual argumentation. It is realization in the heart of our hearts. It is touching God; it is feeling God and realizing that I am a spirit in relation 2 with the universal spirit and all its great manifestations. India is a country of religions. There exist multifarious religious groups in the country and the constitution stands for secular state of India and declares India 3 as a “Sovereign, Socialist, Secular, Democratic, Republic.” There is no staterecognized church or religion. Several fundamental rights guarantee a freedom of worship and religion as well as prohibit discrimination on the ground of religion. No one is disabled to hold any office on the ground of religion. There is only one electoral roll on which are borne the names of all those who are qualified to vote under the law. In the words of Chief Justice Gajendragadkar”. The essential basis of the Indian constitution is that all citizens are equal and 4 this basic equality guaranteed by Art. 14 obviously proclaims that the religion of a citizen is entirely irrelevant in the matter of his fundamental rights. The state does not owe loyalty to any particular religion as such; it gives equal freedom for all religions and holds that the religion of the citizen has nothing to do in the matter of dispensation of Justice. That is the essential characteristic of secularism which is writ large in all the provisions of the Indian Constitution”, and further “though the Indian Constitution is secular and does not interfere with religious freedom, it does not allow religion to impinge, adversely on the secular rights of citizens or the power of the state to regulate socioeconomic relations.” 2 The Complete Works of Swami Vivekananda , Advaita Asrahma, Kollkata,1994, Vol 3,p. 01Jyotirmayananda, 3 PREAMBLE OF INDIAN CONSTITUTION;-WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.......

4. Equality before law : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth


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Pakistan is a theocratic state. It calls itself an Islamic state. Islam is the official religion. Muslims are the favored community. They alone can hold high or even low offices. Though there were about a crore of Hindus in what was then East Pakistan, yet they were regarded as second-class citizens and a permanent tirade was kept up against them. In Pakistan, Hindus in such high places cannot even be imagined. Pakistan’s constitution provides that the head of the state must be a Muslim. This is communalism, pure and simple. Article 14 prohibits discrimination on grounds of religion, race, caste etc. Articles 5 25 to 27 confer certain rights relating to freedom of religion on all persons in India. These rights are not confined merely to citizens. The religious freedom guaranteed by these constitutional provisions extends not only to individuals but even to religious groups. India being a secular state, there is no state or preferred religion as such and all religions enjoy the same constitutional protection without any favor or discrimination. Article 25(1) guarantees to every person, subject to public order, health, morality and other provisions relating to the 5. 25. Freedom of conscience and free profession, practice and propagation of religion.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 26. Freedom to manage religious affairs.Subject to public order, morality and health, every religious denomination or any section thereof shall have the right(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to ister such property in accordance with law. 27. Freedom as to payment of taxes for promotion of any particular religion.No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.


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Fundamental Rights, the freedom of conscience and right to freely profess, practice and propagate religion. 1.1.2 RELIGION AND THE STATE It is a puzzling question as to, why countries have a state religion? The answer perhaps lies with Adam Smith who, keeping market dynamics in mind, argued that having a state religion is to accord a monopoly position to a favored religion, using the two omnipotent weapons that states use to enforce any policy: creating entry barriers and delivering subsidies. The result, he concluded, was that the quality of service and religious participation fall. Two centuries later, as Robert J. Barro and Rachel M. Mc Cleary of Harvard observe in their paper, ‘Which Countries Have State Religions?’, of the “188 independent countries in 2000, 72 had no state religion in the years 2000, 1970, and 1900; 58 had a state religion at all three dates; and 58 had some kind of transition”. As we all know, economists have a not so advised habit of breaking down things into a rationalincentive paradigm as people are rational and driven by incentives. Apply that to the study of religion and you’re studying morality from a factual prism, something like an ideal being clouded by facts. In the case of state religion, what’s more interesting is the issue of choice. This decision is based on a “political calculus that involves interactions between 6 the government and the religious sector”. The incentive: for the religion, monopoly power; for the state, control over the religious sector. There’s product differentiation too. As they note communist countries and dictatorships avoid state religion to weaken the power of organised groups that would compete with the state, but in theocracies like Iran, the maintenance of an official state religion becomes part of the government’s plan for controlling society. This is only one of the many reasons why we need to reject the institution of State owned religion as its very conception is flawed. How, for instance, can any book, any prophet, any idea be so overwhelmingly powerful, so universally applicable or acceptable to each and every one of the earth’s 6,000,000,000 citizens that its evangelization becomes an industry that the state wants to get 6. State religion? No” Gautam Chikermane , Gautam Chikermane, Indian Express, 2006)


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its grubby fingers in? Believers should thank their gods that India does not have a state religion. But finally, it’s up to them to keep their religious leaders away from their beliefs. 1.2 REASON FOR THE STUDY The reason for the selection of this topic of study can be identified as follows. Though Religion is an essential part of life for 99.9% of our population, its penetration in human life being unquestionable, the control of the same by an external body also remains unfathomed. What should be the level of control? Should there be any control or not? These are the questions we would try to answer in this study. The Historical Literature analysis through Doctrinal Research method is the only way we can go about doing the study. Other methods of sampling or pilot study will not work in this set up as Religious beliefs are demographically varied and distinct with each other individual and that is why we rely mostly on the available material in the form of Published books, Delivered Judgments of the Supreme Court and High Courts, ancient scriptures and above all news paper and internet resources. The state is not, however, prevented from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated, with religious practices. The state is empowered to regulate secular activities associated with religious practices. Art, 26 lays down that subject to public order, morality and health, every religious denomination or a section of it has the right — (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property, and (d) to ister such property in accordance with law. As a person belonging to the Service of Deity as an Archaka and with an inside view of how devastating the decisions of the State and the Supreme Court would be on the future of the Temple system, It was felt that this topic was the best to do justice to the LLM Thesis. 1.3 REVIEW OF EXISTING LITERATURE : A few books by historians and ethnographers helped in identifying the sources of data for the study. Of the material available a few scholarly works examine Government Rules Hindu Temples

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different perspectives on secularism vis-à-vis state. Some examine the conditions under which the state intervenes in the affairs of religious institutions. The available literature is divided into two, namely the development of temple worship and its istration, and the state intervention in the management of temples. State intervention in the management of temples is classified into state and management of temples, classification of temples and contribution to the state economy. A brief overview of the books referred is as follows…. 1) Development of temple worship and istration. Rao (1988) in his book Indian Heritage and Culture presents a brief, yet vivid of Indian heritage and culture. 2) Unpublished Ph.D. thesis of Narayanan M.G.S (1969) - A Study on Chera Dynasty on the history of Chera dynasty which ruled central Kerala for three centuries is an important scholarly research work. The growth of temples under the colonial rule described by the author suggests the need for an examination of whether there was an attempt to standardize the practices of worship in temples. 3) Madhavan P (1985) Xhethra Chaithanya Rahasyam, refers to Thantra Samuchiyam a monumental Sanskrit work which describes the temple rituals to be observed in detail. 4) C.J. Fuller (2003) The Renewal of the Priesthood: modernity and traditionalism in a south Indian temple, discusses state intervention in temple istration. He observes that in pre-colonial India the ruler’s relationship with the temples in his kingdom was vital to his power. Fuller cites the case of Madurai Meenakshi Temple, Tamil Nadu, where from the early 16th century onwards the king was the patron and protector. Fuller discusses the changes that have taken place in the management practices of Meenakshi 5) Stella Kramarisch (1986) in her book The Hindu Temple describes the rituals and architecture of temples. The author has divided the temple into two distinct areas for the purpose of describing the design of architecture in temples.


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6) Paripoornan Commission Report (Paripoornan; 2004) with regard to the selection process of priests (Shantis) of temples in Sabarimala, recommended that the selection of the priests should be entrusted to a five member committee comprising a judicial officer, Dewaswom Commissioner and the Thantris to ensure transparency in the selection process. 7) Legislation for Temple Destruction by Dr M V Soundararajan which analyses the devastation of Challa Kondiah legislation (30/87) Endowments Act on temples in Andhra Pradesh. 8) Religion under Bureaucracy by Franklin A. Presler on the Policy and istration of Hindu Temples. 9) Hindu Law of Religious and Charitable Trusts by B K Mukherjea which is a Lecture series on Hindu Law of Religious and Charitable Trusts. 10) Temple System at Cross Roads by Dr M V Soundararajan, a submission to Justice Srikrishna Committee which is the road map for Temples in the event of bifurcation of the Andhra Pradesh State or Unified, what should be the future of Temples! 1.3.1. LIMITATIONS OF THE PRESENT STUDY? Since our country is multi- religious and multi- cultural, it would be beyond the purview of the scope of the study if it were to focus on all the Religious Denominations. Hence the study is confined to focus only on Hindu Religious Institutions. No law as such exists for the control of Christian Institutions, But the State lays emphasis only on exercising control on the Hindu Religious Institutions and hence this study focuses exclusively on the State and the Hindu Religious Denominations. The type of control by the Sate over Hindu religious denomination is either total or partial. We do not have State Control in respect to the other Religions like Churches or Wakfs as they have freedom to ister the Institutions by their respective Communities. Even though the Wakf Act was enacted by the Central Government it limits itself to the regulative role without assuming Ownership role. Government Rules Hindu Temples

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The views expressed above are based on readily accessible material, mainly in English and Sanskrit and largely derived from the internet. No visits were undertaken for the purpose of the studies. Direct statistical comparisons between each State are difficult because the statistics are compiled by various bodies in different ways and at different times. Any figures quoted are for indicative purposes to provide an approximation of scale, or to illustrate a general trend. Figures should not be regarded as definitive. Whilst the selected States for Comparison have distinctive Religion-state relationships and it appears that all are facing significant challenges to their ecclesiastical heritage through demographic change. 1.4 NEED FOR THE STUDY In these present circumstances, there has been a need to undertake this Study which has not been done before and is the need of the hour to academically analyze and lay out how the policies by the subsequent Governments entered the fabric of Religion and its Institutions and thereby changed the same…. This study focuses on a central institution of south Indian religion, the Hindu temple, and explores its relation to the state. This institutional approach permits concentration on relatively stable features of the religion-politics relation, as distinguished from the more fleeting movements of political parties and public opinion, and identification of underlying, structural dimensions. It also provides an unusual position from which to view the activities of political parties, bureaucracy and interest groups, and to examine the effects on the political system of ideologies, patronage systems and legal structures related to religion. There is almost no scholarly research pertaining to the relationship between the state government and the management of Hindu temples per se. The rules governing ability and transparency in the Hindu temples have not been researched at all although temples work in the public domain and are governed by public laws under the constitution. 1.5 HYPOTHESES The following hypotheses are proposed for verification : 1. The State Control of Religious Institutions is violative of the freedoms provided in Articles 25, 26 and 27. to the religious denominations. Government Rules Hindu Temples

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2. The extensive Legislative control has reduced the economic and physical personality of the Hindu Religious Institutions. 3. The role of Judiciary in protecting the Identity of religious institution has not been satisfactory. 1.6 METHODOLOGY OF THE STUDY To understand the concept and issues involved in the relationship between the state and the management of temples, Doctrinal Research Methodology has been adopted. A survey of relevant literature was conducted. Books written by scholars (Bibliography mentioned at the end of which a few books have been elaborated here) were helpful in identifying the evolution of Hindu temple worship and its istration. 1.7 SCHEME OF THE STUDY The Present Study is divided into six chapters. The First Chapter deals with Introduction apart from elucidating the need for the present study and the Hypotheses, the chapter concludes with the methodology employed for the study and schematic divisions of the study. The Second Chapter brings to light the growth of Religious Denominations before and after 19th Century and how the State and the Judiciary adjudicated in those days when there existed no law for Religious Denominations. The Third Chapter deals with evolutionary development of State Control with Historical overviews. The Fourth Chapter deals with role of Legislature in enactment of different laws for the control of religious denominations and highlights the experience of Tamil Nadu and Andhra Pradesh. The Fifth Chapter deals with the Judiciary and the role played in protecting the interest of public as well as religious institutions in this crucial juncture. The Sixth Chapter narrates the development of state and its control on religious denominations with emphasis on problems and issues involved. Further comprehensive conclusions drawn on basis of the study has been enunciated. Government Rules Hindu Temples

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Hypotheses proposed are verified and this chapter sums up with suggestions for the improvement of the existing system. Within the time limitations of the project it is only possible to provide a brief and partial overview of Religion-state relationships and related heritage issues in each of the selected States for comparison and we concentrated on Tamil Nadu and Andhra Pradesh. Further, It is the objective of this study to analyze critically the case file of the failed Andhra Pradesh experiment on temple reforms initiated through Act 30 of 1987 Legislation which was upheld by the Supreme Court using the essential practices doctrine in A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) * (referred as Narayana case) going against the core principles enunciated in the Agamas which govern all aspects with regards to temples. This analysis has been provided as an Appendix-I. It is further the objective of this research to demonstrate practically based on the failed Andhra Pradesh experiment on temple reform on how fallible the essential practices doctrine could be and how devastating its effect on the rights of the religious denomination and a need for complete rethink of this doctrine; so that certain safeguards are put in place to ensure that the Judiciary which is the gate keeper of the rights of the religious denominations will in future more carefully interpret the protection provided under Art 29(1), Art 21, Art 25 and Art 26 and protect the religion, culture, tradition and heritage of the Religious denominations from excesses of the Legislatures.

* Appendix-I elaborates this case.


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CHAPTER - 2

RELIGIOUS INSTITUTIONS – EVOLUTION RELIGIOUS AND charitable trusts are found to exist, in some shape or other, in almost all the civilized countries and their origin can be traced primarily to the instincts of piety and benevolence which are implanted in human nature. The form and nature of these trusts undoubtedly differ according to the spiritual and moral ideas of different nations, and even among the same people, the ideas are seen to vary often to a considerable extent at different stages of their religious and political history. Thus Imperial Rome under the Christian Emperors was dissimilar in many respects to Pagan Rome, and the religious and charitable institutions in England undoubtedly took a different shape when she abjured Catholicism and became Protestant. The popular Hindu religion of modern times is not the same as the religion of the Vedas though the latter are still held to be the ultimate source and authority of all that is held sacred by the Hindus. In course of its development the Hindu religion did undergo several changes, which reacted on the social system and introduced corresponding changes in the social and religious institutions. But whatever changes were brought about by time cannot be disputed that they were sometimes of a revolutionary character the fundamental moral and religious ideas of the Hindus which lie at the root of their religious and charitable institutions, remained substantially the same; and the system that we see around us can be said to be an evolutionary product of the spirit and genius of the people ing through different phases of their cultural development. 2.1.1 LACK OF LAW FOR REGULATION It strikes one as somewhat anomalous that notwithstanding the existence of richly endowed Hindu temples and religious institutions all over India, the subject of endowment should receive a most Government Rules Hindu Temples

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niggardly treatment in the hands of the Smriti writers. It is not one of the eighteen topics of litigation into which the sphere of substantive law is divided by Hindu jurists and commentators ever since the days of Manu1. There is no statement of law, directly on the subject, in any of the Smriti works. Stray ages having only an incidental bearing on the matter occur here and there in the midst of dissertations on other topics, and no workable law could be constructed on the basis of scanty materials like these. Some of the later commentators, indeed, have paid a little more attention to the subject than what their predecessors did and they have drawn largely on the Pouranic literature ; but what they talk of is not law but religion and rituals and it is often difficult to extricate any legal rule from a mass of religious rites and ceremonies. The meagerness of original authorities on the subject of endowments did not escape the notice of early English writers on Hindu Law, and Sir T. Strange in his chapter of “Property” observed as follows— ”Of the property of religious institutions, and of that partaking of Jura Regalia something will be incidentally said in parts of this work in which a reference to them connects with other subjects of discussion ; materials concerning them, that are accessible, being too scanty to it of any extended investigation”. One explanation for this somewhat unusual state of affairs was suggested by Sir Gurudas Banerjee, J. in course of his judgment in Girijanand v. Sailffjananda* The learned Judge expressed the opinion that “the high reputation for purity and piety of character justly enjoyed for the most part by the priestly class in ancient India, who had the management of the shrines was deemed a sufficient safeguard against breach of duty so as to render detailed rules to regulate their conduct unnecessary.” I would be inclined to think that in such matters, a good deal was left to be regulated by unwritten laws or usages, whose authority and binding force are regarded by orthodox Hindus as scarcely inferior to written Smriti texts. Manu lays it down as one of the duties of the King, to enquire into the particular Government Rules Hindu Temples

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laws and usages of classes, communities and societies, and adhere to them, if they are not repugnant to the laws of God. Having regard to the extreme conservatism of Hindu society it could be fairly expected that the people who were in charge of istering the benefactions did not go against the traditions and usages which grew up in respect of the same. It is also not unlikely that the pious donors, who only hoped to acquire spiritual merit by making gifts, were generally indifferent as to the further use and employment of the properties given, and it was only in extreme cases when the waste or malistration was of a scandalous character that the interference of the ruling authority was sought for. 2.1.2 ANCIENT WRITINGS ON HINDU LAW As the materials to be found in the writings of the Hindu Law givers on the subject of religious and charitable trusts are extremely scanty, it goes without saying that the law which is found istered today in India, is to a large extent the creation of Judges. Ever since the establishment of British Courts in India, an array of eminent Judges both English and Indian brought their legal learning and strong common sense to bear upon this delicate and somewhat 2 abstruse branch of Hindu law , and attempted to evolve out of the few cryptic writings of ancient Hindu sages, a sufficiently welldeveloped body of rules and principles. This development was in a sense necessitated by the demands of the time and the prevalent social and moral ideas, and it cannot be denied that it was influenced to a great extent by the notions and principles of English law. How far this judge-made law fits in and harmonises with the original Hindu ideas, let us attempt to examine as we proceed with the thesis the fundamental ideas of religious and charitable trusts as they were conceived by the Hindus, from the standpoint of modern Jurisprudence. For this purpose it would be necessary to study the nature and history of Hindu religious and charitable institutions from 2. Iyer on Hindu and Mahomedan, Endowments pp. 23-25 (2nd Edn.) Government Rules Hindu Temples

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the earliest times downwards and to examine, at the same time, the scattered sayings of Hindu sages and commentators, with a view to discover, if possible, from what appears to be merely moral precepts or discussions of ritualistic observances, germs of true legal ideas. 2.2 THE MEANING OF RELIGIOUS AND CHARITABLE TRUSTS; But before we proceed with this investigation we should try to have a clear idea as to what is meant by the expression “Religious and charitable trusts” in its proper juristic sense. For this purpose a little excursion into the fields of English and Roman law might be necessary. A trust would be denominated a religious or charitable trust, if it is created for purposes of religion or charity. Two things therefore require to be considered in this connection viz. (1) what are religious and charitable purposes? And (2) what is a trust? Now religion is absolutely a matter of faith with individuals or 3 communities, and it is not necessarily theistic (e.g. Buddhism) . All that we understand by religious purpose is that the purpose or object is to secure the spiritual well-being of a person or persons according to the tenets of the particular religion which he or they believe in. This may imply belief in a future state of existence where a man reaps the fruits of his, pious acts done in this world, and it may be connected with the idea of atonement for past errors of a man and that of making peace with his Maker. By charity on the other hand is meant benevolence, and in its wide and popular sense it comprehends all forms of benefit, physical, intellectual, moral or religious bestowed upon persons who are in need of them.’ You will see later on that in English law the word ‘Charity’ has a technical meaning, and whether a purpose is charitable or not has got to be ascertained with reference to the preamble to the well-known statute of Elizabeth (St. 43 Eliza. Ch. IV). The statute 3. Vide Kern’s Manual of Buddhism p.74 Government Rules Hindu Temples

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itself has been repealed with the exception of the preamble which still remains. In England religious trust forms part of and is included in charitable trust, which is synonymous with public trust. You will also find that there are statutes in England like the Mortmain and Charitable Uses Acts of 1888 and 1891, which impose restrictions of various sorts upon dedication of property to charitable uses. These things however are purely local and accidental and cannot be regarded as an essential part of the juristic conception of religion or charity. Each system of law has its peculiarities depending upon its particular social conventions, its political necessities and religious usages, and Hindu law also has its own characteristics as we shall see presently. Let us now come to the other point and see what is meant by a ‘trust’. The conception of ‘trust’ in its technical sense was devised by the Chancery Courts in England, which as Courts of Conscience attempted to supply the deficiencies of the English Common Law, by istering what were known as principles of equity and natural justice. These principles were imported to a large extent from the Roman Civil law, and the procedure adopted by the Equity Courts 4 was modelled on that of the Ecclesiastical tribunals, the principal feature being the writ of Subpoena by which an unscrupulous defendant who could not be touched in the common law courts was compelled to appear before an Equity Judge and made to carry out his orders, the proceeding being entirely one in personam. Lewin in his well-known treatise on the Law of Trusts defines Trust’ to be a “confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, for which cestui que trust has no remedy but by Subpoena in the 5 Chancery” . This definition is not a happy one, and it has been criticised by many later writers on the subject including Underbill and Maitland. On the face of it, the definition is inadequate for it is applicable to real estates only, whereas there can be trust of personal 4. Lewin’s Law of Trust p.11 5. Vide maitland Lectures on Equity, Lecture IV, p.44


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property as well. The expression “some other” is positively misleading as the settlor himself can be one of the trustees, and moreover it is not a correct statement of law as it stands at present, the Court of Chancery no longer existing as a separate court in England. Justice Story defines a trust “to be an equitable right, title or interest 6 in property real or personal distinct from the legal ownership thereof”.” This undoubtedly supplies one deficiency in Lewin’s definition, but really it does not define trust at all; what it describes is the estate or interest of the person in whose favour a trust is created. 2.3

THE PROPERTIES OF INSTITUTIONS:-

Modern English writers on the law of Trusts do not however lay stress on the trustee having a “legal estate” or on his being the owner of the trust property. It is enough according to modern writers to constitute a person a trustee, if he has control over the trust property or can exercise any powers in respect of the same, and there is a duty on him to hold the property or exercise the powers for the benefit of other persons or for the accomplishment of some particular 7 purpose.”’ Thus in Halsbury’s Laws of England” a trust has been defined as a confidence reposed in a person with respect to property of which he has possession or over which he can exercise a power, to the intent that he may hold the property or exercise the power for the benefit of some other person or object. You will see that the “Trust” in its origin was a highly artificial thing which had its foundation upon a dual system of law and a dual system of property which came into existence in England under peculiar political and historical conditions. You could not possibly expect to find a trust in this form in the Hindu system. But the existence of dual ownership is not an essential ingredient in the conception of trust and if you take “Trust” in its broad and general sense as signifying a fiduciary 6. Story’s Equity Jurisprudence 2nd Edn.p.960.

7. Halsbury 2nd Edn. Vol.33 p.87. Government Rules Hindu Temples

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relation under which a person in possession of or having control over any property is bound to use that property for the benefit of certain persons, or specified objects, obviously there are trusts in Hindu Law. A shebait in charge of a temple, or a mahant having control over a religious institution, would be a trustee in this general sense. As per English lawyers, it is not essential that the trustee should be the owner of the trust estate, and the Judicature Act by abolishing the dual courts in England has really made the law much simpler and less technical than what it was before. If we ignore the distinction between legal and equitable estates which is an artificial distinction having its origin in purely historical circumstances, there will be only one kind of interest which is the real or beneficial interest in a property; and in a trust property created for charitable purposes, the beneficial ownership may be regarded as vested in the human beneficiaries, or where the beneficiaries are indeterminate, in the religious or charitable purpose, or in the institution or foundation itself conceived of as a juristic entity and capable of bearing rights and duties. 2.3.1 THE OWNERSHIP OF THE TRUSTS! Whoever may be regarded as the beneficial owner in law, the trustee who is in possession of the trust property, and is entrusted with the duty of applying it for particular purposes, cannot be its owner, and the obligation can be enforced against him in such manner as the law lays down. The ownership of the trustee in English law is only a nominal or formal ownership and even if this form is discarded it is still possible to conceive of a jural relation having all the essential ingredients of a trust proper. A study of historical jurisprudence will convince us that different legal forms have been resorted to by different nations and even by the same people at different stages of their history, for the purpose of giving shape and effect to particular legal ideas, and the mistake


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we so often commit is to think that a particular legal form with which we are familiar at the present day is so self-evident and natural that it must have suggested itself to all other people and at all ages. No ancient nation could boast of a better and more perfect system of law than the Romans, and for the purpose of appreciating the Hindu conception of religious and charitable trust, it would be worthwhile enquiring what legal forms were adopted by the Roman lawyers for the purpose of giving effect to their ideas on this subject. 2.3.2 DEDICATION OF TRUST PROPERTIES In Roman8 law properties dedicated to gods formed a species of res they were res extra commercium and lay outside the pale of private law altogether. They were not the objects of ownership or transfer, and reaction could lie in respect of them in a court of law. They were protected by the Roman Law statutes through some forms of istrative procedure. As Sohm observes in his Institutes of Roman Law, “In regard to res sacrae the idea was not that they were the private property of a Juristic person, e.g., the gods or some religious institution, but rather they were excluded from all private ownership”. In fact, as the same writer points out, the conception of a Juristic person did not make its appearance in early Roman Law. The old Jus Privatum was exclusively a law for the individual, and none but natural persons could be the bearer of legal rights and obligations. There were societies indeed like Collegia or Sodalitates but they could not hold property as juristic persons. The properties intended for such societies had to be formally vested in an individual and treated as such. The only juristic person recognised in early Roman Law was the State or Popular Romanus, but it was a public and not a private person, and all its transactions were governed not by private law but by Jus Publicum. The idea of a corporate body as a new subject of rights and duties distinct from all its was fully recognised in Rome during Government Rules Hindu Temples

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the Imperial period. Towards the end of the Republic a system of municipal governments was introduced in Rome, and the municipalities were conceived of as legal persons competent to hold their properties like private persons. After the example of Municipalities other lawful societies were also recognised to have proprietary capacity for purposes of law. Finally the Roman State in the form of the “Fiscus” came to be regarded as a sort of private Juristic person though it enjoyed many privileges which were denied to ordinary corporate bodies. What is relevant for our present purpose is that with the growth of the idea of Juristic personality in Imperial Rome, important developments took place with regard to the law relating to religious and charitable endowments. 2.4 ROMAN LAW AND ITS IMPACT ON CHURCH In the early Empire, we find that certain specified deities such as Tarpeian9 or Capitoline Jupiter, Ephesian Diana and Gallic Mars, to whom the privilege had been specially given by a Senatus Consultum or Imperial constitution, might be instituted heirs under a testament.” It is difficult to say who was thought to be the actual owner of the property. Buckland thinks that it was probably the State, as the istration was carried on by Magistrates and not by the temple priests. After adoption of Christianity by the State, Emperor Constantine authorised gifts by will to the Christian church. All church properties were contemplated as belonging to the church as a whole, though the ownership was a sort of Eminent domain and in each community the church property was regarded as a separate Patrimony. It was istered by the Bishop and economus for the ownership was supposed to reside in the entire religious group. 8

“Under the Christian Emperor” , says Rattigan, “the institution of a saint or the deity as heir was held to vest the property in the church; and Justinian (530 A.D.) decided that the institution of Jesus Christ as heir; was to be understood to indicate the church of the testator’s 8. Rattigan on The Roman Law of Persons p. 214. Government Rules Hindu Temples

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domicile ; of an archangel or martyr, the church dedicated to such saint in the testator’s place of residence, and if no such church existed in the latter place, then to the church so dedicated in the metropolis of the province ; if there be many so dedicated, the one to which the testator-had shown preference in his life time, and in default of such the poorer one received the benefit of such bequest.” Thus the church was a Juristic person, par excellence, under the Christian Emperors, and as Christianity was the religion of the State the church was really a State Institution. The theory of Roman Law was that the privileges of a juristic person could be enjoyed by State Institutions, and by those private institutions only to which recognition was accorded by the State. Property given or left to a church by a private individual to be applied for charitable purposes e.g. for hospitals, alms houses, orphanages etc., vested ordinarily in the church of the place where the donor resided, though in theory it belonged to the church as a whole ; and if the endowment was of a permanent character the Bishop set up an establishment for proper management of the same, A further step was taken in the development of the law on the subject when charitable institutions were allowed to be made by private individuals without reference to the church. 10

“During the later Empire’ says Sohm “from the fifth century onwards foundations created by private individuals came to be recognised as foundations in the true legal sense, but only if they took the form of Pia Causa i.e., were devoted to ‘pious uses’ only, in short if they were charitable institutions. Whenever a person dedicated property whether by gift interviewers or by will in favour of the poor or the sick, or prisoners or orphans, or aged people he thereby created ipso facto a new subject of legal rights the poor house, the hospital and so forth and the dedicated property became the sole property of the new subject it became the property of the new Juristic person whom the founder had called into being. 10. Vide Sohm’s Institute of Roman Law, 2nd Edn. pp.195-199. Government Rules Hindu Temples

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2.5

HINDU ASCETICS AND MUTTS

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The practice of establishing Mutts or centres of theological learning, the heads of which were pious ascetics, was followed by other religious teachers who came after Sankara. Ramanuja is one of such great teachers who was born in the middle of the eleventh century A.C. and was the founder of the religious sect known as Sri Vaishnavism, which counts its adherents by thousands at the present day. The philosophical theory propounded by Ramanuja is known as Visistadwaita or qualified nondualism as distinguished from pure nondualism of Sankara. According to Sankara, there is no other reality except God and consequently the world or creation is nothing but an illusion. Ramanuja on the other hand tried to establish that God and His creation together constitute one integral whole and in that sense alone the creation is not different from the creator. Ramanuja advocated the worship of Narayana or Vishnu as the only symbol of God. He is said to have established seven hundred mutts of which a few only remain at the present day. One of them is at Melkottai which is called the Badarikashrama of the south. Ramananda, reputed, though not correctly, to be one of the followers of Ramanuja, founded a different school of Vaishnavism. His followers worshipped Ramachandra as an incarnation of Vishnu and are known by the name of Ramaths. They abound in northern India and there are several Mutts of celebrity belonging to this order at Benares. Madhwa was another religious teacher who founded the sect named after him. This is a purely dualistic school which recognises an eternal distinction between man and his creator. The eight mutts at Udipi where Madhwa lived and which are all centres of Dwaita system of thought were ittedly established by him. Among other important Vaishnava sects we might mention those founded by Nimbarka, Ballavacharya and Srichaitanya Mahapravu of Bengal. 11. Vide J.C. Ghosh’s Law of Endowment p. 248 12. See Hindu and Mahommedan Endowment by Ganpati Iyyer p.249. Government Rules Hindu Temples

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CHAPTER - 3 3.1 THE NEED OF STATE REGULATION The Courts of India as well as of the Privy Council have held uniformly that the Hindu idol is a juristic person in whom the dedicated property vests. “A Hindu idol”, the Judicial Committee observed in one of its recent pronouncements, “is according to long established authority founded upon the religious customs of the Hindus and the recognition thereof by Courts of Law, a juristic entity. We should howdedicated pro- persons in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated by the Pran Pratistha ceremony. The Religious Denominations are in existence of thousands of years. To provide a comprehensive documentation is beyond the scope of this study. However, we have segregated two chapters for the same which is insufficient. It appears however that from very early times religious and charitable institutions in this country came under the special protection of ruling 1 authority. In the celebrated Rameswar case it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses of their management. “There can be little doubt”, thus observed their Lordships, “that the superintending authority was exercised by the old rulers.” Mr. Nelson in his Madura Manual says “The principal Pagodas with their enormous establishments, their officiating priests etc, were managed by Dharma Karta or trustee and manager for life who as stated above was usually a monk and a Guru. The Dharma Kartas had little communication with another and recognised no earthly superior except the king himself. Each was independent of all control and acted altogether as he pleased. This 1 Rameswar Pagoda case. (1874) 1 IndApp. 209 (PC) Government Rules Hindu Temples

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freedom led naturally to gross abuses and the king was compelled occasionally to interfere in the management of some of the churches”. 2 Similarly West, J. observed in Manohar Ganesh v, Lakhmiram “The State in its secular executive and judicial capacity habitually intervened to prevent fraud and waste in dealing with religious endowments.” It is true as observed by Seshagiri Ayyer, J. in Siharam v. Sir Subramania lyer that there is little written authority regarding the jurisdiction of the Hindu kings over temples and endowments. But it seems that they were regulated by a sort of customary lawwhich in the last resort had to be enforced by the king. In the chapter on “Transgression of compact” Yajnavalkya lays down: “customary law as well as usages established by kings should be carefully upheld if not inconsistent with revealed law.”; Upon this text Vijnaneswara comments as follows; “Duties arising under any custom such as preservation of the pastures for cow and of water and the management of temple and the like should also be carefully observed without infringing the duties prescribed by the Srutis and Smritis.” Aparaditya and Mitramisra in commenting on the same age lay down the rule in almost identical manner. The same view finds expression in Sukra Niti where the duty of protecting endowment has been spoken of as one of the primary duties of the King. Thus the duty of the King to protect endowments rested on the basis of immemorial customs which were as sacred as written texts. Mr. Ganapati Iyer in his learned work on Endowments has referred to several historical documents which bear testimony to the fact, that the Hindu Kings always exercised supervision over temples and endowments. In the treaty between the Raja of Cochin and the Dutch East India Company there occurred the following statement : “As we are obliged to protect individually the temples at Palayanpur, Tiru Vallamale etc. we should do so in a regular manner.” I have already said that in the 2. Manohar Ganesh v. Lakshmiram, (I.L.R. 12 Bom. 247)


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time of Asoka there were officers employed by the King whose duty was to exercise supervision over religion and charity and Kautilya in his Arthasastra also speaks of “Superintendent of Religious 3 Institutions.” Mr. G. Iyer has further referred to an inscription of South India where it is said that “The people of Mayanadu, the Singalanadu, and the Mudalanadu etc. shall protect these lands according to the rules of charitable institutions.” Thus it seems that the rules of charitable institutions were well known and well established but as they did not rest on written texts it is difficult to say at the present day what these rules exactly were. West, J, gives a fairly accurate picture of the Hindu system when he says that “a Hindu who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to his bounty, or at least protect it so far, at any rate as is consistent with his own Dharma or conception of morality. Assuming now that the sovereign authority enforced or protected the intentions of the founder provided they were not Contra bonos mores, the question arises, what were the ideas underlying these benefactions? If there was dedication of property for religious or charitable purposes which divested the donor of his ownership in the same, in whom did the ownership vest? And was there any idea of trust implied in these endowments? Though the subject has not been properly discussed by any of the Hindu law givers, yet some light is thrown on it by the rules of dedication prescribed by Brahminical writers, with regard to different Kinds of endowment. There are various works of this kind where the subject of gift or dedication has been elaborately discussed and mention may be made, among others, of Danakhanda by Hemadri, two works named Parta Kamalakar and Dana Kamalakar by Kamalakar Bhatta, Pralistha Mayukha of Nikhanta and Pratistha 3. Mandalik’s Hindu Law, Appendix 21, p.334. Government Rules Hindu Temples

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Tatwa of Raghunandan. Mandalik has given an excellent summary of the various modes of dedication laid down by different authors in one of the appendices to his learned treatise on Hindu Law.’” In every act of dedication there are two essential parts; one of which is called Sankalpa or the formula of resolve, and the other Utsarga or renunciation. The ceremonies, as Mandlik points out, always begin with a Sankalpa, which after reciting the time of gift with reference to age, year, season, month etc. states what object the founder has in making the gift. Utsarga on the other hand completes a gift by renouncing the ownership of the founder in the thing given. For the purpose of perpetuating the worship of the deity it is usual for the donor to make grants of land. Sometimes the gift of lands is made to pious Brahmins who received for carrying on the worship of the idol. This generally happens in the case of public temples and this is how the priests or Archakas attached to particular temples came into existence. But gifts of lands are usually made to the deity itself. Hemadri in his Dankhanda has quoted texts from different Puranas extolling the merits of making gifts of land to Vishnu, Siva and other Gods. In the Vishnu Puran it is said that the donor of land for the erection of a temple attains the abode of the particular deity to whom the temple is dedicated. In the Sivadharma it is declared that he who dedicates to Siva cultivated land dwells in bliss in the Rudraloka as many kalpas as there are poles of land found on measurement. In the Baraha Puran the bestower of a skin of land to Vishnu is promised fortune and prosperity for seven births. 3.2 IDOL – A JURISTIC PERSON According to Vijnaneswar gift consists in the relinquishment of one’s own right and the creation of the rights of another, and the creation of another’s right is completed on that other’s acceptance of the gift and not otherwise.” According to Dayabhag - the gift is completed as soon as the donor relinquishes his rights in favour of the donee who is a sentient person. Donation according to Dayabhag is an act of the giver, and the concurrence of or acceptance by the donee is Government Rules Hindu Temples

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not essential. But even in Dayabhag although the ownership of the donor ceases to exist in consequence of abandonment, yet if the particular person for whom the gift is intended does not accept it, then as all the conditions of abandonment are not fulfilled, the ownership does not terminate. The position is that the gift cannot take effect when no acceptance by a sentient donee is possible. How can therefore the gift take effect when the founder dedicates a satra for feeding of the poor, or an asylum for residence of ascetics, or when he builds a temple and dedicates it for the worship of an idol? In the first two cases there is no specific donee and in the third the donee is not a human being but a deity. The view of the Hindu Jurists seems to be that in case of gifts to a deity or for religious purposes no acceptance is necessary to complete Not applicable the gift. The following observations of Sir Asutosh to gifts for religious purposes Mookerjee, J. in Bhupatinath v. Ramlal sums up the genus purposes, views of the commentators on this point. “It is clear from these ages”, thus observes the learned Judge, “as well as from other ages from Sreenath, Achyutananda and other commentators on the Dayabhag, that they understood the rule about the acceptance of a gift as a necessary condition for its validity as applicable to secular gifts alone. There is no foundation for the assumption that dedication to the deity or for religious purposes stands on the same footing”. Thus renunciation or Utsarga by the donor is sufficient to complete the gift when the property is given to a deity or for religious purpose, and in such cases no acceptance by a sentient being is necessary. But the question starts up again, in whom does the property vest after dedication? If it becomes res nullius and belongs to nobody, it can be appropriated by any person, even though he would incur sin by so doing, and the very object of the donor would be frustrated. It may be argued that even though the owner loses his proprietary right after dedication he may still retain custody and control of the thing dedicated. This argument is founded 3. Ibid. Government Rules Hindu Temples

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on the following age of Viramitrodoy: “But ownership, so far as protection is concerned does exist in the donor even when his ownership consisting of the power of disposition at pleasure had been withdrawn (by renunciation) until the final accomplishment of the purpose of the donor, who seeks a certain merit according to precepts; for the act imported by the word “Gift” will not be complete until the ownership of another has arisen. The ownership will in this instance (exist), in the same way as it does in the case of substances sacrificed, lest sin arising out of the prohibition about their being touched by prohibited (animal or person) should stick (to the sacrificer); in this way the possibility of a stranger appropriating a thing given and of the forbidden being precluded will not arise, although the ownership of another has not arisen. The practice of the learned in both cases in respect of protection is based on that (limited form of ownership)”. This obviously contemplates a temporary arrangement; the donor is allowed the right of protection in respect of the thing given till the ownership of another arises. It does not the view that the thing becomes res nullius. Ownership therefore must vest in somebody. As has been pointed out already, the Roman law recognized the foundation or institution itself as juristic person. Under the Roman law an individual by dedicating properly for a charitable purpose could bring into existence a foundation or institution which in law would be regarded as the owner of the dedicated property. A similar conception is present in the German “Stiftung” where a fund earmarked for a special purpose is deemed to be its own owner. There is no such conception in English Law which recognizes only one class of legal persons viz. the corporations which are really personifications or groups or series of individuals, and are classified into corporation aggregate and corporation sole. Obviously neither a Hindu religious institution nor a Hindu idol can come within the scheme of artificial persons as framed and adopted by English Law. Mr. Justice West in his classic judgment in Monohar Ganesh v. Lakhmiram’’ pointed out that “the Hindu Law like the Roman Law and those


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derived from it recognizes not only corporate bodies with rights of property vested in the corporation apart from its individual but also juridical person and subjects called foundations”. The religious institutions like mutts, choultries and other establishments obviously answer to the description of foundations in Roman Law. The idea is the same, namely when property is dedicated for a particular purpose the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created. And so it has been held that a Mutt is, under the Hindu law, a juristic person in the same manner as a temple where an idol is installed, and that a suit instituted by the managing trustee on its behalf without impleading the other trustees was properly constituted, and that further the suit does not abate under the provisions of Order 22 of the Civil Procedure Code, on the death of the manager pending the action as the real party to the suit is the institution. In the Hindu Debutter it seems that the position is slightly different and in such cases run [lie whole endowment but the idol which as an embodiment of a pious or benevolent idea constitutes the centre of the foundation, is looked upon as the juristic being in which the Debutter property vests. After all, juristic personality is a mere creation of law and has its origin in a desire for doing justice by-providing as it were centres for jural relations. As Salmond says ‘it may be of as many kinds as the law considers proper’ and the choice of the corpus into which the law shall breathe the breath of fictitious personality is more a matter of form than of substance. According to the principles of modern jurisprudence the bearer of a right must be a person. There is indeed a class of writers like Brintz. Bekker and Duguit who maintain that property may vest in and belong to an aim or purpose. They are however unwilling to give the aim or purpose the status of a juristic person. According to them, the maxim “No person, no property” is not a justifiable assumption and that property may not only belong to or be held by a person it may belong to an ‘aim’ without the purpose being recognized


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as a juristic person. The position is that they eliminate the “person” as the bearer of a legal right from their scheme altogether. As a theory this is undoubtedly opposed to the accepted principles of modern jurisprudence, and in practical results it is likely to create difficulties and complications of a rather serious type. Once the property goes out of the person and vests in the purpose or aim the whole thing is placed at the mercy of the state which can do whatever it likes with this master less right and there remains no person entitled in law to enforce the intentions of the donor. On the other hand if the state regards the foundation or institution which aims at carrying out certain objects, a legal person, the latter acting through its agents can always enforce the right. This was precisely the conception of Roman Lawyers. The scheme of Brintz, Bekker and others, though not a tenable scheme, certainly contains some important juridical truths. In the first place in the case of property dedicated to a particular purpose it lays -stress on the purpose of the donor as the supreme factor which should be given the controlling hand in the management and istration of the property. At the same time these writers it that a purpose or aim cannot rank as juristic person in law, and this led them to adopt the untenable position that a right can remain without an owner. The innate practical sense of the Roman Jurists found a way out of this difficulty. They indeed were fully conscious of the fact that the purpose or intention of the founder was the primary thing in an endowment, but as purpose without any material basis could not figure as a legal person they personified the endowment itself which was dedicated for a particular purpose. Though these principles are nowhere expressly discussed by the Hindu Jurists, it seems that institutions like mutts and satras which were not gifted to any particular donee or fraternity of monks were regarded as juristic persons in Hindu Law to which the endowed property of these institutions belonged. With regard to Debutter, the position seems to be somewhat different. What is personified here is not the entire


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property which is dedicated to the deity but the deity itself which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view, “The dedication to deity”, said Sir Lawrence Jenkins in Bhupati v. Ramlal,” “is nothing but a compendious expression of the pious purpose for which the dedication is designed”. It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding, that property can reside in the aim or purpose itself, it would be quite consistent: with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it. It is not also correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of the dedicated property. The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognized by law and in this juristic person the dedicated property vests. Thus far we formed general idea of the different forms of religious and charitable trusts amongst the Hindus and attempted to show how they were shaped by the beliefs and ideas prevalent at different .periods of their religious and cultural history. When no definite rule of law is available, the abiding direction has been given to Indian Courts to decide cases according to equity, justice and good conscience and it is well known that these rules of equity and justice are to large extent principles of English Law. As West, J. observed in re. Kahandas Nanandas, “If the Court: is called on to give effect to a trust in a given case it looks to the Hindu Law of property to determine the estate of the trustee, but with reference to the duties of the trustee and the rights of beneficiaries it is governed by the rules of English equity.” Where there -is a text of Hindu Law directly on the point the Privy Council has ruled


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firmly that nothing from any foreign source should be introduced into it, nor should courts interpret the text by application, to the language, of strained analogies.” When the indigenous resources fail altogether, resort to the English Law cannot be avoided, but here again the Judicial Committee uttered the warning that the narrower peculiarities of English Law should not be imported into the Hindu System.


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CHAPTER 4

STATE AND DENOMINATIONS The past decade has seen a significant change in our perception of the relations of religion and politics. The once widespread belief that modern times would bring the inevitable decline of religion as a force in public life has been profoundly shaken. The interplay of religion and politics seems suddenly again a worldwide phenomenon, affecting both the “developing” world of Asia, Africa, the Middle East and Latin America, and the “developed” world of Europe and North America, and involving all the great religious traditions: Islam, Hinduism, Judaism, Christianity, Buddhism and their various sects. The prominence of religion in public life has reopened a whole set of issues which many people had regarded as closed, such as the role of religion in party politics, public education, family law, taxation, foreign relations and civic morality.1 The resurgence of religion poses many challenges to our understanding. As scholars search for explanations, clergy and politicians struggle with the more immediate problem of finding effective ways to address each new controversy as it emerges. Many urge as a basic principle that religion and politics be kept separate, that the health of both church and government can be ensured only when they are allowed considerable autonomy in their respective domains. This separation, it is said, is the only feasible arrangement given the increasing religious pluralism of most societies. But this prescription, however important, has not always been helpful in negotiating satisfactory relations between religion and the state. The problem remains universal, and is apparently intractable. We need to accept as a starting point the clear fact that religion and public life do penetrate each other, and reflect on how we might best interpret this fact. Greater specificity is needed regarding the different ways and contexts in which religion and politics intersect the types of conflict which emerge, and the influence of economic, social, historical and cultural factors. 1. Chap. I, verse 209-210 Government Rules Hindu Temples

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Only then can we assess the meaning and consequences of what is clearly a worldwide phenomenon. 4.1 EVOLUTION OF LEGISLATIONS The Indian Legislature has not until now taken up the work of making a comprehensive legislation on the subject of Hindu religious and charitable trusts. There are a number of enactments both general and local which aim at controlling the management and istration of public religious and charitable endowments, and provide remedy for prevention and redress of abuses in their management. After the establishment of British Government in this country it was discovered that the income of many endowments both Hindu and Mohammedan was misspent and misappropriated by the persons who were in charge of the same, The British Government asserted its right of supervision over the endowed properties which were exercised by the previous rulers and in 1810 a Regulation was ed in respect of the Province of Bengal under which the general superintendence of all religious and charitable endowments mentioned therein was vested in the Board of Revenue. Similar Regulations were ed for Madras and Bombay Presidencies in the year 1817 and 1827 respectively. Later on it was thought that the connection of a Christian Government with Hindu and Mohammedan religious endowments was not expedient and by Act XX of 1863, the British Government divested itself of the charge and control of these institutions and placed them under the management of their respective creeds. Under the Act of 1863 a system of committee was devised to whom were transferred the powers vested in the Government for the appointment of managers, trustees and superintendents; rules were enacted to ensure proper management and to empower the superior courts in the districts to take cognizance of allegations of misfeasance against the managing authority.


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This Act was amended by Act XXI of 1925. In the Civil Procedure Code of 1877 a definite section was introduced viz. section 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public, religious or charitable purposes, by the Advocate-General or with his consent, by two or more persons, having an interest in the Trust, in the principal Civil Court of the district where the trust property was situated, for appointment of a new trustee and for various other reliefs specified in the section. This section was later on amended and in this amended form it stands as section 92 of the present Civil Procedure Code. In 1890 the Charitable Endowments Act (Act VI of 1890) was ed and this provided for the vesting and istration of property held in trust for charitable purposes not of a religious nature. The only other Act which is applicable throughout India and which was ed to secure more effectual control over the istration of charitable and religious trust is Act XIV of 1920. As the preamble shows, the object of this enactment was to provide facilities for the obtaining of information regarding trust for public purposes of a charitable or religious nature, and enable the trustees to obtain directions of a court on certain matters and also to make special provisions for the payment of expenditure incurred in certain suits against the trustees of such trust. This Act has been further modified by a later Act viz. Act XL1 of 1923. 4.2 TAMIL NADU EXPERIENCES….. The Tamil Nadu case is a dramatic example of how entangled the institutional fortunes of religion and state can become, even in a society formally committed to “secularism.” It is also an example, which can shed light on characteristic features of religion-state interactions elsewhere. Rather than limit ourselves to country-by-country studies, or to the unique configurations associated with each of the great religious traditions, it seems useful to identify more general and characteristic patterns. What follows is an effort in this direction, one which focuses on the processes surrounding Government Rules Hindu Temples

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the emergence of the modern state, and the modern state’s almost universal tendency to propagate its vision of rationality. The emergence of the modern state involves processes basic to political development in all countries and extraordinarily significant for religion. The characteristic direction everywhere in the world is towards the expansive “rational” state - autonomous, differentiated, centralized and internally coordinated. Almost without exception, modern governments see religion - its beliefs and practices, its leaders and institutions - as a potential or actual threat to this expansion. The reverse is equally true. Religious leaders, worried about modernization and about what the changing political order portends for religion, develop strategies to defend their domains from state encroachment. Each side is concerned to defend its authority and legitimacy. Religion-State relations are not static. The conflict is sometimes subdued and at other times explicit, but both sides are continually alert to one another and to change in the larger environment of the society. The result is continuing structural tension. To analyze this tension, it is useful to view it in of three central dimensions: a political conflict between governmental and religious elites; an institutional conflict over the use of economic and cultural resources; and a cultural conflict over legitimacy, authority and the definition of the ideal society. The political conflict between governmental officials and religious elites tends to be the first manifestation of underlying tensions. Centralizing states typically begin with attacks on ecclesiastical properties and benefices and on the status and influence of the religious elite. As they find their positions jeopardized, religious leaders (bishops, abbots, priests, monks) search for ways to save their positions, sometimes through resisting the state’s incursions, other times through forging an alliance with it. These strategies have made for high drama: Henry VIII and Thomas More, the French Revolution and the “nonjuring” Catholic clergy, Ataturk’s abolition of the Caliphate. In Tamil Nadu, as we shall see, the state has moved to undercut many prerogatives enjoyed by temple elites, such as control over


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temple land and income, religious authority, and local prestige and status; the elites, in turn, have not lacked means of resisting, at least temporarily, the state’s threat. Lying behind the political struggle is a set of tensions between institutions of religion and the state as the latter press to exert influence over an everwidening range of social activities, including economy, property, welfare, law and education. State expansion is accompanied by “demands that these vital areas be brought directly under state control,” that the state be “sovereign.” In Tamil Nadu, the state has claimed sovereignty in a wide variety of areas: land and tenancy reforms, supervision of education, changes in inheritance, property and charity laws, and efforts to channel religious wealth in socially “progressive” ways. The state’s claim in these areas has posed direct, major challenges for Hindu temples. In a sense, the cultural conflict between the modern state and more traditional religion lies behind and is logically prior to the previous two. At issue are the basic values, understandings and symbols in of which shared social purpose and unity are possible. Especially important is the issue of legitimacy. The growth of the modern state is accompanied by major shifts in the structure, procedure and goals of public power, often in directions not entirely compatible with those of the past. Legitimacy in the pre-modern era was often tied institutionally and ideologically to religion. Modernizing states usually stake out independent claims, resting their rule on written constitutions, statutory laws, formal procedure, and actual performance in such areas as physical health, economic prosperity and national security. Even states which maintain a religious connection, such as extreme cases of theocracy, attempt to enhance their own autonomy. The conflict over legitimacy is not necessarily expressed fully or formally. It can be mediated through very narrow and specific disputes and, indeed, this is the common pattern. After all, the modern state does not spring into being all at once; it forms slowly, incrementally. Conflicts over legitimacy thus occur case by case, as when the state moves into an area, such as education or priest selection, which heretofore had been more or less


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autonomous. Here state officials must justify the state’s right to take charge, and their justification often represents a quite different interpretation of the state’s relation to and purpose in society. New categories and definitions may be introduced; different goals and meanings may be appealed to. The new interpretation is thus essentially a cultural act. The state is successful to the extent that its cultural interpretation becomes dominant, edging out the other, previously established, and religiously based views. The Tamil Nadu state enjoys relatively high stateness in matters of religion for three especially important reasons. First, south Indian kings historically had important connections with religion and temples. The cultural expression of this connection is the concept of the state as “protector” of religion generally and of temples specifically. Some would argue that the HRCE is simply performing the contemporary version of this traditional role. Second, the modern Indian state is regarded, especially since Independence, as a positive countervailing force to traditional society. In so far as temples can be said to embody old and traditional patterns, the state enjoys considerable public in its effort to bring temples under control. Third, there is the ever present struggle for “place” - for economic, social and political position - in the face of scarcity. Much of Indian public life involves constant jockeying for status, privilege and opportunity. The state, more than any other single agency, is in a position to affect the outcome of these struggles. Through its own employment, and through laws which regulate how others give employment, the state has become the great gatekeeper of place. This is as true in temple matters as it is in other areas. Extreme Governmental control inevitably affects the profile of political representation in temple matters. The state’s pre-eminence places critics and opposition groups at a disadvantage; the burden of proof rests heavily on them, and it is difficult to influence policy through “normal” channels. The state, for its part, is able to claim legitimacy for its policies by appealing to its historic role as protector. Governments also can shape the broader Government Rules Hindu Temples

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environment in which policy is made. On a number of occasions, as we shall see, governments have designated, in a quasi-corporatist fashion, particular organizations as the legitimate representatives of society’s interests, in return for which the organizations have observed certain restraints on their demands and activities. Other groups, in contrast, are dismissed as bothersome interferences, as “politically” motivated “special” interests. Yet no government or political party has been able to resist incorporating the temple into its broader political strategy; whenever possible, temple resources, symbolic and material, have been used to build, stabilize or extend networks of power and influence. Extreme Governmental control does not, however, guarantee governmental effectiveness. istration includes cultural dimensions which may seriously undercut policy. Government officers have distinct images of the world they ister and distinct languages to describe and control that world. The categories used for analysis, the way problems are denned, and the procedures applied to address those problems come together in clusters of ideas and sentiments, or “theories.” A particular agency’s theory is not necessarily or even usually stated explicitly; it is embodied in regulations, and draws on the agency’s history and organizational style, and on the professional culture of its officers. When different agencies have different theories, the rivalries and conflicts which result are far more than just petty squabbles; involved are identities and public purposes to which s may be genuinely and deeply committed. The result can be paralysis. Colonial and post colonial istrations face problems of a rather special sort. Because the culture of the colonial society is very different from that of the west, colonial rule requires from the outset an act of interpretation. Without forsaking the most compelling precedents of the home government, s try to fashion a set of categories and procedures which will be appropriate to both. And this interpretive act is precisely what colonial s sharply disagree over: which facet of western experience is the relevant analogue? To what extent can that analogue be


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applied in the colony? To what extent is the indigenous reality distinct? How should its distinctiveness be treated? The disagreements among strongminded officials with deep professional commitments inevitably hamper the government’s overall effectiveness. As it happens, down to the present day the south Indian temple has served as a rich and unending source for this sort of intellectual argumentation among s, temple officials, lawyers and scholars. The three issues examined in this study - governance, economy, religious life - lend themselves to diverse and conflicting interpretations. We shall focus especially on the theories of the HRCE*, the Board of Revenue, and the judiciary, and the relation of each of them to the south Indian temple. Each claim to have captured the “real” nature of the temple, and their disagreements has profoundly affected the dynamics of the temple-state relationship. Finally, because this study departs from most others on Indian religion-state relations in that it does not adopt the concept of secularism as a basic orientation to the subject, a word of explanation may perhaps be in order. Without question, secularism is a central component of India’s national identity and public philosophy. As a legal concept, secularism’s meaning is in principle clear: it means “non-establishment” (no established state religion) and “religious freedom” (freedom to practice religion, subject to minimal constraints in the interests of public order and morality). Secularism has also been described as “noninterference” and as a “wall of separation.” But these descriptions do not capture the dynamics and details of actual religion-state interactions. A complete and impenetrable “wall” is unlikely in any country. Religion is a dimension of individual and social activity and, as such, is mixed inextricably with other areas, including economy, health, education and culture. Since modern states take more and more initiative in these areas, the “wall” is easily breached. The HRCE* is a major instance of this breach. The constitutionality of the HRCE* has been upheld by the Indian Supreme Court on the grounds that temples are public


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trusts for which the state has a direct responsibility. In actual fact, of course, “temple as public trust” is difficult to distinguish from “temple as religion.” “Noninterference” is also a nice slogan, but a poor guide to practice. Religious policy, in other words, cannot be studied primarily through reference to the formal principle of secularism. The state’s policy at any given time is an outcome of many factors: the law and Constitution, to be sure; but also party competition, individual, group and organizational interests; ideology; material advantage; and long-term regime interests. Religionstate relations change over time, and religious policy is subject to the same sorts of political pressures as policy in any other area. One implication of adopting a primarily political rather than legal approach to religion-state relations is that we no longer expect religious policy to be “rational” in a formal sense. Politics involves compromise and adjustment; substantive policies are based not only on merit and reason but also on influence and competing interests. What is formally rational is not always politically rational.’ This political understanding keeps in view the basic fact that Hindu temples possess material and symbolic resources of great importance to individuals, groups and the state. Religious policy affects the way these resources are distributed - denied to some and secured for others - which is why policy so often embroils local notables, political parties and state agencies in conflict. 4.3 ANDHRA PRADESH EXPERIENCE Experience gained by Andhra Pradesh Legislature in enacting 30/87 Act and the Corrective Action through amendment Act 33 of 2007 The following is an excerpt from the book “Hereditary Archakatvam a Duty Not a Right” (Pg 15). It is recommended, to read the entire book, for a deeper understanding of this concept. The rishis who authored the Agama Samhitas, wanted people connected with the temple, to feel a deep sense of attachment to the deity. They * Hindu Religious and Charitable Endowments. Government Rules Hindu Temples

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never wanted that working in a temple, should be looked at as a materialistic activity, for which one would get paid like any another job. They wanted that every one connected with the temple, should get initiated in service of deity, from a very early age, so that deep feeling of devotion could be inculcated. The devotion, should be so strong that it can weather any kind of catastrophe like floods, famine, drought, epidemic etc, and still the pooja would continue. The devotion should be so strong that the people should stand up, and fight against tremendous odds, even if the adversary is the mighty government, to preserve the traditions of the temple. They wanted everyone connected with the temple, to feel that the deity was a member of their family, and had to be looked after with great care and devotion. They wanted each member to feel pangs of separation, whenever they were away from the deity. It is very clear that such deep attachment, is possible only when the people get initiated at a very young age, and hence only a hereditary system was apt. In this system, the child learns from his father, and gets initiated in service of the deity at a very young age. The deep bond that is created during childhood is what sustained the temple system for so many thousands of years…. The temple system has survived so long, mainly because of the hereditary system that was followed in different aspects of temple istration, from trustee, archaka and other functionaries. If there was any doubt on this, we just need to take the example of Andhra Pradesh, where 90% of the small temples virtually closed down; in 20 years of implementation of the 30/87 legislation, which abolished the hereditary system. The hereditary system was designed by our ancient Rishis, who had tremendous foresight, the same rishis from whom we got such ancient secrets like Yoga, Meditation, Dhyana etc; which have today been proved by the new scientific data of past 20 years. Today, Hinduism in the state of AP, is facing tremendous crisis in rural areas, because * HRCE - Hindu Religions and Charitable Endowments.


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90% of our temples have closed down; as we did not think deeply enough when we abolished an age old system, which was recommended by the Agamas. The legislators and the intellectuals responsible for the legislation, did not pay due respect, to the wisdom of our ancient Rishis, and the society is paying a heavy price, in of escalating violence, droughts, scarcity, suicides etc. The brunt of this is felt by the rural population of our state. The book “Legislation for Temple Destruction”, gives a very detailed history of this legislation and the aftermath, study of which is highly recommended. The 30/87 act was ed in haste, by the Andhra Pradesh Government in 1987, without any serious discussion. The legislation itself was based on the recommendations, of a commission headed by Justice Challa Kondiah. The commission restricted itself, to study of the affairs, of major temples like Tirumala, and also borrowed from the 1969 amendment to the Tamil Nadu legislation, which advocated abolition of hereditary system. The fact that the commission did not bother, to check the ground reality in Tamil Nadu post 1971, and also did not study issues relating to small 6C category temples; which form the majority in Andhra Pradesh, were the main reasons for the eventual failure of the 30/87 legislation. The following points summarize the learning from the failure of the 30/ 87 act. 1. Hereditary System has to continue for the survival of small low income temples. Replacing this, with a system where everyone is a paid employee does not work, as the income is low, and hence the employees loose motivation and leave. The Hereditary functionary on the other hand, is doing it as a duty, and whether there is income or not, continues to serve the deity as his forefathers did before him. 2. Small low income temples should be given maximum autonomy for their survival. The income being very low, has to be optimally used


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for the temple, and not spent on ing functionaries like Executive Officers. There should be minimal interference in their functioning. 3. Trust board or Management Committee, as a means to exercise control should be resorted to for small low income temples, only under extreme circumstances of mismanagement or misappropriation. Wherever the existing management is functioning well, it needs to continue without any interference. The decision to have a trust board or Management Committee, should be a careful one, as it will dilute the authority of existing functionaries for years to come; and could result in their loosing control and interest, and eventually the institution will suffer. The income level of these institutions being very low, most of the time, the money is advanced by the hereditary functionaries, and having a trust board or Management committee, as a means of control, doesn’t serve any purpose. 4. For high income temples, trust boards or management committees, as a means to exercise control and ensure that the funds are properly utilized, cannot be disputed against. Even in this scenario, it is required that Hereditary functionaries continue with position of say, as there is no guarantee that the temple will continue to have high income in future. Even today, we have several instances of temples in dilapidated condition, which once had a very glorious past. If the temple’s income falls for some reason, then all people who are paid employees will leave; there will be lack of interest to be a member of the management committee, and then it is only the hereditary functionaries who can be depended upon, to continue to run the temple. Therefore, in the long term interest of the institution, the hereditary functionaries should have an important role, in the new management structure. It is not fair, to have a system, which wants hereditary system for low income temples; and once these very same temples start having higher income, then the same people are no longer needed.


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5. The trust boards have become a training ground for political green horns in AP, as final say, on who is appointed in these boards is vested with politicians. This has lead to rampant politicization, commercialization and corruption in temples of high income. 6. The AP experience has shown that the new management structure, has failed miserably in safeguarding temple properties. Temple lands have been encroached, used for political populist housing schemes, crores of compensation is pending from the Govt, and there is no one within the management who has filed cases against this. This is to be expected, as the entire management structure, and the endowment department functions subordinate to their political masters. Hence, there is a strong case, for the hereditary functionaries; to have significant say in the management structure, so that they can fearlessly protect the properties of the temples as they have done for centuries in the past. In the recent past, the High Court of AP was so vexed with the Endowments department that it had to give the control of Hathee Ramji mutt, back to the pontiff from the Govt, to save the properties of the mutt from being illegally disposed off. The Andhra Pradesh legislature has learned its lessons from the 30/87 experiment, and has done a yeomen service to the future generations, by enacting amendment Act 33 of 2007 which largely corrects all the above lacunae by reinstating the hereditary archakatvam and trusteeship and the experience has also been recorded in the statement of objects and reasons for amendment Act 33 of 2007. “Over the last two decades, there has been a substantial increase in pilgrim flow in certain temples while many of the old village temples have been languishing without any traditional rituals being performed. There have been numerous representations from the Archakas that a strict adherence to the provisions of the Act have created difficult conditions for Archakas to continue in the profession. On the one hand, the Act had abolished the Hereditary rights


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and simultaneously abolished share in Hundies and other offerings given by devotees to the temple. The assumption that Archakas would be able to get salaries and lead a decent life has not been borne out by experience over the last two decades. As a result, neither the Government is in a position to pay salaries nor has it been able to allow the Archakas to manage temples and have shares in Hundi, plate or any other Rusum in Archana or Seva ticket or any offering made by devotees. They were also not able to continue enjoyment of the lands allotted or allowed to be in their possession. As a result, many traditional Archaka families have become impoverished and the temples have virtually shut down. In addition, there have been complaints that traditional temple rituals are not being performed strictly as per the particular sastra governing the temple and the sanctity of the religious rituals as per the custom and usage is not being preserved. The Supreme Court had appreciated the need to preserve the customs and usage with a view to protect the sanctity of religious rituals in I.A.No. 7 in W.P.(C) No. 638 of 1987 and I.A. No. 3 in transfer case No. 170 of 1987. The committee further recommends that as and when the present incumbent in the religious staff retires or demits office or otherwise, the person in their family should be considered on priority basis for filling of that post or allowing him to do the service to preserve the custom and usage taking into consideration suitably in rendering services apart from the qualification required. The Government has accepted the recommendations subject to all other things being equal in competitive requirement. However the main concern should be to preserve the customs and usage with a view to protect the sanctity of the religious rituals. The Government itself has been taking care to preserve the sanctity of the religious Government Rules Hindu Temples

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rituals. Nothing more needs to be said in this behalf. It is accordingly approved. In order to remedy the situation the Government intends to amend the Act in order to revive the village temple system, preserve the sanctity of traditional rituals, customs and usage and provide livelihood to the Archaka families. Amendments to Sections 34 and 144 are intended to achieve these objectives. All political parties had unanimously accepted such amendments in a meeting held on 4-10-2004 4.4 SUPREME COURT DISPOSAL OF RPC 2350 OF 1997 TAKING INTO THE EXPERIENCE GAINED BY THE ANDHRA PRADESH LEGISLATURE The bulk of the 30/87 legislation was upheld by the Supreme Court in 1996, along with some important riders. The fact that the legislation was ill thought-out became very apparent, with many of the small village temples, virtually closing down within a decade of its implementation. The single main factor responsible for this was the abolition of the hereditary system, which was against the wisdom of the Agama Rishis, and the experience of thousands of years of temple istration. This became a major issue in the 2004 elections, as there was tremendous concern among devotees, on the future of the small temples. The Andhra Pradesh legislature cutting across party lines, has recognized its error in abolishing the hereditary system, and has reinstated it through Act 33 of 2007. The Supreme Court recently disposed of the review petition RPC 2350 of 1997 filed for reviewing the conclusion arrived at in the Narayana judgement by taking into the amendments brought about through amendment Act 33 of 2007 based on the experience gained by the legislature This petition was filed in 1997 for reconsideration of the judgment in A.S. Narayana Deekshitulu v. State of Andhra Pradesh and others Government Rules Hindu Temples

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(1996) 9 SCC 548. During the pendency of the petition, Legislature of the State of Andhra Pradesh amended the Principal Act, i.e., Andhra Pradesh Charitable and Hindu Religious Institutions and endowments Act, 1987 (for short, ‘the 1987 Act’) and restored the status of Archakas as was obtaining prior to the enactment of 1987 Act. In view of the above development, this petition is disposed of as infructuous leaving the questions raised in the main petition open to be decided in an appropriate case. It is also made clear that this order shall not affect the Reference made vide judgment in A. Ramaswamy Dikshitulu v. Government of Andhra Pradesh and others reported in (2004) 4 SCC 661. In view of the above disposal of the RPC 2350 of 1997 and in light of the amendments brought about to the Act it is important to also analyze how the learned Judges of the Supreme Court erred in determining that hereditary archakatvam is not an essential and integral part of religion in A.S. Narayana Deekshitulu v. State of Andhra Pradesh and others (1996) 9 SCC 548 (Narayana Judgement) using the essential practices doctrine so that corrective actions can be put in place to ensure such errors are not repeated. 4.5 OTHER REGIONS Of the local or provincial Acts the earliest is that of the Bombay Presidency of the year 1863. This was merely declaratory of existing common law and did not contain anything new. The legislature of the Bombay State ed the Bombay Public Trusts Act 29 of 1950, which is a comprehensive enactment dealing with all public religious and charitable trusts within the State. A most drastic piece of legislation on the subject was the Madras Religious Endowment Act of 1925, which was subsequently reenacted and ed as Act II of 1927, there being some doubt as to the validity of the Act of 1925. The object of the law was to ensure efficient istration of Hindu religious endowments in the Madras Presidency, This Act was Government Rules Hindu Temples

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repealed, and a new Act, the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 was enacted, introducing substantial changes in the law relating to Hindu religious and charitable public endowments. The validity of some of the provisions of this Act was impugned on the ground that they contravened the provisions of the Constitution, and as a result of the decisions which had held; some of them ultra vires, the Act was amended from time to time and eventually replaced by the Madras Hindu Religious and Charitable Endowments Act: 22 of 1959. The repealed Madras Act 19 of 1951, continues, as amended from time to time by the legislature of the Andhra State, to be in force in that State: In 1937, the Central Provinces Religious and Charitable Trusts Act was ed with the object of securing proper management and istration of religious and charitable trusts in the Central Provinces. One characteristic feature of this Act was the appointment of local committees for management and istration of public trusts of a religious or charitable nature, the gross income of which was not less than rupees five hundred a year. This Act was repealed in 1951 by the Madhya Pradesh Public Trusts Act 30 of 1951. One of the features of this Act is the creation of the office of a Registrar of public trusts whose duty it is to inquire into the existence and management of public trusts there being also a provision for their registration. The first legislation on this subject in Orissa was the Orissa Hindu Religious Endowments Act, 1939. That Act was repealed by the Orissa Hindu Religious Endowments Act 2 of 1952 which is the Act now in force. The law relating to public religious endowments is embodied, in Mysore, in the Mysore Religious and Charitable Institutions Act 7 of 1927 ; in Kerala, in the Hindu Religious Institutions Act 15 of 1950, ed by the erstwhile State of Travancore-Cochin ; and in Bihar, in the Bihar Hindu Religious Trusts Act 1 of 1951. The other enactment on this subject is that of Rajasthan called the Rajasthan Public Trusts Act 42 of 1959, and that applies to all public religious and charitable Government Rules Hindu Temples

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trusts in that State. The above Acts have been enumerated only with a view to give an idea of the statutes in force in the several States. 4.5.1 PUBLIC, CHARITABLE AND RELIGIOUS TRUSTS •

As regards the public trusts, there is no Central Act applicable in all the States. But various states such as Tamil Nadu, Andhra Pradesh, Karnataka, Bihar, Madhya Pradesh, Orissa, etc, have enacted their own acts prescribing conditions and procedure for the istration of public trusts. These Acts are more or less similar in nature though there may be certain variations.

•

For instance, the Bombay Public Trusts Act, 1950 provides machinery of charity commissioners to regulate the istration of public religious and charitable trusts. It makes registration of all the public religious and charitable trusts including the religious trusts created under Hindu, Muslim and Christian personal laws mandatory and prescribes certain norms for the maintenance and audit of budget, and s of such trusts and further empowers the charity commissioners to inspect and supervise the property belonging to a public trust and as well as the proceedings of the trustees and books of s of such a trust.

•

That apart, the act also creates certain restrictions on the investment of public trust money and as well alienation of immovable property of such a trust.

4.5.2 PUBLIC SUPERVISION AND REGULATION: •

The working of the public trust and its trustees can be regulated and closely supervised by the state and/or the beneficiaries of such a trust. In the case of any alleged breach of a public trust or where the direction of the court is deemed necessary for the istration of such trust, either the Advocate General or two or more persons having an interest in


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the trust and having obtained the leave of the court can institute a suit to seek: •

removal of a trustee

•

appointment of a new trustee

·

for vesting any property in a trustee

•

for directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property

•

for directing s enquiries

•

For seeking of declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust.

•

In such a suit, the court may alter the original purpose of the trust and allow the property or income of such trust or any portion thereof to be applied to different purpose or in a different manner for a similar purpose, as nearly as possible according to the intentions of the author.

•

Such an alteration can be sought where either the original purpose of the trust is fulfilled or can not be carried out or where the original purpose of the trust provides a use for only part of the trust property or where the property of the trust can be used more effectively for another similar purpose.

•

The Court can also make alteration if the original purpose, in in whole or in part, has been adequately provided for by other means or has ceased to be charitable or has become useless or harmful to community or has ceased to provide a suitable and effective method of using the trust property as per the spirit of the trust.


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4.5.3 RELIGIOUS TRUSTS: · The creation of religious charitable trusts is governed by the personal laws of the religion. The istration of these religious trusts can either be left to the trustees as per the dictates of the religious names or it can be regulated to a greater or lessee degree by statute such as the Bombay Public Trusts Act, 1950 discussed above. · In case of Hindus, the personal law provisions regulating the religious trusts have not been codified and are found dispersed in various religious books and epics.


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CHAPTER - 5

JUDICIARY AND RELIGIOUS DENOMINATIONS Freedom to profess one’s Religion, and practice is enshrined in our Constitution through Articles 25 and 26. The relevant articles are reproduced here: Article 25 Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a)

regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b)

providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. Article 26 Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -


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(a)

to establish and maintain institutions for religious and charitable purposes;

(b)

to manage its own affairs in matters of religion;

(c)

to own and acquire movable and immovable property; and

(d)

to ister such property in accordance with law.

Over the years, the legislatures have used Art 25(2)(a), 25(2)(b) and 26(d) to either, gain control over the secular activities of Hindu Religious institutions, or to reform religious practices, which discriminated against devotees in general. It is relevant to mention here that the practice of untouchability, and also of barring certain classes of people from worshiping in temples, was very prevalent at the time; and it was the intention of the founding of the constitution that the legislature is given elbow room, to be able to legislate, to bring about such reforms. The legislatures in general, have used the elbow room provided in the constitution, to gain greater control over the Hindu Religious institutions in particular, and not always in the better interests of the religion and its devotees. The courts have tended to go along with the legislature, with a fundamental assumption that the religion requires reform, and the net result is the dilution of the freedom enjoyed by Hindu Religious denominations. The article “Legalizing Religion: The Indian Supreme Court and Secularism by Ronojoy Sen, gives a detailed view of how over the years, the state was able to gain greater and greater control over the Hindu Religious institutions, with the active of the Judiciary. It is the objective of this research to analyze critically the case file of the failed Andhra Pradesh experiment on temple reform initiated through Act 30 of 1987 Legislation which was upheld by the Supreme Court using the essential practices doctrine in A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) (referred as Narayana case) going against the core principles enunciated in the Agamas which govern all aspects with regards to Government Rules Hindu Temples

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temples. It is further the objective of this research to demonstrate practically based on the failed Andhra Pradesh experiment on temple reform on how fallible the essential practices doctrine could be and how devastating its effect on the rights of the religious denomination and a need for complete rethink of this doctrine; so that certain safeguards are put in place to ensure that the Judiciary which is the gate keeper of the rights of the religious denominations will in future more carefully interpret the protection provided under Art 29(1), Art21, Art 25 and Art 26 and protect the religion, culture, tradition and heritage of the Religious denominations from excesses of the Legislatures. 5.1 THE EVOLUTION OF ESSENTIAL PRACTICES DOCTRINE The following are excerpts from the article Legalizing Religion: The Indian Supreme Court and Secularism by Ronojoy Sen where the author has traced the evolution of the Essential Practices Doctrine through various judgements of the Supreme Court. The Supreme Court in adjudicating cases pertaining to Hinduism has drawn a distinction between the sacred and the secular. The courts are frequently asked to decide what constitutes an “essential part of religion “ and therefore off limits for state intervention, and what is “extraneous or unessential” and therefore an area in which it is permissible for the state to interfere. Some legal scholars have labeled the courts attempts to define what is fundamental to any religion as the “essential practices” doctrine (Dhavan and Nariman 2000) 5.2 SHIRUR MUTT CASE The Essential Practices principle was first articulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of sri Shirur Mutt (Supreme Courts Appeals [SCA] 1954). In Shirur Mutt case the petitioner, mathadipati of Shirur Mutt challenged the Madras Hindu Religious and Charitable Endowments Act of 1951 on the principal ground that it infringed Article 26 of the Constitution. Justice B.K Mukherjea, who wrote the Judgement asked a central question: “Where is a line to be drawn between what are matters of Government Rules Hindu Temples

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religion and what are not?” According to the court “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” This “essential part” of religion is protected by the Constitution: “ Under Article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has jurisdiction to interfere with their decision in such matters” However the state can legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”. The court also held that “protection under Articles 25 and 26 was not limited to matters of doctrine or belief but also extended to acts done in pursuance of religion therefore contained guarantees for rituals, observances, ceremonies and modes of worship”. 5.3 DEVARU CASE In Venkataramana Devaru vs State of Mysore (AIR 1958 SC 255) the court had to weigh the religious freedom of a group against the right of a state to reform a religious practice. The primary subject of the case – unrestricted right of entry of Harijans into a temple founded by Brahmins. Justice Venkataramana Iyer speaking for the court posed the question “The substantial question of law, which arises for decision in this appeal, is whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) is subject to and can be controlled by, a law protected by Article 25(2)(b) throwing open a Hindu temple to all classes and sections of Hindus” The learned Judge referred to various Agamas in the Judgement and accepted the restricted entry as a religious practice but upheld the authority of the state to regulate this by giving precedence to Art 25(2)(b) over Art 26(b). The Judgement was still within the ambit of the Essential Practices principle of Shirur Mutt case though the cardinal principle laid out in Shirur Mutt case regarding the “autonomy” of the religious denomination to decide what ceremonies are essential was breached. Government Rules Hindu Temples

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The court will step in to make the decision on this by referring to scriptures. 5.4 JUDGEMENTS OF JUSTICE GAJENDRA GADKAR Justice Gagendragadkar in the 60s gave a series of Judgements which increased the role of the courts in deciding what constituted “essential practices” of a religion 1. Durgah Committee v Hussain Ali (AIR 1961 SC 1402): “ in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of religion their claim for protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are essential and integral part of it and no other” in other words the court will also need to sift through superstition from “real” religion. Pg (33) 2. Sri Govindlalji v State of Rajasthan (AIR 1963 SC 1638) : “the court may have to enquire whether the said practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of religion, and finding of the court on such an issue will always depend on the evidence adduced before it as to the conscience of the community and the tenets of its religion” Pg (35) Justice Gajendragadkar accepted that this approach may present some difficulties since “sometimes practices, religious and secular, are inextricably mixed up…though the task of disengaging the secular from the religious may not be easy it must nevertheless be attempted in dealing with claims of protection under Art 25(1) and 26(b)” he went on to say Government Rules Hindu Temples

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the following “If an obviously secular matter is claimed to be a matter of religion, or if an obviously secular practice is alleged to be a religious practice, the court would be justified in rejecting the claim… A claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art 25(1) and Art 26(b). Pg (35) From Shirur mutt case to yagnyapurshji the essential practices doctrine has undergone significant changes as outlined above and the final doctrine is summarized as follows “Judges are now endowed with a three step enquiry to determine, in tandem whether a claim was religious at all, whether it was essential for faith, and perforce even if essential it complied with public interest and reformist requirements of Constitution” ( Dhavan and Nariman 2000 : 260) Subsequent rulings of the Supreme Court have built on case law but hardly ever reconsidered the doctrine of essential practices. The most prominent effect of this doctrine has been the widening net of state regulation over places of worship. The most striking aspect of the essential practices doctrine is the constant attempt by the court, to fashion religion in the way a modernist state would like it to be, rather than accept religion as represented by its practitioners. 5.5 SOME OF THE EARLIER CRITICISM OF THE ESSENTIAL PRACTICES DOCTRINE: 1. Therefore the courts can discard as nonessentials anything which is not proved to their satisfaction- and they are not religious leaders or in any relevant fashion qualified in such matters- to be essential, with the result it would have no constitutional protection. 2. With a power greater than that of a High priest, Maulvi or Dharmasastri, Judges have virtually assumed the theological authority


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to determine which tenets are “essential” to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the constitution. Few religious pontiffs possess this kind of power and authority. 3. A single bench of the Calcutta High Court, in a rare occurrence took contrary view of the Essential Doctrine principle in the case (AIR 1990 Cal. 336). Justice Bhagabati Prasad Banerjee wrote “The performance of tandava dance cannot be said to be a thing which is beyond the scope of Hindu religion. Hindu texts and scriptures provide for such dance. If the Courts start enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be”. This was a strong indictment of the essential practices principle followed by the Supreme Court since 1960s. The above warnings about the Essential Practices doctrine is very important to note and it is the objective of this study to show through practical examples how the doctrine has failed and caused error in the judgement and has led to grievous damage to the Hindu Religion with closure of thousands of temples in the State of Andhra Pradesh. 5.5.1 THE FAILURE OF THE ESSENTIAL PRACTICES DOCTRINE IN NARAYANA CASE Before we delve deeply into how the learned Judges of the Supreme Court were led to errors of judgement by following the Essential Practices doctrine and arriving at the conclusion that the hereditary system of archakatvam is not an essential and integral part of religion in the Narayana case it is required that we understand the experience gained by the Andhra Pradesh Legislature in this aspect, as discussed in Appendix-I. The right of the public to enter a place of Hindu religious worship has been the focal point of controversy about religious freedom in India. It has a direct impact on the Hindu law of religious and charitable trust. It also involves problems of caste and creed. Government Rules Hindu Temples

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Constitutional arguments have been advanced on the scope of interpretation of the word manage and the expression matters of religion. Article 26(b) of the Constitution provides inter alia that every religious denomination or any section thereof has the right inter alia to manage its affairs in matters of religion. What is the interpretation of the word manage and what are matters of religion are the subject of constitutional debate. A recent decision of the Supreme Court is in Sardar Syedna Taker Saifuddin Saheb v. The State of Bombay, on the constitutional validity of the Bombay Prevention of Excommunication Act, 1949. The effect of this decision is that the constitutional guarantee of religious freedom includes a guarantee for rituals, observances, ceremonies and modes of worship which were integral parts of the religion. In other words this Supreme Court’s decision is that excommunication on religious ground is protected by Article 26(b) of the Constitution. In discussing that question, whether a particular ritual or observance or ceremony is an essential part of religion and religious practices, the Supreme Court lays down the principle that reference is relevant to the doctrines of the particular religion including practices which were regarded by the community as a part of its religion. The controversy, however, has not abated. In another recent decision of the Supreme Court in Tikayat Sri Gobinda Lalji v. State of Rajasthan, the view is expressed that the right to manage the property of a religious denomination is a secular matter and this case evolves a distinction between a matter of religious beliefs and practices on the one hand and the management of property of such religious denomination on the other hand. Article 26(b) of the Constitution, when compared and contrasted with Article 26(c) and (d) appears to the distinction between religious beliefs and practices which cannot be controlled and the management of the property of religious denomination which can be controlled to the extent recognised by the Article. It may be noticed in this connection that the Supreme Court upheld the validity of Sri Jagannath Temple Act, 1954 against the challenge under Article 26(d) of the Constitution in Raja Birkishor Deb v. The State of Orissa,’’ Another case deals Government Rules Hindu Temples

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with the effect of the Bombay Hindu Places of Public Worship Entry Authorisation Act.” It holds that section 3 of that Act was not ultra vires Article 26(b) of the Constitution. The Court held that, section 3 of the Act was not intended to invade the traditional or conventional manner in which the act of actual worship of the deity is allowed to be performed only by the authorised Pujaris of the temple and by no other devotee who entered the temple for darshan. It also held that Swami Narayan Sampraday sect was not a religion distinct from Hindu religion and the temple belonging to that sect comes Within the ambit of the provision of that Act. Another area of constitutional impact is when Judges and courts enter into the debatable sphere of rejecting a religious practice based on what they think to be irrational consideration. Closely connected with this topic is the theory introduced recently that only those practices which form an essential and integral part of the religion may get protection under Article 26 of the Constitution. Relevant decisions on this point expressing such views are to be found in the case of Tikayat Sri Gobinda Lalji v. State of Rajasthan and Darga Committee v. Hussain.’ If Courts started enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be. The attempt of the courts to determine judicially what are or are not the essential parts of a religion may raise difficult questions whose justiciability is doubtful. It is all the more doubtful when judicial dicta try to lay down the formula that whether a particular religious practice is an essential part of the religion or not is an objective question to be determined by the court by looking to the tenets of the religion itself. The usual classification of objective and subjective tests is beset with many difficulties in this area. The objective tests from the practical point of view may be difficult to apply for a good deal of such practice is tuned up with the subjective ideology of a religion. Where, however, religious practice becomes a crime, then the courts have undoubted right under the Constitution to strike them down on Government Rules Hindu Temples

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ground of public order. See the American decision on this point and the judgment of Mr. justice Bradley in the case of Corporation of the. Church of Jesus Christ of Latter-day Saints v. United States/’ Separate statutes by different States with regard to different religious and their denominations have been generally held to be good and they have successfully withstood the challenge of Article 14 of the Constitution providing for equality before the law or the equal protection of the laws fundamentally on the basis of the principle of reasonable classification. Moti Das v. S. P. Sahik is the leading authority where the question related to the validity of certain provisions of the Bihar Hindu Religious Trusts Acts, 1951. See also the decision of the Supreme Court in the State of Bihar v. Bhabapritananda.” One more important question has been to find out what is religious property. Some of these statutes relating to Hindu religious and charitable trust had to face the challenge of Article 19(1)(f) of the Constitution providing for the fundamental right to acquire, hold and dispose of property. The special point which often arises in this connection is that the office of a Mohunt or a Shebait is property. In Shirur Mutt case the head of the Mutt challenged the validity of certain statutory provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, on this very ground that they violate the fundamental right to hold property. The ratio of this case is that the word ‘property’ under Article 19(1)(f) of the Constitution must be liberally and broadly interpreted so as to include the right of the Mohunt to the beneficial enjoyment of the property of the Mutt and to deal with and dispose of its income by his discretion for the purpose of the Mutt. It was well settled principle of Hindu law of religious and charitable trust even long before the Constitution of India that the office of a Shebait is property and it was extended to that of the Mohunt. The leading cases on the point are (1) Shirur Mutt case. (2) Ratilal v State of Bombay (3) Sri Jagannath v. State of Orissa and (4) Moti Das v. S. P. Sahi and they represent the corner stone of the law of Government Rules Hindu Temples

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Hindu religious and charitable trust in the light of the present Constitution of India with special reference to the right of property in Article 19(f) of the Constitution. Similarly the right of hereditary Shebait has also been recognised as property in Angurbala v. Dababrata; Kalipada v. Palani Bahi-and Narayana v. State of Andhra Pradesh. From the constitutional point of view, there is an obstacle to the formulation of one uniform code for religious and charitable trusts and endowments. Entry 28 of List III of the 7th Schedule of the Indian Constitution grants concurrent powers of legislation to legislate in the field of charities and charitable institutions, charitable and religious endowments and religious institutions. The legislative powers in this respect are shared by Parliament and all the State Legislatures. This is responsible for different statutes by different states on a subject of common interest. 5.5 CONCLUSIONS What Corrective Actions should be taken in deciding such cases by Supreme Court in future? It is important to relook at the criticism of the Essential Practices Doctrine once again 1. Therefore the courts can discard as nonessentials anything which is not proved to their satisfaction- and they are not religious leaders or in any relevant fashion qualified in such matters- to be essential, with the result it would have no constitutional protection. (Derret 1968 : 447) 2. With a power greater than that of a High priest, Maulvi or Dharmasastri, Judges have virtually assumed the theological authority to determine which tenets are “essential” to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the constitution. Few religious pontiffs possess this kind of power and authority ( Dhavan and Nariman 2000:259) 3.

A single bench of the Calcutta High Court, in a rare occurrence


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took contrary view of the Essential Doctrine principle in the case (AIR 1990 Cal. 336). Justice Bhagabati Prasad Banerjee wrote “The performance of tandava dance cannot be said to be a thing which is beyond the scope of Hindu religion. Hindu texts and scriptures provide for such dance. If the Courts start enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be”. This was a strong indictment of the essential practices principle followed by the Supreme Court since 1960s. It is quite clear that all the above points of criticism apply squarely to the Narayana case and the Essential Practices Doctrine which was used by the learned Judges to separate the un essential from the essential without sufficient expertise and grounding in the various schools of Hindu Philosophical thought. Further the definition of Religion that was articulated in the Shirur Mutt case has been considerably diluted as noted by the Ronojoy Sen in his article Quoting from texts such as the Vedas, Upanishads, and the Gita, and using modern thinkers and writers such as Aurobindo, Vivekananda, Radhakrishnan, Shankar Dayal Sharma, and even Richard Dawkins, Ramaswamy attempted to construct a notion of religion significantly different from Shirur Mutt. Taking cue from Aurobindo’s distinction between “true religion” which is spiritual, and “religionism,” which is narrow and focused on ceremonies, Ramaswamy proposed: “The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed… It is essential that the value of law must be tested by its certainty in reiterating the core of Religious Experience and if a law seeks to separate the non essential from Government Rules Hindu Temples

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the essential so that the essential can have 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” Ramaswamy drew a parallel between a “higher” and “core” religion and the concept of dharma. According to Ramaswamy, it is dharma rather than conventional religion that is protected by the constitution…. The idea of a higher or “dharmic” religion, according to Ramaswamy is fundamental to the essential practices doctrine and the secular Constitution. He states: “In secularizing the matters of religion which are not essential and integral parts of the religion, secularism, therefore, consciously denounces all forms of supernaturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, nonreligious or antireligious practices are antithesis to secularism which seeks to contribute to some degree to the process of secularization of the matters of religion or religious practices” “The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion according to its cultural and social demands to establish and an egalitarian social order” The unusual redefinition of religion and religious freedom in Narayana is far removed from what Mukherjea in 1954 had originally proposed in Shirur Mutt. The distinction between “essential” religion and “superstition” had been articulated by Gajendragadkar. However, the conception of religion as dharma that can foster an egalitarian society and a unified nation is closer to that proposed in the 1994 Bommai Judgement. The corrective actions that need to be urgently taken by the Supreme Court so as to prevent such errors of judgement in future is as follows :1. The definition of what is protected under Art 25 and Art 26 as articulated in the Shirur Mutt case need to be strictly followed.


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Justice B.K Mukherjea, who wrote the Judgement asked a central question: “Where is a line to be drawn between what are matters of religion and what are not?” According to the court “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” This “essential part” of religion is protected by the Constitution: “ Under Article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has jurisdiction to interfere with their decision in such matters” However the state can legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”. The court also held that “protection under Articles 25 and 26 was not limited to matters of doctrine or belief but also extended to acts done in pursuance of religion therefore contained guarantees for rituals, observances, ceremonies and modes of worship” 2. Whenever the Supreme Court under Art 32 is asked to make a determination as to whether a custom and usage followed by a religion is unessential part it needs to necessarily ask that the same be determined following the Civil procedure from lower Court level so that the Judges can ask for evidence to be given by experts in the area and there is also scope for cross examination. This will ensure that the people who practice the religion have sufficient scope to establish why they think certain practice is an essential part of the religion as per the doctrines of their religion. 3. Even the definition of secular activities in the Shirur mutt case needs be looked into. Finally, Shirur Mutt is a landmark case because it contained a deeply contradictory trend. On the one hand the Judgement is celebrated for widening the definition of Religion to include rituals and practices. On the other hand it sanctioned an elaborate regulatory regime for religious institutions. This anomaly has been noted by P.K. Tripathi: “ In the final analysis therefore articles 25 and 26 do not emerge from the Judgement in the Swamiar [Shirur Mutt] case as very effective attack on social legislations effecting the management of religious institutions” (Tripathi 1966). Government Rules Hindu Temples

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CHAPTER - 6

CONCLUSIONS AND SUGGESTIONS 6.1 INTRODUCTION In the context of various other Denominations, the study focused on the Hindu Religious Institutions and limited this Study to three important aspects of the topic of State Control of religious Denominations- Problems and Perspectives. The study evaluates the Role of the State, the Executive and the Judiciary in shaping the State Control which prevails now. Whether the present situation is allowing autonomy to the Religious Institutions to function as per the Objectives for which they have been founded was the real crux for this study. Observing the last few decades of State Control of Hindu Temples displays that temples have been transformed from localized, more or less distinct institutions into an organized and constituent part of the political system. Social reform, cultural protection and efficiency which are the ideals closely linked with modernity and the modern state itself justified and promoted this reconstruction. Yet conflicts over the theory of the temple, and the constitutional limits on interference have repeatedly made difficult the concept of mechanical incorporation of temples into the state’s structure and have given a significant twist to temple istration. The Endowments Department has the advantage of authority, but in practice its istration is full of struggle for jurisdiction among state agencies. Through certain Legislations, Central politicians and policy makers have eroded the Hindu Temple’s autonomy by their attempts to direct the purposes to which its material and other resources are put. The state’s effort to control temples did not just “happen” in an impersonal, evolutionary sense. Politicians, bureaucrats, judges and colonial rulers (to mention only a few) had a hand in it, acting at different levels of the political system and for different ideological, institutional and political purposes. Centralization culminated in the Hindu Religious Endowments Government Rules Hindu Temples

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Board and in its successor, the Hindu Religious and Charitable Endowments (HRCE). This extensive bureaucracy was created specifically to make the local temple more responsive to state and national policy. The clear design was to modify local traditions, customs and practices to bring them into line with the political interests and ideological preferences of westernized elites, bureaucrats, political parties and social reformers. The effort to draw the temple to the center was systematic, elaborate and selfconscious. 6.2

LEGISLATIONS AND THE TEMPLES

As has been discussed in the previous chapters and analysis of the various conflicts in many Temples, most of the problems which, Regulation VII of 1817, Act XX of 1863, Section 92 of the Civil Procedure Code, the HRE Act of 1927 and the HRCE Act of 1951 were designed to address and 1 “solve” are still present: corrupt trustees, poorly trained priests, irregular trustee succession, excessive expenditures, internal conflict and factionalism and, in general, the use of the temple for personal wealth, status and power. The temple’s resilience in the face of the challenges by the modern state is an instructive example of istrative ineffectiveness in post colonial states. This study has highlighted several dimensions of the problem. In part, the causes of the temple’s resilience are related to what scholars of political development have called the crises of penetration, integration 2 and centralization. The task which central policy-makers in Madras set for themselves was that of penetrating and integrating under central control over 50,000 separate and locally based Temples, many of them in rural isolated, relatively inaccessible regions of the state. This was an enormously 1

For a good description of this process, see Christopher J. Baker, The politics of south India 1920-1937 (Cambridge University Press, 1976), esp. pp. 322 ff. 2 Leonard Binder et al.. Crises and sequences in political development (Princeton University Press, 1972).


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complex task. In simple organizational , it assumed a level of technical and bureaucratic capacity which is only now being approached. On top of this, persistent conflict has characterized the relations between central s and those over whom they would exert control. The processes mentioned above are technical, value-neutral processes. By definition, they imply the destruction of the often unique patterns which historically have prevailed in the locality, and are informed by the ideological preferences and material interests of individuals, groups and institutions at the center. It is therefore natural that centralization and integration are resisted by local groups and individuals who see that they have much to lose and little to gain at the hands of central policy-makers. Thus, the task of centralization would have been difficult in any case. Seriously complicating istration and accentuating the likelihood of ineffectiveness were the conflicts, examined throughout this book, among operative ideals or theories. In the universe of temple istration there is no agreement on such basic issues as what the unit of istration, “the temple,” really is, how its relations to society and politics should be analyzed and described, and what the obligations and rights of the state towards it are. The traditional temple is an institution where public and private, the religious and the secular, power and authority meet and become nearly indistinguishable. The temple is fundamentally a functional centre, for distributing and redistributing local resources which make for power, wealth and status. The boundaries between temple and society are fluid and permeable, and temple processes are an integral part of social and political processes generally. Hence, the State’s operative ideal is sharply different. Its assumptions - that temples are “public,” “religious” and “nonpolitical” – increase the distance between it and the localities. The Devotees hence are feeling isolated today from their own Temples.


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6.3

COURTS AND THE TEMPLE

The constitutional courts’ approach has been more congruent with the traditional temple. The court is more responsive to local customs and traditions, and less committed to separating the temple from society and politics. The court is willing to adjudicate the struggle for power and place in the temple in of the historical concept of “shares.” Indeed, because it tends to define “shares” in of the western concept of “rights” and because it respects “custom and usage,” the court is favored by temple actors interested in consolidating positions already achieved. Before this study can elaborate on conclusions, the verification of Hypothesis is undertaken. 6.4

VERIFICATION OF HYPOTHESES :

The first hypothesis proposed is that The State Control of Religious Institutions is violative of the freedoms provided in Articles 25, 26 and 27. to the religious denominations. After the research work and on verification, it is found that this hypothesis is found to be true and depicts the correct picture of the existing situation. It is observed in our study that the Hindu Religious Institutions have lost their original shape and identity by the increased Governmental Control. The Institutions which existed and flourished for hundreds of years have slowly closed down as per the Statement of Objects and Reasons of 33/2007 Endowments Amendment Bill introduced in the Andhra Pradesh State Assembly in April 2007. Therefore it may be concluded that State control of Religious Institutions has been violative of Constitutional guarantees provided to the Religious denominations. The second Hypothesis proposed is that the extensive Legislative control has reduced the economic and physical personality of the Hindu Religious Institutions. This also on verification found to be true. There are 24,401 Temples in the State of Andhra Pradesh with Annual income less 3 than Rs.1,000/- (One Thousand only). Therefore it may be concluded that extensive Legislations have closed down many rural temples. 3. Justice Challa Kondiah Commission Report.1986


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The third Hypothesis proposed is that the role of Judiciary in protecting the Identity of religious institution has not been satisfactory. As has been observed in the various Judgements of the High Courts as well as the Supreme Court, the Constitutional Courts by and large have taken the stand that the actions of the State are legitimate and have approved the same. With the result, the Constitutional Rights provided to Religious Denomination have come under frequent violation by the state and Legislatures. It is observed in this study that the Judiciary has not actively Protected the Rights of the Hindu Religious Denominations and their Institutions. 6.5 CONCLUSIONS The discrepancies between these three theories of the temples - those of the locality, State, Court, go a long way towards explaining the pervasiveness of jurisdictional conflict, the diversity of norms and expectations, and the general ineffectiveness of State istration. State authority over temples is fragmented. The State does not have exclusive jurisdiction over temple affairs and, because of this, crucial aspects of its istration depend on cooperation among several government agencies. This cooperation seldom exists. Fragmented authority results in devastation. Politicians know that they can manipulate jurisdictional disputes in such a way that their chances of achieving their goals, of making a successful claim to a part of the temple’s resources, are enhanced. Manipulating jurisdictions means manipulating political cultures, i.e., rules and procedures which channel demands and regulate conflict, and languages and concepts which define “reality,” issues and problems. In a sense, then, the positive aspect of policy ineffectiveness is greater political representation. As the archaka legislation showed clearly, the persons most directly affected do not necessarily have a formal and direct voice in shaping temple policies.


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What, then, of the overall structural relationship between temple and state? What, on balance, is the extent of change since the nineteenth century? It is clear from the AP experience that a secular Government, which has not been able to fight the corruption inherent in itself cannot be trusted to ister affairs of Hindu temples cleanly. Corruption and Politicization will lead to destruction of temples and eventually the religion which would be contrary to the rights of Hindus enshrined in the Articles 25 and 26 of the Constitution. Even though istration of Hindu Temples is a secular activity, the religious atmosphere so vital to their existence and an “essential and integral part” depends on the devotion with which the secular activities are performed. Hence, any law which does not ensure istration of the religious institutions by people of high repute and devotion, would impinge on the essential and integral part of the religion and hence would be unconstitutional. This aspect needs to be looked into by the Supreme Court. The objective of providing greater role for the state was to eradicate certain evils like untouchability and discrimination, these have largely been eradicated and now a point has been reached where the continuous State Intervention in religion and its Denominations is proving Counterproductive activity and hence there is a strong need to create a barrier between the state and the religion. The creation of the Andhra Pradesh Dharmic Parishad entity to oversee the secular aspects is a step in the right direction for creating a barrier but more needs to be done. Eventually Articles 25 and 26 should itself be amended to prevent the wrong Interpretation by the Individual Judges to suit their whims. In the broader historical sense, the inauguration of the Hindu Religious Endowments Board did settle at least one thing. It ended the long argument, which had begun in the 1830s, between Madras officialdom and the proponents of withdrawal in favor of the former. “Protection” replaced “noninterference” as the central ideological underpinning of actual practice. But beneath this victory lay tensions over the concrete direction protection Government Rules Hindu Temples

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should take. Part of the success of “protection” as a legitimating principle, indeed, lies precisely in its capacity to convey multiple meanings and values. The uneven record of subsequent temple istration is tooted in these tensions. In light of the serious damage to the cause of Hindu Religion that was caused due to the wrong conclusions arrived at in the Narayana* judgement following the Essential Practices Doctrine there is an urgent need to review the Doctrine itself and put in place corrective measures as articulated in this research study. This is needed to ensure that not only Hindu Religion but other religions are protected against mindless experimentation by the Legislatures which are inevitable in a democracy such as ours and it is only the independent Judiciary following strict procedure and correct interpretation of the Constitution that can protect the rights of the followers of various religions under Art 25 and Art 26. Extensive Governmental control does not, however, guarantee effectiveness. istration includes cultural dimensions which may seriously undercut policy. Government officers have distinct images of the world they ister and distinct languages to describe and control that world. The categories used for analysis, the way problems are denned, and the procedures applied to address those problems come together in clusters of ideas and sentiments, or “theories.” A particular agency’s theory is not necessarily or even usually stated explicitly; it is embodied in regulations, and draws on the agency’s history and organizational style, and on the professional culture of its officers. When different agencies have different theories, the rivalries and conflicts which result are far more than just petty squabbles; involved are identities and public purposes to which s may be genuinely and deeply committed. The result can be paralysis. Finally, because this Study departs from most others on Indian religionstate relations in that it does not adopt the concept of secularism as a basic orientation to the subject, a word of explanation may perhaps be in order. Without question, secularism is a central component of India’s national identity and public philosophy. As a legal concept, secularism’s meaning is in Government Rules Hindu Temples

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principle clear: it means “non-establishment” (no established state religion) and “religious freedom” (freedom to practice religion, subject to minimal constraints in the interests of public order and morality). Secularism has also been described as “noninterference” and as a “wall of separation.” Religious policy, in other words, cannot be studied primarily through reference to the formal principle of secularism. The state’s policy at any given time is an outcome of many factors: the law and Constitution, to be sure; but also party competition, individual, group and organizational interests; ideology; material advantage; and long-term regime interests. Religion-state relations change over time, and religious policy is subject to the same sorts of political pressures as policy in any other area. Three major continuities and one major change may be mentioned. The primary continuity is the very fact of state jurisdiction over temples. The solicitude of the state for temples, which, as we have seen, is a leading characteristic of modern “secular” south India and is definitely not new. It characterized the early British raj, for example, when temple endowments were regarded as religious trusts, and were also a feature of the medieval period. What Professor T.V. Mahalingam observes of premodern times illustrates that the underlying purposes of HRCE* policies are essentially identical with those which have stimulated state action in temples for hundreds of years: Sometimes the kings instructed the authorities of the temples to sell away by public auction the lands and rights of the temple servants who had embezzled money from the temple treasury and thereby committed the crime of Sivadroha. Under normal circumstances, the temples were not to part with their lands either by mortgage or sale, and anyone who bought them was liable to be punished with the confiscation of his property. At one period a number of villagers at Chidambaram had taken up on mortgage lands purchased, presented to or otherwise owned by temples and refused to give back such lands to them. So the temple tenants had to * A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) (referred as Narayana case) Government Rules Hindu Temples

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abandon the villages which resulted in the stopping of worship in the temples. Hence the king ordered that temple lands were not thereafter to be let out on (long) lease nor were they to be assigned to anyone as tax4 free hereditary property. The pivotal role of the state is undoubtedly related to the absence in Hinduism of an ecclesiastical organization able to impose controls against temple mismanagement and to arbitrate conflicts among trustees, priests 5 and worshippers. Historically, the south Indian state has performed this role and this activity is, in the final analysis, the core meaning of state protection. In the twentieth century, Politicians use the temple to enhance their power, but the state’s authority in the final analysis derives from non-local sources, particularly from the principles enshrined in the Indian constitution. Equally important, the state no longer acts as the temple’s major donor. On the contrary, rather than donating resources, the state extracts resources in the form of temple “contributions” which are used to finance a far-flung bureaucracy, the Endowments istration. The fundamental character of this change has not been lost on temple personnel or on others. Once again, we can look to the debates on the original Hindu Religious Endowments act in the 1920s to find a succinct statement of the change. The following age was quoted earlier in this study, but is worth repeating: Our kings in the old days, the Hindu kings, endowed properties for temples and maths. They appointed trustees or constituted themselves as trustees. That is how they exercised the kingly duty of interfering with the temple properties. But what is the case now? The government which has got an ecclesiastical department for itself has nothing to do with the endowments of the properties of the Hindus, but yet wants to interfere with the religious institutions.

* Hindu Religious and Charitable Endowments. 4

T.V. Mahalingam, South Indian polity (University of Madras, 1967), p. 384.

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Appadurai, Worship and conflict, ch. 2.


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It is, of course, true that the state today, in the form of the Endowments Department, has “nothing to do with” temples in the direct, personal sense praised by the speaker in the above age. But most HRCE officers would regard this as the HRCE’s outstanding virtue. The age of the HRE Act of 1925 symbolized the rejection by the modern state of the traditional, organic link between public authority and temples. The HRCE today is a bureaucratic organization designed specifically to eliminate all signs of personal, patrimonial-like interests on the part of those with authority in temples, whether they be trustees, EOs or commissioners. Ideally, trustees should have no personal stake in their temples. EOs are transferred frequently to ensure that they do not develop more than a temporary and career-oriented interest in their institutions. 6.6 SUGGESTIONS: 1. It is impossible to make a final assessment of the historical choice made in favor of “pure” bureaucratic istration at the expense of the more patrimonial forms which preceded it. Hence, A Dharmika Parishad which included Religious Heads, Judges, Men of Repute, archakas and other Stake holders to run the entire Temple istration in the State is the Solution. This Solution has been provided by the Andhra Pradesh 33/ 2007 Endowments Amendment Bill which is now an Act as Notified in 2008 is the Solution. This Act has to be implemented strictly. 2. Devotees who are in Crores need to participate in the protection and service to their respective Institutions and never allow the State to appropriate the Properties and Incomes of the Temples. 3. The Judiciary which is the gate keeper of the rights of the religious denominations should in future more carefully interpret the protection provided under Art 29(1), Art 21, Art 25 and Art 26 and protect the religion, culture, tradition and heritage of the Religious denominations from excesses of the Legislatures. In conclusion, it is seen with experience that there is a need for a more regulatory control of istration than that of an appropriating or ownership nature by the State. This will help the Religious Denominations and its Institutions to flourish and sustain on its own. Government Rules Hindu Temples

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APPENDIX - I It is the objective of this study to analyze critically the case file of the failed Andhra Pradesh experiment on temple reforms initiated through Act 30 of 1987 Legislation which was upheld by the Supreme Court using the essential practices doctrine in A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) * (referred as Narayana case) going against the core principles enunciated in the Agamas which govern all aspects with regards to temples. This analysis has been provided in this appendix. Why is the right to Hereditary Archakatvam an essential and integral part of religion contrary to the conclusion reached in Narayana judgement ? We know that the Agamas insist on the Hereditary right to Archakatvam and as part of usage it has been prevalent in almost all temples. The Agamas insist that any deviation will cause defilement of the Deity and great harm to the society. This warning was not taken seriously and was treated more as a superstition. The subsequent events recorded in section 4.3 of this book shows that the Agama Rishis had great wisdom and foresight in giving such a severe warning to the society. The AP 30/87 experiment allows us to understand by observation why the Agamas were giving such serious warning. The following points illustrate further why hereditary system is so important. 1. Archakatvam is a service to the society more so in temples of very low income in remote villages which constitute over 90% of the temples. 2. In these low income temples only hereditary system guarantees availability of Archakas of high caliber, as the family commits the sacrifice of training atleast one of its in the traditional avocation as a duty to the deity, and society, as ordained by the Agamas. If the right is taken away, there is no incentive for the sacrifice, as the same member can now take up any money making avocation. End result is the closure of the temple, as there is no one from the Agama institutes willing to work in a remote village with almost nil salary. The assumption of the learned Judges that abolition of the hereditary right will only work for better, as the field of choice is widened does not work for low income remote village temples; in fact the field is narrowed to the point of extinction. Government Rules Hindu Temples

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3. Another point to note is that as a society there are now many money making avocations and very few people are opting for Archakatvam which is :a.

A Low income earning profession

b.

Because of the attire they have great difficulty in getting married.

c. They are no longer held in high esteem by the society which is highly materialistic. d. Abolishing Right to hereditary archakatvam opens up the archaka profession to the market forces. When we are now struggling to find high caliber people for traditional avocations like teaching, pure science, law, doctor (rural) etc; while IT and Services is sucking up all the graduates, we can imagine the plight of a traditional profession like archakatvam which in addition, has all the above defects. e. Through the Agama Samhitas the ancient Rishis established a quid pro quo arrangement, where the society recognizes the right to hereditary archakatvam of the archaka family and simultaneously ened it as a duty of the family to train its for archakatvam. This aspect is clear because the Agamas insist that even when the hereditary archaka in service is incapable of continuing due to various reasons including bad conduct, he can be terminated, but the search for replacement should again start with the family. This clearly establishes the fact that as per Agamas the right to archakatvam is not an individual right but the right for the family in return for the sacrifice as part of duty ened on the family. In fact from Appendix-II of this book it will be clear that Hereditary Archakatvam is a duty and responsibility of the family for the society. The quid pro quo arrangement put in place by the Agamas and followed scrupulously by the society in almost all temples for many thousands of years ensured uninterrupted rituals in all temples irrespective of the income status, until this was disturbed by the legislature and later upheld by the courts causing grievous damage as detailed in section 4.3 of this book. f. The Agamas lay down, when the society as represented by the trustee or the King Etc could go outside the family for appointing the Archaka and even in this case once a successor from the family is identified he gets the right to Archakatvam. The Agamas felt the strong need to keep the archaktvam within the family, which was dedicated to serving the deity of a temple, to ensure uninterrupted rituals. At the same time Agamas had exception clauses to avoid interruption in the Government Rules Hindu Temples

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rituals, due to unforeseen circumstance when there was no one temporarily ready to take up the activity within the family. Hence, Right to Hereditary Archakatvam, which ensures availability of high caliber archakas for all temples irrespective of income of the institution, is an essential and integral part of our religion, as abolishing it will cause irreparable damage to the temple system of worship as evidenced by the AP 30/87 experiment. It is further clear that the right to hereditary archakatvam is a right to the archaka family, which is collectively represented by all its it is not an individual right. Though the individual right can be terminated by action of the trustee or the king under extreme circumstances, the right of the family cannot be terminated as per usage and custom dictated by the Agamas (refer Appendix-II). The above intricate reasons why hereditary archakatvam is an essential and integral part of religion was not recognized by the learned Judges in the Narayana case as is evident from the below conclusion arrived at in the judgement. “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, its abolition by sovereign legislature is equally valid and legal……It is not an essential part of religion or matter of religion or religious practice. Therefore, abolition of the hereditary right to appointment under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution”.(Para 120 & 121) As can be seen by the above statements by the learned Judges, one of the main arguments for deciding that right to Hereditary Archakatvam was not an essential part of the religion was because the Hereditary Archaka could be dismissed by the trustee for disciplinary reasons. This fact is not disputed by the Agamas, but what the learned Judges failed to note is that after the dismissal the right of the family as represented by the other qualified still existed and this right needs to be recognized when the successor is chosen and was the custom and usage for many thousands of years. The Agamas laid down the rule (Hereditary Government Rules Hindu Temples

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succession) and also the exception under extreme conditions. The learned Judges used the exception clauses to justify that the rule was unessential, which was not the intention of the Agamas in listing the exception as a remedy for extreme circumstances, while asserting the need to follow the rule. 1.1 The Causes for the wrong conclusion in the Narayana Judgement through Essential Practices doctrine. The Learned Judges having great expertise in the legal domain were not practicing philosophers or religious heads but were attempting an intricate religious task with the result they formulated their opinions based on their limited knowledge in the subject without taking into the beliefs and commentaries of all the religious heads belonging to various schools of thought of Hindu Philosophy. The following will illustrate this The learned judges quoted many philosophers even people belonging to other religions but unfortunately there was not a single quotation in the Judgement of Sri Ramanuja who travelled length and breadth of this country and sacrificed his life to bring about reforms in the temple system. The learned Judges after quoting number of philosophers make the following assertion: “It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of no use since the observance of rituals and the devotion of knowledge cannot coexist. There is considerable incompatibility between knowledge and rituals inasmuch as their natures are entirely antithetical. It is only he who regards himself as the agent of action that can perform rituals; but the nature of knowledge is altogether different and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge, while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one to perform the prescribed rituals while engaged in the pursuit of knowledge inasmuch as they are incompatible! It is as much impossible as coexistence of light and darkness. One cannot keep one’s eyes open and closed at the same time. It is equally impossible to combine knowledge and rituals. Can one who is looking westward look eastward? How is one whose mind is directed towards the innermost Atman fit to take part in external activities? “(Para 58)


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The above statement clearly negates Karma Yoga, Bhakti Yoga and Prapatti Yoga as paths advocated by various schools of thought of Hindu religion for self realization leading to salvation. This single paragraph negates several schools of thought of Hinduism like Vishishtadwaita and Dwaita with millions of followers, who hold very divergent views of what constitutes action, and inaction. It is noteworthy that the case was pertaining to thousands of temples belonging to Sri Ramanuja’s Vishishtadwaita philosophy and Sri Madwacharya’s Dwaita philosophy and the Judges have quoted Adi Shankara’s Advaita philosophy that too out of context and used it as a basis of the judgement against the very principle of Articles 25 & 26 of the Constitution. The views also negate the commentary on Bhagavad-Gita by Mahatma Gandhi who laid heavy stress on performance of action and one’s duty and selfless service to society as a way to salvation in the commentary. In fact this statement negates the entire Agama Philosophy. We need to understand why the above statement does not apply to Temple System of Worship. 1.1.1 How the basis of Narayana Judgement is in violation with various commentaries on Bhagavad-Gita The following are some important slokas from Bhagavad-Gita with the explanations from the book titled “The BHAGAVDGITA” by Prof S. Radhakrishnan the first Philosopher President of independent India. This illustrates the complete philosophy of the Gita which is in variance with the conclusions of the learned Judge as stated above. Bhagavad-Gita (Chapter 3 Sloka 3)

¬ÁzNz˛DuÀ™uã˚uƒáÁ uå…eÁ úÏ∫Á üÁzO˛Á ™ÆÁDåV @ rÁåÆÁzTzå ÃÁWΩPÆÁåÁÊ N˛™|ÆÁzTzå ÆÁzuTåÁ™Ω @@3-3@@ O, Blameless One, in this world a two-fold way of life has been taught of yore by me, the path of knowledge for men of contemplation and that of works for men of action. Bhagavad-Gita (Chapter 5 Sloka 4)

ÃÁWΩPÆÆÁzTÁ{ úwsS§Á¬Á: üƒtuão å úulgoÁ: @ LN˛™õÆÁuÀso: Ã©ÆTÏßÆÁzuƒ|ãtoz ¢˛¬™Ω @@5-4@@ The Ignorant speak of renunciation (Sankya) and practice of works (Yoga) as different, not the wise. He who applies himself well to one, gets the fruit of both


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Bhagavad-Gita (Chapter 6 Sloka 1)

EåÁu»o: N˛™|¢˛¬Ê N˛ÁÆ˙ N˛™| N˛∫Ázuo Æ: @ Ã ÃÊãÆÁÃy Y ÆÁzTy Y å uå∫uTíå| YÁuN¿˛Æ: @@6-1@@ He who does the work which he ought to do without seeking its fruit he is the sanyasin, he is yogin, not he who does not light the sacred fire, and perform no rites. Bhagavad-Gita (Chapter 3 Sloka 20)

N˛™|m{ƒ u“ ÃÊuÃuÚ™ÁuÀsoÁ \åN˛ÁtÆ: @ ¬ÁzN˛ÃÊT¿“™zƒÁuú ÃÊú≈ÆãN˛oÏ|™“|uÃ @@3-20@@ It was even by works that Janaka and others attained to perfection. Thou should do works also with a view to the maintenance of the world. Bhagavad-Gita (Chapter 3 Sloka 25)

ÃO˛Á: N˛™|lÆuƒ˚ÁÊÃÁz ÆsÁ NÏ˛ƒ|uão ßÁ∫o @ NÏ˛ÆÁ|u˚˚ÁÊÀosÁDÃO˛u≥ÁN˛y Ï|¬Áz|N˛ÃÊT¿“™Ω @@3-25@@ Just as, with attachment, the unenlightened perform all actions, O Bharata, even so, but unattached, should the enlightened man act, with a desire for the welfare of humanity. The Bhagavad-Gita in the following verses describes the Perfect Yogi Bhagavad-Gita (Chapter 6 Sloka 46)

oúuÀƒ•ÆÁzDuáN˛Áz ÆÁzTy rÁuå•ÆÁzDuú ™oÁzDuáN˛: @ N˛u™|•Æ≥ÁÁuáN˛Áz ÆÁzTy oÀ™Á˘ÁzTy ßƒÁ\Ï|å @@6-46@@ The Yogin is greater than the ascetic; He is considered to be greater than the man of knowledge, greater than the man of ritual works, therefore do thou become a Yogin O Arjuna Bhagavad-Gita (Chapter 6 Sloka 47)

ÆÁzuTåÁ™uú Ãƒz| ÁÊ ™ËozåÁão∫Án™åÁ @ »ÚÁƒÁãß\oz ÆÁz ™ÁÊ Ã ™z ÆÏO˛o™Áz ™o: @@6-47@@ And of all Yogins, he who full of faith worships me, with his inner self abiding in me, him I hold to be the most attuned (to me in Yoga)


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After giving a long of the Yoga discipline, the obstacles to be overcome, the teacher concludes that the great Yogin is the great devotee (bhaktha) Through the following Slokas it is established that the Worship of the Personal Lord is better than meditation of the Absolute. Bhagavad-Gita (Chapter 12 Sloka 1)

E\Ï|å GƒÁY@ LƒÊ ÃooÆÏO˛Á Æz ßO˛ÁÀnƒÁÊ úÆÏ|úÁÃoz @ Æz YÁõÆq∫™√ÆOÊ˛ oz ÁÊ Nz˛ ÆÁzTuƒ™Á: @@12-1@@ Arjuna Said: Those devotees who, thus ever earnest, worship thee and those again (who worship) the Imperishable and the unmanifested, which of these have the greater knowledge of Yoga? Bhagavad-Gita (Chapter 12 Sloka 2)

»y ßTƒÁåÏƒÁY@ ™´ÆÁƒz≈Æ ™åÁz Æz ™ÁÊ uånÆÆÏO˛Á GúÁÃoz @ »ÚÆÁ ú∫ÆÁzúzoÁÀoz ™z ÆÏO˛o™Á ™oÁ: @@12-2@@ The Blessed Lord Said: Those fixing their minds on Me worship Me, ever earnest and possessed of supreme faith-them do I consider most perfect in Yoga The teacher answers decisively that those, who worship God in His manifested form, have greater Yoga Knowledge. Bhagavad-Gita (Chapter 12 Sloka 7)

oz Á™“Ê Ã™ÏÚoÁ| ™wnÆÏÃÊÃÁ∫ÃÁT∫ÁoΩ @ ßƒÁu™ åuY∫ÁnúÁs| ™´ÆÁƒzu∆oYzoÃÁ™Ω @@12-7@@ Those whose thoughts are set on Me, I straightway deliver from the ocean of death bound existence, O Partha (Arjuna) Bhagavad-Gita (Chapter 12 Sloka 8)

™´Æzƒ ™å EÁánÀƒ ™uÆ §ÏuÚÊ uåƒz∆Æ @ uåƒuÃ…ÆuÃ ™´Æzƒ Eo HÜƒ˙ å ÃÊ∆Æ: @@12-8@@ Government Rules Hindu Temples

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On Me alone fix thy mind, Let thy understanding dwell in me, In me alone shall thou live thereafter. Of this there is no doubt. Bhagavad-Gita (Chapter 12 Sloka 9)

Es uYÊ Ã™ÁáÁoÏÊ å ∆Ní˛Ázu ™uÆ uÀs∫™Ω @ E•ÆÁÃÆÁzTzå ooÁz ™Áu™XZÁDDõoÏÊ áå±ÁÆ @@12-9@@ If however, thou art not able to fix thy thought steadily on me, then seek to reach Me by the practice of concentration, O Winner of wealth (Arjuna) Bhagavad-Gita (Chapter 12 Sloka 10)

E•ÆÁÃzDõÆÃ™sÁz|DuÃ ™nN˛™|ú∫™Áz ßƒ @ ™ts|™uú N˛™Á|um NÏ˛ƒ|uãÃuÚ™ƒÁõÀÆuÃ @@12-10@@ If thou art unable even to seek by practice, then be as one whose supreme aim is my service; even performing actions for My sake, thou shalt attain perfection. If the concentration is found difficult on of the outward tendencies of the mind of our circumstances, then do all actions for the sake of the Lord. Thus the individual becomes aware of the eternal reality. Matkarma : is sometimes taken to mean service of the Lord, puja or worship, offering worship, offering flowers and fruits, burning incense, building temples, reading scriptures etc. Sri Ramanuja in his Gita Bhashya Defines the word Matkarma as follows: “Any duty related to me such as construction of temples, lighting the lamp, growing temple garden, getting flowers for me, bathing me, pradakshina, obeisance to me, praising me by stotras with love and devotion will please me.” Bhagavad-Gita (Chapter 12 Sloka 11)

Es{otõÆ∆O˛ÁzDuÃ N˛oÏ˙ ™˘ÁzT™Áu»o: @ Ãƒ|N˛™|¢˛¬nÆÁTÊ oo: NÏ˛ª ÆoÁn™ƒÁåΩ @@12-11@@ If thou art not able to do even this, then take refuge in My disciplined activity, renounce the fruit of all action, with self subdued.


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Bhagavad-Gita (Chapter 12 Sloka 12)

»zÆÁz u“ rÁå™•ÆÁÃÁ[rÁåÁtΩÜÆÁåÊ uƒu∆…Æoz @ ÜÆÁåÁnN˛™|¢˛¬nÆÁT: nÆÁTÁXZÁuão∫åão∫™Ω @@12-12@@ Better indeed is knowledge than the practice (of concentration) ; better than knowledge is meditation; better than meditation is the renunciation of the fruit of action; On renunciation (follows) immediately peace. The Bhakti emphasis leads to subordination of knowledge and meditation to the devout mind and consecration of all works to God. In the final chapter Lord Krishna declares unambiguously:Bhagavad-Gita (Chapter 18 Sloka 3)

nÆÁ[ÆÊ tÁz ƒutnÆzNz˛ N˛™| üÁ“Ï™|åyu m: @ ÆrtÁåoú:N˛™| å nÆÁ[Æu™uo YÁú∫z @@18-3@@ Action should be given up as evil, say some learned men: others declare that acts of sacrifice, gift and penance are not to be given up. Bhagavad-Gita (Chapter 18 Sloka 5)

ÆrtÁåoú: N˛™| å nÆÁ[ÆÊ N˛ÁÆ|™zƒ ooΩ @ ÆrÁz tÁåÊ oú≥Á{ƒ úÁƒåÁuå ™åyu mÁ™Ω @@18-5@@ Acts of sacrifice, gift and penance are not to be relinquished but should be performed. For Sacrifice gift and penance are purifiers of the wise. Against the view that all actions should be abandoned, since it leads to bondage, the Gita asserts that sacrifice, gift and penance should not be abandoned. Bhagavad-Gita (Chapter 18 Sloka 6)

LoÁãÆuú oÏ N˛™Á|um ÃWïÊ nÆMnƒÁ ¢˛¬Áuå Y @ N˛o|√ÆÁåyuo ™z úÁs| uåu≥ÁoÊ ™o™Ï™™Ω @@18-6@@ But even these works ought to be performed, giving up attachment and desire for fruits. This, O Partha (Arjuna) is my decided and final view.


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The teacher is decidedly for the practice of Karmayoga. Actions are not to be set aside: Only they have to be done without selfish attachment or expectation of rewards. Salvation is not a matter of outward action or inaction. It is the possession of the impersonal outlook and inner renunciation of ego. Pg(353) To Summarize Bhagavad-Gita considers both Sankya Yoga and Karma Yoga as paths for salvation. Among the two it considers Karma Yoga i.e Selfless action as the best. There is an injunction against giving up of Sacrifice, gift and penance which should be done selflessly. Still better is the path of Bhakti where there is subordination of knowledge and meditation to the devout mind and consecration of all works to God. As in this path the divine’s help is actively sought to help in the path of salvation it is the easier and sure path to success. Sri Ramanuja takes this concept further by advocating complete surrender to the Almighty in the form of Prappathi which puts the onus on the God himself to secure salvation. This concept made the salvation within the reach of every devotee. It is very clear from the above analysis and the quoted slokas that the learned Judges have come to an incorrect conclusion about what constitutes action and inaction. It is very apt to note that the same sloka reproduced again and which is quoted in the Pannalal Bansilal Pitti v State of Andhra Pradesh (AIR 1996 SC 1023). (Pannalal case ) by Justice Ramaswamy contradicts his own conclusion in the Narayana case. (same sloka with meaning by S. Radhakrishnan is quoted above) Bhagavad-Gita (Chapter 18 Sloka 5)

ÆrtÁåoú: N˛™| å nÆÁ[ÆÊ N˛ÁÆ|™zƒ ooΩ @ ÆrÁz tÁåÊ oú≥Á{ƒ úÁƒåÁuå ™åyu mÁ™Ω @@18-5@@ “The Yagnya charity and Tapas are never to be given up; in fact all these three things are to be strictly observed on a continuous basis. These are the most sacred acts which makes the man pure” (Para 17 Pannalal Judgement) Rajaji in his foreword to the great devotional renderation by Smt M.S. Subbalakshmi of the song “Bhaja Govindam” composed by Sri Adi Sankara says “The way of devotion is not different from the way of Knowledge and Jnana. When intelligence matures and lodges securely in the mind it becomes wisdom. When wisdom is integrated


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with life and issues out in action it becomes Bhakti. Knowledge when it becomes fully mature is Bhakti. If it does not get transformed into Bhakti such knowledge is useless. To believe that jnana & Bhakti, knowledge and devotion are different from each other is ignorance. If Adi Shankara himself who drank the ocean of jnana as easily as one sips water from one’s hand. Sang in his later years, hymns to develop devotion it is enough to show that jnana and Bhakti are one and the same” (Not recorded in writing. Need to listen to the Audio Cassette/CD) In accordance with the philosophy of Bhagavad-Gita Karma Siddantham is important for Madhwa and Ramanuja philosophies. Karma, Jnana, Bhakthi and Prapatti are integrated Sadhana margas propagated by Sri Ramanuja. Both rituals and rites are important. Without Karma, Jnana is useless and does not lead to salvation. Considering this aspect people who follow Vishishtadvaita and Dvaita believe that Karma is very important for salvation. In summary one cannot give up activities such as Yagnya, Dana, Tapa and Karma which needs to be done continuously and selflessly for the good of the society in a spirit of Bhakti and devotion to the great lord. Therefore, the conclusion arrived by the learned Judges in Narayana judgement that action is to be given up is incorrect and contradictory to many great commentaries on Bhagavad-Gita. 1.1.1 How the basis of Narayana Judgement is in violation with the Agama Philosophy of Temple Ritual Worship The Agamas are perfectly aligned to the best and the easiest path advocated by Bhagavad-Gita. It advocates worship of a personal God, which is also described as a Yagnya. It prescribes the rituals both tantric and Vedic as the practical approach to worshipping both at home and in a temple as the path to salvation. So we find all the concepts of Dhyana, Meditation, Yoga etc in the Agamas. The Agamas define two forms of worship. Worship for oneself and worship in the temple which is for others. The worship procedure in the temples is a bit more elaborate as the motivation for the Agamas here is 1. A creation of good atmosphere which requires a peaceful and prosperous society. 2.

Salvation for all devotees

3.

Salvation for the Archaka and his family.


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Obviously the priorities for the worship at one’s home is a bit different from the above as it mainly involves (3) With the above objectives the prescribed rituals in temples are described and the Archaka is motivated to perform these rituals with a selfless mindset for the good of the society. It is emphasized that this is his dharma and his path to salvation. The vedic rituals which cause greater good are integrated with a view that as these are performed for the good of the society they will bring peace and prosperity to the society as a whole. The society as a whole has a stake in the worship happening in the temple. It is important that the Archaka, as he performs the rituals daily, needs to make progress towards higher levels of devotion and as this happens the same rituals will start giving greater results to the society. Keeping this in view the Agamas ask the society to take care of the Archaka’s minimum needs so that his focus is entirely on the divine. If done well the society as a whole will benefit eventually. The Agamas also are extremely keen on continuance of the rituals in the temple under any eventuality and hence they designed the hereditary system so that even under worst scenarios the worship will continue generation to generation as the family does it as a duty to the deity, its ancestors and the society. This was the best system that would ensure continuous rituals for thousands of years and at the same time down the details of the rituals generation to generation. In summary the Agamas are perfectly aligned to the path of devotion celebrated by Lord Krishna in Bhagavad-Gita. They try to integrate the larger good of the society along with individual aspiration for salvation with appropriately designed rituals happening in a temple. They declare that if done properly and selflessly by an Archaka who is completely evolved in devotion these rituals can provide benefit of a hundred sacrifices to the society making it very peaceful and prosperous (Shatakratunam Yajane Tat Phalam) ∆oN¿˛oÓåÁ™Ω Æ\åz ooΩ ¢˛¬™Ω . So continuance of rituals is extremely important for the society and hence even if the Archaka becomes highly evolved and enlightened, he still needs to continue the rituals selflessly for the good of the society. The only difference would be that the same rituals now will give greater benefit as the Archaka has become very pure in his thoughts and the statement of the Agamas that an Archaka is nothing but divinity personified becomes true (Archakas sa hari sakshath) EY|N˛ÀÃ “u∫ ÀÃÁqÁoΩ. Hence the devotion of the Archaka towards the deity is extremely central to the Government Rules Hindu Temples

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scheme of things, without devotion the rituals will not give any benefit to the society. The above points are illustrated by the following excerpts from “The Agama Encyclopedia” by Prof S.K Ramachandra Rao Vol 3. Most of the points are from Appendix IV of the book titled “Note on Temples and Temple-Priests. With Special Reference to Vaikhanasas. Prof S K Ramachandra Rao has also noted in his epic work that in practice the temples belonging to each of the different Agama disciplines have adopted the good points of the other disciplines in of usage while retaining their distinctness in the core religious rituals and the Godhead who is worshipped. 1. Devotion to Godhead is the common plank on which Agama of whatever sect rests; and the priest fits into the role of a properly consecrated mediator between the lay devotee and the Godhead, in all the Agama divisions. 2. Agama, in fact, is the manual which describes the priest and prescribes his functions. It explains what contributes to the potency of a shrine in of the spiritual power of the priest who operates, the excellence of worship rituals conducted, and the fine workmanship of the icon worshipped. 3. It is the priest who by his character and conduct as well as the fervor with which he carries out the rituals that can infuse into the icon divine presence. It is he who transforms a stone image into a deity. 4. More than learning, the priest is distinguished by his devotion to Godhead and sense of commitment to his calling 5. It is usual in Agama texts to distinguish between a properly initiated priest (arcaka) and one who is hired for purposes of worshipping a deity (devalaka). The former is a priest who has received initiation and has been duly consecrated; he worships with a sense of duty and does not look for material rewards for the services to the deity that he performs. Nor does he take up any other profession for his livelihood. The Devalaka on the other hand is a hireling; and his only interest in worshiping the deity is the money that he receives in return and his services in a temple as an arcaka for three years would preclude him from all normal privileges of a twice-born


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6. Among the qualifications for the priest, the family to which he belongs is regarded as the most important. 7. Allows such a one’s son to be chosen, and if even he is not available, then the grandson; in the absence of the grandson, then some descendent in the direct line. If no descendent is at hand, the brother-disciple, disciple’s disciple or the teacher ….. 8. Bhrigu’s prakirnadhikara describes a priest as the priest who is filled with faith and devotion, and is indifferent to material gains. He is convinced that in this world of misery, devotion to Godhead is the only refuge. He regards all gods and all worlds as visnu, who indeed is not outside him. He is full of comion for all beings, and worships God with no ulterior motive. 9. If he takes up worship as a hireling, he becomes defiled and degraded into a devalaka and would have to be purified before he can enter the sanctum or touch the icon. It becomes, therefore, necessary to make proper arrangements for the priest for regular worship, even before the temple is built and consecrated. Giving of monthly remuneration, or making periodical gifts to the priest is frowned upon by the Agamas. Obligating the priest by such temptations would only make him a devalaka. Worship in a temple where permanent arrangement is not priority made for priest to live in comfort is described as demoniacal (asuri sa bhavet puja) EÁÃÏ∫y

ÃÁ ßƒzoΩ úÓ\Á and the donor would fail to procure the merits of building a temple. It is important to recognize that a temple would be of no value without an icon installed in it, that the icon continues to be powerful only as long as it is properly and regularly worshipped and that such a worship needs a priest who is happy and content. 10. Every temple theoretically at least will have its own priests, whose association with the temple goes back to days of its founding. Priesthood is generally handed down in families through generations, and the temple s do not normally appoint the priests. The temple, the iconic representation of Godhead, and the priest come to the s as a package deal. 11. The Godhead is believed to have two forms; the icon and the priest. Divinity enters into the icon when the worship begins with the invocation of the spirit (avahana); but divinity ever abides in the priest. Therefore the priest is to be looked upon as the mobile icon, and like unto a deity. Pg(174) Government Rules Hindu Temples

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12. Because the safety, security, wealth and welfare of the country depends upon regular worship (six times, three or two times a day) conducted in the temple, the ruler of the land or the people must see that the worship is not interrupted due to the penury of the priest. It is prescribed therefore that endowments of lands are made upon the priest free of taxes so that his family may live in comfort 13. For the temple which may be said to grow in the community, the root is the priest and the top of the tree is the ruler (or the istration). It is wise, therefore that the root is not harmed, lest the top withers away. Alternatively the ruler (or the s) may be likened to the fruit of the tree, while the priest is the flower; when the flower is attacked, there is no way that the fruit can appear or flourish. 14. The responsibility of conducting worship not only without lapses or interruption but in strict accordance with scriptual norms and old usages, devolves on the priest. For, regular and proper worship it is that makes for the welfare of the people; and any error in worship will be counterproductive. Thus the priest will have to be extremely vigilant and knowledgeable. If the worship becomes deficient or gets interrupted, owing to any reason, the texts lay the blame squarely on the priest; and urge the priest to discharge his duties diligently and resolutely, even when in distress or stricken with disaster . 15. Indeed, the expression Ut-sava (ceremonial worship on special occasions, accompanied by processions etc) became a later synonym of Yajna (Ut , best; Sava Sacrifice), and Utsava in temples were eulogized as more beneficial than all the great sacrifices like Asvamedha; one Utsava, in fact, is said to be tantamount to a thousand Asvamedha sarifices. 16. Pg 149 to 160 gives a detailed of Dos and Donts for devotees. It is extremely important for politicians and people in power to read and understand this chapter. 17. Even to make an endowment for a lamp in the temple of Visnu will undoubtedly accomplish the benefits of a sacrifice : 18. If one goes round a temple of Visnu every morning and evening, and prostrate before the deity again and again, he would obtain rewards of a sacrifice. 19. The sense of total surrender does not invalidate the scriptual prescriptions for daily and occasional rites and rituals; on the other Government Rules Hindu Temples

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hand, it heightens their value. For instance, a bath is prescribed for purification before a religious act but for one who is too ill to take a bath, thinking about Visnu (Smaranam Visnu-Cintanam) À™∫m™Ω is said to be as effective. If, however one takes a bath thinking about Visnu the effect is doubled. If, likewise, one can ritualistically worship also with a sense of total surrender (Prapattipoorva-Aaradhana) üúuúÓƒ| - EÁ∫ÁáåÁ, he will reach the highest state of Visnu…

uƒ…mÏuYÊoå™Ω

We now look at the illustration of some of the above points with special reference to Pancharathra texts. Pancharathra Agama is told by Lord Narayana himself. Sri Ramanuja explains the philosophy behind Pancharathra Agama to dispel some misconceptions. Please refer Appendix II for views of Sri Ramanuja on the Pancharathra Agama. Mixing or not following shastras during Aradhana or pooja will lead to destruction of the society and the head of the state As per Agama prescriptions only a Deekshita (a proceduraly initiated person) can perform the Puja to the Lord in the sanctum sanctorum. Yoga and Pancharathra Agama “s of Yoga in Pancharathra texts pertain to the eightfold yoga (astanga-yoga) of Patanjala type, and include details of Meditation and Japa.” “The Agama Encyclopedia” by Prof S.K Ramachandra Rao Vol 4 Pg 51. With the above background let us revisit the statement of the learned Judges in Narayana judgement quoted again: “It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of no use since the observance of rituals and the devotion of knowledge cannot coexist. There is considerable incompatibility between knowledge and rituals in as much as their natures are entirely antithetical. It is only he who regards himself as the agent of action that can perform rituals; but the nature of knowledge is altogether different and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge, while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one to perform the prescribed rituals while Government Rules Hindu Temples

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engaged in the pursuit of knowledge in as much as they are incompatible! It is as much impossible as coexistence of light and darkness. One cannot keep one’s eyes open and closed at the same time. It is equally impossible to combine knowledge and rituals. Can one who is looking westward look eastward? How is one whose mind is directed towards the innermost Atman fit to take part in external activities? “ This shows that the learned Judges have not understood the deeper implication of the rituals in a temple as defined by the Agamas. The entire philosophy of the Agamas is not understood correctly which is a prerequisite before any attempt is made to separate the unessential from the essential. It is possible that this lack of clear understanding of core philosophy of the Agamas, and the mystic meaning of the prescribed rituals, lack of exposure to works of great religious leaders belonging to different schools of thought and their commentaries on Bhagavad-Gita, has lead the learned Judge in the wrong direction. The learned Judges make the following statement on rituals as a precursor to a need for a Law to separate the non-essential from essential:“The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. “(Para 80) This is in variance with the Agamas which prescribe rituals in the temple for the good of the society. These rituals have to continue for the good of the society and any interruption is not good for the society at large. Again from an Archaka’s view point he needs to perform the rituals with same dedication every day as the level of dedication not only impacts him it also impacts the society at large. So to argue that rituals are important only for the beginning of his or other devotee’s journey towards salvation is incorrect. This is also contradictory to Sri Ramanuja’s Philosophy according to which adherence to rituals as per Agamas is important through out the life for salvation, the very purpose of life. Dharma of an Archaka is to perform the worship of his deity selflessly for the sake of welfare of the society. The path for his salvation is in continuously and selflessly working for the welfare of the society by performing the prescribed rituals with dedication and devotion to the deity. The learned Judge goes on to say the following:Government Rules Hindu Temples

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“It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed. To them all must have an equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the eternal with equality and with equal access and thereby exercise greater freedom in his own life.” (Para 80) The Agamas are looking beyond just individual experience leading to salvation, they are also worried about the collective good of the society like having timely rains etc. With these objectives appropriate Vedic rituals have been integrated into the temple worship which when done with devotion and dedication by a qualified archaka will benefit the society, and bring about peace and prosperity for all the people. Thus selfless worship in the temple has been equated with Vedic Yagnya with similar benefits to the society. Therefore to look at these rituals purely from the point of view of simplification for enhancing individual religious experience would take away the other aspect of worship which is for good of the society at large. For example if some temples close down because of lack of rituals it does not effect individual experience as the same can happen in another temple. But the negative effects of not having rituals done in the particular temple will affect the society as a whole leading to various problems like droughts, war etc. Therefore the activities happening in a temple should not be looked at from pure narrow individual experience point of view as the rituals cannot take a back seat to individual experience. The learned Judges continue:“It is essential that the value of law must be tested by its certainty in reiterating the core of Religious Experience and if a law seeks to separate the non essential from the essential so that the essential can have 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”(Para 80) Again it is important to note that the law must be Judged on its impact not only on the core religious experience but also on the society in general when it attempts to separate the non-essential from essential with reference to the Agamas . If we apply this test the law abolishing hereditary right to Archakatvam based on AP experiment was a colossal failure as it caused closure of many small low income temples for which the society at large had to pay a heavy price. In fact even if we accept the highly disputable fact that Art 25 protected the core religion which was equated by the Government Rules Hindu Temples

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learned Judge to Dharma which was defined as “denotes upholding, ing, nourishing that which upholds, nourishes or s the stability of the society, maintaining social order and general well being and progress of mankind; whatever conduces to the fulfillment of these objects is Dharma…”(Para 81) The law failed in its duty to protect continuance of rituals in many small temples which definitely did not meet the above requirement of protecting Dharma. Even if we Judge the law on whether it was successful in enhancing the core religious experience in temples, it still falls way short because many people were deprived of individual Religious experience as large number of village temples virtually closed down whereas in temples of high income which did not close down the politicization and corruption increased manifold, severely impacting the spiritual atmosphere in these temples. The Agamas placed the onus for continuance of the worship on the hereditary Archaka and Trustees. It also prescribed the dharma of the ruler who had a stake in the way the rituals were performed as it would impact his kingdom. The Agama Rishis were people of high wisdom with ability to think thousands of years ahead and they realized that the temples would not always function under benevolent states and hence placed higher onus on the hereditary archaka and trustee for continuance of the worship and rituals. It is a tribute to their wisdom that temples exist even today after many thousands of years during which there were many oppressive regimes and we still have archakas well versed in rituals for most of the temples at least prior to 30/87 enactment. It is a tribute to many Hereditary Archaka and trustee families that they lived up to the expectation of the Agama Rishis by continuing to keep the rituals alive, protecting the temples under severely oppressive regimes of the past. The Followers of Hindu religion owe a lot to these hereditary families and their ancestors for the great sacrifices they have made to safeguard the temple system of worship under trying circumstances. The following is an excerpt from the Rama Jois report on Temples and their istration which reiterates the above fact. “…..It is indisputable that lakhs of temples and thousands of Mutts established over the centuries have rendered invaluable service in preserving and protecting ‘Dharma’ and it is on of their astounding success in their ideal, ‘Dharma’ was not destroyed despite devastating attack and onslaught by foreigners on our nation, and foreign rule for several centuries. The whole nation re with deep sense of gratitude all the founders of religions, thousands of


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Mutts, lakhs of temples, millions of trustees and archaks and other employees of temples, on of whose selfless sacrifice and service “Dharma” was not destroyed and even in the present days when there has been moral degradation we still have substantial number of ‘Dharma’ abiding citizens. Preserving and protecting Dharma and creating more and more Dharma abiding citizens through the active and proper functioning of temples by all temple servants, by mutts and Mathadhipathis is the panacea for all problems of mankind at all times. They are constantly striving to preserve Dharma by devoting their time and energy through the religious institutions like Mutt and Temples…” (Page 24 of the Justice Dr M Rama Jois Committee report on Temples and their istration) Now when the learned Judges upheld the abolition of both the hereditary entities as unessential part of Agamas the expectation was that the state would step in to provide Archaka for every temple and ensure continuance of rituals in all temples. It is clear from the data of 30/87 experiment that the secular state through the office of the Commissioner that took over the responsibility of ensuring continuance of rituals in all temples from the hereditary functionaries has failed to do so. Even under the same constitution of Indian republic which is the best environment for the new Law it has failed! The state has reneged on its commitments. What would be the plight of all the Hindu temples if at some point in time in the future, India were to be conquered by a country with a completely different Constitution which does not believe in Hindu Temple System of Worship? Would such a government continue to run the Agama schools and provide Archakas? Would such a government pay salaries to all Archakas? Would such a Government ensure that rituals are being performed in all temples? Will Hinduism whose foundation is the temples survive? Any student of history of India will be able to answer these questions. So when we attempt to separate unessential from the essential in the future it is not enough for the learned Judges to check whether the new system works under the current constitution but it is also required to be proven that the system will ensure continuous rituals in all the temples under a different oppressive constitution. We need to recognize that kingdoms may come and go, Constitutions may change but temples have to be there for next several thousands of years as they have existed in the past. Hindu religion the world’s most ancient and the greatest religion needs to survive till the end of the world. This is where we need to salute


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the great wisdom of the Agama Rishis. This is the reason why they chose to keep the key responsibilities of ensuring continuous rituals with the hereditary functionaries rather than transferring the same to the Rulers. This is what we can consider as real visionary law not the failed 30/87 Act. The learned Judges makes the following assertion “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” (Para 120) As indicated the Agamas are interested in proper performance of the rituals at the same time they are also interested in making sure that these are performed with utmost devotion. This, if made possible will enhance the benefit of the rituals both to other devotees and the society in general. This being the settled position of the Agamas, many guidelines are given to the society with regarding to selection of Archakas and the duty of the society vis-a-vis Archaka so that the society in general benefits from the rituals. Many of the guidelines which were followed by the society have been considered unessential part of religion by the Judgement. To illustrate :1. Qualified Archaka as far as possible should be chosen from the Hereditary Archaka family. The Agamas recognized that the feeling of devotion which comes from the bonding of the Archaka with the Idol is extremely important and integral part; this when combined with the rituals can provide great benefit to the society. This bonding is possible only when the archaka is initiated into service of the deity from the childhood and the fact that the deity was worshipped by his ancestors evokes the feeling of reverence and devotion, hence the hereditary system for selection of the Archaka was chosen. The scale of devotion between a paid Archaka and a hereditary archaka is different as if for some reason salary is not forthcoming or some other temple pays more the paid Archaka will migrate (if required even to foreign countries) whereas the ideal hereditary Archaka will continue to perform worship to the deity irrespective of the income or lack of it. 2. Agamas mandated that the Archaka is appointed for life and hence there is no scope for his transfer to another temple. Again the growth in the devotion of an Archaka is a gradual lifetime process towards the same deity. A transfer would just cause a severe setback to this process. Government Rules Hindu Temples

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3. The deity in the temple is considered to be a living avataar. Every movement of an Archaka from one temple to another temple on ‘transfer’ even within the same sect does not guarantee the following of customs, usage and practice. Each deity is different and has own likes and dislikes which the hereditary Archaka family learns over time and is ed on to the next generation; These are not documented in an Agama manual as they are specific to each temple. For example, Tirumala temple procedures are recorded in documents by Sri Anantalwan, a disciple of Sri Ramanuja. These are the prescribed sampradayas and have been recorded as affable to the deity presiding the temple. These sampradayas have to be adhered to without alteration. Similar is the situation for all temples. Some are documented, and in some temples they are ed down from father to son or to successors. Transferring such Hereditary Archakas who have had deeksha would cause displeasure of both the Deities (temple from where he is transferred to the temple where he is being transferred) Vedas record that when a maharishi resorted to perform an yagnya which he was not ordained to do, even though the yagnya was performed to his satisfaction, the deity of the yagnya yielded him opposite benefit due to flaw in intonation. It is exactly for these reasons, hereditary system is prescribed in Agamas to ensure deities’ pleasure without which there is no benefit to the society. In fact the result could be just the opposite for the society as indicated by the above experience of the maharishi. 4. The Archaka should not be considered as a paid servant of the temple. If he becomes materialistic then he is not considered an Archaka but a Devalaka. The rituals done by such an Archaka will not have much benefit to the society. So, the society is mandated to make sure that they take care of the needs of the Archaka so that he can continue the rituals selflessly. The Agamas recommended non-monetary ways of keeping the Archaka above wants like providing land etc. 5. An Archaka takes care that he performs pooja with Bhakti in such a way that Lord is pleased. It is this Bhakthi that transcends generations and the whole family is devoted to the Lord. Archaka who is born in the family of a Hereditary archaka considers serving his deity as his primary duty and if he is not serving him it would lead to his non-salvation. The 30/87 Act and Judgement ensures that the Lord is displeased as a Bhaktha ordained to his service is deprived of it. It also does not allow the religious and devout archaka to discharge his religious duties, with effect that he cannot follow the Lord’s dictate in Bhagavad Gita. (Chap 3 Sloka 8):


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uåÆoÊ NÏ˛ª N˛™| nƒÊ N˛™| [ÆÁÆÁz ÿN˛™|m: @ ∆∫y∫ÆÁfiÁuú Y oz å üuÃÚΩÆztN˛™|m: @@ß.Ty. 3-8@@ (Do the ordained duty till the end of the life. Don’t ever be without doing the ordained duty - for a Hereditary Archaka the ordained duty is archakatvam) Ramanuja Siddantha says :-

Lƒ™“∫“∫åÏ…eyÆ™ÁåƒmÁ|»™á™|ÁåÏTw“yootÏúÁÃåøúonÃ™Á∫Ááåüyo: means that all prescribed duties are important. People who pursue knowledge has to perform his duties. Otherwise the knowledge is of no use. Lord Krishna in Bhagavad-Gita (Chap 18 Sloka 56) says

Ãƒ|N˛™Á|lÆuú ÃtÁ NÏ˛ƒÁ|mÁz ™√˘úÁ»Æ: @ onüÃÁtÁtƒÁúíÁzuo ∆ÁæÁoÊ út™√ÆÆ™Ω @@ß.Ty. 18-56@@ As mentioned by the Lord in above sloka of Bhagawat Gita (18-56) always all ordained karmas should be done to attain Him. The Judgement depriving the Hereditary Archaka the right to perform his duty which will cause him to loose any chance of his salvation is violative of Art 25 of the constitution. The statements like the (Para 75) “religion became identified with untested beliefs and dogmas and got shattered in the progress of scientific inquiry” is not true as far as vedic Hindu religion is concerned. In fact while science is study of mere matter Vedas focus on spiritual items and Supreme spirit. They teach the mankind ways to attain salvation which is purpose of life i.e. the Jeevatma (soul) finally reaching the abode of Paramatma (supreme soul). Incidentally Vedas also taught Science to the world. §w“¶ÁÁoNÊ˛ Brihahjatakam written by Varahamihira refers to lot of vedic procedures to calculate planetary positions using elliptical orbits and correction factors. Bhaskara wrote mathematical treatise. Vedic maths is the best computing method. Computational methods, environmental protection, science, astronomy etc. have been well depicted in Vedas. All the above points substantiate the fact that Archaka is an integral part as the devotion that he shows towards the deity while performing the rituals is an extremely integral part of the worship. This is very important for the benefit of the society. Sec 34, Sec 37, Sec 39 and Sec 144 which Government Rules Hindu Temples

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were upheld by the Judgement under the mistaken premise that Archaka is not an integral part of the worship goes squarely against the recommendations of the Agamas and hence causes damage to the benefits that accrue to the society from the rituals. These sections make the Archaka into a paid servant i.e. a devalaka which goes against the recommendations of the Agamas with the result the rituals will have minimal benefit to the society. These sections will severely impact a Hereditary Archaka from performing his ordained duty which will cause him not to get salvation which impacts his right to perform his duty and right to salvation. The Learned Judges of the Supreme Court unintentionally set in motion events that lead to large scale closure of temples and irreparable damage to the Hindu Religion as the hereditary archaka families stopped training their children in the duty of archakatvam and it is almost an impossible task now to regain the lost ground even with the Act having been amended. A system which was working for thousands of years was disturbed mainly because of the Essential Practices Doctrine The Telangana Archaka Samakhya in its affidavit filed in WP 290 of 1998 dated 3.12.2008 had this to say “THAT the deleterious effect of the above judgment has been that the Archaka families who were disillusioned and dis-enchanted by the above ruling started diverting their children to secular education and secular avocations with the result the continuity in the religious customs and service and other matters relating to each temple belonging to each Sampradaya started almost vanishing. The emerging situation seemed to totally wipe out the traditional customs, service and Sampradayams of the temple which can be preserved only by continuing the parampara. For low income temples abolition of hereditary archakatvam sounds a death knell. It is only a hereditary archaka who performs archakatvam at a low income temple as a duty to the deity, society and his ancestors, though he gets almost nil salary. Abolition of hereditary archakatvam would mean that there is no person ready to perform the rituals in such temples with the result rituals stop and the temples virtually close down. This is the key learning from the implementation of the failed AP 30/87 experiment in Temple reform. Since there is no guarantee that high income temples will continue to earn high income for hundreds of years out in future and low income temples form 99% of the temples, it is only hereditary archakatvam which guarantees uninterrupted rituals in all temples irrespective of the income status. This system strongly recommended by Agama Rishis has been time tested to work for thousands of years through many calamities, Government Rules Hindu Temples

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invasions etc still preserving rituals in temples. In contrast the move to abolish hereditary archakatvam has caused grievous damage in just couple of decades as predicted by the Agamas. This aspect agitated the minds of the Hindu community at large and there was an uproar against the decision of abolishing the hereditary archakatvam not only by the archaka community but by the crores of devotees in Andhra Pradesh. In fact the devotees felt that the freedom of practice of religion is at stake due to closure of large number of temples in view of the above judgment. It was realized that the Judgment of the Supreme Court that hereditary archakatvam is not an essential and integral part of Religion perhaps dealt a death blow to the customs, service and Sampradayams of the temples and that it needs to be reviewed”. To summarize the attempt to separate the non-essential from the essential part of the Agamas with a view to enhancing religious experience was a colossal failure. It has caused damage to the society. The learned Judges were attempting to separate the non-essential from essential without the sufficient understanding of underlying philosophy of Agamas and the views of different schools of thought of Hindu philosophy who hold different views to the one expressed in the Narayana judgement. 2 What Corrective Actions should be taken in deciding such cases by Supreme Court in future? It is important to relook at the following criticism of the Essential Practices Doctrine once again 1. Therefore the courts can discard as non-essentials anything which is not proved to their satisfaction- and they are not religious leaders or in any relevant fashion qualified in such matters- to be essential, with the result it would have no constitutional protection.(Derret 1968 : 447) Pg (24). 2. With a power greater than that of a High priest, Maulvi or Dharmasastri, Judges have virtually assumed the theological authority to determine which tenets are “essential” to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the constitution. Few religious pontiffs possess this kind of power and authority (Dhavan and Nariman 2000:259) Pg (24). 3. A single bench of the Calcutta High Court, in a rare occurrence took contrary view of the Essential Doctrine principle in Government Rules Hindu Temples

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the case (AIR 1990 Cal. 336). Justice Bhagabati Prasad Banerjee wrote “The performance of tandava dance cannot be said to be a thing which is beyond the scope of Hindu religion. Hindu texts and scriptures provide for such dance. If the Courts start enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be”. This was a strong indictment of the essential practices principle followed by the Supreme Court since 1960s. It is quite clear that all the above points of criticism apply squarely to the Narayana case and the Essential Practices Doctrine which was used by the learned Judges to separate the un essential from the essential without sufficient expertise and grounding in the various schools of Hindu Philosophical thought. Further the definition of Religion that was articulated in the Shirur Mutt case has been considerably diluted as noted by the Ronojoy Sen in his article. “Quoting from texts such as the Vedas, Upanishads, and the Gita, and using modern thinkers and writers such as Aurobindo, Vivekananda, Radhakrishnan, Shankar Dayal Sharma, and even Richard Dawkins, Ramaswamy attempted to construct a notion of religion significantly different from Shirur Mutt. Taking cue from Aurobindo’s distinction between “true religion” which is spiritual, and “regionism,” which is narrow and focused on ceremonies, Ramaswamy proposed: “The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed… It is essential that the value of law must be tested by its certainty in reiterating the core of Religious Experience and if a law seeks to separate the non essential from the essential so that the essential can have 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” Ramaswamy drew a parallel between a “higher” and “core” religion and the concept of dharma. According to Ramaswamy, it is dharma rather than conventional religion that is protected by the constitution…. Government Rules Hindu Temples

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The idea of a higher or “dharmic” religion, according to Ramaswamy is fundamental to the essential practices doctrine and the secular Constitution. He states: “In secularizing the matters of religion which are not essential and integral parts of the religion, secularism, therefore, consciously denounces all forms of supernaturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute to some degree to the process of secularization of the matters of religion or religious practices” “The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion according to its cultural and social demands to establish an egalitarian social order” The unusual redefinition of religion and religious freedom in Narayana is far removed from what Mukherjea in 1954 had originally proposed in Shirur Mutt. The distinction between “essential” religion and “superstition” had been articulated by Gajendragadkar. However, the conception of religion as dharma that can foster an egalitarian society and a unified nation is closer to that proposed in the 1994 Bommai Judgement. The corrective actions that need to be urgently taken by the Supreme Court so as to prevent such errors of judgement in future is as follows :1. The definition of what is protected under Art 25 and Art 26 as articulated in the Shirur Mutt case need to be strictly followed. The same is reiterated again as below :Justice B.K Mukherjea, who wrote the Judgement asked a central question: “Where is a line to be drawn between what are matters of religion and what are not?” According to the court “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” This “essential part” of religion is protected by the Constitution: “Under Article 26(b), therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has jurisdiction to interfere with their decision in such matters” However the state can Government Rules Hindu Temples

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legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”. The court also held that “protection under Articles 25 and 26 was not limited to matters of doctrine or belief but also extended to acts done in pursuance of religion therefore contained guarantees for rituals, observances, ceremonies and modes of worship” 2. Whenever the Supreme Court under Art 32 is asked to make a determination as to whether a custom and usage followed by a religion is unessential part it needs to necessarily ask that the same be determined following the Civil procedure from lower Court level so that the Judges can ask for evidence to be given by experts in the area and there is also scope for cross examination. This will ensure that the people who practice the religion have sufficient scope to establish why they think certain practice is an essential part of the religion as per the doctrines of their religion. 3. Even the definition of secular activities in the Shirur mutt case needs be looked into. The following comment from Ronojoy Sen’s article (Pg 28) illustrates this: “Finally, Shirur Mutt is a landmark case because it contained a deeply contradictory trend. On the one hand the Judgement is celebrated for widening the definition of Religion to include rituals and practices. On the other hand it sanctioned an elaborate regulatory regime for religious institutions. This anomaly has been noted by P.K. Tripathi: “ In the final analysis therefore Articles 25 and 26 do not emerge from the Judgement in the Swamiar [Shirur Mutt] case as very effective attack on social legislations effecting the management of religious institutions” (Tripathi 1966). 4. As Agamas are time tested to have protected rituals and temple worship for thousands of years even under oppressive regimes; When an attempt to separate unessential from the essential is made, it is not enough for the learned Judges to check whether the new system works under the current constitution but it is also required to be proven that the system will ensure continuous rituals in all the temples under a different oppressive constitution.


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APPENDIX II PANCHARATRA AGAMA Purpose of Life Swamy Vedanta Desika who was revered Acharya in his times during 14th Century A.D. and was adored as Vedantacharya by all the three philosophical followers of Hindu religion (Sankara, Ramanuja and Madhwa) concludes in his Tatparya Chandrika, a commentary to Lord Ramanuja s commentary on Bhagavad Gita as follows:

Nw˛…mÀonƒÊ ú∫Ê ooΩ ú∫™uú Y u“oÊ onút{N˛Á»ÆnƒÊ ∆ÁÕÁÁsÁz|ÆÊ Y bΩN{˛uÕÁußu∫“ N˛usoÀofi úÓƒ|fi bΩNz˛ @ ßMnÆs|ÀƒÁn™–…bz: N˛∫ÆÏTpt∆Á ™ÜÆ™z ßMnÆÏúÁÆ: ÀƒÁzO˛ÁåÏ…eÁåÏƒwuÊ ¸juÆoÏ™uQ¬Ê üÁzO˛™ãozõÆ∆Ázuá @@ The sloka summarises the purpose of life According to all philosophies perpetuated in the Vedic Religion or Hinduism (Sankara, Madhwa and Ramanuja) which is to attain salvation, i.e., to reach Paramatma, the Almighty Lord Narayana. The means of reaching Paramatma is to practice Bhakthi or devotion to Paramatma Lord Narayana known as Brahmopasana and to surrender to him. This has been well summarized in the teachings of Lord Narayana himself to the mankind in his incarnation as Lord Krishna which is known as Bhagavad Gita. Bhagavadgita has 18 chapters and in the last chapter the Lord says:

Ãƒ|á™Á|åΩ úu∫nÆ[Æ ™Á™zNÊ˛ ∆∫mÊ ƒ¿\ @ E“Ê nƒÁ Ãƒ|úÁúz•ÆÁz ™ÁzquÆ…ÆÁu™ ™Á ∆ÏY: @@ß.Ty. 18-65@@ Lord Ramanuja, who is a great Acharya of the Vishishtaadvaitha school in his commentary to the above sloka clearly elaborates the meaning as follows: While worshipping me following all tenets of Dharma in the form of Karma Yoga, Gnana Yoga and Bhakthi Yoga with utmost love towards me, give away your ownership on result, duties and doings and surrender to me considering me as the only doer and person to be devoted to. This is called renunciation of all Dharmas as per shastra. Once you perform this surrender to me I will eliminate all your sins and liberate your soul from this samsara. Don’t worry!. This is doctrine of Surrender to the Almighty Lord Narayana as brought to light by Lord Ramanuja and is also known as Saranagathi or Prapatti. Lord Ramanuja describes this state as a special state of Bhakthi Yoga. All souls, irrespective of the bodies they adore have the right to perform surrender to the Lord. It is said that SwamyDesika had performed surrender for a tree (Agasthya leaf tree) considering its Bhagavathakainkaryam. Saint Embar performed Government Rules Hindu Temples

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surrender for a Cobra. Another swamy a disciple of Thirukkudandai Desikan performed surrender for a sparrow. According to Vishishtadvaitha school It is said that surrender can be performed to Lord Narayana directly and physically for all living beings. Temples or Idols of Lord Narayana after Pratishta is worshipped as Lord Narayana himself and surrender is performed to him. Hence, the archavathara of Lord Narayana (idol forms of Lord Narayana) in temples is highly essential for one to perform total surrender, Sharanagathi which will lead to emancipation of the soul (moksham) and take him to Lord’s abode Sri Vaikuntham. Mundaka Upanishad says that <<åÁÆ™Án™Á üƒYåzå

¬•Æ: å ™záÆÁ å §“ÏåÁ »Ïozå Æ™ƒ{ ƒwmÏoz ozå{ƒ ¬•Æ:, oÀÆ{ƒÁn™uƒƒwmÏoz oåÓ™Ω ÀƒÁ™Ω>> which means Lord Narayana cannot be attained by merely acquiring huge knowledge, intelligence or talking about him. He can be only attained by expressing love like a lover to him. Following the ordained duties for every human being with love to Lord is Karma Yoga and is a part of worship to him and expressing devotion to the Lord. Daana (charity to temple archakas), Dharma (like looking after parents, dependents etc.), Yagnya (participating in the temple worship as per ordainment), Tapas (linking all work to Lord Narayana’s pleasure) are all examples of ordained duties for an individual. In this context it would be appropriate to look at the Preamble of our Constitution

THE CONSTITUTION OF INDIA PREAMBLE WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. The Supreme Court in Bal Patil & Anr vs Union Of India & Ors on 8th August, 2005 Civil Appeal 4370 of 1999 clarified on the expression Government Rules Hindu Temples

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'minority' as follows :- "The expression 'minority' has been used in Articles 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith & worship'. Group of Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election." It is thus very clear from the Preamble of our Constitution that Salvation as the very purpose of life of the individual and means to achieve the same is secured under LIBERTY of thought, expression, belief, faith and worship and is protected through Fundamental Rights Art 21 read with Art 29(1), Art 25 and Art 26.The Supreme Court in Ramsharan Autyanuprasi & Anr vs Union of India & Ors on 14 November, 1988 Equivalent citations: 1989 AIR 549 stated that “It is true that life in its expanded horizons today includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encom of an expanded concept of Article 21 of the Constitution.” Article 51A of the Constitution defines Fundamental Duties as follows :51A. Fundamental duties.—It shall be the duty of every citizen of India— (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or Government Rules Hindu Temples

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sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have comion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. The Supreme Court in A.I.I.M.S. Students Union Vs. A.I.I.M.S. & ORS in Civil Appeal 7366 of 1996 has clarified that Art 51A is equally applicable to the State “State is, all the citizens placed together and hence though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State.”The Committee on working of Constitution defines Art 51A (f) 3.40.1 Clause (f) of article 51A requires us to value and preserve the rich heritage of our composite culture. It follows that we may not break each other’s places of worship, set fire to religious texts, or beat up one another’s priests or obstruct those who exercise their Fundamental Right under article 25 to profess, practice and propagate religion. Therefore it is the fundamental duty of the State under Art 51A (a), 51A(f) and 51A(j) to protect the very purpose of life of the individual i.e salvation and the means to achieve the same secured under LIBERTY of thought, expression, belief, faith and worship of the Preamble and protected through Fundamental Rights Art 21 read with Art 29(1), Art 25 and Art 26 of the Constitution.. Purpose of Pancharatra Agamas Upanishads, Vedas and Puranas prescribe temple worship as a means of salvation. In Srimadbhagavatha 11-27 the whole chapter is devoted to pancharathra agama on methodology to perform Puja to Lord Krishna.


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This is narrated by Lord Krishna himself to his close aide Uddhava. 49th-51 sloka of 11-27 Srimadbhagavatha reads as follows:.

™tYÁ|™Ω ÃÊüoy…eÁõÆ ™Êut∫™Ω N˛Á∫ÆzoΩ –jÊ @ úÏ…úÁz˘ÁåÁuå ∫©ÆÁuå úÏ\ÁÆÁfiÁznÃƒÁu»oÊ @@ úÓ\ÁtyåÁÊ üƒÁ“Ás˙ ™“Áúƒ|ÀƒsÁãƒ“™Ω @ qzfiÁúmúÏ∫T¿Á™ÁåΩ tnƒÁ ™nÃÁu…b|oÁu™ÆÁoΩ @@ üuo…eÆÁ ÃÁƒ|ßÁ{™Ê ÃˆåÁ ßÏƒåfiÆÊ @ úÓ\ÁutåÁ §¿÷¬ÁzNÊ˛ ufiuß™|nÃÁ©ÆoÁu™ÆÁoΩ @@ ™Á™zƒ å{∫úzflÆzm ßuO˛ÆÁzTzå uƒãtuo @ ßuO˛ÆÁzTÊ Ã ¬ßoz LƒÊ Æ: úÓ\Æzo ™Á™Ω @@ Æ: ÀƒtÁÊ ú∫{t|ÁÊ “∫zo ÃÏ∫uƒüÆÁz: @ ƒwuÊ Ã \ÁÆoz uƒgΩßÏN˛Ω ƒ Á|mÁ™ÆÏoÁÆÏo™Ω @@ N˛oÏ|≥Á ÃÁ∫sz“z|oÁz: EåÏ™ÁzutoÏ∫zƒY @ N˛™|mÁÊ ßÁuTå: üznÆ ßÓÆÁz ßÓÆuÃ on¢˛¬™Ω @@ Lord Krishna says - Oh! Uddhava, for attaining salvation (moksha) you need to worship me with devotion and for the same one should build a temple, consecrate my idol along with garden and perform pujas, uthsavams and rathayathra and for the purpose of same make donations like land, groceries, city or village etc. Any of the above will lead you to salvation.Even if you are the driver for the above divine duties or the reason for them or even an approver of the same you become eligible for salvation. Further, In order to help the mankind \Tã™WïpÁs˙ Lord Narayana himself with lots of love has arranged to provide the knowledge of performing worship or Bhakthiyoga to him and these teachings are known as Agamas. Agamas ,Pancharatra and Vaikhanasa have shastric sanctions for worship and are being practised in various temples. It is clear from Mahabharata that The Pancharathra shastram also known as EkayanaShastram (after the famous EkayanaMaharshi to whom Lord Narayana bestowed this knowledge in Shwetadweepa along with Sage Naarada) is told by Lord Narayana himself:

úØÁ∫ÁfiÀÆ Nw˛nœÁÃÆ ƒO˛Á åÁ∫ÁÆmÀÀƒÆÊ @ (Mahabharatha, ShathiParva, 359 Adhyaya, 65-69 slokas)


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å™≈»yƒÁÃÏtzƒÁÆ ÃuÄÁtÁåãt™Óo|Æz @ LN˛ÁÆåfiÆÎ ÆÀoÁÊ GúÁutquXZ~Æ{ üßÏ: Sri Prasnasamhitha 1-1-1 IswaraSamhitha (1-50,51) says :

™Ó¬ƒztÁåÏÃÁ∫zm ZãtÃÁåÏ…bÏßzå Y ÃÁnƒo™Ω úÁ{…N˛∫™Ω Y{ƒ \ÆÁPÆznÆzƒ™ÁutNÊ˛ @ ut√ÆÊ ÃÄÁÁÕÁ\Á¬Ê otÏMnƒÁ ÃÊN˛ |mÁutuß: @ üƒo|ÆÁ™ÁÃ ßÏuƒ Ãƒ|¬ÁzN˛ u“o{u uß: @@ Based on the rules and manthras laid by vedas (mainly atharvanaveda) and Lord Narayana’s teachings, Sankarshana (Lord Narayana’s Balarama Incarnation) and others propagated the pancharathra samhitas like Saathvatha, Poushkara, Jayakhya, Ahirbudhnya etc. and are meant for the benefit (salvation) of entire living beings of the world.) Pancharathra agamas are based on Vedas and teach human beings how to express love to Lord, think about him and serve him which is an integrated form of Karma, Gnyana and Bhakthi Yoga packaged to help the living beings in liberation. Saathvathasamhitha (2-5) says:

uƒƒzN˛tÊ ú∫Ê ∆ÁÕÁ™Ω §¿“™Ázúuå t™Ω ™“oΩ @ ut√Æ™ÊfiN¿˛™ÁzúzoÊ ™Á{q{N˛¢˛¬¬qm™Ω @@ Pancharathra agama is like a big Upanishad which gives distinction between good and bad. It contains good mantras which one can use to worship Lord Narayana as prescribed to attain salvation. In Hayagrivasamhitha it is stated :

EÁT™ÁPÆÊ u“ uÃÚÁãoÊ ÃÊ™Ázq{N˛¢˛¬üt™Ω @@ ™ÊfiÃÊÆrÃÊuÃuÚÊ uÃuÚ ™Ázqüt™Ω åwmÁ™Ω Meaning -Aagams full of useful mantras will bestow Moksha (salvation) to living beings) and in Poushkarasamhitha it is said <<ünÆÆÁs˙ Y ™ÁzqÀÆ which basically means this pancharathrashastra is for attaining moksha for living beings” Ref : Pancharathraraksha of Swamy Vedanthadesika P281-282 (Rakshgranthas from Ubhayavedanthagranthamala). In Bhagavad gita Lord says :

uÃÚÆ: ÃÊüN˛yuo|o:>>

E•ÆÁÃzõÆÃ™sÁz|DuÃ ™nN˛™|ú∫™Áz ßƒ @ ™ts|™uú N˛™Á|um NÏ˛ƒ|åΩ uÃuÚ™ƒÁõÀÆuÃ @@ß.Ty.12-10@@ Government Rules Hindu Temples

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Lord Krishna states that due to sheer rigor if you are unable to follow all the rigorous vedic ordinances and penances to reach me you can atleast be involved in duties related to me such as helping in temple affairs as per ordainment. This will help you in reaching salvation. Lord Ramanuja, in his celebrated Gitabhashya describes these duties as follows:

Es{ƒÊuƒáÀ™wnÆ•ÆÁÃzõÆÃ™sÁz|uÃ, ™nN˛™|ú∫™Áz ßƒ @ ™tyÆÁuå N˛™Á|um EÁ¬Æuå™Á|m-G˘ÁåN˛∫m- ütyúÁ∫Ázúm-™Á\|å-E•ÆÏqm-Gú¬zúå-úÏ…úÁ“∫m-úÓ\Áüƒo|ååÁ™ÃÊN˛yo|å-ütuqm-ÀoÏuo- å™ÀN˛Á∫Átyuå, oÁuå uüÆnƒzåÁY∫ @ In case you are unable to perform the ordained rituals and tough penance prescribed by Brahmopasana procedures you can be involved in performing duties related to me such as construction of temples, lighting the lamp, growing temple garden, getting flowers for me, bathing me, pradakshina, obeisance to me, praising me by stotras with love and devotion these will please me. These duties have to be performed with love, devotion and knowledge of subservience to Lord to reach Lord. The above prescriptions are exactly the same as Lord Krishna’s prescriptions to Uddhava mentioned above in Srimadbhagavatham (49thsloka of 11-27 Srimadbhagavatha). Explaining the above sloka of Bhagavadgita and elaborating on Sankara’s bhashya of the same Neelakantha Deekshitha says. ™nN˛™|ú∫™Áz ßƒ means focus on duties related to me which are »ƒmÊ, N˛yo|åÊ uƒ…mÁz:, À™∫mÊ, úÁtÃzƒå™Ω, which are all forms of Bhakthi meaning hearing the praise of Lord Vishnu, singing his praise, thinking about Him, performing pujas to the idols, pay obeisance, be his servant all the time, show friendship and finally offer oneself to him. All of the above are as per pancharathra agama prescriptions.

EY|åÊ, ƒÊtåÊ, tÁÀÆÊ, ÃQΩÆÊ, EÁn™uåƒztå™Ω

It is the fundamental duty of the State under Art 51A (a), 51A(f) and 51A(j) to protect the very purpose of life of the citizens i.e salvation and the Agama means to achieve the same secured under LIBERTY of thought, expression, belief, faith and worship of the Preamble and protected through Fundamental Rights Art 21 read with Art 29(1), Art 25 and Art 26 of the Constitution. The Authenticity of Agamas The Agamas as mentioned above have been revered and accepted for worship by all the three great Acharyas Sankaracharya, Ramanujacharya and Madhvacharya and have recommended following them for all the devotees seeking salvation. Lord Ramanuja and subsequently Vedanta Government Rules Hindu Temples

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Desika have established quite in a universally acceptable way that Agamas have vedic pramanas ü™ÁmÁ (authenticity) and that they have to be adhered to.Ramanuja states that : Eo: Ã ßTƒÁåΩ ƒzt{N˛ƒz˘: ú∫§¿÷ÁußáÁå:

ƒÁÃÏtzƒ: uåuQ¬“zÆünÆåyN˛ N˛¡ÆÁm{N˛oÁåÁãorÁåãtÁ˘úu∫u™oÁztÁ∫TÏmÃÁT∫: ÃnÆÃWî¡ú: ------- á™| Á s| N ˛Á™™Áz q ÁPÆúÏ ª ÁsÁ| u ß™Ï Q ÁåΩ ßO˛ÁåΩ Eƒ¬Áz M ÆÁúÁ∫N˛ÁªmΩ Æ ÃÁ{ ∆y¡ÆƒÁnÃ¡ÆÁ{tÁÆ|™“Áztuá: ÀƒÀƒøúuƒßÓuoÀƒÁ∫Ááå on¢˛¬ÆÁsÁn©ÆÁƒ§Ázuáå: ƒztÁåΩ J SÆ\Ï À ÃÁ™Ás∫Ω ƒ ßz t ÁåΩ Eúu∫u™o∆ÁQÁåΩ uƒÜÆs| ƒ Át™ãfiøúÁåΩ Àƒz o ∫ÃN˛¬ÃÏ ∫ å∫tÏ∫ƒTÁ“ÁÊ≥ÁÁƒáÁÆ|, ots|ÆÁsÁn©ÆÁƒ§Ázuá úØÁ∫Áfi∆ÁÕÁÊ ÀƒÆ™zƒuåu™|™yozuo uå∫ƒ˘Ê @@ GnúnÆÃÊßƒÁuáN˛∫mÊ »yßÁ…ÆÊ: 2-2-8 (Lord who is the only cognizant person of vedas, out of his own condescending nature, has integrated all the vedamanthras, explanations, methodologies into Pancharathrashastra or Agamas to help the mankind understand the difficult to understand vedas). Ramanuja establishes very clearly that there are several places in vedas and shastras which establish the clear authenticity of Pancharathra and Vaikhanasa agamas (Ref VaikhaanasaVijayam by Abinava Vedanta Desika Uttamur Veeraraghavacharya). For example in MahabharathaShanthi Parva: 348, 63-64..)

FtÊ ™“Ázúuå tÊ YoÏ∫ΩƒztÃ™uãƒoÊ @ ÃÁÊPÆÆÁzTNw˛oÁãozå úØÁ∫ÁfiÁåÏ∆u£toÊ @@1@@ FtÊ »zÆu™tÊ§¿÷ FtÊ u“o™åÏ™Ê @ J SÆ\ÏÀÃÁ™uß\Ï| Ωb™sƒÁ|uWï∫ÃÀosÁ @@2@@ ßuƒ…Æuoü™ÁmÊ ƒ{ LotzƒÁåÏ∆ÁÃåÊ @@ ÃÁÊPÆÆÁzT: úØÁ∫ÁfiÊ ƒztÁ: úÁ∆ÏúoÊ osÁ @@3@@ uN˛™zoÁãÆzN˛uå…eÁuå úwsWΩuå…eÁuå ƒÁ ™Ïåz @@ ÃÁWΩPÆÊÆÁzT: úØÁ∫ÁfiÊ ƒztÁ: úÁ∆ÏúoÊ osÁ @@5@@ EÁn™ü™ÁmÁãÆzoÁuå å “ão√ÆÁuå “zoÏuß: @@ ÆsÁDT™Ê ÆsÁãÆÁÆÊ uå…eÁ åÁ∫ÁÆm: üßÏ: @@6@@ (This is a mahaopanishad at the end of Sankhya yoga and is termed as Pancharathra. This is good and bestower of all well beings. There is nothing better than this. It is fully encircled by the four vedas and it is authentic. The sankhya yoga is pancharathra and as vedas it is self authentic and unquestionable as it is said by Lord Narayana. This pancharatra agama cannot be tampered by materialistic or mundane Government Rules Hindu Temples

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logics. This is how Lord Narayana says he should be worshipped by his devotees as mentioned in agamas)..™“oÁz ƒztƒwqÀÆ ™Ó¬ßÓoÁz ™“ÁåÆÊ means Pancharathra is the root of the tree of Vedas. Madhvachaarya also has the same view. Sankaracharya accepts pancharatra for purpose of Puja vidhanams, ßTƒtÁ∫Ááåuƒuá Just like

Àƒo: ü™ÁlÆÊ PancharathraShastra Àƒo: üÁ™ÁlÆÊ These exist along with the

Vedas which have basic authenticity also has basic authenticityAlmighty.

ƒzt™zN˛ÁÆåÊ åÁ™ ƒztÁåÁÊ u∆∫uÃuÀsoÊ @ ots|NÊ˛ úÁØÁ∫ÁfiÊ ™ÁzqtÊ ounN¿˛ÆÁƒoÁ™Ω @@ EuÀ™ëÁzN˛Áz ™ÁT|: ƒztüÁzO˛ÀÃåÁoå: @@»yú«ÁíÃÊu“oÁ 2-6,38,31@@ (Pancharatrasastra is on top of Vedas following which one can worship Lord Narayana and would attain Moksha)

E¬Áßz ƒzt™ãfiÁmÁÊ úØÁ∫ÁfiÁzutozå u“ @ ™ÁTz|m™ÁÊ üú˘ãoz oz ™ÁÊ ú≈Æuão ™ÁåƒÁ: @@ ƒztzå úØÁ∫Áfizm ßMnÆÁ Ærzå oÏ u˚\Á: @ üÁõÆÁz“Ê åÁãÆsÁüÁõÆ: ƒ |¬q{∫uú u˚\ @@ƒ∫Á“úÏ∫ÁmÊ@@ (Even if veda mantras are not fully available, if one performs puja through pancharathra prescriptions he can reach me.) One of the tzƒ Ær is temple worship. Even one is ordained to secure wealth in Bhagawad Gita to perform yagnya and attain the ultimate goal-salvation. Temple worship is in accordance with the ordainment in vedas ÆrÁzƒ{uƒ…mÏ: Hence, Temple worship is an integral part of Hindu religion and as any other yagnya is a way to earn punya and attain the Lord. Temple worship is done not only for the upliftment of the individuals but also for betterment of the whole society and mankind. As per temple worship is concerned Agamas are supreme .Several ways of worships have been prescribed by Agamas.One cannot leave rituals in the entire life, be it for Advaits or Vishishtadvaits or dvaits. Rituals form core and everyone who is ordained to perform the rituals should perform these religiously. Else, the prescriptions state that the offender would earn enormous sins and never reach salvation.Every temple has a custom,usage and practice which is protected by the hereditary Archakas as prescribed by Agama text . These are the prescribed sampradayas and have been recorded as affable Government Rules Hindu Temples

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to the deity presiding the temple. These sampradayas have to be adhered to without alteration. Similar is the situation for all temples. Some are documented and in some temples they are ed down from father to son or to successors. The reason for adorning a deity image is not merely for uY∆ÏuÚ but also for serving the Lord already in this Janma. Swami Desika has referred to it as :

åÁo:ú∫Ê uN˛™uú ™z nƒuÆ åÁsåyÆÊ ™Áot|Æz ™uÆ NÏ˛ª…ƒ osÁ üÃÁtÊ @ §ÚÁá∫Áz ƒw uTu∫ümÆy ÆsÁDÃÁ{ ™ÏO˛ÁåÏßÓuou™“ tÁÀÆuo ™z ™ÏNÏ˛ãt: @@ (Oh! Lord’s Daya, please create conditions for me in such a way that I have the pleasure of all the time contemplating about Lord here itself as I would be doing post salvation) It is the fundamental duty of the State (Legislature,Executive and Judiciary) under Art 51A (a), 51A(f) and 51A(j) to protect the very purpose of life of the citizens i.e salvation and the Pancharatra Agama belief system without seeking to alter the same in the name of reformation as it is secured under LIBERTY of thought, expression, belief, faith and worship of the Preamble and protected through Fundamental Rights Art 21 read with Art 29(1), Art 25 and Art 26 of the Constitution. Archakas, Temple staff, DevoteesTheir role and duties Dharma in Hinduism is purely related to the pleasure of the Lord and through Dharma the sins can be washed. Ramanuja describes Dharma as á™z|múÁú™úåÏtuo - Efi á™|útÊ EåußÃÊu“o¢˛¬á™|uƒ ÆÊ @ Bhaskara defines Dharma as uånÆN˛™|Áut»Á{oÀ™Áo˙ meaning daily duties as prescribed by Vedas and smruthis. This covers all dharmas and it is to be treated as ßTƒtÏúÁÃåÁÊ by Hindus. It is incorrect to define Dharma as a secular act. Every Archaka has to perform the prescribed dharma daily and also the five yagnyas should be performed as ordained by vedas. All of these are religious activity. Infact the life of Archaka is completely religious from his birth to death. In fact since Temple is a Religious Institution and people performing service in Temples obtain purpose of their lives as ordained by the Religious scriptures e.g. Agamas, all duties pertaining to Temples are Religious. It is incorrect to distinguish Temple activities as having a secular Part and Religious. All parts are Religious and are as per Agamic prescriptions as can be seen in the previous section. As


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mentioned in the Srimad Bhagavatha slokas above and Bhagavadgita on ™nN˛™|ú∫™Ázßƒ all activities including Directing a temple such as Executive Officer, Directing Group of Temples such as Commissioner, Endowments Department, Determining policies and implementing them from Government angle such as Minister of Endowments or Principle Secretary, Revenue and further the temple clerks who maintain s, sentries, watchmen, cleaner etc. are all in the service of the Lord and will have benefit of the good deeds or the ills of their bad deeds towards temples as mentioned in the Bhagavad Gita. In other words they will be working towards fulfillment of their purpose of life in the Religious sense. Hence none of these duties come under secular category as widely misinterpreted. They all come under religious category. Every temple is different and every deity is different in of temple rituals and customs. It is important in the Hindu religion to have an Acharya to perform the rituals. Acharya’s place in the religion is the highest. It is prescribed in agamas that before construction of the temple or during construction of temple a pious person following shastras, practicing the daily chores prescribed in shastras, devoid of bad qualities, practices and having good virtues such as honesty, integrity, selflessness and devotion towards Lord, person who can perform all rituals and who can educate people about devotion, initiate them to surrender to Lord, discourse and sing his praises should be brought in to perform puja. He should have been born in the prescribed lineage to perform the community worship. Sriprasnasamhitha prescribes that the archaka should be the one born in the hereditary family of archakas for perpetually performing puja to the deity for the welfare of the state. It said that Archaka is similar to Lord. Agamas.

EY|N˛ÀÃ “u∫ÀÃÁqÁoΩ @ This is as per

J …ÆÁutúÓu\oz ÀsÁåz úÁ∫©úÆ|N¿˛™Ê uƒåÁ @ uƒ∆z Ê åÁY∫zunN˛uØÁoΩ ∫Á\∫Á…b~Ã™wÚÆz @@(ú∫™zæÁ∫ ÃÊu“oÁ) (Please do not do puja to deity without úÁ∫©úÆ|N¿˛™Ê - practiced customs and usage through generations, i.e. Without following the hereditary customs, principles and methodologies).The úÁ∫©úÆ|N¿˛™Ê or unique custom and usage of particular temple is meant for the pleasure of the deities in the temples. This also includes maintaining the generation or lineage of Archakas who have been protecting the traditions of Pujas according to likes and dislikes of the deity as though he was one of their family Government Rules Hindu Temples

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. If this is not adhered to the Puja will not yield the desired benefits as the deities in the temple will be unhappy and it will lead to destruction of state and the King. According to Manu Dharmashastra it is said that : ∫Á\Á ∫Á…b~Nw˛oÊ úÁúÊ meaning all the sins created by a state will go to the King. This is valid in the case of Monarchy where there is one king. In the case of democracy where by nature all people are the kings of a country the sins of all people will be shared by them. This is a worst state to be in as per management of sins are concerned. Every citizen in Democracy should be alert to avert sins being committed by other fellow citizens to avert the effect of that sin on him. If temples are not managed according to customs and usage by the Archakas maintaining them through generations and state does not create conditions for that the sin of the state is borne by the citizens of the state. Eligibility to perform temple rituals is prescribed as follows:

üÁN˛Ω üÁõotyq{: uƒuáƒoΩ fi{á™|uÀso{: u˚\{: @ uånÆÁ∫ÁáåÃO{˛ÀoÏ ßO{˛: ßÁTƒo{: uƒßÁz@@úÁ{…N˛∫ ÃÊu“oÁ @@ (the persons who have got deeksha before hand only can perform puja in the temple) who are also followers of trayee (three vedas) and who are eager to perform the daily pujas are eligible to be archakas The

G˘ÁzT parva of Mahabharatha through Dharmaputra says

N˛sÊ nƒ™Y|åyÆÁzuÃ ™Óo|Æ: N˛y–∆ÁÀo oz @ ƒ{QÁåÃÁ: N˛sÊ ßÓÆÏ: N˛sÊ ƒÁ úÁØÁ∫ÁufiN˛Á: @@14-4-1652@@ (Oh! Sri krishna! how are you worshipped? How many forms do you have? How do vaikhanasas tell about you and Pancharatrikas? The answer from Krishna was:

EåãÆtzƒoÁßO˛Á: Æz ™ÙO˛\åuüÆÁ: @@™“ÁßÁ∫o-14-4-1668@@ (the people, who are following only myself and beloved ones to my worshippers are eligible to perform the puja)

uƒuáüÆÏO˛ÁÊ úÓ\ÁÊY Tw‘Áuo u∆∫ÃÁ ÀƒÆÊ @@™“ÁßÁ∫o 12-336-1@@ (Bhagwan receives the pujas which are in tune with the vedic scriptures) Hence we cannot change the status-quo.

ooÀoÏ ßTƒÙO˛ÁåΩ tyuqoÁåΩ úÁØÁ∫Áufim: @ Ã™•ÆXÆ| uƒáÁåzå TãáúÏ…úÁutuß: N¿˛™ÁoΩ @@åÁ∫t úÏ∫Ám:@@ Government Rules Hindu Temples

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Hereditary Archakatvam (ú∫Êú∫Átyuo oÀÆƒ{u∆u…bN˛) It is for the devotional adherence to customs and duties having complete cognizance of the likes and dislikes of the deity is an important prescription of Agama Shastra for the pleasure of the deity and betterment of the society. Person who is born in the Archaka family binds himself from the birth to serve the deity safeguarding all the customs, usage and sampradayam. His dedication and Bhakti has been for protecting the temples system of worship even through tough times in multiple millenieums of the indian history.

EY|N˛ÀÆNÏ˛¬ÁznúëÁ: ßTƒãoÊ Ã™Y|ÆzoΩ @ EY|N˛Áz ƒÊ∆ƒÁãúÏfi: EåÁYÁ∫ÁzõÆ™ãfiƒÁåΩ @@ o˚Ê∆\™Áfizm ™™N˛™|um E“|uo @@ »y ü»ÃÊu“oÁ @@ EY|N˛Áz ƒÊ∆ƒÁãúÏfi: EåÁYÁ∫ÁzõÆ™ãfiƒÁåΩ @ ÆÁzÆ\z˘ut ™z üyuo: úÓ\ÁÆÁãÆÃ™Á¤ÆzoΩ @@ƒuÃ…eÃÊu“o@@ Meaning of all the above slokas are as follows- Only person born in the Archaka family can most preferably perform puja to me in the temples. This stands even if the Hereditary Archaka cannot perform all other rigorous ritual duties or recite the vedas fully. It is enough to know the Pancharatra agama puja vidhaana. If there is an Archaka family member, who does not know to recite all veda mantras nor who is not following rigorous shastric methodologies as per vedas, but has devotion towards me and can perform Puja to me as per Agamas, he should be ordained to do the Puja. I will be happy with this. The Hereditary Archakatvam has been created by the Lord in recognition to the Bhakti (devotion) by the Archaka families. For a member born in the Archaka family, the devotion towards the deity is inculcated in him naturally. Performance of Puja to the Lord by such Bhaktas (devotees) will ensure welfare of the society as per Agamas. Hereditary archakathvam is a duty which is bestowed upon an archaka for emancipation of his soul. Not allowing him to perform this duty is tantamount to not allowing right to life and right to take efforts to serve the purpose of life as protected in the constitution of India. While public interest requires to follow Agamas for ritual procedures it is also in public interest to follow agama guidelines for positioning Archakas in the temples. Agamas says that ÃÊN˛∫ tÁz : leads to significant calamities. It means that the Archaka and his duties to the respective deities are inseparable and cannot be intermixed without Agamic sanctions. Agamas Government Rules Hindu Temples

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prescribe Hereditary principle as a fool proof way to eliminate ÃÊN˛∫ tÁz It is a strong religious prescription, ordinance, custom, usage, belief and sentiment to ensure the pooja performance as per ßTƒtÁ∫Ááåuƒuá in the Agamas. Any deviation can lead to calamities and destruction of society and mankind.

∆ÁÕÁÃÊN˛∫tÁz zm ™“ÁãtÁz ÁzßƒzoΩ á¿ÏƒÊ @ åÁ N˛tÁuYtuú üÁr: üÁNÏ˛∫ΩÆÁn∆ÁÕÁÃÊN˛∫Ê @@ ooΩ ∆ÁÕÁ™ão∫zm{ƒ ÆÁzÆ\ztãÆƒn™|åÁ @@ ∫ÁrÁz∫Á…b~ÀÆ N˛oÏ|≥Á ÃåÁ∆Ê N˛oÏ|u™XZuo @@úÁ∫™zæÁ∫ÃÊu“oÁ-24-125@@ (Mixing or not following shastras during Aradhana or pooja will lead to destruction of the society and the head of the state) Karma, Jnana, Bhakthi and Prapatti are integrated Sadhanamargas propagated by Ramanuja. Both rituals and rites are important. Without Karma, Jnana is useless and does not lead to salvation. Considering this aspect people believe that Karma is very important for salvation. An Archaka takes care that he performs poojas with Bhakti in such a way that Lord is pleased. It is this Bhakthi that transcends generations and the whole family is devoted to the Lord. Archaka who is born in the family of a Hereditary archaka considers serving his deity as his primary duty and if he is not serving him he fears he would be lead to his nonsalvation. The current Act and judgement ensures that the Lord is displeased as a Bhaktha ordained to his service is deprived of it. It also does not allow the religious and devout archaka to discharge his religious duties, with effect that he cannot follow the Lord’s dictat in Bhagavad Gita.

uåÆoÊ NÏ˛ª N˛∫Ω™nƒÊ N˛™|[ÆÁÆÁzÿN˛™|um @ ∆∫y∫ÆÁfiÁuú Y oz å üuÃÚΩÆztN˛™|m: @@ ß.Ty. 3-8.. (Do the ordained duty till the end of the life. Don’t ever be without doing the ordained duty – for a Hereditary Archaka the ordained duty is archakatvam) Hereditary Archakatvam is a

< > karma -duty and is a

< > niyatham karma” ordained duty by the Agamas or the Lord. The state cannot prevent people from working towards their salvation. Archakatvam is practiced in all castes as per prescriptions of various agamas and their sub-ordinate texts. It is all about protecting Hindu religious practices, customs and usages -úÁ∫©úÆ|N¿˛™Ê which are prescribed Government Rules Hindu Temples

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as necessary for every temple. Hence it does not come under the purview of discrimination Sriprasnasamhitha in its 16thadhyaya describing initiation process of archaka called deekshavidhi says :

t∆úÓm| Ã™ÀÃÁzÆÊ tyuqoÁz TÏøªXÆoz @ tyuqoÀÆ NÏ˛¬z \Áo: ßcÁYÁÆz|å tyuqo: @@ meaning a person serving the deity for 10 years and who is born in the family of deekshitas (archakas) and who has been initiated by a senior archaka is called Guru. It also further prescribes

ú∫Êú∫Á tyuqoÀÆ NÏ˛¬z \Áo: Ã™Áuá™ÁåΩ @ tyqÁ™Ω GßÆo: üÁõo: úÊYN˛Á¬uN¿˛ÆÁú∫: @@ ÆÁzT∆ÁÕÁüƒym≥Á rÁåƒÁåΩ ™ÁzquYãoN˛: @ ßÏƒ: úu∫T¿“Á˘ÁƒoΩ üuo…eÁãoÊ Y ÆÁ uN¿˛ÆÁ @@ EÃ“ÁÆzå oÁÊ N˛oÏ˙ ∆O˛Áz ™ÜÆÁz å ∫ÁzTƒÁåΩ @ ÀƒÁoãfiÁz ƒwÚÃzƒy Y øúƒÁåuú YÁuÀoN˛: @@ ú∫{∫uåuãto≥Á{ƒ N˛yuo|™ÁåΩ uƒu\ozuã¸Æ: @ ™ÁåÃÁ∫Ááåz tq: ™ãfi∆ÁÕÁuƒYqm: @@ uÃÒ™ãfiÀÃƒ|t∆y| ßcÁYÁÆ|: Ã GXÆoz @@ Which means in the normal course barring exceptions, person performing puja has to be born in the hereditary clan of deekshitas (archakas) and he should be having control of his senses, following proper daily routines and training to perform puja to perform all Puja. As seen above Training is always needed for the Archakas and is termed as diksha. Every temple is an institution and all practices of each temple cannot be taught in Agama institutes because the practices are known only to the ordained Hereditary Archakas. Training in general Agamas for the Archakas may be performed by the institutes but Archakatvam in the existing temples has to be performed as per the Agamic Ordinances, i.e., only by Hereditary archaka barring exceptional situations. Even under those exceptional circumstances the main ownership of performing Archakatvam lies with the Hereditary Archakas. He can have an intermediary on whom he has confidence to perform puja under extraordinary circumstances. It is highly intriguing and moving to look at the origin of Hereditary Archakatvam. For every Hereditary Archaka,It is in a way a fulfillment Government Rules Hindu Temples

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of promise given by his forefathers to protect the deity when they received lands as charity for the same from the founder. In Sri Purushottamasamhitha, 12 chapter, a clear religious procedure is made for selection and appointment of the archaka and process of donation of land to him for taking good care of the deity and his family till the existence of the earth, moon, stars and universe.

<<EÁYÊ¸ÁN|˛™Ω EuƒuXZëÁúÓ\åÁs|™Ω ™áÏu˚ : @ qÁzmy™Ω ÃÀÆ \¬ÁzúzoÁ™Ω tzƒåÁ™íÁ uƒu¬PÆÁ Y @@ EY|N˛ÀÆ NÏ˛bÏÊ§ÀÆ \yƒåÁs|™Ω üN˛¡úÆzoΩ @@ <

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It is prescribed not to give remuneration ßwoNÊ˛ only to the archaka without the land. This will lead to the destruction of the wealth and clan of the donor.The above ritual of donation of land for long term pooja of the temple to the archaka is a binding agreement between the donor and the receiver that he binds not only archaka but his family and his generations to perform the puja to the deity. It is a perpetual and binding agreement. Because the land donation has been received it is the duty of the archaka’s family and his successors for generations together to take care of the deity. It is part of the religious process and is essential and integral item. If an Archaka is deprived of the duty by removal or abolishment of Hereditary Archakatvam it is tantamount to denying the Archaka to pursue the purpose of his life by serving the deity which he is ordained to by virtue of the promise made by his forefathers. If he falters it means he has failed to honour the commitment in the eyes of the Lord and Dharma. It is also incumbent on the state to allow the archakas to perform their duty by using the produce of the lands donated to them. They have no right to sell off the Inam lands as they are in the name of the deity nor they have right to leave. Hereditary archakathvam is a duty like a son’s duty to his father. The secular state should respect this sentiment and allow the archaka to perform his duty and should not make him deprived of the lands.Hence it is a great sin to delink Archaka and temple lands from Archakas and temples. Any scheme as per section 142 of the act and section 144 ensuring income to Archakas cannot take away lands of temples and Archakas from them. Taking away Archakas Inam lands, selling off and creating fixed deposits for paying salaries to Archakas tantamount to converting the lands into ßwoNÊ˛ which is prohibited by the Agamas and is Tantamount to destruction of the state’s life and wealth. Hence the whole footing that lands can be taken away under section 144 of the act is anti-Agamic and is non –protective of Devotees interest to protect Archakas, Lord’s interest to protect Archakas and Archakas duty to protect the lands and ensure produce for the sustenance of his family for next generations to upkeep the deity. This completely defeats the very purpose of the founder’s intention and will lead to destruction of the state as per Agamas. The traditional archaka families associated with thousands of temples right from their inception are an essential and integral part of religion as they are the source for archakas for hundreds and thousands of years in the past and also in the future preserving and Government Rules Hindu Temples

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providing guarantee to rituals as per custom and usage in the respective temples irrespective of the income status and also during various invasions and natural calamities. The continued existence of these traditional archaka families associated with each temple is an essential and integral part of religion and protected under Art 25 and Art 26 of the Constitution and any action of the State to impoverish these families and thus endanger their continued existence and put in jeopardy guarantee for rituals as per custom and usage irrespective of income status in the respective temples would be in violation of not only Art 25 and Art 26 but also in violation of Art 29(1) and Art 21 of the Constitution. It is a historical fact that the State through its officers who are prejudiced has systematically reduced the traditional archaka families to a pitiable condition something that did not happen even during the long periods of foreign rule. The entire Archaka profession has been denigrated by systematically reducing them to a penury state and an object of ridicule to the point that the traditional archaka families are finding it very difficult to commit their to this noble profession and no girl is coming forward to marry them due to the action of the State as represented by its officers. The of the traditional Archaka families who have a right to perform their religious duty of rituals to their personal temple deity as mandated by the Agamas protected under Art 29(1), Art 21, Art 25 and Art 26 and a right to choose this noble profession under Art 19(1)(g) as was done by their eminent ancestors have been systematically reduced by the State through its officers to this pitiable State in gross violation of principles of Dharma. The Devotees on whose sense of religious duty as mandated by the Agamas that the traditional Archaka families trust when they commit the sacrifice of choosing one among them for the noble Archakatvam profession to continue rituals in the temples have been reduced to being silent spectators and prevented from doing their Agama Dharma and Religious duty of protecting the traditional Archaka families by augmenting their income in various traditional ways by the State through its Officers in gross violation of Art 29(1), Art 19(1) (g), Art 21, Art 25, Art 26 of the Constitution. The pious intention of the ancient devotees in donating lands or other instruments as per custom and usage prescribed in Agamas to the temple deity in the presence of the Archaka family member for preserving the traditional service rendered by the archaka family by its descendants continues to operate through the presence of the Deity as recognized by even foreign Courts and the State cannot in the name of regulation resume such land from the traditional archaka families who are continuing the service of archakatvam and thus defeat the purpose of the original donation. Justice Ian Keneddy in his Judgment Government Rules Hindu Temples

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in Bumper Development Corp V Commissioner of Police of the Metropolis and Others referred to in the Appeal of the Judgment of Justice Ian Keneddy. Alternatively the Judge held that the ‘pious’ intention of twelveth century notable who gave the land and built the Puthur temple remained in being personified by the Shivalingam of the temple… The ‘pious’ intention continues to be protected under Art 29(1), Art 21, Art 25 and Art 26 of such ancient devotees as it is very much alive even after their time and personified by the deities of the respective temples. Regarding the emoluments, it is prescribed in Vedas that while performing any Yagnya the yajamana (performer) has to give the Acharya the Dakshina ßÓuÆ…eÁ tuqmÁ åÆzÆÏ: as mentioned in Taittriya Brahmana, Kathaka-2 prasna. In the case of temple worship it is the society which performs the tzƒ Ær @ The Archakas have the right to accept Dakshina from the society against their emoluments. This is Agamic prescription and an important part of the ritual. There are manthrams or recitings to give the Archakas their emoluments or Dakshina and it is the ordained duty for the Archakas to accept the dakshina. Accepting dakshina and giving dakshina are main religious dharmas and need to be allowed and practiced for this leads to salvation (purpose of life). It is the way for salvation of devotees to give Dakshina to Archakas and the system needs to allow for it. Not allowing this will tantamount to not helping the devotees pursue their purpose of life. Devotees have the right to protect the tradition, culture and Archaka family for their own welfare and hence have the right to directly remunerate Archakas by Dakshina. This should not be curbed by any system as it is not good for the state. Depriving Archakas of their land and emoluments (by way of Dakshina etc.) is tantamount to dishonouring the commitment of the deity to the Archaka as per the Daana Shasana. It is important to protect the Honour of the Deity as per section 142 of the Act. CONCLUSION


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It is the fundamental duty of the State under Art 51A (a), 51A(f) and 51A(j) to protect the very purpose of life of the citizens i.e salvation and the Agama means to achieve the same secured under LIBERTY of thought, expression, belief and worship of the Preamble and protected through Fundamental Rights Art 21 read with Art 29(1), Art 25 and Art 26 of the Constitution. In all it is incumbent on the State to ensure sustenance of Temple system to enable devotees in the citizenship to pursue their purpose of life which is salvation. The Temple is a religious institution and all services of the temple be it Archaka, be it sweeper or be it Endowments Minister the highest, all are servants of the temples are Religious posts as they fulfill purpose of life and get the benefits as prescribed in the Religion. Traditions, customs and usage must be maintained as per Agama prescriptions which become supreme in Temple matters. As prescribed by Agamas, The Lineage of Archakas must be protected and state should create conditions for the same. The state should encourage Hereditary Archakas as prescribed by Agamas to continue their duties and allow them to pursue their purpose of life. This is essential to protect customs and usage of temples failing which calamities would occur. Hereditary Archkatvam is an upkeep of family promise to protect the deity for generations to come and this is as per Agamas. It is in lieu of the lands received in donation by the Archakas forefathers at the time of consecration of the Deity for the upkeep of the deity and their livelihood. It is the duty of the founder to only give lands and hence alienating Archakas and temples from lands is against Agamas and should never be done. All schemes should continue to protect the lands given in charity to the deity and Archakas. It is to fulfill the purpose of life, the devotees are giving dakshina or charity directly to Archaka. This should not be stopped. State should create conditions for proper upkeep of temple systems as per Agamic prescriptions. In Democracy not adhering to these principles will mean that all people will share the burden of sins committed which should be avoided.


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APPENDIX III The IA filed in Writ Petition 290 of 1998 in State of Andhra Pradesh vs Telangana Archaka Samakhya. Also attached is the final Order of the Supreme Court in this Case. IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION IA NO

OF 2013 IN

WRIT PETITION (CIVIL) No.290 Of 1998 IN THE MATTER OF: Telangana Archaka Samahkya (Regd) …Petitioner… Versus State of A.P. and others …Respondents… APPLICATION UNDER ORDER XLVII RULE 6 OF THE SUPREME COURT RULES 1966 FOR BRINGING SUBSEQUENT EVENTS TO THE NOTICE OF THIS HON’BLE COURT TO The Hon’ble the Chief Justice of India and his Hon’ble Companion justices of the Supreme Court of India The humble application on behalf of the petitioner above-named most respectfully showeth: 1. THAT this is an application to bring to the notice of this Hon’ble Court the subsequent events so that the above Writ Petition is fully and finally adjudicated. 2. THAT after filing of the above Writ Petition in the year 1998 additional affidavits have been filed on 28th February 2005 and on 3rd December 2008 narrating the developments that took place up to that date. Subsequently some more developments have taken place which needs to be brought to the notice of this Hon’ble Court for disposing of this Writ Petition following principles of Dharma. 3. by

THAT when Yudishtira posed the question as to what is meant Dharma to Bheeshma he replied thus


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“It is most difficult to define Dharma. Dharma has been explained to be that which helps upliftment of living beings. Therefore, that which ensures the welfare of living beings is surely Dharma. The learned Rishis have declared that which sustains is Dharma”(Mahabharata Shanti Parva 109-9-11) The following excerpts from the book “The Agama Encyclopedia” by Prof S.K Ramachandra Rao Vol 3, illustrates, based on quotations from Agama texts (ancient texts that specify in minute detail all aspects of Temple worship), the Dharma of the society towards the welfare of the archaka family; which sacrifices for the sake of the welfare of the entire society, for whose sake the worship is conducted in the temples. “Because the safety, security, wealth and welfare of the country depends upon regular worship ( six times, three or two times a day) conducted in the temple, the ruler of the land or the people must see that the worship is not interrupted due to the penury of the priest. It is prescribed therefore that endowments of lands are made upon the priest free of taxes so that his family may live in comfort”. (Pg 174) This Hon’ble Court has in Ramsharan Autyanuprasi & Anr vs Union Of India & Ors on 14 November, 1988 Equivalent citations: 1989 AIR 549 stated that It is true that life in its expanded horizons today includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encom of an expanded concept of Article 21 of the Constitution Therefore the Agama Dharma of Temple Worship which is a tradition, culture and heritage of the temple worshippers and the Archakas and gives a meaning to their life is also protected under Art 29(1) and Art 21 of the Constitution in addition to the protection available under Art 25 and Art 26 of the Constitution. It is this ancient and timeless Dharma that the Agamas prescribe for the devotees and Archakas that this Hon’ble Court needs to uphold in this Petition as this Hon’ble Court is also bound by the principles of the same ancient Dharma “Yato Dharmaha Tato Jayaha” 4. THAT the composite prayer in the above Writ Petition is that unless the Government made substantial amendments to the Act as directed by this Hon’ble Court through judgement dated 9.5.1997 in I.A. No.7 in Writ Petition (Civil) No 638 of 1997 and a scheme implemented to keep Archakas in comfort the Andhra Pradesh Charitable and Hindu Government Rules Hindu Temples

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Religious Institutions and Endowments Act No 30/87 would be violative of Articles 14, 25, 26 and 27 of the Constitution and therefore, void and ineffective. 5. THAT through the affidavit filed on 28th February 2005 it has been brought to the notice of this Hon’ble Court the devotee agitation to preserve the Culture of Temple System of worship resulting from closure of temples due to impoverishment of Archaka families due to nonimplementation of the Orders of this Hon’ble Court and the steps being taken by the Government to amend the Act as a result. 6. THAT through the affidavit filed on 3rd December 2008 it has been brought to the notice of this Hon’ble Court the Statement of Objects and Reasons of amendment Act 33 of 2007 where the Government accepted that due to non-implementation of the directions of this Hon’ble Court thousands of Archaka families have become impoverished and temples virtually closed. The amendments brought about to Act 30/87 through Act 33 of 2007 was to rectify the alarming situation in response to devotee agitation to preserve the system of Temple Worship Culture, tradition and heritage by bringing the Endowments Department under Andhra Pradesh Dharmika Parishad a new semi-autonomous body constituted under Sec 152 and to improve the livelihood of Archaka families. This Hon’ble Court following principles of Dharma has also taken note of the amendments restoring the status of the Archakas as was obtaining prior to the enactment of the 1987 Act and disposed of the pending Review Petition RPC 2350 of 1997 dated 19.2.2013 This petition was filed in 1997 for reconsideration of the judgment in A.S. Narayana Deekshitulu v. State of Andhra Pradesh and others (1996) 9 SCC 548. During the pendency of the petition, Legislature of the State of Andhra Pradesh amended the Principal Act, i.e., Andhra Pradesh Charitable and Hindu Religious Institutions and endowments Act, 1987 (for short, ‘the 1987 Act’) and restored the status of Archakas as was obtaining prior to the enactment of 1987 Act. In view of the above development, this petition is disposed of as infructuous leaving the questions raised in the main petition open to be decided in an appropriate case. It is also made clear that this order shall not affect the Reference made vide judgment in A. Ramaswamy Dikshitulu v. Government of Andhra Pradesh and others reported in (2004) 4 SCC 661. 7. THAT in light of the disposal of the Review Petition RPC 2350 of 1997 leaving the questions raised in the main petition open the contention raised by the petitioner organization in the form of written Government Rules Hindu Temples

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submissions in which it was pointed out that the operation of the impugned Act would result in deprival of the livelihood of the Archakas and the abolition of their hereditary rights and introduction of graded scales of pay were so burdensome that they would inevitably result in manifest violation of the fundamental rights under Articles 14, 25, 26 and 27 of the Constitution need to be addressed as part of this Writ Petition. 8. THAT it is now over 5 years since the Act has been amended through Act 33 of 2007 and the emoluments scheme for improving the livelihood of the Archaka families as contemplated by the amendments based on the directions of this Hon’ble Court is yet to be implemented and situation continues to be alarming. This fact has been substantiated by the Andhra Pradesh Dharmika Parishad Sub-Committee on Service Issues of Temples Employees a committee constituted vide G.O.Ms.No.1303 Revenue (Endowments-I) Department dated 20-102010 and G.O.Ms.No. 1395 dated 24-11-2010 in its visionary report dated 5.1.2011. The report is also attached as Exhibit-A. 9. THAT the Andhra Pradesh Dharmika Parishad SubCommittee on Service Issues of Temple Employees in its visionary report dated 5.1.2011 has for the first time defined the term Public Interest in of Agama Dharma which should guide the functioning of the Endowments Department. What exactly is Public Interest Here? The Agamas have defined this very clearly. The following are extracts from the book “The Agama Encyclopedia” by Prof S.K Ramachandra Rao Vol 3 “Because the safety, security, wealth and welfare of the country depends upon regular worship ( six times, three or two times a day) conducted in the temple, the ruler of the land or the people must see that the worship is not interrupted due to the penury of the priest. It is prescribed therefore that endowments of lands are made upon the priest free of taxes so that his family may live in comfort”. (Pg 41-42) It is pertinent to note here that the Dharmika Parishad as a body itself was created by the recommendation of the Select Committee by providing representation to all devotees and stakeholders from various walks of life such as Peetadhipathis, Judges, Agama Pandits, Archakas, Trustees of temples, retired eminent bureaucrats with experience, eminent donors etc. so that the Dharmika Parishad can ensure that the Endowments Department functions as per Agama Dharma and in Public Interest. This Hon’ble Court in its judgement in Civil Appeal 6639 of 2003 dated 13th Oct 2011 in Trambakeshwar Devasthan Trust & Ors .. Government Rules Hindu Temples

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vs President Purohit Sangh & Ors has held that Public Interest is paramount in the functioning of Religious Trusts. The Dharmika Parishad Sub-Committee in Sec 2.2.3 of its visionary report dated 5.1.2011 has documented the reasons for impoverishment of Archakas (penury state of priest as per Agamas) due to the fact that the Endowments Department did not implement the orders of this Hon’ble Court. …Though the Supreme Court had recommended exemption of 90% of temples from the purview of the Act and had also ordered that hereditary trustees should not be disturbed unless foul in management is proved , the department instead went ahead and implemented the provisions of the Act in thousands of such temples by appointing an EO or a Manager and other secular staff. It also mechanically disturbed the Hereditary Trustee even if the Temples were properly istered by appointing trustboards and EO/PIMs. It also extended G.O.Ms No 858 Revenue (Endowments Dt. 8-10-1997) “Rationalization of Pay Scales of Archakas of the Temples other than Tirumala Tirupathi Devasthanams.. While the pay scales for all secular employees was religiously implemented and periodically revised the Pay scales and revisions was not implemented in the case of many Archakas and other Religious staff as there was no money to pay their salaries after paying the salaries of the secular employees and be within the 30% statutory limit. The fact that many Archaka families became impoverished and temples virtually closed down is clear from the following excerpt from the Statement of Objects and Reasons of Act 33 of 2007..” Pg(18) “…The indiscriminate taking over of temples and increase in the secular staff in violation of the Orders of the Supreme Court has meant that it is now impossible to implement PRC 2010 scales for the Religious Employees due to the 30% establishment limit in majority of the temples. Also the lands given to Archakas in lieu of service were disturbed in many temples with the promise of payscales. The other impact was that the Endowments Department itself increased the expenditure as it now had to deal with lot more temples under its control which meant more Assistant Commissioners, Deputy Commissioners, and Executive Officers etc…” Pg(19) The Committee noting that the provisions of the amended Act to better the emoluments of the Archakas which is based on the direction of this Hon’ble Court is not being implemented by the Department further made the following important recommendation to ensure that the Department functions as per Agama Dharma and in Public Interest. Government Rules Hindu Temples

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2.2.3.2 What can be done to retrieve the Situation with regards to Archakas and Employees of other Temples? The cumulative effect of the mismanagement of the affairs of the Religious Institutions by the Endowments Department has resulted in the present situation where many temple employees belonging to low income category especially Archakas and sweepers are not being paid decent salary and the vision with which the Government amended the legislation based on the report of the Select Committee is yet to materialize. The first and foremost thing that needs to be done so that the amended Act can be implemented at a fast pace is to implement the recommendation of the Select Committee “A semi autonomous Apex body called Andhra Pradesh Dharmika Parishad is sought to be created to oversee the management of the entire temple system in the state. It would most likely discharge most of the functions being currently performed by the Government. It would have the authority and responsibility to institute appropriate istrative, financial and legal mechanisms to ensure that Endowments are preserved, dilapidated temples are renovated, temples become pilgrim-friendly, the rich traditions and cultural heritage are preserved and all stake holders participate in a spirit of partnership with devotion and dedication to bring temples back into social life as centers of moral education, human welfare, fine arts and architecture. It will not be merely an advisory body as envisaged earlier. It will be the policy making body with substantial autonomy to coordinate and facilitate better management of temples. The Sec 152 A(1) proposed in the amendment Bill is modified accordingly The Government to delegate its powers and functions to Dharmika Parishad ( under Sec 152(4)). This is needed to ensure that the amended Act can be effectively implemented to bring about a sea change in the current environment. (Pg 25-26) 10. THAT the Legislature Select Committee reacting to agitation from devotees who could not be a silent spectator to the impoverishment of the traditional archaka families and virtual closure of the temples recommended addition of provisos to Sec 144 through amendment Act 33 of 2007 so as to preserve the traditional mode of emoluments to Archakas which was in existence since times immemorial ensuring


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uninterrupted rituals for thousands of years in spite of invasions, calamities etc. The amendments to Sec 144 read as follows Provided that the above said provision shall be applicable only for those institutions whose annual income as defined under Section 65 exceeds Rs. 5 lakhs per annum Provided further that notwithstanding anything contained in this Section, the Commissioner shall be competent to frame a scheme in case of such institutions where he satisfies himself for the reasons to be recorded in writing that framing of such a scheme is necessary stipulating the conditions of service and payment of emoluments to the Archakas, office holders and servants of the institution. Such a scheme shall come into force only after the approval of the Dharmika Parishad. The above amendments are based on the following recommendation of the Select Committee The Select Committee deliberated upon the amendment to Section 144 which is intended to improve the financial status of low-income temples. The archakas and other office holders working in the temple would have an option to either take a share of the temple income or take the salaries wherever they find that they are not able to make a living from the lands or the offerings given by the devotees. Accordingly, the amendment as proposed was approved as this is in conformity with the observations of the Supreme Court, is in consonance with the objectives of the Government to augment income levels of small temples and gives an option to archakas and other office holders and servants to opt for a scheme that is more beneficial to them. The power to approve schemes where there are special circumstances necessitating such a formulation is being given to the Dharmika Parishad. The Dharmika Parishad Sub-Committee on Service Issues of Temple Employees in its report dated 5.1.2011 has recommended that Schemes be implemented for temples within a period of 6 months which is not implemented yet. 6. Schemes to be prepared as contemplated under Sec.144 of the Act within 6 months. (Pg49) All the Archaka Organizations including Telangana Archaka Samakhya have through their representation dated 14.9.2012 to the Endowments Department asked for implementation of emoluments


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through fund under Sec 65-A as recommended by the Dharmika Parishad Sub-Committee and implementation of scheme option to be given to Archakas as is being implemented in Karnataka where thatte kasu, seva commission, proceeds from lands and part emoluments in the form of cash is allowed. This is also yet to be acted upon by the Endowments Department. The representation by the Archaka Organizations is attached as Exhibit B. 11. THAT the Dharmika Parishad Sub-Committee on Service Issues of Temple Employees in its report dated 5.1.2011 in Sec 2.2.2 (Pg 13-15) has quoted from the “Report of the Hindu Religious Endowments Commission” also known as C.P. Ramaswamy Iyer Commission Report and also the judgement of this Hon’ble Court on protection of Art 21 right to life (AIR 1993 SC 2086) available to the Imams by implication to Archakas as well and the recommendations of the Select Committee to justify the insertion of Sec 65-A and creation of a fund for better emoluments to Archakas and other Employees through the amendment Act. The Committee has also given several recommendations on how this fund should be seeded etc. which to date has not been implemented. 12. THAT the Dharmika Parishad had made several recommendations to implement the scheme for Archakas in low income temples so as to allow them to manage the same without additional staff such as Managers/Executive Officers etc. to improve their livelihood which was the objective with which the Act was amended. The AP High Court in the Order dated 3.10.2012 in WP 22074 of 2012 has given guidelines on how the income is to be calculated and also taking into the decisions of the Government to allow temples with income less than 2 lakhs to be istered by Archakas. The Endowments Department is not following these guidelines and is giving notice for constitution of trust boards to such low income institutions at the Deputy Commissioner level. Further the income limit of 2 lakhs itself needs to be increased to Rs 5 lakhs income to be in compliance with the directions of this Court as clearly articulated in the Dharmika Parishad Sub Committee report. 13. THAT the Dharmika Parishad Sub-Committee on Service Issues of Temple Employees in its report dated 5.1.2011 in Sec 5.1.3 (Pg 35-36) has analyzed the working of the Endowments istration Fund and the amendment made through Act 33 of 2007 in view of the contentions raised in this Petition. The Committee further quoted the legal position in Sec 5.1.5 of the report (Pg 41-42) and laid down the Government Rules Hindu Temples

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principles which need to be followed to ensure that this Hon’ble Court does not treat the levy as a tax and strike down the provision in the current pending Petition. 14. THAT the Dharmika Parishad term expired on 16.12.2012 and so far new body is yet to be constituted as per Sec 152 of the Act and Rules, further various recommendations of the Parishad for welfare of the Archakas which are binding under Rule 27 of the Dharmika Parishad Rules is yet to be implemented by the Endowments Department and many of the recommendations of the Dharmika Parishad Sub-Committee on Service Issues of Temple Employees dated 5.1.2011 is not yet implemented. The net result is that the Archaka families continue to be impoverished. 15. THAT the devotees who are in minority and who believe in the temple system of worship as per Agamas and which is their culture, tradition and heritage and which is protected under Art 29(1) , Art 21, Art 25 and Art 26 of the Constitution have been reduced to silent spectators and they are unable to perform the duty cast on them by the Agama Rishis to ensure that Archakas are not reduced to penury and rituals continue in the temples. The Endowments Department is not functioning as per Agama Dharma and in Public Interest, the Government is a secular one, the Dharmika Parishad which was supposed to replace the secular Government and ensure that the Department functions as per Agama Dharma and in Public Interest is not functional and due to the abolition of the traditional mode of emoluments the devotees are unable to augment the income of Archakas; the net result is that the Temple System of worship culture as per Agamas is under serious threat with traditional archaka families becoming impoverished and thousands of temples virtually closing down. 16. THAT the experience of the past decades is clear that the structure of the Act specifically Sec 144 whereby the welfare of the Archaka families was completely taken away from the hands of the devotees by abolition of the traditional emoluments scheme as contemplated by the Agamas and entrusted to the Endowments Department functioning under a Secular Government is a complete failure and something predicted by the Petitioner Organization in August 1995 itself to this Hon’ble Court. Though Sec 144 has been amended the implementation of it is still in the hands of the Endowments Department functioning under a Secular Government and neither the Archakas nor the devotees have any rights unless the provisions of the amended Act are read down by this Hon’ble Court in a way that it preserves the right Government Rules Hindu Temples

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of the devotees to augment the income of the Archakas in the traditional way as per Agama Dharma a right that is protected under Sec 142 of the Act and also under Art 29(1), Art 21, Art 25 and Art 26 of the Constitution. This Hon’ble Court needs to harmonize amended Sec 144 and Sec 142 and uphold the right of the devotees to augment the income of the Archakas in a traditional way. The state of Karnataka which was appraised of the issues prevalent in the State of Andhra Pradesh with regards to the livelihood of Archakas has in its amended Act introduced Sec 69-A which is similar to Sec 144 but is preserving the right of the devotees to directly augment the income of the Archakas in the traditional way through thatte kasu and seva commission as per custom and usage. “Sec 69A Abolition of share in hundi and other income of the temple.- Notwithstanding anything contained in any judgement, decree or order of any court, tribunal or any authority or in any scheme, custom, usage or agreement or in any manual prepared by any institution or in any deed, sannad, order of the Government to the contrary governing any religious or charitable institution or endowment, any share which is payable or being paid or given or allowed at the commencement of the Karnataka Hindu Religious and Charitable Endowment (Amendment) Act, 2011 to any trustee, Dharmadarshi, Dharmakartha, Muthavalli or any office holder or servant including an archak or mirasidar or mujavar in the hundi or in kanike or in other income of the institution shall not have share except the seva commission and thatte kaasu” 17. THAT it is clear from the experience of past decades that the Endowments Department is not functioning as per Agama Dharma and in Public interest and it is necessary to implement the recommendation of the Dharmika Parishad Sub-Committee on Service Issues of Temple Employees in its report dated 5.1.2011 for the Secular Government to constitute and transfer all its powers to the Dharmika Parishad as per the provisions of the amended Act. In order to protect the fundamental rights of the devotees protected under Art 29(1), Art 21, Art 25 and Art 26 of the Constitution and to preserve the culture, custom, usage and tradition of temple system of worship; This Hon’ble Court needs to harmonise the requirements of Sec 13 and Sec 142 of the Act with amended Sec 152(4) and Sec 65 of the Act so that the Dharmika Parishad exercises complete control over the functioning of the Department with all powers of the Secular Government transferred so as to protect the Temple System of Worship Culture, custom, usage, Tradition and Heritage so that the Endowments Department functions as per Agama Dharma Government Rules Hindu Temples

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and in Public Interest. This Hon’ble Court needs to set a short time limit for implementation of all the recommendations of the Dharmika Parishad Sub-committee on Service Issues of Temple Employees dated 5.1.2011 so that the contribution collected under Sec 65 towards EAF is not considered a tax by this Court and is considered a fee as currently the service rendered is actually not being utilized as per Agama Dharma and in Public Interest and while the officials of the department including executive officers are getting good salaries the Archakas and other Employees whose welfare is crucial to sustaining the Temple Worship Culture continue to be in an impoverished condition. 18. THAT the Dharmika Parishad sub-committee on Service Issues of Temple employees has brought in to focus through its report dated 5.1.2011 that the Archakas are in an impoverished condition due to the fact that the Endowments Department did not function as per Agama Dharma and in Public Interest. It is therefore required that this Hon’ble Court following principles of Dharma should immediately order for constitution of a committee to arrive at a compensation figure for the irreparable damage done to the Agama culture of temple system of worship. This Hon’ble Court should order that the ratio followed in the judgement in Balasubramania Sastri vs Ponnusami Iyer of Madras High Court 45 Ind Cas 721 dated 29 April 1919 be followed in arriving at the damages due to the impoverished Archaka families due to nonimplementation of the orders of this Hon’ble Court and also the wisdom of the legislature which lead to impoverishment of the Archakas as they were deprived of the voluntary donations from devotees as their income augmentation. The Petitioner in his memorandum submitted to Justice Sri Krishna Committee titled “Temple System at Cross Roads” which is enclosed as Exhibit C has brought to the focus the injustice done to the Archaka Community and the Culture, tradition and heritage of Temple System of Worship in the State of Andhra Pradesh from 1987 onwards and gave the following recommendation on the quantum of compensation (2)We request the Hon’ble Committee to recommend the quantum of compensation to be given to the impoverished archaka families due to the non-implementation of the directions of the Hon’ble Supreme Court. In this connection we submit that since the Amendment Act 33 of 2007 has been enacted on the basis of the directions of the Hon’ble Supreme Court amendments to Sec 34 , Sec 144 and Sec 17 be treated as retrospective so that the recommendations are legally binding and the archaka families get suitable compensation. This will allow the Andhra Pradesh Society to do prayaschittam for the sins committed against the Government Rules Hindu Temples

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archaka families. Since the Endowments Legislations are in the concurrent list, the Central Government was duty bound to prevent Temple laws which are destructive from being enacted by the State Governments. They need to be monitered by the Central Government. For this lapse the compensation needs to be paid by the Government of India to the temples for reviving them. Therefore at least Rs.1,000 crores should be credited to the Andhra Pradesh Archakas and other Employees Welfare Fund. (Pg 44) 19. THAT For the first time in the history of our temple system culture an Archaka committed suicide hanging from the bell of a temple in the year 2001 to bring to the notice of the Society the pitiable state of the Archaka community and the fact that the Endowments Department is not functioning as per Agama Dharma and in Public Interest which caused awakening in the devotees leading to the devotee agitation to preserve the culture, tradition and heritage of the temple system of worship. 20. THAT In view of the current peculiar situation where thousands of Archakas and their families continue to be impoverished, pending disposal of the Writ Petition this Hon’ble Court following principles of Dharma to provide immediate relief to the thousands of impoverished Archakas and to preserve the culture, tradition and heritage of the Temple System of Worship may like to order Respondent No. 1 to allow devotees to augment the income of impoverished archakas in all temples as per custom and usage since times immemorial in the way that they were doing under the provisions of the 1966 Act and which is a right that is protected under Sec 142 of the Act and Art 29(1), Art 21, Art 25 and Art 26 of the Constitution to preserve the culture, tradition and heritage of temple system of worship as per Agamas and which is also protected under the Karnataka amendment. 21. THAT in view of the current peculiar situation where the Endowments Department is not functioning as per Agama Dharma and in Public Interest the contribution to Endowments istration Fund is in the form of a tax and not fee and in violation of Art 27 , Art 29(1) , Art 21, Art 25 and Art 26 of the constitution as it is not helping in preserving the culture, tradition and heritage of the temple system of worship of the devotees as per Agamas; this Hon’ble Court pending disposal of the Writ Petition following principles of Dharma may like to order Respondent No. 1 and specify a short time limit in which the Endowments Department is made to function as per Agama Dharma and in Public Interest by implementing the recommendations of the Dharmika Parishad SubGovernment Rules Hindu Temples

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Committee on Service Issues of Temple Employees dated 5.1.2011 to constitute and transfer the powers of the Government to Dharmika Parishad , implementation of Sec 65-A of the Act for proper emoluments to impoverished Archakas and Temple Employees using the surplus funds under the EAF and other related recommendations and ensuring contribution from TTD and implementation of Schemes for Archakas in all temples as per the provisions of the amended Act. 22. THAT in view of the current peculiar situation where thousands of Archakas and their families continue to be impoverished due to non-implementation of the earlier orders of this Court; this Hon’ble Court following principles of Dharma and pending disposal of the Writ Petition may order Respondent No 1 to allow temples with income below Rs. 5 lakhs as recommended by the Dharmika Parishad based on the earlier orders of this Court to be managed by Archakas wherever there are no hereditary trustees as part of the scheme to improve their livelihood and take back all the Executive Officers/Managers appointed for these institutions. This Hon’ble Court following principles of Dharma pending disposal of the Writ Petition may further order constitution of a committee on the basis of the report of the Dharmika Parishad Sub-Committee on Service Issues of Temple Employees dated 5.1.2011 and arrive at a compensation figure to impoverished archaka families so that the devotees and archakas can try to revive the culture, tradition and heritage of the temple system of worship as per Agamas protected under Art 29(1), Art 21, Art 25 and Art 26 of the Constitution which has been irreparably damaged due to the closure of temples, impoverishment of the Archakas, loss of properties of the temple in the form of Fixed Deposits, Lands, Ornaments which were given by donors so that rituals continue in these temples.

PRAYER It is therefore most respectfully prayed that this Hon’ble Court be pleased to: (a) TAKE into consideration all the facts and events described above in deciding the above Writ Petition; and (b) such orders as are deemed just fair and proper in the circumstances of the case Supreme Court Order dated 11th Dec 2013 in WP 290 of 1998 “Mr. Subodh Markandeya, learned senior counsel for the petitioner seeks withdrawal of the writ petition in view of the events that have Government Rules Hindu Temples

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taken place subsequent to the filing of the writ petition particularly enactment of the Andhra Pradesh Charitable & Hindu Religious Institution and Endowments Act, 1987 (Act 33 of 2007). Learned senior counsel further submits that the petitioner will pursue appropriate remedy with regard to its grievance about non implementation of Act 33 of 2007.The prayer of learned senior counsel is fair and reasonable. Writ Petition is permitted to be withdrawn and it is dismissed as such with liberty, as above”


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APPENDIX IV Written Submission by Telangana Archaka Samakhya referred to in A.S Narayana Deekshitulu v State of Andhra Pradesh (AIR 1996 SC 1765) “In Andhra Pradesh there are as many as 32,201 temples out of which 7761 temples are assessible institutions; the remaining 24,440 temples have income of less than Rs. 1,000/- per annum, only 582 out of them have income of more than Rs.10,000/- per annum. Only around 8 temples have income of more than Rs.20,00,000/- per annum. All the archakas or employees in these categories of 24,440 small temples would be deprived of their livelihood by abolition of their hereditary rights and introduction of graded scales of pay. This information has been furnished in the written arguments submitted by Shri Markandeya but we did not have the occasion to have them verified during the course of hearing. It would be seen that the principles in fixing the scales of pay and method of payment of salary introduced by the rules are required to be adjudged. In the absence of any material it is difficult for us to give any finding in that behalf. Suffice to stated that liberty is given to place those necessary and material evidence before the Government which would constitute a Committee consisting of Deputy Secretary, Finance Department. t Secretary to the Government, Revenue (Endowment Department) and t Commissioner, Endowment Department. The Committee would go into the question to rationalize 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.” (Para 134)

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION TRANSFERRED PETITION NO.

OF 1987

(Writ Petition No.16769/87 on the file of the Andhra Pradesh High Court) Telangana Archaka Samakhya & Others Petitioners


……

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Versus State of A.P. & Others

……

Respondents

WRITTEN SUBMISSION BY SRI SUBODH MARKANDEYA ADVOCATE SUPREME COURT OF INDIA ON BEHALF OF THE PETITIONERS OUTLINE OF FACTS The above writ petition has been transferred to this hon’ble court, in pursuance of the order ed by this hon’ble court on 22.06.1987 directing that all writ petitions pending before the hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad shall be transferred to this hon’ble court and tagged with writ petition no.638/87 and batch filed under Article 32 of the constitution, in this hon’ble court. 2.

The first petitioner is ed society of Archakas-cum-trustees, hereditary and non-hereditary in the Telangana area of the State of Andhra Pradesh. In the former state of Hyderabad there was a common law governing the Hindu Charitable institutions and Endowments along with similar institutions of all religious denominations Muslims, Sikhs, Christians, Parsis, etc. viz. the Hyderabad Waqfs (Endowments) Regulations, 1349 Fasli. After re-organisation of states the respective laws prevailing in the Telangana area and the Andhra area of the present state of Andhra Pradesh continued to be in force by reason of section 119 of the states re-organisation act, 1956.

3.

Sometime in the year 1965, the state government proposed to amend and consolidate the laws relating to the Hindu religious and charitable institutions. Consequently, the Bill drafted by the legislative section of the law department of the Govt. of A.P. was published in the Andhra Pradesh Gazette Extraordinary on 6.8.1965, and was introduced in the Legislative Assembly on the same day. Sri P.V. Narasimha Rao the then Minister for Law of the State of Andhra Pradesh moved a motion on 14.8.1965 to refer the said Bill to a t Select Committee of the two houses and the same was adopted on 16.8.1965. The Legislative council after full discussion concurred with the said motion on 17.8.1965, and a message to that effect was announced in the Legislative Assembly on 20.8.1965. Thereafter a Select Committee consisting of 21 from the Andhra Pradesh Legislature commenced


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its proceedings on 8.9.1965. The committee held 30 meetings out of which 8 sittings were devoted to recording of oral evidence and receiving written representations and 22 sittings were devoted to the clause by clause consideration of the Bill. A thoroughly revised Bill which emerged from deliberations lasting for almost 10 months was submitted by the Select Committee on 3.6.1966. Thereafter the Andhra Pradesh Hindu Charitable institutions and Endowments Act was ed by the State Legislature and it received the assent of the President and was on the Statute Book until 1987. 4.

As contrasted with the elaborate procedure of thread bear discussion, the impugned Act was ed in unusual hurry without any consideration. The Bill running into 178 cyclostyled pages having 160 sections grouped in 15 chapters and three schedules was introduced in the Legislative Assembly on 4.4.1987. Even though the Bill proposed to make far reaching changes which drastically departed from the traditional practices of the Hindu institutions no “in depth” discussion took place before the said Bill was ed. In contrast according to “The Hindu”, the house discussed the Bill from 4 P.M. to 9 P.M. on 9th April, 1987 and the opposition walked out at the end. The Minister replied to the debate from 9 P.M. and later the speaker put clauses (2) to (160) to vote in one bunch, because the opposition who had given notices of amendments to these clauses were not present in the house to move them and declared that they were adopted by the house. He then put clause (1) to vote and declared the Bill ed.

5.

The justification for this unusual procedure given by the then Govt. headed by Sri N.T. Rama Rao was that the Bill itself was the outcome of deliberation of a commission headed by Justice Challa Kondaiah. A writ petition challenging the constitution of the Challa Kondaiah Commission is being considered in this Hon’ble court with this batch of writ petition which elaborates the arbitrary manner in which the said commission functioned. In particular the removal of His Holiness Jagat Guru Shri Trivikrama Ramananda Barathi Swamy was most unfortunate and arbitrary. Two more were dropped in similar circumstances. The commission submitted its report in three volumes. The Challa Kondaiah Commission report was discussed at a symposium organized in the Department of Public istration, Osmania University on 14.12.1986 at which eminent Professors and Scholars deliberated and the


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symposium was of the considered opinion that the recommendations of the commission ought not to be adopted. The Bill based on report of Challa Kondaiah Commission was introduced and ed in record haste. The impugned Act is ill considered and suffers from such grave constitutional infirmities, that the whole Act has to be struck down because it is not possible to severe its infirm parts from those which may possibly the test of constitutionally valid and the truncated parts cannot function by themselves. Therefore the entire Act has to go lock stock and barrel. 6.

For the sake of convenience these written submissions are divided into five parts each dealing with the following particular topics namely : (i)

Sulse – Sulsan

(ii)

Inherent constitutional infirmities of sections 76, 80 and 82 as declared by the Andhra Pradesh High Court

(iii)

Discrimination meted out to the Hindu institutions only on the basis of religious denominations and the effect of keeping certain Hindu institutions from out of the purview of the Act.

(iv)

Failure of similar experiment in Tamil Nadu.

(v)

Untenable premises on which Challa Kondaiah Commission proceeded.

I. “SULSE SULSAN RULES” 7.

The customs, usage and traditions of religious and charitable institutions situated in the nine districts (presently ten districts) of the Telangana region of the state of Ahdhra Pradesh are unique and altogether different by virtue of its geographical segregation and also by its placement historically, politically, istratively and socially. The Telangana region having been ruled for a considerable period by the Nizams and also by its proximity to the cults of Northern and Western parts of the country, the religious as well as secular background of the temples will have to be understood and appreciated in the context of particular customs and usages. These traditions and culture had a bearing on the istration of religious and charitable institutions. There are temples were Vallabh and Ramanuja sampradayas are adopted


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and combined into one and the petitioners are also istering such institutions. Some of the institutions have the combination of Rajasthani and Gujarathi systems of worship apart from following the tenets of Agamas. 8.

The istration of the temples in almost all the districts of Telangana is vested in an office called Muthavalli which is a unique combination of both religious and secular functions blended together in an inseparable way irrespective of caste, religions, etc. The landed properties such as Inams were granted mainly to the muthavallis and their descendant families hereditarily either burdened with service or annexed to their office in personal capacity. By their god-fearing nature, the unstinted devotional spirit, enthusiasm and interest to serve the public through these religious institutions, the Muthavallies zealously safeguarded the properties of these religious institutions.

9.

The Hyderabad Endowments Regulations 1349F (1940 A.D.) was the legislation for the istration of all these institutions. This legislation was so unique that it was applicable to all religious and also the charitable institutions. There was never undue interference either in the religious matters or in the istration of Religious institutions. The istration went on smoothly and the rights of Muthavallies were never interfered with.

10.

With a view to secure uniformity in law applicable to the whole state of Andhra Pradesh in respect of all Charitable and Hindu religious institutions and Endowments called Andhra Pradesh Charitable and Hindu religious and Endowments Act of 1966 was enacted and it came into force w.e.f. 26.1.1967. Till that date the Hyderabad Endowments Regulations was in operation as far as institutions situated in Telangana were concerned, after that date even in the Act XVII of 1966, the system of Muthavalliship continued and the Muthavalli’s rights to the office of the Chairman of the trust board was protected.

11.

Under firman issued by Nizam in 1333 Fasli several institutions were getting grants and inams. These cash grants were regulated by statutory rules known as Sulse-Sulsan rules. The firman and the rules are the law as they were promulgated by the Nizam who was a statutory authority and sovereign for the erstwhile Hyderabad state. But these Sulse-Sulsan rules are sought to be taken away by section 144.


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12.

With effect on and commencement of this act section 144 in took away the right of Muthavalli of the institution to have the cash grants and income from the inam lands as per Firman and Sulse-Sulsan rules. It is an exproprietary legislation and should be interpreted strictly in favour of the persons whose rights are sought to be taken away. The section has no application to the cash grants and inams granted by the former ruler of Hyderabad. The object of any legislation should be to promote the objective of the founder and not to defeat them. The 1987 Act defeats the directions given by the founder. The rights enjoyed by the trustees prior to the impugned Act are abrogated. These rights were created under specific objects of the trust and recognized by the Hyderabad Endowments Regulations of 349F. The Muslims and other religious persons were enjoying the benefits from the said regulations along with the Hindus. Even now, the Muslims are continuing to enjoy the same benefits whereas the Hindus alone are deprived because of this 1987 Legislation.

13 14.

Sec. 3(2) of the Andhra Pradesh (Telangana area) abolition of Cash Grants Act 1959 (A.P. Act. No. XIV of 1959) says as follows : (2)

Nothing contained in this act shall apply to any such cash grant given in the name of charitable institution or given to any person for the performance of any service or charity, such service or charity being of a public nature connected with any religion or charitable institution. Provided that the payment of cash grant mentioned in this sub-section shall be made to the institution or to the person concerned only so long as the institution exists.”

Section 144 of the impugned act is in contravention of section 3(2) of Cash Grant Act 1959 cited. While striking down sec 82(1) and (2) of the impugned act the Division Bench of Andhra Pradesh High Court has held in S. Narayana Vs. State of Andhra Pradesh 1990(1) ALT 237) at page 243 as follows : “… The act has also not been given overriding effects over other enactments. The only overriding effect given to the act is contained in sec. 160, which gives overriding effect to the act over all compromise agreements, schemes, judgements, decrees, or other authority, as well as over any custom or usage governing any institutions/ endowment.” Government Rules Hindu Temples

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In view of this decision of the Division Bench of A.P. High Court, Sec 144 of the impugned act has to go. II.

INHERENT CONSTITUTIONAL INFIRMITIES IN SECTIONS 76, 80 and 82 :

15.

The petitioners contention about the infirmities of various provisions is fully borne out of the recent judgements delivered by the Andhra Pradesh High Court striking down certain key provisions of the impugned Act. The first of the series of cases to which the attention of this Hon’ble court may be invited is the case of S. Narayana Vs. State of Andhra Pradesh (1990) 1 ALT 237. In this case the affected persons had challenged the provisions of section 82 of the impugned Act. A learned single Judge, the Hon’ble Justice Sri K. Ramaswamy struck down subsection (1) of 82. On appeal by the state Government a division bench presided over by Hon’ble Justice P. Jeevan Reddy declared both sub-sections (1) and (2) of section 82 to be violative of Article 14 of the constitution. These sections have been challenged by the petitioners.

16.

Another decision of the Andhra Pradesh High Court in T.V. Srinivasacharyulu vs Tirumala Tirupathi Devasthanams reported in 1993 Andhra Law Times 293 has held that the kind of Inams have been given to the petitioners herein, do not attract the provisions of section 76 of the Impugned Act and therefore it is impermissible to take over the lands which are the subject matters of these Inams. In other words, the High Court has accepted the contention of the petitioners. The Bench held that there was no need to consider the constitutionality of section 76 of the Impugned Act.

17.

The result of such hasty action is that there are inner contradictions and confusion arising out of this legislation. It may be seen that the counter itself for example (1) Through the impugned Act, through section 35 and section 144, the concept of share in Nitya Naivedyam to the Archaka has been abolished. Whereas in page 22 of the counter affidavit relating to para (22) of the affidavit of the petitioners, the Govt. has stated that apart from the monthly emoluments, the Archakas will also be given shares if any in the Nitya Naivedyam. Again in page 31 of the counter, relating to para 67 of the affidavit, reiterating the said point, the Govt. says “…whatever share that the Archaka is entitled to receive according to the usage of the temples he shall continue to receive even after


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the present act i.e. Nitya Naivedyam”. The undertaking given by the state Govt. to give a share in Nitya Naivedyam to which Archaka was entitled prior to the enactment of the legislation, may be given effect to by this Hon’ble court by striking down sect. 144 in the final judgement of this Hon’ble court. 18.

Under section 35(3) of the Act XXX of 1987, the state envisages the framing of rules regarding the remuneration payable to the Archakas. The relevant rules were framed under section 35(3) vide G.O.Ms. No.1171 dt. 16.11.87. As per the rules, the Archakas have been divided into nine categories. Their remuneration has been fixed depending upon the respective income of the institutions and also the qualifications possessed of by them. The remuneration payable to the different grades of Archakas have been specified in schedule I of the said rules. This schedule has created a lot of complications. The complications are due to this Act which has been enacted without foresightedness. The Archakas made a representation, and on that beside a committee was appointed to go into the issues. A copy of the report of the committee (enclosed as Annexure I) shows how complicated it will be if a legislation is enacted to ister religious institutions. The 1966 legislation gives scope for framing schemes by taking the position of individual institutions into (under sec. 37(2) of the repealed Act of 17/66) Under the impugned act the power to frame schemes has been taken away. The Archaka will be paid a meager salary. Even the committee recommends that the archaka who serves an institution which has income below Rs.25,000 will get 5% of such income as his income per Annum. It works out to Rs.1250 p.a. which means Rs.104/- p.m. The recommendations of the committee shows that the concept of the “Scheme” which was in vogue under the 1966 Act is being revived even though 1987 Act has repealed that concept.

19.

The counter filed by the state at page (12) says as follows : “(j)

The provisions of the sections 35 and 36 are to be read subject to the provisions of section 142 of the Act and by reading thus it will be clear that it is not the intention of the legislature to interfere with the religious practices followed by a particular institution.” An analysis of the outline of the facts submitted so far shows that many provisions of the act interfere with, religious


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practices etc. sec 142 of the Act is what is usually referred to as a saving clause. Sec.142 deals with two matters which are not affected by this act or conversed which are not bound by this act. The first category consist of (i) the recipients of customary honour and (ii) any matter which interferes with performance of religious worship, ceremonies, etc. There are hereditary Archakas and trustees falling within the ambit of both these exemptions. Section 34 and Sec. 35 which abolishes hereditary archakaship and their rights apparently in conflict with sec. 142 and in a case of conflict, the general saving provision which occurs in the later stage in the statute will prevail. At any rate, if the validity of 34, 35 and various other sections of the Act are to be upheld, the Hon’ble court has to read down the provisions and declare them that they are invalid. 20.

U/S (36) of the impugned Act, while, prescribing the qualification for appointment of Archaka, it is laid down as follows : “Provided that preference shall be given to a person who is a Brahmacharin.” Whereas in the counter affidavit at page 12 is mentioned as follows : “…. What section 36 provides is for the preference of Brahmachari’s and it is not the intention of the legislature that only Brahmachari’s must be appointed and particularly even though Agamas prohibit such appointment.” It is respectfully submitted that on 14th May 1987, at Hyderabad the 33rd Vidwat Sadas of Sri Vatsya Varada Deshika Sabha deliberated on the issue of temple worship vis-à-vis Agama Sastras. Scholars from Tamil Nadu, Andhra Pradesh and Karnataka participated in the Vidwat Sadas. It gave several guidelines from Agamas relating to temple worship. On this issue of Brahmachari to be given preference for appointment the Sadas stated as follows : 3.

A Brahmacharin cannot be appointed as an Archaka according to Pancharatra and Vaikhanasa Agamas”. This Hon’ble court has held that Agamas contain the religious precepts which are immune from invasion and infringement. Any such invasion is grave and infruction of Article 25 &


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26. The counter affidavit concedes that there has been such an invasion. It must therefore follow that Section 36 of the Impunged act has to be struck down by this Hon’ble court. 21.

The impugned act was so offending to the right to religion embodied in articles 25 and 26 of the constitution and so unpopular that the state Govt. itself contemplated its repeal. Accordingly in March, 1990, a statement was made to this Hon’ble court for the adjournment of the matter to enable the Govt. to undertake repeal of the impugned Act but the repeal has not yet been undertaken.

22.

It is, thus, clear that as and when the various provisions of the Act are coming for the consideration of the courts, the same are being found by the courts to be unconstitutional. This buttresses the contention of the petitioner that the impugned Act as a whole is entirely misconceived and is also wholly unconstitutional. The skeleton and the residual portions of the act which is left out is wholly unworkable and consequently, the same must be struck down because it is impossible to severe the constitutionally infirm parts from the valid ones.

III. DISCRIMINATION VIS A VIS OTHER RELIGIOUS DENOMINATION 23.

At least so far as the Telangana area is concerned the impugned Act is wholly discriminatory in that at the time when the Act came into force, the treatment meted out to various religious denominations namely Muslims, Christians, Sikhs and Parsis equal and only by reason of enactment of the Impugned Act, the Hindu religious institutions and Endowments are being treated with an evil eye and uneven hand contrary to the provisions of Articles 14, 25 and 26 of the constitution.

24.

This discrimination is being further aggravated by reason of the fact that the institutions which otherwise perform puja, archana and other religious ceremonies in the same fashion as the traditional Hindus do, but where the idol of a saint is worshipped like Sri Sai Baba samsthan (Temple of Sai Baba of Shirdi at Hyderabad) are being kept out of the purview of the act thereby aggrevating the discrimination. The court held that : “The fact that there was yantra, stapanam, homam, kumbhabhishekam, archana, ashtottarm, sahasranamams performed by Hindu priests or flowers being offered and coconuts


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being broken and prasadams being given, did not make the Mandir a Hindu temple.” The court further held that “the Act does not apply to the temple of Shirdi Sai Baba as the same is not an exclusive Hindu institution or endowment…” (W.A.No.1179 of 1990 dt. 16.12.1990 (1) A.P.L.J. dt. 13.3.1991) This decision of the Andhra Pradesh High court which is based on a similar decision of the Madras High Court raises a fundamental issue viz., in the light of the concept of a secular state, any interference of state through legislation or otherwise in the matter of Hindu religious institutions alone without there being such corresponding legislation for Muslims, Christians and other semi-Hindu institutions like Sai Baba temples, etc., is violative of the fundamental rights of the Hindus under Article 14, 15(1), Articles 25 and 26 of the constitution. 25.

After the 42nd constitutional amendment, the word “secular” has been added to the preamble of the constitution which renders all legislation for the istration of temples or any other religious institutions outside the powers of the state. The preamble of the constitution attains special importance in this context by virtue of article 51A(a) which is reproduced below : (a)

To abide by the constitution and respect its ideals and institution, The National flag and the National Anthem.” The constitutional mandate being respect of the constitutional ideals and institutions, necessitates that it will take in what the constitution aspires to achieve namely a socialistic secular Republic. Again after the said amendment, the word “Equally”, under article 25(1) attains paramount importance. Article 25(1) is reproduced below : (25) “Freedom of conscience and free profession, practice and propagation of religion :

(i)

Subject to public order, morality and health and to the other provisions of this part all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion” This militates against the concept of legislation in the affairs of Hindu temples alone, leaving out the religious institutions of other religions.


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IV.

FAILURE OF TAMIL NADU EXPERIMENT :

26.

The Tamil Nadu Hindu Religious Endowments (Amendment) Act of 1960 was not implemented in Tamil Nadu, so far as the abolition of the hereditary archaka system is concerned. The A.P. Endowments Act of 1987 is based on the Tamil Nadu Act. The consequence of the Tamil Nadu Act of 1969 is that today the temple istration in Tamil Nadu is in chaos and utter confusion and it became an election issue in 1989. All the political parties mentioned in their election manifestoes about the reform of temple management. The DMK Govt. after coming to power appointed a five member committee on 10th March 1989 to recommend ways of improving temple istration in the state. The committee recommended the continuance of the Hereditary system. The present Govt. of Tamil Nadu has constituted in March 1992 a Temple istration board which is an autonomous body for istration of temples in that state. This narration shows that the Tamil Nadu Govt. has revised its policy of bureaucratic control over the temples, on the basis of its experience of the 1969 Act.

V.

UNTENABLE PREMISES OF CHALLA KONDAIAH COMMISSION

27.

In the counter filed by the state, it is stated that the impugned regulation is based on the report of the Challa Kondaiah Commission. The enclosed copy of the proceedings of the symposium (Annexure-II) conducted by Osmania University shows that methodologically the procedure adopted by the commission is not correct. According to the data provided by the commission, there are 32,201 temples in the state which are called published institutions. Out of these there are only 7,761 temples which are assessable institutions. An Assessable institution means an institution which has got an assessable income of more than Rs.1000/- per annum. In other words, the remaining 24,440 temples have an income of less than Rs.1000/- per annum. Out of the 7,761 assessable temples, there are only 582 temples which have an income of more than Rs.10,000/- per annum. The primary objective of the commission was to find out to what extent these institutions are being effectively istered. For this purpose, the commission should have conducted a sample survey of all the three classes of these institutions. Instead, the commission devoted its study mostly to the functioning of only the TTD and four other specific temples which have an income of more than Rs.20 Lakhs


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per annum and formulated all its recommendations on the basis of the study of these five institutions. The commission did not give a single illustration about the functioning of 24,440 small temples. It is submitted that almost all the of this petitioner organization belong to this category of 24,440 small temples. And this legislation will affect these temples and that was the reason why it was pointed out in the petition that the Challa Kondaiah Commission report should not be given any relevance. In that context the findings of an important academic body viz. Osmania University Symposium was given as a citation. In the counter, this point was ignored and in para 38 of the counter it is stated as follows : “The allegation that the report of the commission was based on a seminar conducted by persons of Osmania University is false and denied.” It is sufficient to state that the commission submitted its report on 28th February 1986 and the symposium was conducted on 14th December 1986. It is the symposium which held that the report was motivated and biased. 28.

The petitioners respectfully submit for the consideration of this hon’ble court, a portion of an extract from editorial of “SRI NRISIMHA PRIYA” a monthly journal published from Hyderabad in its issue of December, 1986, which is relevant to the above mentioned submissions : “A press reporter asked your Editor, “How is it that a democrat of your convictions is ing the continuance of Hereditary system in temples, which is a feudal remnant”. Political democracy and religion are two different things. One cannot automatically apply democratic principles to religious matters. Religion is based on absolute faith in God and scriptures which are believed to be ordained by God and interpreted by our saints, sages and Acharyas. You either believe them and obey them or do not. Dissent, which is basic to democracy has no relevance to matters of religion. Non-believers are none of our concern. Likewise religious reformers too are not of concern to us. They are at liberty to preach their own beliefs as several reformers in the past did. But those in the Government which claims to be secular, cannot act as reformers and interfere with age old customs, practices and


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ways of worship of a particular religion and try to legalise their acts on the basis of some judicial pronouncements, which do not have the sanction of the Vedas and Sastras.” 29.

In the premises set forth above, this hon’ble court be pleased to declare the whole of the A.P. Charitable and Hindu Religious institutions and Endowments Act, 30 of 1987, unconstitutional, void and ineffective.


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The Excerpts from the affidavit filed by the Telangana Archaka Samkhya in WP 290 of 1998 on Dec 3rd 2008.

ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No.290 Of 1998 IN THE MATTER OF: Telangana Archaka Samahkya (Regd) Versus State of A.P. and others

…Petitioner… …Respondents…

AFFIDAVIT I, Prof. M.V.Soundara Rajan, Honorary President, Telangana Archaka Samahkya (Regd), 2-2-647/77/D, Srinivasa Nagar Colony, Bagh Amberpet, Hyderabad – 500 013, do hereby solemnly affirm and state as under: 1.

THAT being the Honorary President of the petitioner organization I am authorized to file this affidavit.

2.

THAT I submit that I filed this Writ Petition in the year 1998. I have also filed an additional affidavit on 28th February 2005 narrating the developments that took place up to that date. Subsequently some more developments have taken place which need to be brought to the notice of this Hon’ble Court for disposing of this Writ Petition.

3.

THAT, in the past the petitioner organization had filed Writ petitions in the Hon’ble Andhra Pradesh High Court at Hyderabad, challenging the constitutional validity of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act No 30 of 1987 and upon the said Writ petitions being transferred to the file of this Hon’ble Court was heard and disposed of by the judgment of this Hon’ble court in A.S. Narayana Deekshitulu vs State of Andhra Pradesh [1996] 6 SCC 548. In the said petition, on behalf of the petitioner’s organization, written submissions were filed in which it was pointed out that the operation of the impugned Act would result in deprival of the livelihood of the Archakas of 24,440 temples and the abolition of their hereditary rights and


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introduction of graded scales of pay were so burdensome that they would inevitably result in manifest violation of the fundamental rights under Articles 14, 25, 26 and 27 of the Constitution. 4.

THAT in A.S. Narayana Deekshitulu’s case this Hon’ble Court specifically took note of these facts mentioned in the written submissions and had inter-alia observed as under. “This information has been furnished in the written arguments submitted by Shri Markandeya but we did not have the occasion to have them verified during the course of hearing…” (AIR 1996 SC 1765 Para 132) The Court also directed the State Govt. to constitute two committees, one to go into the question of rationalization of Pay Scales of all Archakas and Modality of payment of salary to them and the Second Committee was to enquire into and recommend the welfare measures for the Archakas.

5.

THAT the Pay Scales committee recommended the following :“The Committee has gone into these aspects in the light of the directions issued and has recommended that the temples whose annual income is less than Rs 5 Lakhs may be allowed to be managed by the respective management of the temples etc but be supervised by the department as is now been done so that the Managements of such temples may be allowed to pay such remuneration to the Archaka. In lieu of salary the Properties given to them may be retained with Archakas for enjoyment subject to rendering service depending upon the income of the temple as per the prevailing circumstances”. This recommendation was because the Committee came to a conclusion that for 33,269 temples out 33,475 temples i.e over 99% of temples whose income was below Rs 5 Lakhs, the Govt was not in a position to implement pay scales for Archakas.

6.

THAT the report of the Pay Scales committee and along with the recommendations of the Govt were placed before this Hon’ble Court. The Govt made the following submission in its affidavit to this Hon’ble Court.


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“Temples with such abnormally low incomes may be left to fend for themselves”. 7.

THAT this Hon’ble court took cognizance of the data given by the Pay-Scales committee, and also with the formulations of the Govt on those recommendations, backing off from its earlier commitment to ensure rituals in all temples and paying salaries to all Archakas. The Supreme Court had no alternative but to review its earlier 1996 judgment as the basic premise of the judgment: state taking responsibility for rituals in all temples and paying salaries to Archakas was no longer valid. Therefore, the Supreme Court reviewed its own judgment of 1996 In A.S. Narayana Deekshitulu etc., Vs State of Andhra Pradesh, AIR 1997 SC 3702 and inter-alia observed as under :“in paragraph 132 of the judgment, this Court mentioned about total number of temples and of temples which are assessable institutions and the income being derived by them. It observed that the said information was furnished for the first time in the written arguments after the arguments had concluded and judgment was reserved” (Para 24) “The Committee has gone into this aspect, in the light of the directions issued and has recommended that the temples whose annual income is less than Rs.5.00 lakhs may be allowed to be managed by the respective management of the temples etc. but be supervised by the Department as is being now done so that the management of such temples may be allowed to pay such remuneration to the archakas. In lieu of salary, the properties given to them may be retained with the Archakas for enjoyment subject to rendering service depending upon the income of the respective temples as per the prevailing circumstances. We are informed that a sizeable part of the temples would come within that category and, therefore, the Government has accepted the classification with the rider: “Temple with such abnormally low income may be left to fend for themselves”. The


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recommendation of the Committee has thus been accepted by the Government. Under Section 154 of the Act, the Government by a notification may exempt from the purview of any of the provisions of the Act or any of the rules made thereunder (a) any charitable institutions of endowments istration of which was or is for the time being vested in the Government either directly or through the Committee or a Treasurer endowment appointed for the purpose or the Official Trustees or the General etc. Any institution or endowment is exempted and may likewise vary or cancel such exemption. In view of the above provision, it would be open to the State Government to issue a notification published in the official Gazette exempting such institutions subject to the above recommendation and such orders as may be mentioned therein or deemed appropriate” (Para 26). “As seen, constitutionality of S. 144 has already been upheld but as mentioned in the judgment, in respect of certain class of temples, the necessary material was placed before this Court in the written submissions after the conclusion of the arguments and not during the course of the arguments”(Para 29). “Therefore, permission is granted to the Government to bring about a suitable amendment to Section 144, though its constitutionality has already been upheld by this Court” (Para 34). 8.

THAT it is seen from the above paragraph that the Hon’ble court reviewed its earlier judgment of 1996 and modified the same while accepting the recommendations of the Pay-Scales Committee that for over 99% temples the AP Act No. 30/87 is un-implementable as upheld by the Court in the 1996 Judgment. The Supreme Court directed all the temples whose annual income is below Rs. 5 Lakhs be exempted from the purview of Section 144 of the Act. It also said that the temples may be allowed to be managed by the respective management of the temples. This judgment has so far not been implemented.


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9.

THAT the AP Government from year 1998 to 2004 did not take any steps to implement the 1997 judgment of the Supreme Court, with the result that many small temples virtually closed down and many Archaka families suffered immensely and some even committed the ultimate act of suicide. In the Statement of Objects and Reasons to the Amendment Act No 33 of 2007 to the AP Act 30 of 1987, it has inter-alia been stated as under :“Statement of Objects and Reasons (Act No 33 of 2007) …Over the last two decades, there has been substantial increase in pilgrim flow in certain temples while many of the old village temples have been languishing without any traditional rituals being performed. There have been numerous representations from the Archakas that a strict adherence to the provisions of the Act have created difficult conditions for Archakas to continue in the profession. On the one hand, the Act had abolished the Hereditary rights and simultaneously abolished share in Hundies and other offerings given by the devotees to the temple. The assumption that Archakas would be able to get salaries and lead a decent life has not been borne out by experience over the last two decades. As a result, neither the Government is in a position to pay salaries nor has it been able to allow the Archakas to manage temples and have share in Hundi, plate or any other runsum in Archana or Seva ticket or any offering made by devotees. They were also not able to continue enjoyment of the lands allotted or allowed to be in their possession. As a result, many traditional Archaka families have become impoverished and the temples have virtually shut down. In addition, there have been complaints that traditional temple rituals are not being performed strictly as per the particular sastra governing the temple and the sanctity of the religious rituals as per the custom and usage is not being preserved…”

Thus it is very unfortunate that everything that the petitioner organization had warned the Supreme Court in its written submissions submitted in August 1995 has come true Government Rules Hindu Temples

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