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Government Rules Hindu Temples

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GOVERNMENT RULES
HINDU TEMPLES
STATE CONTROL OF RELIGIOUS
DENOMINATIONSPROBLEMS
AND PERSPECTIVES

C.S. RANGARAJAN

Government Rules
Hindu Temples
Copyright 2015, Author C.S. Rangarajan

All rights reserved


No part of this publication may be reproduced or transmitted in any form or by
any means electronic or mechanical, including photocopy, recording, or any
information storage and retrieval system, without permission in writing from
the Copyright Owner.

First Edition : April 2015

Copies : 1000

Price : Rs.100/-

Copies Available :
Dr. M.V. Soundararajan,
2-2-647/77/D, Srinivasanagar Colony,
Bagh Amberpet,
Hyderabad-500 013
Ph : 27425640

Printed at :
VAKDEVI PRINTERS

Nallakunta,
Hyderabad-44.
Ph : 27673772

CONTENTS

Sl.No.

Chapter

Page No.

1.

FOREWORD

2.

PREFACE

12

3.

INTRODUCTION

25

4.

RELIGIOUS INSTITUTIONS - EVOLUTION

35

5.

THE NEED OF STATE REGULATION

46

6.

STATE AND RELIGIOUS DENOMINATIONS

56

7.

JUDICIARY AND RELIGIOUS DENOMINATIONS

76

8.

CONCLUSIONS AND SUGGESTIONS

90

9.

APPENDIX-I

100

10.

APPENDIX-II

128

11.

APPENDIX-III

148

12.

APPENDIX-IV

162

13.

BIBLIOGRAPHY

181

Blank

Government Rules Hindu Temples

Justice Dr. M. RAMA JOIS


Former Chief Justice of Punjab and Haryana High Court and
Former Governor of Jharkhand and Bihar
Former Member of Parliament, (Rajya Sabha)

FOREWORD
This book titled GOVERNMENT RULES HINDU
TEMPLES which as stated by the author is based on the dissertation
submitted by him in partial fulfillment of the requirement for the award
of research degree of Master of Law [Constitution Law] of Osmania
University. At the out-set, I should place on record that this book has
been brought out on an in-depth study and research of objects and
purpose of Hindu Temples. There is an elaborate discussion about the
spiritual purpose of temples. The main object of the book is to increase
devotion in devotees which alone can bring in peace, harmony and
happiness among the people which is now being sacrificed at the altar
of commercialization and Government interference in the management
of Temples. It is well known that the whole object of temple worship
has been evolved in Bharat from times immemorial with the object of
inspiring and guiding every individual person to follow the rules of Dharma
by which alone the people can live in peace and happiness even in the
absence of State as explained in his inimitable language by Bhismacharya
in Mahabharata Shanti Parva (Ch-59-14) thus:

{ [ \DDy tlgz Y tulgN: @


z|m{ \: | quo @@
There was neither kingdom nor the king,
neither punishment nor the guilty to be
punished. People were acting according to
Dharma and thereby protecting one another.

Sri Shaila
No.870-C, 5th Block, Rajajinagar, Bangalore-560 010
Ph : 080 - 23151770 E-mail:ramajois31@gmail.com
Government Rules Hindu Temples

The exposition is that even in the absence of State exercising


police power, Dharma has the power and capacity to ensure peace,
happiness and harmonious living among human beings. Dharma stands
above law for the reason as stated in Mahanarayanopanishad that <<z|m
tuo>> i.e., Dharma destroys sinful thoughts, whereas law provides
for punishment after the offence is committed. That is why in Bharateeya
National life, the highest importance is given to Dharma. This is also
evidenced by the incorporation of the statement <<oz |ooz \:>>
Yatho Dharmastatho Jayaha in the emblem of the highest Court,
the Supreme Court of India. It is for this reason, Dr. Radhakrishnan in
the Constituent Assembly while supporting the resolution moved by Dr.
B.R. Ambedkar for the adoption of the Constitution, stated that we are
reiterating our ancient ideal <<q q |:>> 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
Bharatis 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 <<oz |ooz
\:>> 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

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;

Government Rules Hindu Temples

(c) to own and acquire movable and


immovable property; and
(d) to administer 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:-

mt |Fn|z| oz \: @
o t mMo |FuouY: @@
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, supporting, nourishing that which
upholds, nourishes or supports the stability of
Government Rules Hindu Temples

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
administration. 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 administration of temple which is referred to in Manu
Smriti, which reads:-

z|z {Y Es|{Y wo @
zDsz| uYu| uY|wu uY: uY: @@
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

10

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:

ENnuoo oz s TXZuo T @
|tzN: Nz uo 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.

Government Rules Hindu Temples

11

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 z u uo N:
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 <<z| o uQ:>> 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 <<zNouQz o>>
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.

Government Rules Hindu Temples

12

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 administer 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

13

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 Honble Courts 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 <<oz |ooz \:>>
(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
administer 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

14

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 <<oz |ooz
\:>> Yatho Dharmastatho Jayaha. It is a matter of deep regret that
the Honble 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 Honble 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

15

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 verify the statement
of the Petitioner Organization. What should have been done is for the
Court to first verify 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

16

Ramanujas Vishishtadwaita philosophy and Sri Madwacharyas


Dwaita philosophy and the Judges have quoted Adi Shankaras
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 account 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 <<oz |ooz \:>> (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 Honble President represents the
Nations Dharma and he is the keeper of the Countrys conscience. It is
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17

thus not a mere coincidence1 but seemingly a divine message that on


11th Dec 2013 the Honble 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 <<oz
|ooz \:>> (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. Maladministration 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
administration 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 passed
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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18

no uniform organisational framework for temples. The first question is,


can Government step in to regulate the functioning of any Religious
Institution? Havent 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 administer 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 administrative 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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19

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 Courts
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 Administrative 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

Government Rules Hindu Temples

20

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 Administration 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 Administration 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 Honble 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 Administration 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 Honble Supreme
Court of Indias 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 administration 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
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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 members 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 Commissions report on Temple administration
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 support 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 <<oz |ooz \:>> (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 support 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....
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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 Vedntic
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 mans
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. Pakistans 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 administer 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 youre studying morality from a factual prism,
something like an ideal being clouded by facts. In the case of state religion,
whats 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. Theres 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 governments 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 earths 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, its 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 administer
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
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different perspectives on secularism vis--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 administration, 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 administration. Rao (1988) in
his book Indian Heritage and Culture presents a brief, yet vivid account 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
administration. He observes that in pre-colonial India the rulers 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
Administration 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 administer 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.
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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 accountability 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.
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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
administration.
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.
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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 passing 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
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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 passages 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 admit 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
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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 administering 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 maladministration 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 administered 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.)
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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 Kerns Manual of Buddhism p.74
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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
administering 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. Lewins 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 Lewins
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 Halsburys 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. Storys Equity Jurisprudence 2nd Edn.p.960.

7. Halsbury 2nd Edn. Vol.33 p.87.


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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
administrative 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 members was fully recognised in Rome during
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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
administration 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 administered 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 testators
8. Rattigan on The Roman Law of Persons p. 214.
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domicile ; of an archangel or martyr, the church dedicated to such


saint in the testators 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 Sohms Institute of Roman Law, 2nd Edn. pp.195-199.
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2.5

HINDU ASCETICS AND MUTTS

11,12

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 admittedly 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. Ghoshs Law of Endowment p. 248
12. See Hindu and Mahommedan Endowment by Ganpati Iyyer p.249.
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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 remember 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)
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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 passage 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. Mandaliks Hindu Law, Appendix 21, p.334.
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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 ones
own right and the creation of the rights of another, and the creation
of anothers right is completed on that others 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
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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 passages, thus observes the learned
Judge, as well as from other passages 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.
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on the following passage 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 support 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 members
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
administration of the property. At the same time these writers admit
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
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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
administration 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 passed 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 passed 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 passed and this provided for the vesting and
administration 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 passed to secure more effectual
control over the administration 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
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the emergence of the modern state, and the modern states 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 terms 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 states
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, Ataturks 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 states 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 states 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 terms 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 states right to take charge,
and their justification often represents a quite different interpretation of
the states 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 support 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 states 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
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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 societys
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. Administration includes cultural dimensions which may
seriously undercut policy. Government officers have distinct images of the
world they administer 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 agencys theory
is not necessarily or even usually stated explicitly; it is embodied in
regulations, and draws on the agencys 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 administrators may be genuinely and deeply committed. The
result can be paralysis.
Colonial and post colonial administrations 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,
administrators try to fashion a set of categories and procedures which will
be appropriate to both. And this interpretive act is precisely what colonial
administrators 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 governments 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 administrators, 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 Indias national identity and public philosophy. As a legal concept,
secularisms 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 states 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.
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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
administration, 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 terms 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 passed 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 supporting 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, doesnt 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
temples 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
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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 ACCOUNT 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 administration.
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 account 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
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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 passed 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
passed 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 administration of Hindu
religious endowments in the Madras Presidency, This Act was
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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 passed with the object of securing proper
management and administration of religious and charitable trusts in
the Central Provinces. One characteristic feature of this Act was
the appointment of local committees for management and
administration 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, passed 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
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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 administration 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
administration 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 accounts 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 accounts 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 administration 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 accounts 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 administration 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 ones 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 administer 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 members 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 support 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
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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
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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.
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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 upthough 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
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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.
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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 Courts
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 support 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
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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
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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
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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 Aurobindos 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
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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).
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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 states structure and have
given a significant twist to temple administration.
The Endowments Department has the advantage of authority, but in practice
its administration is full of struggle for jurisdiction among state agencies.
Through certain Legislations, Central politicians and policy makers
have eroded the Hindu Temples autonomy by their attempts to direct
the purposes to which its material and other resources are put.
The states 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
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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 temples resilience in the face of the challenges by the modern state
is an instructive example of administrative ineffectiveness in post colonial
states. This study has highlighted several dimensions of the problem.
In part, the causes of the temples 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 terms, 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
administrators 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 administration and accentuating the likelihood of
ineffectiveness were the conflicts, examined throughout this book, among
operative ideals or theories. In the universe of temple administration there
is no agreement on such basic issues as what the unit of administration,
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 States 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 terms of the historical concept of shares. Indeed,
because it tends to define shares in terms 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 administration.
State authority over temples is fragmented. The State does not have
exclusive jurisdiction over temple affairs and, because of this, crucial
aspects of its administration 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 temples
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 administer 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 administration 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 administration 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
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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 administration 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.
Administration includes cultural dimensions which may seriously undercut
policy. Government officers have distinct images of the world they
administer 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 agencys theory is not
necessarily or even usually stated explicitly; it is embodied in regulations,
and draws on the agencys 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
administrators 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 Indias national
identity and public philosophy. As a legal concept, secularisms meaning is in
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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 states 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)
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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 states 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 temples
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
Administration.
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 passage 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.

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 passage. But most HRCE officers
would regard this as the HRCEs outstanding virtue. The passage 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 administration 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 Administration 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 Administration 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.
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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 members 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.
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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 enjoined
it as a duty of the family to train its members 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
enjoined 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
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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 members 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 legalIt 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 members 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
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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 account 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 ones 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 Ramanujas
Vishishtadwaita philosophy and Sri Madwacharyas Dwaita philosophy
and the Judges have quoted Adi Shankaras 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 ones 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)

zNzDuuu ue zO DV @
rzTz WP N|zTz zuT @@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)

WPzT{ wsS: tuo ulgo: @


LNuso: Tzu|toz @@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)

Euo: N| N N| Nzuo : @
y Y zTy Y uuT| YuN: @@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{ u uuuso \Nt: @


zNTzu No||u @@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)

O: N|luz s N|uo o @
N|uosDOuNy|z|NT @@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)

ouzDuNz zTy ruzDu ozDuN: @


Nu|uNz zTy ozTy \| @@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)

zuTu z| ozon @
\oz z z Ooz 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 account 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\| GY@
L ooO z On |oz @
z YqO oz Nz zTu: @@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 TY@
z z z unO Goz @
zzooz z Oo o: @@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 o| wnTo @
u uYns| zuoYzo @@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)

z En u u uz @
uuu z Eo H : @@12-8@@
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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 o Nzu u us @
EzTz ooz uXZDDo @@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)

EzDsz|Du nN|z @
ts|u N|um N|uuu @@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 account 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{otOzDu No zTuo: @
|N|nT oo: N on @@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)

zz u r[rt uuoz @
nN|nT: nTXZuoo @@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)

n[ tzutnzNz N| |yum: @
rto:N| n[uuo Yz @@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)

rto: N| n[ N|z oo @
rz t o{ u yum @@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)

Lou o N|um W nMn u Y @


No|yuo z s| uuo o @@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 divines 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)

rto: N| n[ N|z oo @
rz t o{ u yum @@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 ones 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 ones 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 Archakas
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 pass 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) oNo \z oo . 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 u qo. Hence
the devotion of the Archaka towards the deity is extremely central to the
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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 terms 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 terms 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 ones 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, disciples disciple or the teacher ..
8.
Bhrigus 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 compassion 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) Ey

zo \ 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 administrators do not normally appoint
the priests. The temple, the iconic representation of Godhead, and
the priest come to the administrators 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)
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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
administration). It is wise, therefore that the root is not harmed, lest
the top withers away. Alternatively the ruler (or the administrators)
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 account 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
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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) m
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) u| - E, he will reach the
highest state of Visnu

umuYo

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
Accounts 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
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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 ones 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 Archakas 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 devotees journey towards
salvation is incorrect. This is also contradictory to Sri Ramanujas
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
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learned Judge to Dharma which was defined as denotes upholding,


supporting, nourishing that which upholds, nourishes or supports
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 Administration 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 account 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 remembers 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 account 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 administration)
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 worlds 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.
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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 passed 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 passed 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 Lords dictate in Bhagavad Gita. (Chap 3 Sloka 8):

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uo N N| n N| [z N|m: @
yu Y oz uztN|m: @@.Ty. 3-8@@
(Do the ordained duty till the end of the life. Dont ever be without doing
the ordained duty - for a Hereditary Archaka the ordained duty is
archakatvam)
Ramanuja Siddantha says :-

Leym||Twyootonyo:
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

|N|lu t N|mz : @
onttzuo o t @@.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. woN 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
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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,
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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
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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 Aurobindos 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.
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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
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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 Sens 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:

Nwmon oo u Y uo ont{Nn
sz| Y bN{uuu Nusoo | bNz @
Mns|nbz: NTpt z Mn:
zOewu juouQ zOozzu @@
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:

|| un[ zN m \ @
E n |zz zquu Y: @@.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. Dont 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
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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 Lords
abode Sri Vaikuntham. Mundaka Upanishad says that <<n Yz

: z oz { wmoz oz{ :, o{nuwmoz o


>> 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 Narayanas 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
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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 mans
life including his tradition, culture and heritage and protection of
that heritage in its full measure would certainly come within the
encompass 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
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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 compassion 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 others places of worship, set fire to religious texts,
or beat up one anothers 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:.

tY| oye ut Nzo j @


zu u \znuo @@
\ty s |s @
qzmT tn nub|ouo @@
uoe |{ @
\ut zN uu|nouo @@
z {zzm uOzTz utuo @
uOzT oz L : \zo @@
: t {t| zo uz: @
wu \oz ugN |moo @@
No| szz|oz: EzutozY @
N|m uT: zn z u on @@
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 \TWps 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:

Nwn O m @ (Mahabharatha, ShathiParva, 359


Adhyaya, 65-69 slokas)

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ytz utto|z @
LN o GutquXZ~{ : Sri Prasnasamhitha 1-1-1
IswaraSamhitha (1-50,51) says :

ztzm Ztbz Y
no {N Y{ \PznzutN @
ut \ otMn N|mutu: @
o| u |zN uo{uu: @@
Based on the rules and manthras laid by vedas (mainly atharvanaveda)
and Lord Narayanas teachings, Sankarshana (Lord Narayanas
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:

uzNt zut o @
utNzzo {q{Nqm @@
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 :

ETP u uo zq{Nt @@
ruu uu zqt wm
Meaning -Aagams full of useful mantras will bestow Moksha (salvation)
to living beings) and in Poushkarasamhitha it is said <<ns Y zq
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 :

u: Nyuo|o:>>

Ezsz|Du nN|z @
ts|u N|um N| uuu @@.Ty.12-10@@
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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{uwnzsz|u, nN|z @ tyu N|um Eu|m-GNm- tyzm-\|-Eqm-Gz-m-\o|Nyo|-tuqm-ouo- Ntyu, ou unzY @


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 Krishnas
prescriptions to Uddhava mentioned above in Srimadbhagavatham
(49thsloka of 11-27 Srimadbhagavatha).
Explaining the above sloka of Bhagavadgita and elaborating on Sankaras
bhashya of the same Neelakantha Deekshitha says. nN|z means
focus on duties related to me which are m, Nyo| umz:, m, tz,
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|, t, t, Q, Enuzt

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
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Desika have established quite in a universally acceptable way that


Agamas have vedic pramanas m (authenticity) and that they have
to be adhered to.Ramanuja states that : Eo: T zt{Nz: u:

tz: uuQznyN Nm{NoortuuoztTmT: nW:


------- | s| N z q P s| u Q O Ez M Nm {
yn{t|ztu: uuo onsnzu: zt
J S\ s z t EuuoQ us| t z o N
tT|, ots|snzu zuu|yozuo u @@
GnnuNm y: 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..)

Ft zut Yoztuo @
PzTNwooz uto @@1@@
Ft zut Ft uo @
J S\u\|bs|uWos @@2@@
uuom { Lotz @@
PzT: zt: o os @@3@@
uNzozNueu wsWueu z @@
WPzT: zt: o os @@5@@
Enmzou ou zou: @@
sDT s ue m: : @@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
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logics. This is how Lord Narayana says he should be worshipped by his


devotees as mentioned in agamas)..oz ztwq oz means
Pancharathra is the root of the tree of Vedas.
Madhvachaarya also has the same view. Sankaracharya accepts
pancharatra for purpose of Puja vidhanams, Ttuu Just like

o: l PancharathraShastra
o: l These exist along with the

Vedas which have basic authenticity


also has basic authenticityAlmighty.

ztzN zt uuuso @
ots|N zqt ounNo @@
EuzNz T|: ztzOo: @@yuo 2-6,38,31@@
(Pancharatrasastra is on top of Vedas following which one can worship
Lord Narayana and would attain Moksha)

Ez ztm zutoz u @
Tz|m oz oz uo : @@
ztz zm Mn rz o u\: @
z s: |q{u u\ @@m@@
(Even if veda mantras are not fully available, if one performs puja through
pancharathra prescriptions he can reach me.)
One of the tz r 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 rz{um:
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
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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 passed down from father to
son or to successors. The reason for adorning a deity image is not merely
for uYu but also for serving the Lord already in this Janma. Swami
Desika has referred to it as :

o: uNu z nu sy
ot|z u N os t @
z wuTumy sD{
Ouou tuo z Nt: @@
(Oh! Lords 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 z|mtuo - E |t Euuo|u @ Bhaskara defines
Dharma as unN|ut{oo meaning daily duties as prescribed by
Vedas and smruthis. This covers all dharmas and it is to be treated as
Tt 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|z 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 accounts,
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 terms of temple
rituals and customs. It is important in the Hindu religion to have an Acharya
to perform the rituals. Acharyas 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 uqo @ This is as per

J utu\oz sz |N u @
uz YzunNuo \b~wz @@(z uo)
(Please do not do puja to deity without |N - practiced customs
and usage through generations, i.e. Without following the hereditary
customs, principles and methodologies).The |N 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
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members. 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 : \ b~Nwo 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:

N otyq{: uuo {|uso{: u\{: @


unO{o O{: To{: uz@@{N uo @@
(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

GzT parva of Mahabharatha through Dharmaputra says

Ns nY|yzu o|: Nyo oz @


{Q: Ns : Ns uN: @@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:

EtzoO: z O\u: @@o-14-4-1668@@


(the people, who are following only myself and beloved ones to my
worshippers are eligible to perform the puja)

uuO \Y Twuo u @@o 12-336-1@@


(Bhagwan receives the pujas which are in tune with the vedic scriptures)
Hence we cannot change the status-quo.

ooo TO tyuqo um: @


X| uz Tutu: No @@t m:@@
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Hereditary Archakatvam (tyuo o{uubN) 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|NNzn: To Y|zo @
EY|Nz : EYz @@
o\zm N|um E|uo @@ y uo @@
EY|Nz : EYz @
z\zut z yuo: \zo @@ueuo@@
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 N tz: 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
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prescribe Hereditary principle as a fool proof way to eliminate N tz It


is a strong religious prescription, ordinance, custom, usage, belief and
sentiment to ensure the pooja performance as per Ttuu in the
Agamas. Any deviation can lead to calamities and destruction of society
and mankind.

Ntzzm tzzzo @
NtuYtu r: NnN @@
oo ozm{ z\ztn| @@
rzb~ No| No|uXZuo @@zuo-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 Lords dictat in Bhagavad Gita.

uo N Nn N|[zN|um @
yu Y oz uztN|m: @@ .Ty. 3-8..
(Do the ordained duty till the end of the life. Dont ever be without doing
the ordained duty for a Hereditary Archaka the ordained duty is
archakatvam) Hereditary Archakatvam is a

<<N|>> karma -duty and is a

<<uo N|>> 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 -|N which are prescribed
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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 :

tm| z tyuqoz TXoz @


tyuqo Nz \o: cYz| 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

tyuqo Nz \o: u @
tyq Go: o: YNuN: @@
zTym r zquYoN: @
: uTo uoeo Y uN @@
Ez o No Oz z zT @
oz wzy Y u YuoN: @@
{uuto{ Nyuo| uu\ozu: @
z tq: uYqm: @@
u|ty| cY|: GXoz @@
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
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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.

<<EYN| EuuXZ\s| u: @
qzmy \zzo tz uuP Y @@
EY|N Nb \ys| Nzo @@
<<oozDY|N No| tz u{ @
Nwoubz n ursYzo @
tzs| Y nnNb wz @
t F u Twmzuo oo: @@
u oz uuQn t @
EY|M Nz to ulztN @@
ut Y|N Nwn qzm tzo @
tz t G uYqoz @@
EY|N z Xoz @
tz Ny|o woN NtY @
tz u o woN ttuo Yzo @
o q uo oy uo @@
Meaning After identifying a qualified Archaka for the purpose of pooja,
the founder of the temple should create mechanism for sustenance of the
deitys puja and care for archakas family. For this purpose the founder of
the temple should donate land full of greenery and water. Then invite the
archaka in front of the Lord and with folded hands should testify the charity
stating that it is for the purpose of devathaaradhanam till the existence of
this universe (earth, moon, sun and stars) and your familys sustenance.
This testification should be further consummated in the form of order of
charity called Daanasaasanam. The Daanasaasanam should be created
in a stone or copper plate and handed over to the archaka in front of the
deity. If the land is written in the name of the deity it is the highest, next
highest is in the name of archaka and the last is keeping in the name of the
donor.

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It is prescribed not to give remuneration woN 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 archakas
family members 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 sons
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 woN which is prohibited by the Agamas
and is Tantamount to destruction of the states 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, Lords 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 founders 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
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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 members 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 members 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
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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 ue tuqm z: as mentioned in Taittriya Brahmana,
Kathaka-2 prasna. In the case of temple worship it is the society which
performs the tz r @ 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 HONBLE COURT
TO
The Honble the Chief Justice of India and his Honble 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 Honble
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 Honble 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 Honble 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 mans life including his tradition, culture and heritage and
protection of that heritage in its full measure would certainly come within
the encompass 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 Honble Court
needs to uphold in this Petition as this Honble 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 Honble 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
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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 Honble 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 Honble 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 Honble 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 Honble
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 Honble 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
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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 Honble 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
terms 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 Honble Court in its judgement in Civil Appeal 6639 of
2003 dated 13th Oct 2011 in Trambakeshwar Devasthan Trust & Ors ..
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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 Honble 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 administered 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 Honble 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.
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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
administrative, 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 Honble 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
account the decisions of the Government to allow temples with income
less than 2 lakhs to be administered 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 Administration
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
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principles which need to be followed to ensure that this Honble 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 Honble 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 Honble Court in a way that it preserves the right
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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 Honble 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 Honble 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
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and in Public Interest. This Honble 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 Honble
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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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
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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 Honble 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 Administration 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 Honble 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 Honble
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 Honble 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 Honble Court be pleased
to:
(a)
TAKE into consideration all the facts and events described above
in deciding the above Writ Petition; and
(b)
PASS 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
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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. Joint Secretary to the Government, Revenue
(Endowment Department) and Joint 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 honble court, in
pursuance of the order passed by this honble court on 22.06.1987
directing that all writ petitions pending before the honble High Court of
Judicature, Andhra Pradesh at Hyderabad shall be transferred to this
honble court and tagged with writ petition no.638/87 and batch filed
under Article 32 of the constitution, in this honble court.
2.

The first petitioner is registered 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 Joint 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 members 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 passed 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 passed 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 passed. 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 members 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 passed.

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 Honble 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 members
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 Administration, 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 passed 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 pass 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, administratively
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
administration 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 administering
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 administration 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 administration 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 administration of Religious
institutions. The administration 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 Muthavallis 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 terms


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

168

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 Honble 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 Honble Justice Sri
K. Ramaswamy struck down subsection (1) of 82. On appeal by
the state Government a division bench presided over by Honble
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 Honble court by striking down
sect. 144 in the final judgement of this Honble 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 administer religious institutions. The 1966 legislation
gives scope for framing schemes by taking the position of individual
institutions into account (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 Honble 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
Brahmacharis and it is not the intention of the legislature that
only Brahmacharis 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--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
Honble 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 Honble 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 Honble 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 administration 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 administration 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 administration 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 administration board which is an autonomous body for
administration 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 administered. 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 members 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


honble 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 supporting 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 honble 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 Honble Court for disposing
of this Writ Petition.

3.

THAT, in the past the petitioner organization had filed Writ petitions
in the Honble 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 Honble Court was heard and disposed of by the
judgment of this Honble court in A.S. Narayana Deekshitulu vs
State of Andhra Pradesh [1996] 6 SCC 548. In the said petition,
on behalf of the petitioners 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 Deekshitulus case this Honble 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 Honble
Court. The Govt made the following submission in its affidavit to
this Honble Court.

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Temples with such abnormally low


incomes may be left to fend for
themselves.
7.

THAT this Honble 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
administration 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 Administrator 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 Honble 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
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