1996 Supreme(SC) 614

1996(5) Supreme 293
SUPREME COURT OF INDIA
K. Ramaswamy and B.L. Hansaria, JJ.
A.S. Narayana Deekshitulu -Petitioner
versus
State of Andhra Pradesh & Ors. -Respondents
Writ Petition No. 638 of 1987
with
Writ Petition Nos. 1063, 1090, 1374 of 1987 and 173/90 and Transfer Case Nos. 168/88, 170-76/88, 2/90, 37 & 38/90, 3/93 & 4/93
All Decided on 19-3-1996

IMPORTANT POINTS
1. Appointment of archaka is neither a religious practice nor a matter of religion and, therefore, abolition of the hereditary right to appointment is not violative of either Article 25(1) or 26(b) of the Constitution of India.
2. Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act, abolishing hereditary rights of archaka, mirasidars, gamekars and other office holders and servants are not violative of Articles 25 and 26 of the Constitution of India.

Headnote:(i) Constitution of India-Arts. 25 and 26-Religion-Concept of Hindu religion and dharma-Right to religion-Not an absolute or unfettered right to propagating religion -Need for State to regulate or control in interest of community-Temple worship-Right to work as priest-Hereditary succession-Whether traditional practices are matters of religion or part of religion and religious practices.

       Held : Articles 25 and 26 deal with and protect religious freedom. Religion as used in these Articles must be construed in its strict and etymological sense. Religion is that which binds a man with his Cosmos, his creator or super force. It is difficult and rather impossible to define or delimit the expressions "religion" or "matters of religion" used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations is an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. (Para 42)

       A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts, Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice. (Para 43)

       Further Held : The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity-economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence - factual or legislative or historic - presented in that context is required to be considered and a decision reached. (Para 44)

       The Court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community. (Para 45)

       All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. Whether hereditary archaka is an essential and integral part of the Hindu religion is the crucial question? (Para 47)

       Temples were constructed by private owners or kings. In the respective Agamas of either Vaishnava or Saiva form of worship, priests appointed are from amongst the sects who have implicit faith, devotion, dedication of a man of good character, integrity and piety. He must asio be an accomplished man to perform ritual in ceremonial form of worship steeped with profound knowledge in Agama rules, proficiency in recitation and performance of rituals accurately and systematically with total identification and personification. The right to work as priest is traceable to an appointment for life. The priesthood was systematised among the families of priests having faith and devotion initiated with Diksha and learning in the respective Agamas. They succeeded from generation to generation subject to good conduct and were terminable due to acts of misconduct. Hereditary succession is not an exorable rule. Due to non-availability of persons from the family eligible to be priest outsiders would also become eligible. Normally, succession to the priesthood upto the lifetime of the priest is open to his successors. In some instances, priests from same Gotra were inducted and in their absence, even the diciples of the Guru and others were initiated. The property dedicated to the temple or income derived from the offerings of devotees was enjoyed by the priest for himself and his family maintenance and the temple. The object, thereby, appears to be to keep the priest above want and free from family worries to enable him to dedicate himself totally to perform daily rituals to the Deity. Generally, the person acquainted with same Agama rules and Sampradaya, practising and professing same religious faith and hailing from the same sect remained in the same temple or similar temples elsewhere. (Para 63)

       The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of the religion. (Para 64)

       (ii) Constitution of India-Arts. 25 and 26-Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987-Sections 34, 35, 37, 39 and 144-Constitutionality of;-Challenged-Provisions abolishing hereditary rights of archaka, mirasidars, gamekars and other office holders-Whether hereditary archaka is an essential and integral part of Hindu religion ?-(No)-Legislative competence to take away hereditary right upheld-Whether appointment of an archaka is governed by usage and whether hereditary succession is a religious usage ?-(No)-Abolition of hereditary right to appointment under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution.

       Held : There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest (archaka) is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (archaka). The hereditary right as such is not integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad conduct, its abolition by sovereign legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession to the office of an archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is an holder of the office of priest (archaka) in the temple. (Para 66)

       Further Held : Archaka is the holder of an office attached to a religious institution and he receives emoluments and perks according to the procedure therein. This Court had further held that the act of his appointment is essentially a secular act. He owes his appointment to a secular authority. Any lay founder of a temple may appoint an archaka. The Shebait or Manager of temple exercises essentially a secular function in choosing and appointing the archaka. Continuance of an archaka by succession to the office from generation to generation does not make any difference to the principle of appointment. No such hereditary archaka can claim any right to the office. Though after appointment the archaka performs worship, it is no ground to hold that the appointment is either religious practice or a matter of religion. It would thus be clear that though archaka is normally a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee or an appropriate authority prescribed in the regulations or rules or the Act. He owes his existence to an order of appointment - be it in writing or otherwise. He is subject to the discipline at par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agamas Sastras, it is no ground to hold that his appointment is either a religious practice or a matter of religion. It is not an essential part of 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 67)

       Every Mirasidar or Gamekar equally cannot claim hereditary right to continue to perform the duties from generation to generation. They all are servants or members of the establishment liable to disciplinary jurisdiction. Consequently, they stand along with the priest (archaka) of the temple of Sri Balaji. It is true that hereditary rights of archaka or other office-holders are in vogue in most of the State Acts and no attempt therein apppears to have been made to abolish them, yet their inaction or omission to amend the law is no ground to hold that the legislature lacks the power to do so or that they are in violation of the Constitution. In fact, it is not the submission of Sri Parasaran that the legislature lacked competence to enact Sections 34 and 144 of the Act. Therefore, the abolition of their rights do not violate either Article 25(1) or 26(b) of the Constitution. (Para 68)

       Consequently Held : What would be relevant is not that the candidate who seeks to serve as an archaka must be from that family etc., but must be an accomplished person in Agama rules having faith and devotion in that form of worship and also proficiency to perform rituals and rites, ceremonial rituals appropriate to the temple according to its customs, usages, Sampradayams etc. In other words, the faith and belief in the religion, customs, usages or Sampradayams in that particular Agamas and proficiency in performance of the rituals to the image of God in those particular rituals are conditions precedent to be eligible to hold office of the archaka. One who fulfils those pre-conditions is eligible to be considered and appointed to the office of archaka or other similar offices. The regulation of this secular activity, therefore, does not offend any faith or belief in the performance of those duties by a person other than one hailing from the family, sect/sub-sect or denomination hither to performing the same. Earlier, the field of choice to appoint a particular archaka was confined and limited to that family, sect/sub-sect or denomination, but after the statutory regulation the field of choice is widened and all eligible candidates including those available from the family etc. will be considered: competency is tested and when one is found qualified, appointment is made to the office of archaka according to the prescribed procedure. We, therefore, hold that abolition of hereditary principle under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution. (Para 73)

       (iii) Constitution of India-Articles 25 and 26-Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987-Sections 34, 35, 37, 39 and 144-Constitutionality of-Archaka, mirasidars, gamekar and office holders of religious institutions-Abolition of emoluments attached to the office-Whether invalid in law ?

       Held : That Section 13 contains an injunction to the officer mentioned therein and every other person exercising the power or performing the functions under the Act that they shall not interfere with and shall observe the forum, usages, ceremonies and practices obtaining in and appropriate to the religious institution or endowment in respect of which such powers are exercised or functions are performed. Similarly, Section 142 preserves continuance of existing customs etc. by a savings class. (Para 71)

       Further held : A conjoint reading thereof preserves the existing customs, performances, religious worships, ceremonies and poojas according to Sampradayams and Agamas followed in such institutions. Section 142 issues an injunction against officer from interfering with such observances. Yet it would not, by operation thereof, amount to revival of what has been expressly abolished under Section 34(1)(b) of the Act. Abolition of hereditary principle on the basis of custom or usage to a holder of an office for continuance in that office is one facet, and performance of ceremonies, practices, customs of usages is another. Both cannot be mingled in the same water. Both are distinct and separate from each other. It would, therefore, be incongruous to accept the contention of petitioners that the right to continuance in office on the basis of custom and usage independently survives. The further contention is that interference with matters based on custom or usage relating to religious institution as defined in Section 2(23) amounts to interference with the freedom of conscience and free practice of religion. Therefore, it is violative of Article 25(1) and is untenable in law. As held earlier, being secular actions they are not integral part of the religion or religous matters. (Para 72)

       (iv) A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987-Section 34-Appointment to office abolished under Section 34-Discretionary power of Commissioner-Challenged as arbitrary-Held, procedure prescribed is neither vague nor arbitrary.

       Held : It is settled law that existence of rules is not a condition for the Act to become operative. The rules made under the predecessor Act, 17 of 1966 are in vogue. Section 35 prescribes procedure for appointment of office-holders and servants. Section 36 prescribes qualifications. Section 37 regulates disciplinary conduct. The rules have been made in exercise of the power under Section 155 to supplement these provisions. Three schools to impart education in Agama Sastras etc. are established one each in Andhra, Telangana and Rayalseema regions. Vide GOMS 2920 dated December 19, 1958 Board of Examiners from Specialist Pandits was constituted to impart training and conduct examinations and papers were set out on each subject; GOMS No. 1252 dated November 30, 1971 prescribes rules to conduct examinations in Agamas : Vide GOMS No. 1051 dated September 20, 1976 Advisory Board, consisting of eminent Pandits in several Agama specialists, was constituted to regulate examination system. Thus, apart from the provisions in the Act, there are rules which elaborately provide for training facilities and conducting examinations in the prescribed manner. The Act, therefore, is not arbitrary. (Para 74)

       (v) Constitution of India-Articles 25 and 26-A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987-Sections 34, 35, 37, 39 and 144-Constitutionality of-Archaka, mirasidars, gamekar and office holders of religious institutions-Right to a share in Prasadam offered to Lord-Denial of-Whether unconstitutional, unjust and unfair ?-(No).

       Held : That so long as hereditary archakas, mirasidars or office-holders had their hereditary right, as a part of their rendering service they were entitled to a share in the Prasadam or collections offered to the presiding Deity or other Deities of the temple as per the custom or usage prevailing in the particular temple or agreement between the management and the office-holders. But on abolition thereof, as a corollary, the right to a share in collections. Prasadam etc. also ceased to operate and also stood abolished. Apart from the hereditary right, they have no independent right to a share in the offerings etc. Therefore, with the abolition of the hereditary right, the right to receive customary payment associated with an office equally stood abolished under Section 144. Section 144 is consequential to Section 34 and other similar rights like Section 16 of the Act. Resultantly, the right to receive a share in the Prasadam etc. stood abolished. Holder of an office is entitled to payment of salary prescribed under the rules for services rendered by an archaka etc. Consequently, the right to a share by customary practices or usages or under a contract with management also stood abolished. They are regulated by making payment of the monthly salary to the holder of an office in accordance with the scales prescribed under the rules made thereunder. (Para 76)

       Further held : The gamekars (who prepare food items offered to God including Laddus) are species of mirasidars doing service to Lord Deity on hereditary principle. Though they perform the duty of preparing food etc. according to Agama prescription, usages and practices obtaining in each temple, their rights being founded on hereditary principle stood abolished. This abolition, in respect of archaka and other service holders having already been upheld, the case of gamekars cannot independently stand on any higher footing. Therefore, abolition of their rights under Sections 34 and 144 is equally valid in law. (Para 77)

       (vi) A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987-Section 36-Archaka-Prescription of qualifications to;-Challenged as arbitrary, unjust and unfair-Rules provide elaborate procedure-Recognition of qualifications by Commissioner is one of the conditions-Provisions prescribing qualifications are valid.

       Held : It is common knowledge that many an archaka are not highly educated but have working knowledge in the performance of ritual and daily pooja to the presiding Deity of the temple and other Deities installed in the temple. To obviate deficiency in learning etc., Agama training schools in the respective regions, viz., Andhra, Telengana and Rayalseema were established and training in fact is imparted to the candidates. The recognition of the qualifications by the Commissioner is one of the conditions, but we have seen the rules made in this behalf. Rules provide elaborate procedure. Competent persons having specialised knowledge in the respective subjects set the question papers and evaluation thereof is done by equally competent persons on the subjects. As regards the recitation and clarity of pronunciation of Vedic mantras, the candidates are adjudged by the expert persons well-versed in Vedic mantras and Agama sastras. A pandit in that branch of speciality is in service of the department. With his assistance and of other persons, the Commissioner would adjudge the suitability of the respective candidates. Similarly, the word Sapthavyanams , i.e., seven bad habits, has been clarified in the Explanation of Appendix to Section 36. Therefore, the authority would have no difficulty in adjudging whether a candidate is free from seven voices or any of them. If there is any error of judgment or denial of appointment on that basis in any individual case that would be a matter for consideration in an appropriate forum. The provisions, therefore, are not arbitrary, unjust or unfair. (Para 78)

       (vii) Constitution of India-Articles 25 and 26-A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987-Sections 13 and 142-Archakas-Power of transfer under Section 39-Challenged as violative of Article 25(1)-Held, on mere apprehension, Section 39 cannot be declared arbitrary or ultra vires or unjust.

       Held : That section 13 and 142, which have already been adverted to, would take care of the apprehended catastrophe. On mere aprehension, Section 39 cannot be declared to be ultra vires. If in any individual case any transfer was effected of a person who had no accomplishment of Agamic rules, customs, practices or sampradayams applicable to the particular temple, it would be considered and dealt with accordingly. It cannot be expected that the Commissioner would act in violation thereof and would act in a wayy inconsistent with Section 13 and 142. Each case would be considered on its own merits and correctness of such transfer would be tested in an appropriate proceedings. Therefore, on that score alone, Section 39 cannot be declared arbitrary or ultra vires or unjust. (Para 79)

       (viii) Constitution of India-Articles 25 and 26- Religion and dharma -Word religion in these two articles has been used in the sense conveyed by the word dharma -Word religion as used in Articles 25 and 26 cannot be confined, cabined and crabbed to what is generally thought to be religion-Word religion has to be understood not in a narrow sectarian sense but encompassing our ethos of "serve bhavantu sukhinah". (As per Hon ble Justice B.C. Hansaria). (Paras 88, 93, 97)