Guest Post – II: Secularism and Freedom of Religion Reconsidered – Old Wine in New Bottles?

(This is the second essay in a three-part series on secularism and the freedom of religion, by Suhrith Parthasarthy, a lawyer and a journalist, who currently practices as an attorney at the Madras High Court. In Part One, the Supreme Court’s recent deviation from its time-honoured practice of intervention into religious matters on the ground of social reform was discussed. In this post, the ongoing Tamil Nadu litigation that throws up the question of intervention yet again, is examined. In the last post, the normative and constitutional arguments that become salient in this case, will be discussed)

Traditionally, as Manuraj Shanmugasundaram pointed out in the January issue of The Caravan Magazine, priests to Hindu religious temples in Tamil Nadu have been appointed by following a hereditary principle of succession, generally within a community of Brahmins. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, protected this practice of appointing priests on a hereditary basis. We shall now take a look at what this section originally said:

“(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, however, with a view to abolishing this practice of making hereditary appointments, the state government amended, among other provisions, Section 55 of the Act. The amended section stated “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” A further explanation was also added: “In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.”

This amendment to Section 55 was challenged in the Supreme Court by way of 12 separate writ petitions filed by hereditary Archakas and Mathadipatis of some of the most ancient and historic Hindu public temples in Tamil Nadu. The petitioners’ contended in ERJ Swami v. The State of Tamil Nadu[1] that Articles 25 and 26 of the Constitution of India protected their freedom of hereditary succession to the office of the Archaka, and this freedom was an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.

The court through Justice DG Palekar’s judgment dismissed the writ petitions. It held that the power to appoint archakas to public temples was a secular function (remember, the Constitution explicitly allows the state to regulate such non-religious functions) and to the extent that the trustees of the temples were no longer bound to make appointments on the sole ground of hereditary succession the amendments were valid. But, the court also held, that the amendment did not provide any power to the trustees to eschew the Agamas, which constitute the fundamental treatise on rituals in Hindu temples, in determining who could be appointed as a priest.

Justice Palekar’s observations in this regard are telling, and worthy of being quoted in full. He writes:

“The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in temples of a different denomination. …Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”

To sum up, the Supreme Court in ERJ Swami’s case upheld the 1970 Amendment, by holding that the function of appointing an Archaka was secular in nature, and that therefore a trustee of a temple was not bound to appoint priests on the basis of hereditary succession. The court nonetheless rendered nugatory the fundamental purpose of the amendment by also holding that the trustee was nonetheless obligated to follow the Agamas in arriving at a decision. And the Agamas provide that only members of particular “denominations” are competent to preside as priests. As a result of this judgment, every time an appointment is made to the position of an Archaka in a public temple, notifications seeking applications often seek to reinforce the fulfilment of specific conditions of caste as a criterion for appointment.

In 2006, however, the government of Tamil Nadu sought to further change this practice. It introduced an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to the 36,000-odd temples under government administration across the state. The ordinance was immediately challenged in the Supreme Court, and has been stayed pending a final decision. The primary argument of the petitioners is that the new law violates the specific finding of the Supreme Court in ERJ Swami’s case, that it seeks to permit the state to act contrary to the Agamas, even though the fulfilment of these conditions has been held to be integral to the practice of the religion.

[1] AIR 1972 SC 1586.

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