Holding

The provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, including the abolition of hereditary rights and shares, are constitutionally valid and do not violate Articles 25 or 26.

Summary

The Supreme Court examined the constitutionality of Sections 34, 35, 36, 37, 39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, which abolished hereditary rights of archakas, mirasidars, gamekars and other temple office‑holders. The petitioners, hereditary priests, contended that the abolition infringed Articles 25 and 26 of the Constitution by interfering with essential religious practices. The Court held that the appointment of an archaka is a secular activity, that hereditary succession is not an essential part of Hindu worship, and that the statutory provisions are a valid exercise of the State’s power to regulate secular aspects of religious institutions. Consequently, the Act was upheld, the writ petitions were dismissed, and the Court directed the State to devise a welfare scheme and a fund for temple employees.

Issues considered

The validity of Sections 34, 35, 36, 37, 39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, in view of Articles 25 and 26 of the Constitution.
Whether the hereditary right to the office of archaka constitutes an essential religious practice protected by Articles 25/26.
Whether the abolition of shares in hundi collections and other "rusums" under Section 144 violates constitutional freedom of religion.
Whether the qualifications prescribed for archakas under Section 36 are arbitrary, unjust or unfair.
Whether the power of transfer of temple officers under Section 39 is ultra vires the Constitution.
Whether the Act provides adequate procedural guidelines for the appointment and regulation of temple officers.

Legislation cited

Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987s. 13, s. 142, s. 144, s. 155, s. 34, s. 35, s. 36, s. 37, s. 39
Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 25, s. Article 26

Subjects

religious freedomArticle 25Article 26hereditary priesthoodtemple administrationsecularismconstitutional validityHindu religious institutionsendowments act Andhra Pradesh

Judgment

SH. A.S. NARAYANA DEEKSHJTULU ETC. ETC. A
v.
I
STATE OF ANDHRA PRADESH AND ORS.

MARCH.19, 1996

[K. RAMASWAMY AND B.L. HANSARIA, JJ.]· B

1he Andhra Pradesh Chmitable and Hindu Religious Institutions and
Endowments Act, 1987 :

Sections 34 and 35-Mirasidars, Archakas and other office ho/ders--
Abolition of hereditary rights-Held not unconstitutional-Hereditary succes- C
sion of Archakas held not a religious usage and thus not covered by Article
25--Power co11fe1Ted on Commissioner to make appointment after abolition
of hereditmy offic,,-Held not without guidelines.

Sections 36-Arclzakas-Prescription of qualifications f01~Held not D
arbitra1y.

Sections 39 and 142--0ffice holders and se1vants--Transfei-Power of
provision held not ultra vires or unjust.

Section 144-Right to shares in Hundi and other Rusums--Abolition E
of-Held not violative of Articles 25 and 26.

Constitution of India, 1950: A1ticles 25 and 26.

Right to freedom of religion-Extent and scope· of-Protection of Ar-
ticles 25 and 26 held not limited to doctlin,,-Also extends to 1ituals and F
ceremonies which a1~ integral p01t of religion-Difference between 'Religion'
and 'Dha1n1a'-Between secularisni and secula1isation discussed.

In these writ petitions and transfer cases the constitutionality of
Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1987 bas been chat- G
Ienged.

Dismissing the petitions and upholding the validity of the impugned
provisions, this Court

HELD : (Per Ramaswamy, !.) H
543
544 SUPREME COURT REPORTS [1996] 3 S.C.R.

A 1. Articles 25 and 26 deal with and protect religious freedom.
Religiou as used in those 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
B personal relations of an individual with what he regards as Cosmos, his
Maker or his Creator which, he believes, regulates the existence of insen-
tient beings and the forces of the universe. Religion is not necessarily
theistic. [607-G-H]

C 2. 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 safe-guarded by Articles 25 and 26 nor has the
D Constitution provided that every religious activity cannot be interfered
with. Religion, therefore, cannot 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 regu-
late the lives of men believing in that theistic, conscience or religious belief
E that alone can constitution 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 ever human activity. There is nothing which a man
F can do, whether in the way of wearing clothes or food or drink, which is
not considered a religious activity. El'ery 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 pregmatism since by the very nature of things, it would be
G extremely difficult, if not impossible, to define the expression religion or
matters of religion or religious belief or practice. [608-B-F]

3. The right to religion guaranteed under Article 25 or 26 is not an
absolute or unfettered right to propagate religion which is subject to
H legislation by the State limiting or regulating any activity-economic, finan-
j
j

A.S.N. DEEKSHITULU v. STATE 545

cial, political or secular which are associated with religious belief, faith, A
practice or custom. They are subject to reform on social welfare by
appropriate legislation by the State. Though religious practices and per-
formances 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. "\Vb.at are essential parts of religion or religious
beliefs or matters of religion and religious practice is essentially a question
B
of fact to be considered in the context in which the question has arisen and
the evidence-~actual or legislative or historic-presented in that context is
required to be considered and a dedsion reached. 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 or C
religion, religious belief, faith or worship, religious practice or customs
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. (609-C-F]

4. The religious freedom guaranteed by Articles 25 and 26 is intended
D
to be a guide to community-life and ordain every religion to act according
to its cultural and social demands to establish an egalitarian social order.
Articles 25 and 26, therefore, strike a balance between the rigidity or right
to religious belief and faith and their intrinsic restrictions in matters or
religion, religious beliefs and religious practices and guaranteed freedom E
of ~onscience to commune with his Cosmos, Creator and r~alise his
spiritual self. Sometimes, practices-religious or secular are instricably
mixed up. This is more particularly so in regard to Hindu religion because
under the provisions of ancient Samriti, human actions from birth to
death and most of the individual actions from day to day are regarded as
F
religious in character in one facet or the other. They sometimes claim the
religious system or sanctuary and seek the cloak of constitutional protec-
tion guaranteed by Articles 25 and 26. One hinges upon constitutional
religious model and another diametrically more on traditional point of
view. The legitimacy or the true categories is required to be adjudged
strictly within the parameters of the right of the individual and the G
legitimacy of the State for social progress, well-being and reforms, social
intensification and national unity. (610-C-F]

5. All secnlar activities which may be associated with religion but
which do not relate or constitute an essential part of it may be amenable H
546 SUPREME COURT REPORTS [1996] 3 S.C.R.

A to State regulations but what constitutes the essential part of religion may
be ascertained primarily from the doctrines of that religion itself accord-
ing 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
B
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
C 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
D secular management by the State, whether the traditional practices are
matters of religion or integral and essential part of the religion and
religious parctice protected by Articles 25 and 26 is the question. (611-A-E]

6. 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
E of religion and, therefore, they contain a guarantee for rituals and obser-
vances, ceremonies and modes of worships which are integral parts of the
religion. (621-H; 622-A]

Seshammal & Ors. Etc. Etc. v. State of Tamil Nadu, [1972] 3 SCR 815,
p The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shiiur Math, [1954] SCR 1005. Ganpat
v. Returning Officer & Ors., [1975] 1 SCC 589, Sri Venkataramana Davarn
& Ors. v. 77ie State of Mysore & Ors., [1958] SCR 895, TJie Durgah Com-
mittee, Ajmer & Anr. v. Syed Hussain Ali & Ors., [1962] 1 SCR 383, Sardar
Syedna Taher Saifuddin Saheb v. TJie Estate of Bombay, [1962] Supp. 2 SCR
G 496, referred to.

7. There is a difference between secularism and secularisation.
Secularisation essentially is a process of decline in religious activity, belief,
ways of thinking and in restructuring the institution. Though secularism
H is a political ideology and strictly may not accept any religion as the basis
i

I A.S.N. DEEKSHITULU v. STATE 547

of State action or as the criteria of dealing with citizens, the Constitution A
of India seeks to synthesise religion, religious practice or matters of
1 religion and secularism. In secularising the matters of religion which are
not essentially and integrally parts of religion, secularism, therefore, con-
sciously denounces all forms of super-naturalism or superstitious beliefs
or actions and acts which are not essentially or integrally matters of B
religion or religion~ belief or faith or religious practices. In other words,
non-religious or anti-religious practices are anti-thesis to secularism
which seeks to contribute in some degree to the process of secularisation
of the matters of religion or religious practices.[609-G-H; 610-A-B]

S.R. Bommai & Ors. v. Union of India & Ors., [1944] 3 SCC 1, C
referred to.

8. There is a distinction between religious service and the person who
performs the service; performance of the religious service according to the
tenets, Agamas, custom and usages prevalent in the temple etc. is an
integral part of the religious faith and belief and to that extent the D
legislature cannot intervene to regulate it. But the service of the priest
(archaka) is a secular pert. The right to perform religious service has
appointment by the owner of the temple or king as its source. The legisla-
ture 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 E
(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 perfor-
mance of ritual ceremonies, is not. Therefore, when the hereditary right to
perform service in the temple is terminable by an owner for bad conduct, F
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 officer of an archaka. [622-H; 623-A-C]

K Seshadri Aiyangar v. Ranga Bhattar, I.L.R. 35 Med. 631, approved. G
9. In a pluralistic society like India, there are numerous religious
.groups who practise diverse forms of worship or practise religions, rituals,
rites etc. It may not be possible to devise a precise definition of universal
application as to what is religion and what are matters of religious belief
or religious practice. That is far from saying that it is not possible to state H
548 SUPREME COURT REPORTS [1996] 3 S.C.R.

A with reasonable certainty the limits within which the Constitution con-
ferred a right to profess religion. [608-G; 609-A-C]

10. A very careful distinction is required to be drawn between real and
unreal religion at any stage in the development and preservation of religion
as protected by the Constitution. Within religion, there is an interpretation
B of reality and unreality which is completely different experience. It is the
process in which ideal is made rule. Thus perfection of religious exjlerience
can take place only when free autonomy is afforded to an individual and
worship of the infinite is made simpler, direct communion, the cornerstone
of human system. Religion is personal to the individual. Greater the law
c bringing an individual closer to this freedom, the higher is its laudable and
idealistic purpose. Therefore, in order that religion becomes mature inter-
nally with the human personality it is essential that mature self·enjoyment
must be combined with conscious knowledge. Religious symbols can be
contra-distinguished from the scientific symbols and both are as old as
man himself. Through scientific symbols there can be repetition of dog-
D matism and conviction of ignorance. True religion reaching upto the full
reality of all knowledge, believes in God as the unity of the whole. (579-D·G]

Swami Vivekananda, "The Complete Works" Vol. I p. 124, Sbri
Aurobindo, "Ihe Human Cycle, the Ideal of Human Unity War end Self-
E Detennination" Chapter XVII, Shri Aurobindo, 'Magnum opus Life Divine",
Mircea Eliasde, "Encyc/opeadia of Religion" Vol. 12, John Macmur-
ray,"Reason and Emotion" (Faber and Faber Publication)p. 40, Julian Hux-
ley, "Evolution After Da1win" Vol. III p. 259, Robert Ernest Hume, "Ihe
Thirteen P1incipal Upanishads" p. 30, Swami Vivekananda, Lecture on
''Religion and Science" Inc01porated in "The Complete Works" Vol. VI, Sixth
F Edition) p. 81, Fredeiick Copleston, SJ. ''.A Hlsto1y of P1ilosophy" Vol. VI,
Shri Acharya Pada "Sarva Vedantha Sindhanta Sh/okas" 857-862, Richard
Dawkins "The Blind Watchmaker", referred to.

11. To one who is devoted to the pursuit of knowledge, the observance
G of rituals is of no use since the observance of rituals and the devotion of
knowledge cannot co-exist. There is considerable incompatibility between
knowledge and rituals inasmuch as their natures are entirely antithetical.
(587-C·D]

12. It is essential that the value of law must be tested by its certainty
H in reiterating the Core of Religious Experience and if a law seeks to
f
I
A.S.N. DEEKSHITULUv. STATE 549

separate the non-essential from the essential so that the essential can have A
a greater focus of attention in those who believe in such an experience, the
I object of such a law cannot be described as unlawful but possibly somewhat
visionary. [604-G-H]

13. Law is a social engineering and an instrument of social changes
evolved by a gradual and continuous process. History and customs, utility B
and the accepted standards of right conduct are the forms which singly or
in combination shall be the p~ogress of law. Which of these forces shall
dominate in any case depends largely upon the comparative importance or
1 value of the social interest that will be, thereby, impaired. There shall be
symmetrical development with history or custom when history or custom C
has been the motive force or the chief one in giving shape to the existing
rules and with logic or philosophy when the motive power has been theirs.
One must get the knowledge just as the legislature gets it from experience
and study and reflection in proof from life itself. [610-F-H; 611-A)

Banjamin Cardozo, '1Judicial Process" referred to. D
14. The word 'Dharma' or 'Hindu Dharma' denotes upholding, snp-
porting, nourishing that which upholds, nonrishes or supports the
stability of the society, maintaining social order and general well-being and
progress of mankind; whatever conduces to the fulfilment of these objects E
is Dharma, it is Hindu Dharma and ultimately "Sarva Dharma Sambhava".
Dharma is that which approves oneself or good consciousness or springs
from due deliberation for one's own happiness and also for welfare of all
beings free from fear, desire, disease, cherishing good feelings and sense
of brotherhood, unity and friendship for integration of Bharat. This is the
core religion which the Constitution accords protection. [605-A-C) F
15. Dharma, according to the old concept, is a purely secular institu-
tion. Dharma is that which sustains tbe society. Dharma is that by which
people at large are held together. Therefore, Dharma embraces every type of
righteous conduct covering every aspect of life essential for the sustenance
and welfare of the individual and the society and includes those rules which G
guide and enable those who believe in God and heaven to attain moksha
(eternal bliss). Rules of Dharma are meant to regulate the individual
conduct, in such a way as to restrict the rights, liberty, interest and desires
of an individual as regards all matters to the extent.necessary in the interest
of other individuals, i.e. the society and at the same time making it H
550 SUPREME COURT REPORTS [1996] 3 S.C.R.

A obligatory for the society to safeguard and protect the individual in all
respects through its social and political institutions. Shortly put, Dharma
regulates the mutual obligations of individual and the society.
(602-E-F; 591-G-H; 592-A]

Justice M. Rama Jois, "Legal and Constitutional Histo1y of India
B (Vol.I) pages I to 4, Prof. Om Prakash, "Religion and Society in Ancient India
"1985 Edn.,Dr. Sha11kar Dayal Shanna, "Dhamia-A Legal Discipline-Select
Speeches a11d Writi11gs, (/11dian Bar Review Vol. XX (3 & 4) 1993 Special
Issue), Dr. S.D. Shanna, "Dr. Zakir Hussain Memo1ial Lecture delivered at
Visva Bharati Shanti Niketa11 on 29th April, 1989, Dr. S.D. Shanna, "Law and
C Morality Sustain the World" address delivered on 25th September, 1993 at the •
Fim Convocation of the National Law School of India University, Bangalore,
Valmiki Ramayana, Ayodhya-kanda versa-10, Sarga- 109, Markandeya
Purana Swaniy Ranganathananda, lecture on 'Science, Den1ocracy and
Religion' delivered on August 28, 1954 in Ramakrishna Mission Institute of
Culture, Calcutta, published under the title 'Eternal Values for a Changing
D Society', p. 637; V.D. Mahajan, "Chief Justice Gajendragadhar" - His life,
ideas, papers and addresses in Chapter on 11Secula1isn1, its inzpact all law and
life in India; V.R. Krishana Iyer "Religion and Politics" 1991 Edition; B.K.
Mukherjee, Tagore Law Lectures on Hindu Law of Religious and Charitable
Tmst, page 1; Shri Suniti Kumar Chatterje, "171e Cultural Heritage of India,
Institute of Culture, Vol. IV at page xv; Dr. V. Vardacharyamaharshya, 'Sri
E Panchratraparamyam page 21; E. Krishnamacharya, "Jayakhyasamhita of
1
Pancaratra Agnia, p.22; Pandi V. Krishnamacharya, "Laksluni-tantra ~ a
Pancharatr Agama, p. I, referred to.

16. Though after appointment the archaka performs worship, it is no
p ground to hold that the appointment is either religious practice or a matter
of religion. Though an 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 of the Act. He owes his existence to an order of appointment-be it in
G 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
H religion or matter of religion or religious practice. Therefore, abolition of
I AS.N. DEEKSHITULUv. STATE 551

the hereditary right to appointment under Sectio11 34 of the A;P, Charitable A
and Hind11 Religious Institutions and enduments is not violative of either
I Article 25(1) or 26(b) of the Constitution. (624-A-D]

17. Article 25 (2) permits regulation of any secular activity associated
with the religious practice. Appointment of an archaka is a secular activity.
Hereditary right which governs the appointment of archaka is a secular B
usage which could be regulated by law. The mere fact that in some temples
elsewhere the hereditary principle is being followed would not denude the
power of the legislature to enact the Act abolishing hereditary rights and
emoluments attached thereto. (566-D, F-G]
c
18. A conjoint reading of Sections 13 and 142 of the Act preserves
the existing customs, performances·, religious worships, ceremonies and
poojas according to Sampradyamas and Agamas followed in such institu·
lions. Section 142 issues an injunction against an officer from interfering
with such observance. Yet it would not, by operation thereof, amount to D
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 perfor~
mance of ceremonies, practices, customs or 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 E
petitioners that the right to continuance in office on the basis of custom
and usage independently survives. The further coniention that interference
with matters based on custom or usage relating to 'religious instituti.on,
as defined in Section 2(23) amounts to interference with the freedom of
conscience and free practice of relig_ion and, therefore, it is violative of F
Article 25(1) and is untenable in law. Being secular actions they are not
integral part of the religion or religious matters. J626-H; 627-A-D)

19. The contention that as per rules laid down in Agamas, the archaka
of particular denomination alone is entitled to enter sanctun1 sanctonun and
touch the image of God and therefore, persons belonging to that particular G
family, sect or denomination alone are entitled to perform pooja or
ceremonial rituals of daily worship and that the abolition of hereditary
right amounts to interference with the religion offending Article 25(1)
cannot be acceded to. What is relevant is not that the candidate who seeks
to serve as archaka must be from that family etc., but must be an ac· H
552 SUPREME COURT REPORTS [1996] 3 S.C.R.

A complished 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
B
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 ollices. The regula-
tion of this secular activity, therefore, does not offend any faith or belief in

C
the performance of those duties by a person other than one hailing from the
family, sect/sub-sect or denomination hitherto performing the same. Ear-
•
lier, 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
D and when one is found qualified, appointment is made to the office of
archaka according to the prescribed procedure. The abolition of hereditary
principle under Section 34 is not violative of either Article 25(1) or 26(b) of
the Constitution. [627-E; 628-A-E)

20. It is true that the position of the office of Pedda Jeeyanagar or
E Chinna Jeeyanagar as a religious head in the context of methadhipathi of
Ramanuja Sect was upheld by the Privy Council, yet as regards his right
in the Lord Venkataramana temple, he performs the office as a nominee
and, therefore, he also owes his existence to the nomination which is
entithesis to hereditary succession. Every Mirasidar or Gamekar equally
cannot claim hereditary right to continue to perform the duties from
F
generation to generation. They all are servants or members of the estab-
lishment 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 Act and no attempt therein appears to have been made to
G 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. Therefore, the abolition of their rights do not
violate either Article 25(1) or 26(b) or the Constitution. [624-E-G)

H 21. The abolition of the emoluments attached to the office is not
f
(
A.S.N. DEEKSHITULUv. STATE 553

invalid in law. So long as the statute did not intervene regulating the A
secular appointment of an archaka, the appointment according to prevail-
/ ing usage or custom was upheld by the courts. Consequently, the right to
succession or appointment remained valid. But with the statutory inter-
vention, unless the custom or usage is held an integral part of the religion,
the legislature has power to regulate the appointment of an archaka or B
other otnce-holder. In view of the settled legal position that the appoint-
ment of an archaka is a secular act, the previous custom or practice or
usage in making an appointment to ollice of an archaka is regulated under
tl1e Act. As an object in that behalf the hereditary right or custom or usage,
prevalent in that behalf, was statutorily abolished. [624-H; 625-A, C-E]
c
Gazu/a Dasaratha Rama Rao v. State of Andhra Pradesh & Ors., AIR
(1961) SC 564, referred to.

22. As a corrollary to the abolition, legislature is competent to
prescribe qualifications for archakas in Section 36 supplemented by the D
rules made in that behalf. So, the prescribed qualifications are valid
qualifications for appointment. [566-H; 567-B]

23. There is no force in the contention that prescription of the
qualifications to the archaka is arbitrary, unjust and unfair. It is true that
prior to the Act came into force, the succession to the office was based on E
hereditary principles. But Section 37 of the predecessor Act 17 of 1966
prescribes qualifications of archaka which are in pari mate1ia with those
prescribed in Section 36 of the Act. 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 F
and other Deities installed in the temple. To obviate deficiency in learning
etc., Agama training schools in the respective regions, viz., Andhra Telen-
gana 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 the rules have been made in this behalf. Rules
provide elaborate procedure. Competent persons having specialised G
knowledge in the respective subjects set the question papers and evalua-
tion thereof is done by equally competent persons on the subjects. As
regards the recitation and clarity of pronounciation 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 H
554 SUPREME COURT REPORTS [1996] 3 S.C.R.

A service of the department. With his assistance and of other persons, the
Commissioner would adjudge the suitability of 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 adjuding whether a candidate is free
from seven vices or any of them. If there is any error of judgment or denial
B
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. (631-B-G]

24. The Act regulates administration and maintenance of charitable
C and Hindu religious institutions and endowments in their secular ad- •
ministration. There is no force in the contention that there are no proper
guidelines in the Act to exercise the power and wide discretion has been
conferred on secular authority, i.e. the Commissioner to decide as to who
should be appointed to the offices abolished under Section 34. It is settled
D 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
E education in Agama Sastras etc. are established one each in Andhra,
Telengana and Rayalseema regions. 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. The procedure prescribed therefore is neither vague nor
arbitrary. (628-F-H; 629-A-B)
F
25. Section 144 abolishes only shares in hundi collections and other
rusums but not Nitya Naivadyam, i.e. cooked rice etc. offered to the Deity
as per Dittam. The said section was enacted keeping in view the provision
of payment of salary to the archakas and other servants. The provisions,
G therefore, are not violative either of Article 25 or 26. (567-E)

26. Chapter VIX of the Act eXclusively deals with the management of
TID. So long as hereditary archakas, mirasidars or office-holders had
their hereditary right, as a part of their rendering service they were entitled
H to a share in the Prasadam or collections offered to the presiding Deity or
I

f
'
'
A.S.N. DEEKSHITULUv. STATE 555

other Deities of the temple as per the custom or usage prevailing in the A
/ particular temple or agree~ent between the management and the office-
holders. But on abolition thereof, as a corrollary, 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, B
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 cus- C
tomary practices or usages or under a contract with management also
stood abolished. They are regulated by making payment of the monthly
salary to tlie holder of an office in accordance with the scales prescribed
under the rules made thereunder. [630-C-F]

27. The gamekars (who prepare food items offered to God including D
Laddus) are species of mirasiders 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 been E
upheld, the case of gamekars cannot independently stand on any higher
footing. Therefore, abolition of their rights nuder Sections 34 and 144 is
equally valid in law. [630-H; 631-A-B]

28. There is no force in the contention that the power of transfer p
under Section 39 is within the grinding teeth of Article 25(1) of the
Constitution. Section 13 and 142 would take care of the apprehended
catastrophe. On mere apprehension, 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
s"mpradayams applicable to that particular temple, it would be con- G
.... sidered and dealt with accordingly. It cannot be expected that the Com-
missioner would act in violation thereof and would act in a way
inconsistent with Sections 13 and 142. Each case would be considered on
its own merits and correctness of snch transfer would be tested in ap-
propriate proceedings. Therefore, on that score alone, Section 39 cannot H
556 SUPREME COURT REPORTS [1996] 3 S.C.R.

A be declared arbitrary' or ultra vires or unjust. (631-H; 632-B·D]

29. The principles in fixing the scales of pay and method of payment
of salary introduced by the rules are required to be adjudge. Jn the absence
of any material it is di!licult for this Court to give any finding in that
behalf. However, liberty is given to place necessary material evidence
B before the Government which would constitute a Committee to go into the
question to rationalise 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. (632-F-H]
c
30. The State exercising its secular power regulates appointment of
archakas. Equally the Archaka along with his family, is required to be kept
with daily comfort so that he would continue to dedicate himself to perform
the ritual worship of the Deity. The State is required to determine his
service conditions, scale of pay and other emoluments according to the
D grade of the temple in which he works and to regulate the period of duty
and of service. That apart, welfare measures in addition should be initiated
as a measure of social welfare to the archaka and other employees of the
temple and pandits working in the temple and under the supervision of the
Commissioner. Therefore, the State should come forward with a scheme to
E provide the archakas, other employees and their family members like
suitable accommodation, education by way of refresher courses and cour-
ses in Agamas in the respective region, medical facilities, educational
facilities to their children, loans for construction of their own honses, and
wherever accommodation in the temple is available letting the same to them
on reasonable rent, group insurance scheme, unforeseen contingencies like
F accident, death etc., rehabilitation of the widow or educated unemployed
youth or snch other measures as may be incidental and part of economic
welfare. For other items appropriate scheme should be formulated. Accord·
ingly the State Government is directed to constitute a Committee. It would
be open to the representatives of the archakas etc. to place their views and
G material before the Committee in the formulation of the scheme. After the
scheme is formulated, the Government would take a decision thereon and
would place the duly approved scheme before this Court within six months
from the date of this judgment for fnrther action thereon. (633-B-H; 634-A]

31. To effectnate the scheme, tentatively a consolidated fund of Rs. 75
H crores shonld be set up as corpus and procedure should be evolved by the
I AS.N. DEEKSHITULU v. STATE 557

Government as to In which nationalised Bank or income yielding Govern- A
ment Securities the same would be deposited; as to who would operate and
disburse the income accrued from the fund from time to time. Subject to
fnrther revision, if any, in the above consolidated fund, the TID is directed
to deposit a sum of Rs. 20 crores into the fund during the financial year
1996-97 by end of June, 1996. In each financial year, a sum of Rs. 10 crores
be deposited till the corpus of Rs. 75 crores is reached. The Government is B
also directed to call upon other major temples with annual income of Rs.
20 lakhs or more, to contribute to the said fund of Rs. 75 crores. During
the financial year 1996-97, a sum of Rs. 5 crores by each of the major temple
may be directed to be deposited and in subsequent four years, a sum of Rs.
1 crore every may be directed to be deposited. It would also be open to the C
Government to seek donations from other charitable institutions within or
outside the State of Andhra Pradesh or from non-resident Indians. The
State Governments would also approach the Income-Tax Department and
the Government of India to exempt from income-Tax the said donation as
well as the income derived by way of interest or otherwise on the corpus of
or further amounts deposited into the fnnd. [634-A-F] D
Per Hansaria, !. (Concurring) :

1. This concurring note is only to highlight one facet of this case which
has its own importance. The same is the difference between "religion", a E
word used in Articles 25 and 26 and "Dharma" known to our psyche. Very
often the words "religion" and 11 Dharma" are used to signify one and the
same concept or notion; to put it differently, they are used inter-changeably,
This, however is not so. The word "religion" as used Articles 25 and 26 of
the Constitntion cannot be confined, cabin crabbed to what is generally
thought to be religion. The word religion in the two articles has really been F
used, not as is colloquially understood by the word religion, but in the sense
of it comprehending out concept of dharma. The English language having
had no parallel word to dharma, the word religion was used in these two
articles. It is a different matter that the word dharma has now been ac-
cepted even in English language. [635-H; 636-A-D]
G
Webster's New Collegiate Dictionary; Oxford Dictionary; referred to.

2. The word "religion" in Articles 25 and 26 has to be understood not
in a narrow sectarian sense but encompassing our ethos of"Serve Bhawan-
tu Sukhinah". Let us strive to achieve this; let us spread the message of H
558 SUPREME COURT REPORTS [1996] 3 S.C.R.

A our dharma by availing and taking advantage of the freedom .guaranteed
by Articles 25 and 26 of our Constitution. (639-G]

3. The essential aspect of our ancient though concerning law was the
clear recognition of the supremacy of dharma and the clear articulation
of the status of 'dharma', which is somewhat akin to the modern concept
B of the rule of law, i.e. of all being sustained and regulated by it. (637-E]

4. Having love for all human beings is dharma. Helping others ahead
of one's personal gain is the dharma of those who follow the path of selfless
service. Defending one's nation and society is the dharma of soldiers and
C warriors. In other words, any action, big or small, that is free from
selfishness is part of dharma. The signs and symptoms of dharma are that
which has no room for narrow-mindedness, sectarianism, blind faith, and
dogma. The pnrity of dharma, therefore, cannot be compromised with
sectarianism. A sectarian religion is open to a limited group of people
whereas dharma embraces all and excludes none. This is the core of our
D dharma, our psyche. (639-B, E-F]

Rig. Ved, Kama Paiva of the Mahabharata Chapter 69, Verse-58,
Brhadaranyakopanisad; Ashrama Vasika Parva of the Mahabharata Chapter-
s, Verse-9, Yoga Science and Philosophy of the USA in 1988, referred to.
E CIVIL ORIGINAL JURISDICTION : Writ Petition No. 638 of 1997
Etc. Etc.

(Under Article 32 of the Constitution of India.)

K. Parasaran, R. Venugopal Reddy, Dr. V. Gaurishankar, P.P. Rao,
F A. Raghuvir, Ms. Mridula Ray Bharadwaj, Dr. Sumant Bhardwaj, Mohan
Parasaran, V. Balachandran, P.N. Ramalingam, A.P.N. Rao, T.V. Ratnam,
Subodh Markandeya, Ajay Singh, Mrs. Chitra Markandeya, (Sunil Kumar
Jain) for Jain Hansaria & Co., G. Prabhakar, B. Kanta Rao, S. Rajappa,
Mrs, H. Wahi, R. Ashok, B. Parthasarathi, K. Rajendra Chowdhary, Y.
G Prabhakar Rao, M. Dorairaj, V. Balaji, A.T.M. Sampath, A. Subba Rao,
A. Raghunath, K. Swami, Ms. Thilagavathy, R.D.B. Raju, N. Ganpathv, K.
Ram Kumar, Ms. Asha Nair, C. Balasubrarnaniarn, Adinarayana Raju,
(T.V.S.N. Chari) (NP), P.K. Pillai, G. Prabhakar, G. Venkatesh Rao and
Ms. Sadhana Rarnachandran for the Appearing Party.

H The Judgment of the Court was delivered by
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 559

K. RAMASWAMY, J. This and connected writ petitions and transfer A
cases concerned the constitut_ionality of Sections 34, 35, 37, 39 and 144 of
I
the Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act (for short, the 'Act') abolishing hereditary rights of
archaka, mirasidars, gamekars and other office-holders and servants like
hereditary Karnam of Dwarka Thirumalai Temple in West Godavari Dis-
trict. The facts in Writ Petition No. 638/87 are sufficient for consideration
B
of questions raised in this batch of cases.

The petitioner is one of the Chief Priests (archaka) in an ancient and
renowned Hindu temple at Thirumala Tirupathi known in entire south-
Asia and abroad as Venkateswaraswamy temple and in north-India as c
Balaji temple in whose praise saint Annamacharya spent his life in singing
devotional songs - a practice devolved by custom and usage from over a
century. According to the petitioner, the office of archaka is succeeded
from forefathers in accordance with the Vaikhanasa Agama Shastra rules
which govern the temple on the principles of "heirs in line of succession"
among four families, viz., Paidapally family, Gollapalli family, Pethainti
D
family and Thirupahanna Garn family. The petitioner belongs to the
... Paidapally family. According to the petitioner, being Hindu vaishnavas,
they render Archaktwam service in the holy temple of Lord Venkateswara
situated on the top of seven hills or Saptagiri, Thirumalai. The temple is
presided over by Lord Venkateswaraswamy known by different names. E

Religion is inspired by ceaseless quest for truth which has many
facets to release and free the soul from ceaseless cycle of birth and death
to attain salvation. Hindus believe that worship consists of four forms of
' which idol worship is one such form. Mode of worship varies among F
" persons of different faiths. It is an assimilation of the individual soul with
the infinite. For its attainment diverse views and theories have been
propounded and one of them is idol worship. Hindu creed believes that
the Supreme Being manifests Himself with three aspects as Brahma, the
Creator, Vishnu, the Preserver and Shiva, the Destroyer and Renovator.
Those who believe and are devoted to the worship of Vishnu are known G
as Vaishnavas and those who worship Shiva are called Saivites.
...
Vaishnavas believe that God had manifested Himself in different
incarnations. In other words, manifesting Himself into flesh and the very
contrary of avatara which is expressive absolute and immaculate. The finite H
560 SUPREME COURT REPORTS (1996] 3 S.C.R.
\
I

A forms of His avatara are not forms of material impurity but imperium
purity, the purity of Suddhasattva. Vaishnava believes in Deity Vishnu who
has manifested Himself in 10 avataras. Lord Vishnu descends in one
avatara 'Archavatar'. It is a Deity in the form of idols in the temple.

B The institution of temple should be in conformity with the Agamas
co-existing with the institution of temple worship. Construction of the
temple and the institution of archakas simultaneously came into existence.
The temples are constructed according to the Ag~ma Shastra. In accord-
ance with the Agama Shastra, archaka as professional man, attends on
idols. He is associated with existence of temple over centuries as part of
C its establishment. The authority of Agama is judicially recognised in several
precedents of various courts including this Court. Agamas are treaties of
ceremonial law dealing with matters such as construction of temples,
installation of idols therein and conducting worship of the Deity. 28
Agamas related to the Shiva temples. The Agamas of Vaishnavas are
D Pancharatra Agamas containing elaborate rules regulating how the temple
should be constructed, whereat the principal Deity is to be consecrated,
where the other Devatas (idols) are to be installed and place where
worshippers should stand and worship the Deity. Though Agamas
prescribed class discriminatory placement for worship in the temples, it
became obsolete after the advent of the Constitution of India which, by
E Articles 14, 15, 17, 21, 25 and 26, prohibits discrimination on grounds only
of caste, class, sect etc.

The consecration of idol should be done by the priest according to
F elaborate and complicated rituals accompanied by chanting of mantras and
devotional songs appropriate to the Deity. Hindu worshippers believe that
the divine spirit has descended in the Deity's images and if efficacy and
power of the Lord are transmitted into the Deity, the image of the Deity
becomes fit to be worshiped. Rules have been provided to conduct peri-
odical or daily worship for securing continuance of the divine spirit in the
G image. According to Marishi Maharishi in his discourse to his disciple on
need for war.hip for salvation had ordained that worship of Deity in the
temple will bring all the benefits. The purpose of the temple is to provide
opportunity for public worship of the Deity. When congregation of wor-
shippers participate in the worship, a particular attitude of aspiration of
H devotion gets developed and confers great spiritual benefit.
! A.S.N. DEEKSHITIJLUv. STATE [K. RAM~WAMY, J.) 561

The priest preserves the image from pollution, defilement or deseera- A
tion. By performing rituals, rites and reciting hymns he makes Lord present
in definable and describable way and Vishnu manifests in the hearts of the
devotees. It is the religious belief of Hindu worshippers that when the
image is polluted or defiled, the divine spirit in the image is diminished or
even vanished. According to the Agamas, an image becomes, defiled if B
there is any departure or violation of any of the rules relating to worship.
It would then become necessary to perform purifieatory ceremonies to
restore the sanctity of the shrine. The performance of ritual' thus plays a
great role to sustain the faith of the layman in the deity. Therefore, the
Agama rules are part· of Hindu religious faith. Any departure from the
traditional rules of worship would result in pollution. C

Only qualified archaka is entitled to step inside the sanctum
sanctomm (Garbhagriha) after observing daily discipline imposed upon
him by the Agamas. It is his sole duty to perform daily rituals and
ceremonies according to Agama prescriptions touching the Deity. Touch D
of the image of the Deity by any other person would defile the idol.
Therefore, the Agama assigns that duty to the archaka alone as part of
religious practice. He performs Archana and other services on behalf of
the·. "Sevarthies" or worshippers. The services of archaka, therefore, are
integrally and inseparably connected with the performance of daily rituals
in pooja (worship) to the Deity. E

Consequently, devotees of the respective Vaishnavite or Saivite
temples alone are entitled to be archakas in the respective temples. In a
Saivite temple, a Vaishnavite cannot be an archaka and vice versa, though
there is no bar for them worsbipping either Deity as a lay worshipper. F
Therefore, any other archaka is not competent to do pooja in Vaishnavite
temple according to Vaikhanasa Agama Shastra. This is the general rule
applicable to all the temples. Even among Vaishnavites there is further
distinction between pancharatra and valikhanasa system of performing
rites. It is, therefore, clear that archaka of a temple, besides being profi-
cient in the rituals appropriate to the worship of the particular Deity G
according to Agamas, must also belong to a particular denomination.
Thereby, archaka occupies an important place in religious part of temple
worship.

Unlike other temples, Thirumalai Lord Venketeswaraswamy temple H
562 SUPREME COURT REPORTS [1996] 3 S.C.R.

A has peculiar feature of its own, namely, certain special ceremonies and rites
distinct for this temple should be done strictly, as mandated by the Vedas
and Agamas by the archakas who profess and practise Vaikhanasa Agamas
and succeed to the office of archaka hereditarily and are governed by the
Vaikhanasa Agama and are of Vaishnavite faith. The principle of heredity
thereby became part of usage.
B
The management of the temple prior to the statutory intervention
was in the hands of Dharmakartas (Padda Jeengar). Equally other classes
of persons like Chinna Jeengar, Acharya, Purrushas and Gamekars were
in charge of making prasadams, like Laddu and doing other forms of
C services like maintenance of the temple by shepherd community and other
local communities, are part of the hereditary system.

All of them are given certain rights known as "Mirasi rights". They
earn their livelihood through these mirasi rights which include lands given
D by the temple for performance of services. Besides, archkas have shares
out of the offerings made to the temple, while persons in charge of
preparing prasadams will get percentage of share out of the sale of
parasadams. All persons in charge of various activities of the temple
-.
succeed hereditarily. The right of management was acquired by birth and
every person born in the respective classes is entitled to a share in the
E perquisites incidental to management. The temple is managed by these
persons by turns among them. Dharamkarthas and archakas had framed
rules for management of the temple, Even after the statutory take-over of
the management by the Endowment Department or Government, custody
of the properties, particularly jewels, remained with archakas and the
F custody changed hands to each family according to turns from time to time. •
Head priest remained in charge of doing pooja for a particular period;
when his family got the charge once in four years or eight years, he would
be in charge of all the valuables. Though the value of the jewellery and
other valuables of the temple was of several crores, there was never any
complaint of any sort regarding their custody and management of the
G jewellery and other valuables. All the functions done by archakas constitute
an integral and inseparable part of the management of the temples and
religious ritual practices and usages. Even the food offerings and prepara- b
tion of prasadams, i.e., Dittarn, are part of the religious practice evolved
in the temple and are to be prepared by persons well versed in the Agama
H Shastras.
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 563

The State Government had constituted a commission headed by A
Justice Challa Kondaiah, former Chief Justice of Andhra Pradesh, as its
Chairman; the composition thereof changed and ultimately a three-mem-
ber Commission consisting of the Chairman, Dr. C. Annarao, former
Chairman of Thirumala Tirupathis Depasthanams (for short, the 'TTD')
for a decade having first-hand personal experience in the working of the
system and management of TTD; and Shri A.V. Suryarao, an advocate,
B
Joint Commissioner of Endowment Department having expert knowledge
in working out the Madras Act, Telangana Act and the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act, 1966
(for short, 'predecessor Act 17 of 1966) and known for his devoted service,
as Member Secretary, came in existence. The Commission submitted its C
report in three printed volumes which have been placed. before us and
copiously relied upon and referred to. It had recommended"abolition of
hereditary archakatwam service and trusteeship etc. On its basis, the Act
was made, which has come into force w.e.f. May 23, 1987 aftef' i.t received
Presidential assent. It repealed it predecessor Act 17 of 1966.
D
Shri K. Parasaran, learned senior counsel, who addressed leading
arguments on behalf of the petitioner and which were adopted by other
learned counsel, contended that abolition of hereditary rights created by
the founders in rendering services to the temples by archaka etc. in
charitable or religious institutions and endowments is an interference with E
religious and customs which are part of religion. The Act should not look
at archakas or other office-holders in isolation; they should be considered
in its pragmatic whole whose impact would be to destroy the concept and
content of Hindu religious belief itself. The scheme of the Act as such is
an unwarranted and outrageous interference with the religion, that is to F
say, it aims to abolish all existing religious office, religious usages and
practices and confers on the secular State power to decide as to who should
be appointed as archaka, mirasider and other office-holders destroying the
existing customs, usage and traditions which are integral part of religion.
Article 25 and 26 of the Constitution deal with guarantee not only of
matters of doctrine and beliefs but also the practices of it, to be ascertained G
with reference to the tenets and doctrine of the religion itself as is
evidenced by custom and usage. Where the religious affairs and ceremonies
are carried on in accordance with a particular Agama Shastra, deviation
therefrom is impermissible. The archaka is part of the temple worship and
the rights of an archaka are succeeded by heredity from generation to H
564 SUPREME COURT REPORTS [1996] 3 S.C.R.

A generation treating him as an original Acharya. As followed in Vaikhanasa
Agama, the daily rites, rituals and ceremonies performed by them extend •
to daily worship, offerings of food and performance of special ceremonies
in a particular way wit!! all piety and devotion as integral part of religion.

Archakatwam service would thus form part of religious service in-
B tegrally connected with the religion. Therefore, Sections 16, 34 to 37, 39
and 144 of the Act are ultra vires Articles 25(1) and 26(b) of the Constitu-
tion. They do not relate to public order, morality, health or matters relating
to economic, financial, political or other secular activities associated with
religious practices nor do they relate to social welfare or reform. Therefore,
C they are not saved either by Article 25(2) or 26 of the Constitution.

The emoluments attached to the office are for discharge of daily
obligations by an archaka and the right to a share in the collections is
beneficial interest attached to the office. The deprivation thereof denudes
D the archaka or office-holders of the means to discharge the duties and
would destroy the character of worship itself. The reimbursement by way
of payment of salary is calculated to make archaka unfit to discharge his
duties, integral to worship. The restrictions imposed are offensive of Ar-
ticle 25(1) and being arbitrary, unjust and unfair, violative of Article 14.
Making the archaka a servant under the State Department is contrary to
E the code of conduct laid down by Agamas for an archaka, an integral part
of religious practice. Therefore, it cannot be a subject matter of any
legislation. Even if a legislation comes under social welfare, public order,
morality or health or any other field, it can only regulate and restrict the
secular activity by cannot altogether or abolish or totally charge the system
'
F which had formed an essential part of the religion. Therefore, the law
taking away the hereditary right from the petitioners offends Articles 25(1)
and 26.

The Commissioner who is a bureaucrat has no competence or
qualifications to judge or test the qualifications, merit or work of an
G archaka who learns the Agama Sutras by heart from child- hood. Being
born in the hereditary family, they would learn recitation of slokas and b
mode of performance of worship as per Agama. The Commissioner cannot
regulate by law nor has he competence to test his qualification or
suitability for appointment. Therefore, though being secular act, hereditary
H right of an archaka may be abolished since qualification for appointment
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 565

flows from the Agamic rule, only descendants of particular family are A
competent to conduct worship and they alone have the right to appoint-
ment and they cannot be tested nor can their competence be determined
by the Commissioner.

Public interest requires that rites or rituals must be performed by an
archaka and public duty towards the general worshippers demands that B
archaka who is interested in ritual form of worship would alone be ap-
pointed as priest. They would be available only in the families of archakas
from generation to generation. Payment of share in the offerings is part of
religious practice and usage. No question of money consideration or
emoluments in that behalf for the performance of his duties, would arise. C
Archaka is entitled to the share in Parsadams, laddus and collections in
the prescribed manner as part of religious customs and usages. The scheme
under the Act and rules are wholly misconceived and repugnant to the
established religious practice.

D
There is nothing in the Act to show that it was enacted in the interest
of public order, morality and health, which alone are relevant factors to
restrict freedom of religion or religious practices guaranteed by Article
25(1) of the Constitution. The State cannot, under the pretext of making
secular law, regulate or restrict activities which are integrally associated
with religious purposes. E

Vaishnava archaka cannot be transferred to and posted even in
another similar Vaishnava temple situated elsewhere as no two temples
perform same ceremonies and rituals in the same order. The Pedda
Jeengar and Chinna Jeengar are religious heads and importance of their F
office was judicially recognised by the Privy Council. Therefore, their
offices are hereditary and cannot be abolished under the Act. A Brah-
machari cannot be appointed as an archaka which is antithesis to the
Agarna Shastra. He cited the instance of performance of rituals by
hereditary archakas in Padmawati and Lord Venkateswaraswamy temples.
He placed voluminous evidence of prevalence of the hereditary system in G
different States and those Acts did not abolish the system. He placed
strong reliance on the decision of this Court in Seshammal and Ors. Etc.
Etc. v. State of Tamil Nadu, [1972] 3 SCR 815, apart from the leading
judgment in The Commissioner, Hindu Religious Endowments, Madras v.
Lakshmindra 171irtha Swamiar of Sri Shirur Math, [1954] SCR 1005. H
\
566 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Shri P.P. Rao, learned senior counsel for the State, contended that
the Act made a clear distinction between matters of religion and religious
practices and secular activities or a religious institution or endowments.
Sections 13, 23, and 142 of the Act have taken care to preserve all the
existing religious usages, practices and sampradayams as valid. Apart from
B preserving them, lhe Act mandates the officers not to violate their practice.
The Act seeks to regulate only the administration and maintenance of
secular part of the religious institutions or endowments. The Act does not
affect any honour to which any person including archaka or Jeengars are
entitled by custom. The Act does not interfere with the performance of any
religious worship or ceremony, nor does it object to any religious
C institution's functioning according to the Sampradayams and Agamas fol-
lowed by them.

Article 25(2) permits regulation of any secular activity associated
with the religious practice. Appointment of an archaka is a secular activity.
D Archakas, Jeengars and others are employees of TTD. Though the Pedda
Jeengars and Chinna Jeengars have the status of Mathadhipathi in relation
to their Math, in relation to TTD, their status is only that of employees.
The Commission had gone into these aspects and recommended for their
abolition. There had been compromise with the TTD by hereditary ar-
chakas and mirasidars on May 30, 1979 to receive emoluments at certain
E rates which would establish that sharing of food offerings and laddus etc.
is not part of religious practice. The archakas and gamekars have not been
rendering any service personally but only through their deputies working
for and on behalf of head priests for consideration. The hereditary nature
of the right, therefore, became irrelevant. Vaikhanasa Agama nowhere
F mandates that the members of the families referred to in the writ petition
alone are entitled to perform the service, though they belong to Vaikhanasa
sect and are Srivaishnavites. Hereditary right which governs the appoint-
ment of archaka is a secular usage which could be regulated by law. The
mere fact that in some temples elsewhere, the hereditary principle is being
followed would not denude the power of the legislature to enact the Act
G abolishing hereditary rights and emoluments attached thereto.

As a corollary to the abolition, legislature is competent to prescribe
qualifications for archakas (in Section 36) supplemented by the rules made
in that behalf. The Commissioner of Endowment Department, with the
H guidance and assistance of scholars in the Agamas, discharges statutory
J
(
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.) 567

functions. Training in those subjects as provided in the rules and recom- A
mended by the scholars in Vedas is imparted in schools established in three
places in Andhra Rayalseema and Telengana regions; examinations are
conducted as per questions set out by the scholars in the respective subjects
and assessed by them. So, the prescribed qualifications are valid qualifica-
tions for appointment. The rules laid down only a preferential claim for B
Brahmachari while all others are treated alike in adjudging the claims of
all qualified archakas. The power to transfer archakas is regulated by
Section 39. It must be read in the light of the guidance found in Sections
13 and 142. Therefore, archakas who are competent and well-versed in
rituals, rites, pooja as per existing religious usages and customs of that
particular institution alone would be transferred. Rule 7 of the Rules made C
in the predecessor Act 17 of 1966 in this behalf expressly preserved and
regulated the said safeguards. They would continue to be in force by
operation of Section 155(2) of the Act, till new rules are made in that
perspective. Since customary emoluments attached to the service have been
abolished, regular salary and other allowances are admissible to them.
D
Independently, the archakas are entitled to what has been offered
actually to the Deity and not to the Prasadams. Section 144 abolishes only
shares in hundi collections and other rusums but not Nitya Naivadyam, i.e.,
cooked rice etc. offered to the Deity as per Dittam. Section 144 was
enacted keeping in view the provision of payment of salary to the archakas E
and other servants. The provisions, therefore, are not violative either of
Article 25 or 26.

With a view to appreciate the respective contentions, it is necessary
to understand the scope, content and effect of the impugned provisions of
the Act. Section 2(3) defines "charitable endowment", Section 2(4) F
"charitable institution11 and "charitable purpose" has been defined under
Section 2(5). Section 2(15) defines "hereditary office-holders". "Religious
institution" has been defined under Section 2(23), "Temple" under Section
2(27) and "Thirumala Tirupathi Devasthanams" under section 2(28). Sec-
tion 34 abolishes hereditary rights in mirasidars, archakas and other office- G
holders and servants and reads thus :

"34.(l)(a) Abolitio11 of hereditllly rights i11 Mirasidars, archakas, a11d
other office-holders a11d servants :-

(l)(a). Notwithstanding anything in any compromise or agreement H
\
\
I

568 SUPREME COURT REPORTS [1996] 3 S.C.R.

A entered into or scheme framed or sanad or grant made or judg-
ment, decree or order passed by any Court, Tribunal or other
authcrities prior to the commencement of this Act and in force on
such commencement, all rights, whether, hereditary, contractual
or otherwise of a person holding any office of the Pedda
Jeeyanagar, Chinna Jeeyangar, a Mirasidar or an archaka or Pujari
B or any other office or service or post by whatever name it is called
in any religious institution or endowment shall on the commence-
ment of this Act stand abolished.

(b). Any usage or practice relating to the succession to any office
c or service or post mentioned in clause (a) shall be void;

(c) All rights and emoluments of any nature in cash or kind or
both accrued to an appertaining to any office or service or post
mentioned in clause (a) and subsisting on the date of commence-
ment of this Act shall on such commencement stand extinguished.
D
(2) Every office-holder and servant mentioned in clause (a) of
sub-section (1) holding office as such on the date of commence-
ment of this Act shall, notwithstanding the abolition of the
hereditary rights, continue to hold such office or post on payment
of only such emoluments and subject to such conditions of service
E referred to in sub-section (3) and (4) to Section 35."

Section 35, consequently, provides procedure for appointment of
office-holders and servants etc. and Section 36 prescribes qualifications for
archakas. Section 37 deals with discipline among them and prescribes
F disciplinary procedure for the office-holders and servants. Section 38 gives
power to the Commissioner etc. in certain cases and Section 39 regulates
transfer of office-holders and servants. Section 40 directs office-holders or
servants not to be in possession of jewels etc. except under conditions
mentioned thereunder. Section 144 abolishes shares in hundies and other
G rusums which reads thus :

"144. Abo/itio11 of shares in Hundi and other JUS1w1s :- Not-
withstanding any judgment, decree or order of any Court, Tribunal
or other authority or any scheme, custom, usage or agreement, or
in any manual prepared by any institution or in any Farmana or
H Sanad or any deed or order of the Government to the contrary
(
A.S.N.DEEKSHITULUv. STATE[K.RAMASWAMY,J.) 569

governing any charitable or religious institution or endowment, all A
shares which are payable or being paid or given or allowed at the
commencement of this Act to any Trustee, Dharmakartha,
Mutawalli, any office-holder or servant including all offerings made
in the premises of the Temple or at such places as may be specified
by the Trustee, all Prasadams and Panyarams offered either by the B
Temple or devotee, and such other kinds of offerings, all shares
in the lands of the institution or endowment allotted or allowed to
be in possession and enjoyment of any archaka, office-holder or
servant towards remuneration or otherwise for rendering service
and for defraying the 'Paditharam' and other expenses connected
with the service or management of the temple, shall stand C
abolished with effect on and from the commencement of this Act."

Chapter XIV deals with application of the Act to Thirumala
Tirupathi Devasthanams, constitution of Board, powers and functions of
the Board of Trustees etc., making the Act a complete code as regards the
management and maintenance of the institutions or endowments belonging D
to Deity.

The concept of Hindu religious faith and practice referred to in the
judgments in the narration of the facts needs preface with inner depth of
religion as revealed by (1) Swami Vivekananda's scholastic concepts in his E
"The Complete Works", Vol. I, at page 124; and (2) broad spectrum of
self-realisation by Sri Aurobindo, Swami Vivekananda had stated that :

"Each soul is potentially divine. The goal is to manifest this divinity
within by controlling nature, ei;ternal and internal. Do this either
by work, or worship, or psychic control, or philosophy-by one, or F
more, or all of these- and be free. This is the whole of religion.
Doctrines, or dogmas, or rituals, or books, or temples, or forms,
are but secondary details.

Religion is based upon faith and belief, and, in most cases, G
consists only of different sets of theories, and that is the reason
why there is difference in form."

Thereafter, at page 341 he had stated that :

"Get rid, in the first place, of all these limited ideas of God and H
570 SUPREME COURT REPORTS [1996) 3 S.C.R.
\
A see him in every person - working through all hands, walking
through all feet, and eating through every mouth. He lives, through
all minds of his thinking. He is self-evident, nearer unto us than
ourselves. To know this is religion, is faith, and may it please the
Lord to give us this faith."

B Shri Aurobindo, one of the illustrious revolutionary patriots and
philosophers of Bharat, in his "The Human Cycle, the Ideal of Human
Unity War and Self-Determination" had in Chapter XVII 'Religion as the
Law of Life' elucidated its real content and purpose thus :

"The absolute and transcendent, the universal, the One is the secret
'
c summit of existence and to reach the spiritual consciousness and
the Divine the ultimate goal and aim of our being and therefore
of the whole development of the individual and the collectivity in
all its activities, reason cannot be the last and highest guide; culture
as it is understood ordinarily, cannot be the directing light or find
D out the regulating and harmonising principle of all our life and
action. For religion is that instinct, idea, activity, discipline in man
which aims directly at the Divine, while all the rest seem to aim at
it only indirectly and reach it with difficulty after much wandering
and stumbling in the pursuit of the outward and imperfect ap-
E pearances of things. The whole root of the historic insufficiency of
religion as a guide and control of human society lies in confusion
of religion with liberty, creed, sect, cult, religious society are such."

At page 166 he elaborated that :

F "It is true in a sense that religion should be dominant thing in life,
its light and law, but religion as it should be and is in its inner
nature, its fundamental law of being, a seeking after God, the cult
of spirituality, the opening of the deepest life of the soul to the
indwelling Godhead, the eternal Omnipresence. On the other
hand, it is true that religion when it identifies itself only with a
G creed, a cult, a Church, a system of ceremonial forms, may well
become a retarding force and there may therefore arise a necessity
for the human spirit to reject its control over the varied activities
of life. There are two aspects of religion, trne religion and religionism.
.Trne religion is spiritual religion, that which seeks to live in the spirit,
H in what is beyond the intellect, beyond the aesthetic and ethical and
I AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY,J.] 571

practical being of man, and to info1111 and govem these members of A
our being by the higher light and law of the spi1it, Religionism, 011
the contra1y, entrenches itself in so111e na1roiv pietistic exaltation. of
the lower n1en1bers or lays exclusive stress on intellectual dogrnas,
fonns and ceren1onies, on some ftxed and n'gid n1oral code, on sonic
religio..political or religio- social system. Not that these things are B
altogether negligible or that they must be unworthy or unnecessary
or that a spiritual religion need disdain the aid of forms,
ceremonies, creeds or systems. On the contrary, they are needed
by man because the lower members have to be exalted and raised
before they can be fully spiritualised, before they can directly feel
the spirit and obey its law." C
(Emphasis supplied)

At pages 168-69 he added that :

"Only by the light and power of the highest can the lower be D
perfectly guided, uplifted and accomplished. The lower life of man
is in form undivine, though in it there is the secret of the divine,
and it can only be divinished by finding the higher law and the
spiritual illumination............. The spiritual man who can guide
human life towards its perfection is typified in the ancient Indian E
idea of the Rishi, one who has lived fully the life of man and found
the word of the supra-intellectual, supramental, spiritual truth. :

In Chapter XXXJV at pages 541-42, he opined that :

Humanitarianism has been its most prominent emotional result. F
Philanthropy, social service and other kindred activities have been
its outward expression of good works. Democracy, socialism,
pacificism are to a great extent il' by-products or at least owe much
of their vigour to its inner persence.

The fundamental idea is that mankind is the godhead to be G
worshipped and served by man and that the respect, the service,
the progress of the human being and human life are the chief duty
and chief aim of the human spirit. No other idol, neither the nation,
the State, the family nor anything else ought to take its place; they
are only worthy of respect so far as they are images of the human H
572 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
\

A spirit and enshrine its presence and aid its self-manifestation. But
where the cull of these idols seeks to usurp the place of the spirit
and makes demands inconsistent with its service, they should be
put aside. No injunctions of old creeds, religious, political, social
or cultural, are valid when they go against its claim."

B At page 543, he mentioned that :

"One has only to compare human life and thought and feeling a
century or two ago with human life, thought and feeling in the
pre-war period to see how great an influence this religion of
humanity has exercised and how fruitful a work it has done. It
c accomplished rapidly many things which orthodox religion failed
to do effectively, largely because it acted as a constant intellectual
and critical solvent, an unsparing assailant of the thing that is and
an unflinching champion of the thing to be, faithful always to the
future, while orthodox religion allied itself with the powers of the
D present, even of the past, bound itself by its pact with them and
could act only at best as a moderating but not as a reforming force.
Moreover, this religion has faith in humanity and its earthly future
and can therefore aid its earthly progress, while the orthodox
religions looked with eyes of pious sorrow and gloom on the earthly
E life of man and were very ready to bid him bear peacefully and
contendedly, even to welcome its crudities, cruelties, oppressions,
tribulations as a means for learning to appreciate and for earning
the better life."

At pages 546-47, he concluded his thoughts on brotherhood thus :
F
"Yet is brotherhood the real key to the triple gospel of the idea
of humanity. The union of liberty and equality can only be achieved
by the power of human brotherhood and it cannot be founded on
anything else. But brotherhood exists only in the soul and by the
soul; it can exist by nothing else. For this brotherhood is not a
G matter either of physical kinship or of vital association or of
intellectual agreement. When the soul claims freedom, it is the
freedom of its self-development, the self-development of the divine
in man in all his being. When it claims equality, what it is claiming
is that freedom equally for all and the recognition of the same soul,
H the same godhead in all human beings. When it strives for brother-
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 573

hood, it is founding that equal freedom of self-development on a A
common aim, a common life, a unity of mind and feeling founded
; upon the recognition of this inner spiritual unity. These three things
are in fact the nature of the soul; for freedom, equality, unity are
the eternal attributes of the Spirit. It is the practical recognition
of this truth, it is the awakening of the soul in man and the attempt B
to get him to life from his soul and not from his ego which is the
inner meaning of religion, and it is that to which the religion of
humanity also must arrive before it can fulfil itself in the life of the
race."

At page 594, he stated as under : c
"Later religions gave a name and some body of form and quality
to the one unknown Godhead and proclaimed an ideal law which
they gave out as his word and scripture. But the dogmatism of a
partial and unlived knowledge and the external tendencies of the D
human mind darkened the illuminations of religion with the con-
fusions or error and threw over its face strange masks of childish
and cruel superstitions. Religion too by putting God far above in
distant heavens made man too much of a worm of the earth, little
and vile before his Creator and admitted only by a caprice of his
favour to a doubtful salvation in super· human words. Modern E
thought seeking to make a clear riddance of these past conceptions
had to substitute something else in its place, and what it saw and
put there was the material law of Nature and the biological law of
life of which human reason was to be the faithful exponent and
human science the productive utiliser an_d profiteer. But to apply F
the mechanical blindness of the rule of physical Nature as the sole
guide of thinking and seeing man is to go against the diviner law
of his lieing and main his higher potentiality. Material and vital
Nature is only a first form of our being and to overcome and rise
beyond its formula is the very sense of a human evolution. Another
and greater Power than hers is the master of this effort, an_d human G
reason of human science is not that Godhead, but can only be at
best one and not the greatest of its ministers."

Dr. S. Radhakrishnan, the philosopher - President of India, had
stated, as quoted by this Court in Shirur Math's case, that religion is a H
574 SUPREME COURT REPORTS [1996]3 S.C.R.
\
A specific attitude of self, itself no other, though it is mixed up generally with
intellectual views, aesthetic forms and moral valuations. Religion is ab-
solutely a matter of faith with individuals of communities and it is not
necessarily theistic.

Taittiriya Upanishad says in Brahmananda Valli, Serial No. 7, that in
B the beginning all this Universe was Non-Existent and Un-manifest, from
which this Manifest Existence was born itself, none other created it.
Therefore, they say that it was well and beautifully made, Shri Aurobindo
says in his magnum opus Life Divine: World-existence is the ecstatic dance
of Shiva which multiplies the body of the God numberlessly to the view; it
C leaves that while existence precisely where and what was, ever is and ever
will be; its sole absolute subject is the joy of the dancing. In Rig Veda, the
Hymns of Bharadwaja, spoke about universal Force that "The heights of
heaven were measured into form by the eye of this universal Force they
were shaped by the institution of the Immortal."

D
The world is the creation of the braht conscient energy of the
Supreme Spirit "apraketam salilam sarvam idam tapasas tan mahina ajayata
ekam". (Out of all the ocean of inconscience it is that one spiritual Existent
who is born by the greatness of his own energy). Braht Vedic thinkers, like
ancient Greeks in their search for the first ground of all changing things,
E looked upon water, air, fire etc. as the ultimate elements out of which the
variety of the world is composed. In the pluralistic stage several Gods like
Pavana, Indra, Agni etc. were looked upon as the authors of universe. In
monoistic philosophy there exist unsolved question whether God created
world out of his own nature and its existence is an absolute reality which
F we cannot call it either as existent or non-existent. For to Deussen the
central Upanishadic thought declares that the world in space and time is
an appearance, an illusion, a show of God. To know God, we must reject
the world of appearance. What inclines Deussen to this view in his own
belief that the essence of every true religion is the repudiation of the reality
of the world. Having come to that conclusion on independent grounds, he
G is anxious to find support, as Prof. S. Radhakrishnan argues, for his
doctrine in the philosophic systems of ancient India, the Upanishads and
Sankara, ancient Greece, Parmenides and Plato, and modern Germany,
Kant and Schopenhauer. Shri Aurobindo conceived of the Absolute
Reality, as a triune principle thus : "The Absolute Reality is the
H Satchidananda, that is, Existence-Consciousness Force-Bliss. The Absolute
! A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 575

as a Pure existent is no doubt the fundamental reality, but movement, A
energy, process is equally a reality".

The fundamental desire of man to make peace with his inner-self and
bring to bear an experience of transmutation of the current personality into
a vibrant, Centre of energy of deep fulfilment and happiness. Article 25(1)
of the Constitution guarantees freedom of conscience and right to freely B
profess, practise and propagate reli!,>iOn. To what extent inner layers of
religion in the Hindu dharma are protected by Articles 25 and 26 is the
core question from which a deduction could be drawn whether the Act
t interferes with them violating Articles 25(1) and 26.
c
The very attempt to define religion to find some distinct or possible
unique essence or set of qualities that distinguish religion from the
remainder of human life, is primarily a Western speculative, intellectualistic
and scientific disposition. It is also the product of the dominant Western
religious mode or custom of religious people. Even the Western thinkers D
recognise their cultural bias in the concept of religious assumptions of
i" theism permeating their thought. Encyclopedia of Religion by Mircea
Eliasde (Vol. 12) states that religion is the organization of life around the
deep dimensions of experience - varied in form, completeness, and clarity
in accordance with the environing culture. If religiousness is a depth-aware-
ness coming to distinctive expression in the forms we call religion, how is E
religiousness distinguished from various other types of awareness such as
the aesthetic and ecstatic - what Abraham Maslow (1964) calls "peak
experiences" and Marghanita Laski (1961) terms "non-religious ecstasy"
and the states of "altered consciousness" produced by various
psychosomatic techniques or drugs ? On Hindu religion, at page 290 it is p
stated that "yet deep within ritualism there is inherent the concern for
accuracy and faithfulness. This is the essentially sacramental nature of
ritual that arises from its nature as an ordered symbol system. Thus both
symbol and ritual are perceived as intrinsic embodiments of the sacred
essence, the supersensible and indescribable ultimacy of a religion. Thus
ritual and symbol bring the real presence of the religious depth-dimension G
into the lives of its experiments and in so doing become incredibly pre-
cious11.

At page 292, it is further stated under the caption "Religion and
Modernity" that "the question whether religion, at least, in its traditional H
576 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
I

A forms, will survive the ongoing cultural changes of modern limes is often
discussed. Certainly many traditional and current formulations, and per-
haps entire traditions, will radically change or even disappear, yet it also ~
seems that as soon as one form of religion disappears, another rises lo take
its place Without asserting a religious instinct in mankind, it may perhaps
11
•

be said that man is incessantly religious in one way or another and that the
B
human situation and human nature make it inevitably so. The immense
mysteries and uncertainties of the world and man's own inquiring and
evaluating self-consciousness make inevitable a reaching out for some sort
of ultimate values and realities - which is yet another name for the religious
quest.
c
Religion is thus eternal and in development is in search of God
throughout history, building into a fuller religious life. The eternal religion
remains unchanging but the form and content keep changing with the
change of times with the experience of the past keeps to preserve to the
fullest religious life. But as Shri Aurobindo put it the religiousness of man
D descends him into lower levels and due to confusion predominance is given
to forms like rituals etc. So Join Macmurray in "Reason and Emotion"
(Faber and Faber Publication) at page 40 states thus :

"....religion is also the consciousness of life in God; that which we
E seek for is also there always eternally in us. It is this eternal aspect
of religion which is expressed in the religious recognition of
equality in all human life at any stage of its development; in the
knowledge that all distinction of superiority and inferiority are
relative distinctions; and that ultimately all persons and all personal
experience are of equal, because of eternal or infinite, worth. Just
F so in love between two persons, if it is a real love, there is a sense
in which it is always perfect and complete, and this, as we know
very well, is not in contradiction with the fact of development in
that love; it is indeed, the condition of the development".

G Julian Huxley in his "Evolution After Darwin" Vol. III page 259 under
the subject "The Evolutionary Vision" has stated thus :

"Once we truly believe ... that man's destiny is to make possible
greater fulfilment for more human beings and fuller achievements
by human societies, utility in the customary sense become subor-
1i
H dinate. Quantity of material production is, of course, necessary as
! AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 577

the basis for the satisfaction on elementary human needs-but only A
up to certain degree. More than a certain number of calories of
cocktails or T.V. sets or washing machines per person is not merely
unnecessary, but bad Quantity of material production is a means
to a further end, not an end in itself.

The Upanishads teach us that India has sought in religion not an B
absolute or finished dogma to believe in, but a method and means to pierce
the veil that hides every present meaning and mystery of existence. Robert
Ernest Hume in his "the Thirteen Principal Upanishads" at page 30 foot-
note states that "the earnestness of the search for truth is one of the
t
delightful and commendable features of the Upanishads". C

Swami Vivekananda in his lecture on "Religion and Science" incor-
porated in "The Complete Works" (Vol. VI, Sixth Edition) had stated at
page 81 thus :

"Experience is the only source of knowledge. In the world, religion D
is the only science where there is no surety, because it is not taught
as a science of experience. This should not be. There is always,
however, a small group of men who teach religion from experience.
They are called mystics, and these mystics in every religion speak
the same tongue and teach the same truth. This is the real science
of religion. As mathematics in every part of the world does not E
differ, so the mystics do not differ. They are all similarly constituted
and similarly situated. Their experience is the same; and this
becomes law. 11

In Volume II, Ninth Edn. at page 432, Swamiji said that :
F
"There are two worlds : the microcosm and the macrocosm, the
internal and the external. We get truth from both these by means
of experience. The truth gathered from internal experience is
psychology, metaphysics and religion; from external experience,
the physical sciences. Now a perfect truth should be in harmony G
with experience in both these worlds. The microcosm must bear
testimony to the macrocosm and the macrocosm to the microcosm;
physical truth must have its counterpart in the internal world, and
internal world must have its verification outside;".

Swami Vivekananda in his "The Complete Works", Vol. 1, Eleventh H
578 SUPREME COURT REPORTS [1996) 3 S.C.R.

A Edn. at page 366 said that :

"The foundations have all been undermined; and the modern man,
whatever he may say in public, knows in the privacy of his heart
that he can no more "believe", believing because it is written in
certain books, believing because people like him to believe, the
B modern man knows it to be impossible for him. There are, of
course, a number of people who seem to acquiesce in the so-called
popular faith but we also know for certain that they do not think.
Their idea of belief may be better translated as "non-thinking
carelessness". This fight cannot last much longer without breaking
c to pieces all the buildings of religion".

x x x x x x x x x

"Is religion to justify itself by the discoveries of reason, through
which every other science justified itself? Are the same methods
D of investigation, which we apply to sciences and knowledge outside,
to be applied to the science of religion ? In my opinion this must
be so, and I am also of opinion that the sooner it is done the better.
If a religion is destroyed by such investigation, it was then all the
time unless, unworthy superstition; and the sooner it goes the
better. I am thoroughly convinced that its destruction would be the
E
best thing that could happen. All that is dross will be taken off, no
doubt, but the essential parts of religion will emerge triumphant
out of this investigation. Not only will it be made scientific-as
scientific, at least, as any of the conclusions of physics or chemistry-
but will have greater strength, because physics or chemistry has
F not internal mandate lo vouch for its truth, which religion has."

Swami Vivekananda in his "The Complete Works", Vol. Vl, Sixth
Edn. at page 81 said that :

"Religion deals with the truths of the metaphysical world just as
G chemistry and the other natural sciences deal with the truth of the
physical world. The hook one must read to learn chemistry is the
book of (external) nature. The book from which to learn religion
is your own mind and heart. The sage is often ignorant of physical
science because he reads the wrong book-the book within; and the
H scientist is too often ignorant of religion because he, too, reads the
I AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 579

wrong book-the book without." A
Again in his The Complete Works, (Vol. V, Eighth Ecln.), pages 192-
93, he says that :

"The basis of all systems, social or political, rests upon the goodness
of men. No nation is greater or good because Parliament enacts B
this or that, but because its me11 are great and good ...... Religion
goes to the root of the matter. If it is right, all is right ... One must
admit that law, government, politics are phases not final in any
way. There is. a goal beyond them where law is not needed ..... All
great Masters teach the same thing. Christ saw that the basis is not C
law, that morality and purity are the only strength."

From that perspective, this Court is concerned with the concept of
Hindu religion and dharma. Very often one can discern and sense political
and economic motives for maintaining status quo in relation to religious
forms masquerading it as religious faith and rituals bereft of substantial D
religious experience. As sure, philosophers do not regard this as religion
at all. They do not hesitate to say that this is politics or economic
masquerading as a religion. A very careful distinction, therefore, is re-
quired to be drawn between real and unreal religion at any stage in the
development and preservation of religion as protected by the Constitution. E
Within religion, there is an interpretation of reality and unreality which is
completely different experience. It is the process in which ideal is made
rule. Thus perfection of religious experience can take place only when free
autonomy is afforded to an individual and worship of the infinite is made
simpler, direct communion, the cornerstone of h_uman system. Re1igion is
personal to the individual. Greater the law bringing an individual closer to F
this freedom, the higher is its laudable and idealistic purpose. Therefore,
in order that religion becomes mature internally with the- human per-
sonality it is essential that mature self-enjoyment must be combined with
conscious knowledge. Religious symbols can be contra-distinguished from
the scientific symbols and both are as old as man himself. Through scien- G
tific symbols there can be repetition of dogmatism and conviction of
ignorance. True religion reaching upto the full reality of all knowledge,
believes in God as the unity of the whole.

According to Hindu belief, Vishnu as preserver is stated to take five
forms, viz., Para, Vyuha, Vibhava, Arca and Antaryamin. Para is the H
580 SUPREME COURT REPORTS (1996] 3 S.C.R.

A transcendental form. Vibhava includes the ten divine descends (avatara)
and also thirty nine forms which He takes from time to time. Arca repre-
sents God in the form of idol, which He though formless, takes this finite
form to show favour to His devotees. The form of Antaryamin is to remain
within the self and control it by directing it to lead a virtuous way of life,
in accordance with the residues of the deeds done by it. Temple, therefore,
B forms an integral part of Hindu religion and the idol installed therein forms
the main symbol of religious worship manifesting the dignity of God.

The purpose of religious experience, as stated earlier, is to integrate
human life, socially, materially and morally. It must, therefore, produce a
C share of material goods and bear a pinnacle for human experience. The
dualism of Spirit and Matter, should be kept clear. John Macmurray has
stated in this behalf thus :

'Worship is certainly specifically religious, and it is an attitude of
mind which is not compatible. with science. Science does not
D
worship, It enquires, and analyses, classifies and does sums. On
the other hand, religion is not merely worship; and worship may
be merely superstitious. If superstitious worship is religion, then
astrology and palmistry are sciences. Religion cannot simply sit
down and worship anything and everything; it must claim reality
E for what it worships; and it must make some statement about this
reality and assert not merely that it is true but that it is supreme
truth. A religious temper which is indifferent to any truth, scientific
or otherwise, it ipso facto, superstitious Religion is not merely the
worship of God, but the knowledge of God, for if it does not known
its God then God is a figment to the imagination and it worships
F
it knows not what. All honest religion necessarily involves a
strenuous effort to know the supreme reality, and the knowledge
of God must involve all knowledge in its scope."

(John Macmurray : Reason & Emotion, Faber & Faber).
G
The ultimate experience of religious consciousness is described
beautifully in Audi Shankara's Shri Daksinamurti Stotram wherein
the expression : 11 Darpanadrisyamananagari11 is used. The expres-
sion refers to the teacher showing a reflection of a city as seen in
H a mirror. In Panchadasi, XIII - 101, the sloka says :
/ A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 581

~ c;<fol '11fu mwi~ ~I A
«fW('\jl.\l <I'll ~'ifflR f1fqq_11
Nishchhidra Darpne Bhati Bastugarbham Brihat-jagat,
Satchit Sukhe Tatha Nana jagadgarbhamidam Biyat.

(In a flawless mirror, the expansive space with all the things in it, B
is seen, Similarly, in this mass of Existence and Consciousness is
seen this space comprising the variegated universe.)

Religious experience is a general nature; All manifestation of
religious experience to whatever organised religion they belong are ul-
timately co-experiences by which the mind is stilled, purified, the prana C
controlled by which "parmeshwarachaitanya" appears. In manasollasa (ix :
21-3-) it has been observed that :

ffi f.I~ 'lT<I "ll1"it 'T<lftl f.loo:
fim:1:I f.I ~ <frri «'41'1'<'4U<(11 D
Chitte nishchaltan yate prano bhawati nishchallah
Chittshya nishchaltwaya yogam sadhyamavyaset.

The above 'shloka' says that the signs such as the control over the
five elements and the siddhi are indicative of the progress in the path E
leading upto the various ways in which the bimbarupa, i.e., the parmesvara-
chaitanya appears.

It is also useful to recollect the beautiful shloka in the Geeta where ·
Lord Krishna says :
F
3F1'41f~ l!I ">I "I'll: ~I
<)qi f·f«nfitg<liiHi '"'1W! d$1<4il'{ll

Ananyash Chintayanto man ye janah paryupaste,
Tesham nityabhiyuktnam yogakshemam Bahamyabam.
G
(Those men, who, meditating on Me as non-separate, worship Me
all round - to them who are ever devout, I secure gain and safety.)"

Thus there can be no doubt that religious experience is an internal
experience and the Deity in a temple is supposed to provoke that inner
,experienc,e. The image of the Lord in a temple, after prana pratishtha is H
\
\
582 SUPREME COURT REPORTS (1996] 3 S.C.R.

A done, is a centre of reference, a symbol of the Great Consciousness .whose
attainment is ultimately the pinnacle of religious experience. The nature of
a religious experience can be shadowgraphed by peace, tranquility and joy
'that passeth understanding'. It would also be relevant to note that a temple
based upon any 'sampradaya' must resemble a true symbol of the Infinite
B Grace, the nature of which is rightly called as the amalgam of being,
consciousness and bliss. That is why in Manasollasa (ix-47) it has been said:

('lf""I<;\+:<; ~ f<\'$~1'\l'<I ~i'\l'<l(kl\~ I
;>Uf~iil4H\ ~ ~ ~ '1'1:11
Sachchidanandraupai Bindunadantaratmane,
c Adimadhyantshunyay Gurunam Gurbe Namah.

(Obeisance to Him, the Guru of the Gurus who is being, Con-
sciousness and Bliss; who dwells in Hindu and Nada; who has no
beginning, middle or end.)
D Material fruits, namely, sons, grand sons, houses, lands, money, grain,
all in plenty which accrue in Swaraga are considered to be lesser benefits
and lesser lights to achieve in comparison to the true empire, namely, the
identity of the Self with the Supreme Being (Slokas X-2, 3, 19 and 21
Manasollasa).
E
According to Hindu belief, worship of God is of four kinds, viz.,
Japa-chanting Gayatri mantras (sloka) or Asthakshara; Homa - giving
oblation into the fire; Archana - worship of God in the form of Idol in the
temple; and Dhyana concentration on God alone. Of these four, Archana
gained an established form of worship in temple.
F
The reason for form adorning a Deity image in a temple, therefore,
is to produce chitta suddhi generating and ensuring the necessary emotion
for the sustenance as 'tatparata', the Supreme Devotion, parabhakti, which
is the 'abhedhavana,' culminating in the attainment of 'sarvatmatva,' thus
G in itself becoming.
How does this great splendid religious experience transform the life
of a man from a mere temporal pursuit of limited vision into an expansive
pursuit of equality, seeing one's own self in the others and ultimately losing
one's ego and dissolving it into the subaudited symphonic testament of love,
H joy and peace ? The ascent from an empirical experience of personal life
J
(
AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 583

which is the first assertion of a religious experience is to be followed right A
up to the stage of mutual communion, i.e., of the individual self with
; relationship outside becomes inevitable.

John Macmurray once again in "Reason and Emotion" says thus :

B
"There is, then, a definite field of empirical experience which is
the field of religion. It is the field of personal life - not, of com se,
the field of individual isolation. When Professor Whitehead says
that religion is what a man does with his solitariness he is saying
what is almost the reverse of the truth; although he is, unlike many
philosophers, moving in the right universe of discourse. Religion C
is what a man makes of his personal relationships. This field of
personal relationships is the centre of every human life. That is a
mere statement of fact. But it does not follow that every human
life realises itself religious nature. In his personal relationships a
man is in the field of religion. Whether he achieves reality in this D
field depends on whether he is. able to achieve objectivity and
mutuality. We may live in relation to other persons as if the relation
were not a personal one, it always is personal, whatever we do
about. But we may behave as if it were not. All failure of this kind
is a failure to realize in action - and, consequently, in reflection -
the real nature of the relationship between persons. It involves the E
loss of personal objectivity. In relationship to another person we
isolate ourselves and so fall into subjectivity and become in-
dividualists. When that happens, the relationship is . treated in
action and in thought as of a sub-personal type. There are two
possibilities. One is that the relation is treated as of the material p
type; in which case the other individual is treated as an instrument
or a means. Slavery is the crudest form Of this type of unreality in
personal relationships, but it includes any relationship in which
individuals use one another as instruments. The second type of
unreality falsifies the personal relationship by making it organic.
In that case the relationship is treated as functional and becomes G
a co-operation for the achievement of a common purpose. Any
conception of human relationships which grounds them upon the
existence of a common purpose which each serves in his own way
involves unreality of this type. Such conceptions of human relation-
ships are properly described as irreligious, because they deny the H
\\
584 SUPREME COURT REPORTS [1996] 3 S.C.R.

A reality of the relationship as a communion of persons. It is not
enough to insist that human nature is essentially social, since
society may take any of these forms. What makes the society real
is that the relations between the persons concerned are essentially
religious, that is to say, grounded in mutual communion, and the
equality which this implies. For without equality, there can be no
B mutuality. I do not mean, of course, that in a true society organic
and material relationships between persons are non-existent, but
only that they are dependent relations falling within and grounded
in the relation of friendship. The material and the organic are
unreal in independence. Their reality lies in their dependence upon
c the personal and their inclusion within it."

The author very beautifully describes the experience of God thus :

D "The dualism of mind and matter reflects itself all too easily in the
dualism between secular and sacred, natural and supernatural, the
human and the divine. The result is that we think of God as isolated
from the world and, therefore, that the religious life involves a
turning away from man to God, from this world to another world,
so that religion becomes something apart, instead of the fundamen-
E tal activity of human life. But now, having made that point clear,
I should like to indicate in closing how essential to the view that I
have outlines is the idea of God. All experience at any level is the
experience of the finite in the infinite. Even a triangle, as Spinoza
pointed out, can only be seen, or imagined, as a limitation of
F infinite space. At the material level, we apprehended all materials
objects as finite and dependent upon the material infinite. This is
not matter of reflection but of immediate common experience.
Similarly we apprehend all organisms as finite dependents of
infinite life. And when we come to the personal field it is not
different. I have already insisted that our apprehension of our
G dependence upon what is not ourselves. We can now see that it is
an apprehension of our own dependence and the dependence of
all other finite persons upon infinite personality. God as infinite
personality is the primary natural experience of all persons. One
might almost say, if it were not for the traditional limitation of our
H use of language, that God is the first perception."
I A.S.N. DEEKSHITULUv. STATE [K RAMASWAMY, J.] 585

The experience of God is not simply a transcendental doctrine A
(theologia transcendentalis), it is not simply an unregulated usage of satis-
faction of the intellect but is an affirmative experience. Even Kantian
believers who conceive God as supreme and absolute perfection, find in
Indian philosophy that religion is not the subject matter of inclusion or
exclusion by the process of rational psychology but the subject matter of B
human experience. On the conception of God as supreme and absolute
perfection in a brilliant summary of Kant's philosophy Frederick Coples-
ton, S.J. in Volume VI; (A History of Philosophy) says :

"We have, therefore, three principal Ideas of pure reason, namely,
the soul as permanent substantial subject, the world as the totality C
of casually related phenomena, and God as absolute perfection, as
the unity of the conditions of objects of thought in general. These
three Ideas are not innate. At the same time they are not derived
empirically. They arise as a result of the pure reason's natural drive
towards completing the synthesis achieved by the understanding. D
This does not mean, as has already been mentioned that the pure
reason carried further the synthesizing activity of the under-
standing considered as constituting o~ects by imposing the a priori
conditions of experience known as the categories. The Ideas of
pure reasons are not 'constitutive'. But the reason has a natural
drive towards unifying the conditions of experience, and this it does E
by proceeding to the unconditioned, in the three forms already
mentioned. In doing this it obviously passes beyond experience.
Hence the Ideas of the pure reason are called by Kant 'transcen-
dental Ideas', though he later goes on to speak of the third Idea,
that of God, as the 'transcendental Ideal'. For God is conceived as F
supreme and absolute peifection."

Johnson said rightly that sublimity is produced by aggregation and
not by dispersion. In that lies a great truth. It must not be forgotten that
all rituals ultimately are only means to the state of knowledge. Thus seers
and thinkers have in fact reduced rituals to the bare minimum and some- G
times even decried them because a non-essential adherence to them is only
bound to be an obstacle or impediment in the attainment of true
knowledge. It would be very useful to note that if religious experience is
an internal experience, rituals beyond evoking the necessary environment
and atmosphere and as it were painting sea scape of purity must yield to H
\
'
586 SUPREME COURT REPORTS [1996] 3 S.C.R.

A the unrelenting pursuit of true knowledge which is identical with true
religious experience. The pursuit of knowledge, the knowing of the being,
ever has been described by eminent philosophers as incapable of sustaining
observance of rituals. The belief is that observance of rituals and the
devotion to true knowledge cannot co-exist.

B Shri Acharya Pada in the Sarva Vendantha Sidhanta shlokas 857-862
says:
'1Hf16Clm<'1«"1 ~ q;<i!qg"'ld I
4>4"0i111f111dl41 'i fu"lftl ~:II
'ffi'R f'l<"Oiiti!ll<( "'1lf'lf::I ~:I
c '!'d&l)•U<'11'(1f ,..,f -.,ri f<ttif\lUl'i,11
~l«<!il ~ -.,ri ,..,f ~I
31'111'{'14> ,..,f '111'<1'4111 ~II
-.,ITT q;lfait 'l)1J: ~ fu"lftl ~I
-mm ;; ~ <I'll ~ Olll't:l I
D f111~);4q4)>1{fq ~ '1H4>4•n II
ft"
Sltf-qjq!f4t1: . ~: SO f,f<'
ll1: ii tj(.11Cfl.,'(I
'lll'lif>" ~ ~: q;;fj1rr <ftnmT 11

Gyan nistha tatparasya nait karmopyujyate
Karmano Gyan nishthatahaya na sahsthiteh
E Paraspar Birudhyatwat Tayor Bhinna Swabhhbaiyoh
Kartitwa Bhawana Purbam karm gyanam vilakshanam
Dehatma-bvudherbichhitye gyanam karm Bibridhaye
Agyanam Mulakam Karm Gyanantu bhai nashkam.
Gyanen karmano yogah katham sidhyati berina
F Sahyogo na ghat ate· ya tha timirtejsoh
Nimeshonmesyorwape tatheb gyan kannnoh
Pratichi Pashyatah punshah kutah prachibeloknam
Pratyam Pravamchittasya Kutah Karmani yogyata.

(When the mind becomes motionless, in that case, the life also
G becomes unmovable. Hence the yoga with meditation should be
practised for the control of chita (mind). One devoted to the
pursuit of knowledge no longer remains fit for action. The co-ex-
istence of knowledge and action is not to succeed. Due to their
being mutually contradictory in nature, involvement in action with
H a sense of self-performance causes the absence of knowledge. But
! A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 587

the renouncement of the sense of bodily-self, goes for the promo- A
tion of knowledge. The action and knowledge emanating from the
ignorance, are destroyers of both. How there can be the union of
knowledge and action inasmuch as they are incompatible? It is
impossible to conjure darkness and light together, one at the same
time. The knowledge and action cannot be combined. Likewise B
one cannot keep one's eyes closed and open at the same time, one
who is looking western side, cannot see towards eastern direction.
Wherefrom there can be the competence for work or action when
one's heart and soul is set on the devotion of knowledge in opposite
direction.)
c
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 ritnals and
the devotion of knowledge cannot co-exist. There is considerable incom-
patibility between knowledge and rituals inasmuch as their natures are
entirely antithetical. It is only he who regards himself as the agent of action D
that can perform the 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 E
pursuit of knowledge inasmuch as they arc incompatible! It is as much
impossible as the co-existence of light and darkness. One cannot keep one's
eyes open and closed at the same time. It is equally impossible to combine
knowledge and rituals. Can one who is looking westward look eastward ?
How is one whose mind is directed towards the innermost Atman fit to F
take part in external activities ?

In the celebrated Gitabhashya (XVIII-55) Sri Acharyapada says :

'! fir ~ ~: lllfd<.'11<41
G
ll<'*Ht'.!li f"'l•if'l:J"ll <fl1Fl'lf>Tlq ~I
"IR"l'1R'l f•Willtoltt<iH11'1<6<•1f'lf-1~'iilil~'1=11"'f,'""3~1ii
"<ill "'!! !itol<ru'j~ Tfll'lllll. 'l>'fo1I flll'Ufct~1 ~I
q*if14q4j Rqj"'""'" flm"I: S1q101fct•:i f.!f5<1:1
<l<i'llll ~-Wou ~ ;IAf.rooT q;rqf ~ ~I
H
\
I

588 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Na hi purbsamudram jigmisoh Pratilomyen
Pratyaksamudram Jigmisuna Saman Margtwam Sambhati.
Pratyagatma-bisai-Pratyaya santan karmabhinibeshashch Gyannistha,
Sa cha Pratyaksamudragamanvat Karmana Sahvabitwen birudhyati.
Parbat Sarsapyoribantarbani birodhak Pramanwidam Nishchitah.
B Jasmat Sarbkarmsanyasenaib Gyananisthakarya iti sidham.

The meaning being :

"He who wishes to reach the eastern ocean should not indeed travel
in the opposite direction i.e. by the same road as the one chosen
by the person who wishes to go to the western ocean. And the
c devotion to knowledge consists in an intent effort towards main-
taining a continuous stream of the consciousness of the Inner self.
There would be contradiction if it were to be conjoined with ritual
which is like going towards the western ocean. It is a firm convic-
tion of experts in the pramanasastra that the difference between
D the two is as wide as that between a mountain and a mustard seed.
Hence the conclusion that the devotion to knowledge is to be
adhered to only by renouncing all action." 't

The truth of religious experience is that true knowledge is an indica-
E tion of a complete understanding of contradictions, just as physics, which
means study of simple things, yet appears to be a complicated subject. A
beautiful illustration finds place in Richard Dawkins's passionate (Dar-
wanian) book named "The Blind Watchmaker" :

"I said that physics is the study of simple things, and this too, may
F seem strange at first. Physics appears to be a complicated subject,
because the ideas of physics are difficult for us to understand. Our
brains were designed to understand hunting and gathering, mating
and child-rearing; a world of medium sized objects moving in three
dimensions at moderate speeds. We are ill-equipped to com-
prehend the very small and the very large things whose duration
G is measured in picoseconds or gigayears, particles that don't have
position, forces and fields that we cannot see or touch, which we
know of only because they affect things that can see or touch. We
think that physics is complicated because it is hard for us to
understand, and because physics books are full of difficult mathe-
H matics. But the objects that physicists study are still basically simple
; A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 589

objects. They are clouds of gas or tiny particles, or lumps of A
uniform matter like crystals, with almost endlessly repeated atomic
patterns. They do not, at least by biological standards, have intri-
cate working parts. Even large physical objects like stars consists
of a rather limited array of parts, more or less haphazardly ar-
ranged. The behaviour of physical, non-biological objects is so
simple that it is feasible to use existing mathematical langllage to B
describe it, which is why physics books are full of mathematics."

No wonder, the concept of justice too based on a sense of equality,
whether distributive or corrective, always carries with it a connotation of a
sacred and religious dispensation. If ultimately the Atman which resides in C
all beings is that one auspicious and pure which alone remains over, there
can be no manner of doubt that all beings are necessarily equal. The
Atman, irrespective of the body and its temporal abode with attendant of
earthly appellations, is the same for all It is described by Shri Shri
Acharyapada in the opening verse of the Dasasloki :
D
11;0i ~sef>1<'4qfei\,~ Ri~l('iiA ~ f'l>1foqf<IM:
~. ii/g>l<"l4<><1W<H f'l~)qf1uf4141~ _q•iqi'llql<f:-
+
" 'lfil'I <IT<i " 1f.;it " errs-
"~ ~ o;i ..,., "ff-qi ll'W''
E
"'"' <fil"'4
mTRI
~~:WI: ~~II
- ~

AI'barn Samanyatoahan Pratyayasidhe Chidatmani
vadivipratipattebhih samdidhe, aham pratyayasalarnbam
Visheshnirnayayah Vagwanacharyah :
F
Na Bhumirna Toyam Na Vayur na Kham Nendriyam
Na Tesham Samuhah. Anekantikatwatsushuptyek Sidhah
Stadekkobashishtah Shivah Kewaloham.

"I am neither the earth, nor the water, nor the fire, nor the air, nor G
the space, nor any organ, nor their aggregate, because they are
variable by nature, while Atman is that whose existence is proved
by the unique experience of deep sleep. I am that One, Auspicious
and Pure which alone remains over.

The concept of'dharma' has been explained by Justice M. RamaJois H
590 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A in his Legal and Constitutional History of India (Vol. I) at pages 1 to 4
thus:

"Mahabharata contains a discussion of this topic. On being ques-
tioned by Yudhistira about the meaning and scope of Dharma,
Bhishma stated :
B
omitS>!lf:llliJil 'l:i ~: p: I
~: Slfdti&llg mi;r C!jq\4fd II
11~ 'iOAi ~ Jl!f'R'i ~I
'I: <>1ia>1>tqti'.:1"'1:" ~ f.!lll'l:ll
c ~ ~'llftil f<i'lil!: llOIT: I
'I: "<4lGR"J ~: ll ~ <fu f.! Ill'!: 11
Tadrishoayarnanu Prashno yatra
Dharmah Sndurlabhah Duskarah
Pratisarnkhyatum J atkenatra Vyavasyati
D Prabhavarthai Bhutanarn Dharmapravachanam Kritarn.

Yah Syatpravabe Sanyuktah sa Dharma !ti Nishchayah.
Dharnatdharmamityahur Dharman Vidhritah Prajah.
Yah syatdharma sanyuktah Sa dharma !ti Nishchayah.

E It is most difficult to define Dharma. Dharma has been explained
to be that which helps the upliftment of living beings. Therefore
that which ensures welfare (ofliving beings) is surely Dharma. The
learned rishis have declared that which sustains is Dhrama.

Taittiriya Samhita states :
F
,itjj ~'JR"! Oflm: 1lfiroaT I
~ ~ Jl;;iJ 34Q4f'<ll
~ q1qq~l~fd I
qif ~ ~fdfi<3<1'{1
G ~Wl~ll
Dharma Vishwasya J agatah Pratistha
Loke Dharmistharn Praja upsarpanti
Dharman Paparnapnudati
Dharme Sarban Pratisthitarn
H Jasmad Dharman Pararn Badanti.
I A.S.N. DEEKSHITULUv. STATE (K. RAMASWAMY, J.] 591

Dharma constitutes the foundation of all affairs in the world. A
People respect one who adheres to Dharma. Dharma insulates
(man) against sinful thoughts and actions. Everything in this world
is founded on Dharma. Dharma, therefore, is considered supreme.

Jaimini 1.2 :
B
<I fu f.!: ~ :i<"i
<i'.i"tt>1ffi ~fa"li94~ I
oef"llfr<rff ~JJl1lirs-.:ir "11:11
Sa hi Nihshraisen Purusam Sanyunakteeti
Pratijanimahe Tadabhidheeyate Chodana
Lakshanartho Dharmah. c
Dharma is that which is indicated by the Vedas as conducive to
the highest good.

Madhavacharya, the Minister to Hakka and Bukka, founder kings
of Vijayanager Empire, in his commentary on Parashara Smriti, D
has briefly and precisely explained the meaning of Dharma as
follows :

31~ f.!:~ m~ >m'1fu ~ "11:1
<! 'ii <'l!l:l"l ~41'11"4i '1~~'11'1.~0<lq""'l'lfu: Ii
E
Abhyudaya Nihshraise Sadhantwen Dharayate - Iti Dharmah.
Sa Cha Lakshan-Pramabhyam Chodanasutrairvyavasthapitah.

Dharma is that which sustains and ensures progress and welfare
of all in this world and eternal bliss in the other world. The Dharma p
is promulgated in the form of commands.

Therefore, Dharma embraces every type of righteous conduct cover-
ing every aspect of life essential for the sustenance and welfare of the
individual and the spciety and includes those rules which guide and enable
those who believe in God and heaven to attain moksha (eternal bliss). G
Rules of Dharma are meant to regulate the individual conduct, in such a
way as to restrict the rights, liberty, interest and desires of an individual as
regards all matters to the extent necessary in the interest of other in-
dividuals, i.e., the society and at the same time making it obligatory for the
·"Society to safeguard and protect the individual in all respects through its H
592 SUPREME COURT REPORTS [1996] 3 S.C.R.
\.
A social and political institutions. Shortly put, Dharma regulates the mutual
obligations of individual and the society. Therefore, it was stressed that
protection of Dharma was in the interest of both the individual and the
sodety. A ' State of Dharma' was required to be always maintained for
peaceful co-existence and prosperity of all.
B
Though Dharma is a word of wide meaning as to cover the rules
concerning all matters such as spiritual, moral and personal as also civil,
criminal and constitutional law, it gives the precise meaning depending
upon the context in which it is used. When Dharma is used in the context
of duties of the individual and powers of the King (the Stale), it means
C constitutional law (Rajadharma). Likewise when it is said that Dharmarajya
is necessary for the peace and prosperity of the people and for establishing
an egalitarian society, the word Dharma in the context of the word Rajya
only means law, and Dharmarajya means Rule of Law and not rule of
religion or a theocratic State. Dharma in the context of legal and constitu-
D tional history only means Vyavahara-dharma and Rajadharma evolved by
the society through the ages which is binding both on the king (the ruler)
and the people (the ruled).

In "Religion and Society in Ancient India" Prof. Om Prakesh (1985
E Edition) has stated that the concept of dharma aims to maintain orderly
society regarding every human being as the creation of God and treating
him on a footing of equality. The last rhyme of the Rig Veda throws light
on-the Rig Veda concept of dharma laying down 'that all human beings
should move together, speak together and their minds be of one accord' .
.,.,,..,.,; wf<:;ui M'1q11f<i '"1'1'ffl'l!I W 'lT'T ~ ~ ~ (Samga-
F chhdhwam Sambaddwam Sambo Manasi Sanatnain Deva Bhagan
Yathaturbe Sanjananam Upasate - _Rv. X, 191, 2) At page 5, he states that the
concept of dharma was not static. Its content changes with the changing contexts
of time, place and social environment. Dharma is that which holds together
all living beings in a harmonious order. Virtuous conduct contribute to
G social welfare and vice is its bane. In the Sutra literature both these aspects
of dharma are discussed under four sections which he elaborated in his
boo~. At page 8, the author states that "the above discussion makes it clear
that dharma in India does not force men into virtue but trains them for it.
It is not a f1Xed Code of mechanical rules but a living spirit which grows
H and moves in response to the development of the society. Even the State
I A.S.N. DEEKSHITULU v. STATE [K. RAMASWAMY, J.] 593

in India is a servant of dharma. It was not above morality. Its function is A
not to alter or annul dharma but only to administer it. Dharma is essential
because it promotes individual security and happiness as well as the
stability of the social order".

Jn "Dharma - a Legal Discipline - Select Speeches and Writings of
Dr. Shankar Dayal Sharma, the present President of India (Indian Bar B
Review Vol. XX (3 & 4) 1993 Special Issue) in his Centenary Speech of
Swami Vivekananda in the Parliament of Religions, he emphasised "time-
honoured philosophy of oneness and harmony within pluralism, the recog-
nition of, respect for, and acceptance of different paths of logical and
intuitive access to Absolute Truth". He reiterated what Swami Vivekananda C
had said one century ago at Chicago : "We believe not only in universal
toleration, but we accept all religions as true" and conciuded that "if India
is to grow to her full potential as a strong, united; prosperous nation, a
nation attuned to the highest moral and ethical values, true to the genius
of her cultural and spiritual heritage, we shall all have to strive each day D
to build harmony, justice and creative endeavour. Indeed, in a very real
way, it is our duty so to strive''. He exhorted the youth of the country to be
+ the vanguard of that mission.

In his Dr. Zakir Hussain Memorial Lecture delivered at Visva
Bharati Shanti Niketan on 29th April, 1989, Dr. S.D. Sharma stated thus : E

"We in India, however, understand Secularism to denote 'Sarva
Dharma Samabhava': an approach of tolerance and understanding
of the equality of all religions".
·~
F
x x x x x x x

The Bhagwad Gita indicates this explicitly in the following
Shlokas:

'1 'I'll 'Ii ~ ~ ""''"'"'l' G
lfll ""'r"""ctf-<1 lf:I"IT= wt wro:11
Ye yatha main prapadyante temptathaiva bhajamy- aharn pama
vartmuvartante manusyah nartha sarvasag

In whatever way men identify with Me, in the same way do I H
594 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A carry out their; men pursue my path, in all ways. (Bh.G.IV.11)

111111'Ii'Ii11'.i 'T<I<!: Ol'li~lfifgf~i01fol
~ ct\41<l<'ti 'll4:i m*i f<i<;~ll

Yo yo yam yam tanum bhaktah Sraddhayarcitumicchati. Tasya
B tasyacalam sraddhan tam-eva vidhamy-aham)

Whatever from any devotee with faith wishes to worship. I make
that faith steady. (Bh. G. : VII. 21)

This philosophical approach of understanding, co-existence
C and tolerance is the very spirit of our ancient thought. The Rig
Veda enjoins :

<l"'.li0ui ~ <i <it <i11f~otl'ictl'll
t<ij '!l'i 'I'll '!'l ~ 01lTm) 11

D Samgacchadhvam Samvedadhavam Sam Vo Manamsi
Janatam Deva Bhagam Yatha Purve Samajanna Upasate.

(Reg. Veda 10.191.2)

"Behave with others as you would with yourself. Look upon all
E the living beings as your friends, for ih all of them there resides
one soul. All are but a part of that universal soul. A person who
believes that all are his soulmates and loves them all alike never
feels lonely. Divine qualities of such a person such as forgiveness,
compassion and service, will make him lovable in the eyes of his
F associates. He will experience intense joy throughout his life".

The Yajurveda states :

~ l!T ~ '1llffOr 'l01f.! wltl\lRil'll
~ Tll\f!l '1llffOr 'l01f.! wit!\! I
G ~~°lltll
Mitrasaya ma caksusa Sarvani Bhutani Samiksantam.
Mitrasyacham caksua sarvani Bhutani samikse.
Mitrasya caksusa samiksarnahe.

H (Yaju. Veda 38.18)
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY,J.] 595

"May all beings look on me with the eyes of a friend; May I look A
on all beings with the eyes of a friend. May we look on one another
"ith the eyes of a friend."

In his address "Law & Morality Sustain the world" delivered on 25th
September, 1993 at the. First Convocation of the Nation Law School of
India University, Bangalore, Dr. S.D. Sharma expounded the meaning of B
'dharma' thus : ·

"What does Dharma mean? The word is clearly derived from the
root 'Dh.r' - which denotes : 'upholding', 'supporting, 'nourishing'
- that which upholds is Dharma. In the Vana Parva of the Mahab- C
harata, Verse-58 in Chapter 69 says :

(Dharma is for the stability of society, the maintenance of social
order and the general well-being and progress of humankind.
Whatever conduces to the fulfilment of these object is Dharma;
that is definite.) D
The Brhadaranyakopanisad identified Dharma with Truth, and
t declared its Supreme status :

""" Olp\1<(\~4l ~ ~e.ni
4'\~<IRl~l!iq\'N( 'ITft<I I E
"'"" 31ii1"1141'<kfl4i «'li<\\'ld 'llf<il 'l'll """'
l!.'i '>it ~ " ~: m'4 ~ 'ffil. 6\XliajO!I
~~ <rofuil ~ m ~ moi q<;ift
~~~aq~q4 ~I
F
Sa naib Vyabhawatchhreyo Ruparnatyasrijat
Dharmarn Jadetatkshtrasya Kshatram
Yaddharmastasmad Dharmat Pararn Nasti.
Atho Abaliyan Samashaste Dharmen Yatha Ragya.
Aidam yo bai sa Dharm.ah Satyarn bai tat tasmat Saryam. G
Badantrnahur Dharmam wa badntnam.
Satyam badutityetadhyai bai tadubhayam bhawati.

"(There is nothing higher than dharma. Even a very weak man
hopes to prevail over a very strong man on the strength of dharma,
just as (he prevails over a wrong-does) with the help of the King. H
596 SUPREME COURT REPORTS (1996] 3 S.C.R.

A So what is called Dharma is really Truth. Therefore, people say
about a man who declares the truth that he is declaring dharma
and about one who declares dharma they say he speaks the truth.
These two (dharma and truth) are this)" ·

A similar thought is expressed in the Ayodhya-kanda of the Valmiki
B Ramayana, in verse-10, Sarga-109.

~~"~~
ri'E"iiffilltCGCfi ~ 'lifltcliCfi: ~:II

Satyamebanrishamsam ch Raj Brittam Sanatanam.
c Tasmat Satyatmakam Rajyam Satya Lokah Pratisthitah.

(From the ancient times the constitutional system depends on the
foundation of Truth and social sympathy. Truth is the fundamental
basis of the State; indeed the whole universe rests on Truth.)
D
The Rig Veda states that the Law and Truth are eiernal - born of
sacrifice and sublimation :
+

E Ritam cha Satyam Chabhidadhat Tapsodhyajayat.

The Niti Vakyamrit begins with the statement :

311!! ">lilfil ~ "UT!!T'I '!'!:
p Ath Dharmarth Falai Rajyaya Namah.

The Yajnavalkya Smriti states :

~ <'jfu m:Rm:: <"Ill!! " llwm•11 :1
<tRl'l<il( ~: q;rq) 'l<f'!<'ll<t<: ~II
G
Shrutih Smritih Sadacharah Swasya cha Priyamatmanah
Samyakam Kalpjah Kamo Dharmamulormidam Smritam.

(The Sruti, the Smriti, the approved usages, that which is agreeable
to one's in most self or good conscience, and has sprung from due
H deliberation, are ordained as the foundation of Dharma.)
l
AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY,J.] 597

The Markandeya Purana expresses the purpose of Dharma as : A
\14"1l4ifil4l f1M'f11~~· f.Wll
1"\'\1*1& ~ ~· f<Pl~N<1N I
~ ~ f1H\4ilf18'l! 'II
mO!llf~ ~~ ~"111
B
i\;ft l!i\tl~ l!"f'SI ~ oR I
~ fi;;;miRi ~ 'IWR'l.11
Sarblok Priyo Nityamubachaidahar Nisham
Nandantu Sarb Bhutani Snidyantu Vijanepwapi
Swastyastu Sarb Bhurtesu Nirantakani Santu cha
Ma Vyadhirastu Bhutanamadhyon.Bhawantu cha
c
Maitrimashesh Bhutani Tushyantu Sakle Jane
Shibmastu Dwijatinam Pritirastu Parasparam.

( Ch/188, Verse 12-17)
D
(That all persons may be happy, may express each other's happi-
ness, that there ~ay be welfare of all, all being free from fear and
disease; cherish good feelings and sense of brotherhood, unity and
friendship)

It is this stress on the identification of Dharma with truth and social E
well being, Duty and Service that impelled Yudhisthira to express his own
ambition, as Dharmaraja, in the words :

~ ""'1lr'I \f'i'li 'I «Irr 'I ;ri'f<fil1
q;i'T'l "5:'1'1 '11<IA1 1llfUAi '11ftl "'lm'!'ll I
F
Na Twaham Kamaya Rajyam Na Swargam Na Punarbhawam
Kamye Dukh Taptanam Praninam Artnashnam.

(I seek no kingdoms nor heavenly pleasure nor personal salvation,
since to relieve humanity from its manifold pains and distresses is G
the supreme objective of mankind).

It is in this context that the phrase >iii f<IOl'I Dharm Vijayah
'Victory of Dharma' could be understood, as employed by the the Mauryan
Emperor, Ashoka, in his rock edict at Kalsi which proclaimed his achieve-
ment in terms of moral and ethical imperatives of Dharma, and exemplified H
598 SUPREME COURT REPORTS [1996) 3 S.C.R.

A the ancient dictum '1cl'r ~ '"'1: Yato Dharmastato Jayah (where
there is Law, there is Victory).

In the midst of unity in diversity among Indians having different
religious and cultural hues, for their assimillation as integrated citizens, all
B endowed with human rights, dignity of person, equality of status, liberty of
faith and worship with fraternity, the religious spirituality fosters them as
a strong unifying social entity with personal identity. Swamy Ran-
ganathananda, a noted philosopher, in his lecture on 'Science' Democracy
and Religion' delivered on August 28, 1954 in Ramakrishna Mission In-
stitute of Culture, Calcutta, published under the title 'Eternal Values for a
C Changing Society' had stated at page 637 that "With the intensification of
the pace of industrialisation. our centuries-old static feudal society is being
profoundly disturbed; social mobility is fast breaking down caste and other
old forms of social relationships, and faster still, that social sanctions
behind them. Virtues that sustained a static age are found to he utterly
D inadequate to the demands of a dynamic society". Everywhere, old values,
old edifices and old social and economic groups are crumbling down. This
is just the beginning of the industrialisation. Complacency is not a solution
in the profound transition period. Indian spiritualism had responded suc-
cessively to all changes on the strength of her tenacious loyalty to fun-
damental spiritual values, which India placed at the foundation of her
E national culture. It is this faith in ritual values, which has been tested in
good and evil fortune. Science is characterised as a keen spirit of inquiry
and deep passion for truth. Science has enabled the human mind to unravel
secret after secret from nature and increase enormously man's knowledge
of the world in which he lives. Speaking on democracy in India he said that
F democracy has come to stay. How does India proposes to assimillate the
democratic value to her cultural heritage? Democracy should have a con-
tent of universal value which is something more than the merely political,
social or national. The value is the ethical and spiritual content. Without
that content, our democracy will be nothing more than ~ mere carbon copy
of what happens in the democratic countries of the West. The science and
G democracy are shaping the growth and development of human culture and
civilisation with the development of science, an amount of force and power,
scientific and political is itching for a fight creating new tensions, creating
ipstability and insecurity. The nation has to handle the force and the power
in such a way as not to result in corruption in the wielders and in the
H confusion to harm the people at large. India holds science and spirituality/
+'
AS.N.DEEKSHITULUv. STATE[K.RAMASWAMY,J.] 599

harmonious and hospitable co-existence fostering human values.. Vedantha A
enables the Indian5 to digest the forces generated by science, The spiritual
meaning of, democratic living and fulfilment, i.e., spiritual oneness of
humanity taugbt by ancient and modern Indian seers has to be received
and 'reactivated in men's thinking and day to day living and its powerful
influence brought to bear on these new and ever newer forms of scientific B
and social power, thereby giving them a higber direction and a loftier,
spiritual and human purpose. This is the central message of religion. It is
a message which requires to be specially.emphasised. 1 : •

, r"!:''•
Religion became identified with untested beliefs and dogmas and got
shattered in the progress of scientific inquiry. But the mental make-up of C
Indians proceed from our long cultural experience; therefore, our spiritual
religious experience is not hostile to scientific spirit but sympathetic and
hospitable to it. Science will have no opposition from philosophy or religion
in India. Human welfare partly depends upon the knowledge and control
'
of human 1environment, natural and social. Vedantha has always given an D
honoured place to science as also to politics in this. period of human
welfare. Man is more than a political animal. He is also .more than an
intellectual being. He has depth and heights which cannot be compressed
in a purely materialistic or positivistic philosopher. Swamy Ranganathanan-
da further stated as under :
E
"......... democracy should have a content of universal value which is
something m~re than the merely political, social, or national. It is
obvious that value is the ethical and spiritual content Without that
. content, our democracy will be nothing more than. a mere carbon
copy of what obtains in the medocratic countries of the West." F

· "In the background of these agitating questions lies the great
spiritual heritage of India, Those who are acquainted with its
. vitality hold the hope that India can ) et show the world how to
understand, assimilate, and expre~s human values which form the
theme of democracy everywhere. India's spiritualitY can enable G
Indians and the peoples of the world to digest the formidable
forces that are being generated and placed in man's hands today.
The spiritual meaning of democratic living and fulfilment, as taught .
·1
by India's ancient and modern seers-in other words, the religion of
the spiritual oneness of humanity has to be revived and reactivated H
600 SUPREME COURT REPORTS (1996] 3 S.C.R.
\
A in men's thinking and day to day living, and its powerful influence
brought to bear on these new and ever newer forms of scientific
and social power, thereby giving them a higher direction and a
loftier spiritual and human purpose.

This is the central message of religion. It is a message which
B requires to be specially emphasized in the world in which we are
living today. The 'religion' carries to some at least of the modern
world a bit of bad odon; It is unfortunate. It is due to the fact that
religion became identified with untested beliefs and dogmas. And
these got shattered in the progress of scientific inquiry. Jn the
c history of Europe, religion has often functioned as an 'enemy' of
science. But that experi.ence is not universal or invariable; it is a
story with its background in the West only and not in India. Our
entire mental make-up proceeding from our long cultural ex-
perience is not only hostile, but is very sympathetic and hospitable
to; the scientific spirit. In his book, the Discovery of India, our
D Prime Minister, Shri Jawaharlal Nehru, has expressed the view that
science, which has much leeway to make in India compared to t
Western countries, is bound to make increasing advances here in
the future because of the hospitality of the Indian national heritage
to science."
E
"That science is a fundamental force and that it does have a great
message for all men is understood in India, no less than elsewhere.
Human welfare partly depends upon the knowledge and control
of the human environment, natural and social. Vedanta has always
given an honoured place to science, as also to politics, in this
F
sphere of human welfare. But Vedanta has also taught India that
these two do not constitute the whole scope of human welfare.
Man is more than a political animal; he is also more than an
intellectual being. He has depths and heights which cannot be
compassed in a purely materialistic or positivistic philosophy. In-
G dian thought recognizes no compartments or divisions in the
human personality leading to mutual exclusion and hostility in
human aspirations and values, such as pleasure and profit, science I>
and art, morality and religion."

H "The unity of man emphasizes the synthesis of his interest. While
; A.S.N. DEEKSHITULUv. STATE[K. RAMASWAMY, J.] 601

accepting the great importance of science and politics for man, A
Vedanta evaluates them in terms of his total needs and aspirations.
Man seeks things of utility for the sake of things without utility.
Science through technology can give and has given man things of
utility in abundance; politics can give him things of utility of
another order, a stable social order, the venue of his life's experi- B
ments. But neither science nor politics can give man peace or
happiness, joy or a sense of fulfilment. These non-utilitarian values
proceeds from religion and morality. Science and politics' can
create only conditions for their emergence, but cannot create them
directly. Without this spiritual direction, the forces generated by
science and politics nourish the low self of man and become· C
sources of sorrow and discord, division and instability for man and
society. A knowledge which leads to the increase of sorrow is not
knowledge but ignorance, the offspring of spiritual blindness. It is
spiritual awareness alone that transforms all knowledge into wis-
dom, and into forms of peace and happiness, Jove and service." D

+ "The transformation of the world which science and politics seeks
is powerless to ensure human welfare without the transformation of
human nature itself, which religion seeks through a discipline of the
whole pe.sonality, it is only such spiritually disciplined individuals
and groups that can ensure for humanity at large the values of life, E
liberty, and the pursuit of happiness, of liberty, fraternity, and equality.
The peace and happiness of man and the stability and ordered
progress of civilizations depend entirely upon the intensification
of the spiritual ·awareness of humanity. With this spiritual aware-
ness for foundation, the structure of civilization raised by science F
and democracy becomes strong and steady; without it, it sways in
periodic crises to topple doen eventually. Without the inspiration
of religion, civilization shall ever remain an unstable structure."

"Besides the integral unity of man and his interests, Vedanta also
proclaims the unity and solidarity of all existence. The objective of G
Vedanta is the happiness and welfare of man; not man as divided
into sects, creeds, castes, and classes, but man as trian wherever
he may be found. Based on this unitary and universal view of man
uphdd in her philosophy, religion in India taught that, man, in the
course of his development, in the course of his self-expression, H
602 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
'

A generates vmious forces, physical or mental, social or political, and
that the development of these forces needs to be matched by a
con-esponding development of his inner spiritual resources, which
alone can provide the factors of stability to an evolving personality
or social system. 11

B
"True democracy is inconsistent with a narrow self- sufficient
nationalism or sectarianism; it must tend to reach out to the
universal. Breaking the barriers of caste and creed, race and sects,
high and low, the democratic ideas, deriving its sustenance from
the divinity in man, marches on, without obstruction, to the realiza-
c tion of the universal. Swami Vivekananda desired India to uphold
this ideal ?f the universal in her religion and politics, science, and
literature. He desires India to strive for the evolution of a Vedantic
civilization where science and politics would be utilized to lead
man to higher and higher levels of self-expression; not merely
D desired it, but he also demonstrated that India, among all the
nations, had the requisite historically acquired capacity to make
that contribution to world civilization. 11

In "Chief Justice Gajendragadkar" - his life, ideas, papers and ad-
E dresses - by V.D. Mahajan, in Chapter on ''Secularism, its impact on law
and life in India" it is stated that personal law is a secular institution and
has to be based on rational and secular considerations. This position is
consistent with the real, ancient, pristine view of Hindu law. Dharma,
according to the old concept, is a purely secular institution. Dharma is that
F which sustains the society. Dharma is that by which people at large are held
together. At page 234 the author quoted Dr. Gajendragadkar stating that
though the Constitution guarantees freedom to all religions, it recognises
that in certain aspects, and under certain conditions, religious practices
may impinge upon socio-economic problems and the Constitution has
made it clear that wherever socio-economic problems or relations are
G involved, the State will have a right to interfere in the interests of public
good. Articles 25 and 26 of the Constitution provide for the right to
freedom of religion and 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
H regulate socio-economic relations.
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 603

In "Religion and Politics" by Justice V.R. Krishana Iyer [1991 Edi- A
tion] it is stated at page 204 that "secularism in India has a spiritual
foundation not because of a profusion of competing religions and Gods but
because of the realisation that the universal essence of all of them is that
service of man is the worship of God and the reverence for all creation is
compassion which springs from the recognition of the divinity imminent B
everywhere. Our composite cultural heritage conceives of a synthesis be-
tween these two great values. One does not contradict the other but
complements the other. True secularism is humanism in action and per-
ceives divinity in everyone. True spirituality is not refuge in other worldli-
ness and has a factor of universality where even on the material plane every
human being is seen as of equal value and potential as every other member C
of the human family. We have to steer clear of all narrow religious
denominations and communial classifications· by emphasising that i_n
secular affairs all will be dealt with on the same footing, whether one
belongs to the 'minority' or the 'majority' community". At page 205 the
author has stated that "Equality and fraternity, basic to national unity and D
amity, is impossible without the broad base of Human Rights. So it is that
+ today we have to be eclectic and accept not religion with the capital 'R'
but soul force which reside._" in everyone's bosom ...... We need a social
order whose life-breath is secularism, whose dynamics is social and
economic justice. It is our fundamental duty to be secular in politics, not
in rhetoric nor in cosmetics, but in every fiber of our being and every E
manner of living. May be, we have promises to keep and miles to go before
we sleep".

The Preamble of the Constitution sets out secularism, equity, frater-
nity, liberty of worship and faith and dignity of persons as integral scheme F
of the Constitution in its march to establish an egalitarian social order.
Fundamental Rights and Directive Principles seek to resuscitate them. In
S.R. Bommai & Ors. v. Union of India & Ors., [1994] 3 SCC 1, larger Bench
of nine Judges has held that secularism is basic structure of the Constitu-
tion. Religious tolerence and equal treatment of all religious groups and
protection of life, property and place of worship are essential parts of G
secularism. Profession, actions and conduct of persons should be consistent
with secularism and they need to be measured in that perspective.
•'~

Religion in development is man in search of God. Throughout the
history man endeavours in building into a fuller religious life from the H
604 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A experience of the past and also with the consciousness of life in God that
he seeks for he is always eternally in him. It is the eternal aspect of religion
which is expressed in the religious recognition in every human life, at any t
stage of its development in the pursuit of knowledge of self-consciousness
or self-realisation and of personal experience of eternal or infinite worth,
there are two aspects of religion true-religion and religionism. True religion
B
is spritual religion that seeks to live in the spirit, in what is beyond the
intellect, beyond the aesthetic and ethical and practical being of man and
to inform and govern these members' life by higher light and law of the
spirit. This is Vedantha. Religionism entrenches itself in some narrow
piestic exaultation of the lower members, or lays exclusive stress on intel-
C lectual dogmas, forms and ceremonies on some fixed and rigid moral code
on some religio-political or religio-social system, which are not always
necessary or worthy for a spiritual religion and which disdain the aid of the
forms, ceremonies, creeds or system. The fundamental desire of man is to
make peace with his inner life. The spiritual religion is a form of the
D fundamental desire of man to make peace with his innerself and bring to
bear the experience of transplantation of his current personality into a
vibrant ready sense of knowledge of fulfilment and happiness. The ex-
perience of the man has to be propelled and to be brightened rather than
dimmed by the myriad tribulation of knowing the system of rituals or
feelings of inferior and inaccessible or unnecessary to realise the Supreme
E Being. The need to over-come this is the pursuit of spiritual religion.

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
F 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. 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
G in his own life. 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 ex-
perience, the object of such a law cannot be described as unlawful but
H possibly somewhat visionary.
I A.S.N. DEEKSHITIJLU v. STATE [K. RAMASWAMY, J.] 605

The word 'Dharma' or 'Hindu Dharma' denotes upholding, support- A
ing, nourishing that which upholds, nourishes or supports the stability of
the society, maintaining social order and general well-being and progress
of man kind; whatever conduces to the fulfilment of these objects is
Dharma, it is Hindu Dharma and ultimately 'Sarva Dharma Sambhava'.

In contra distinction, Dharma is that which approves oneself or good B
consciousness or springs from due deliberation for one's own happiness
and also for welfare of all beings free from fear, desire, disease, cherishing
good feelings and sense of brotherhood, unity and friendship for integra-
tion of Bharat. This is the cor'e religion which the Constitution accords
protection. c
In Ganpat v. Retuming Officer & Ors., [1975 1 SCC 589, this Court
has held that religion is essentially a highly personal matter and Hinduism
is so tolerant and Hindu religious practices so varied and eclectic that one
would find it difficult to say whether a person is practising or professing
Hindu religion or not. Religion has undergone several changes, but the D
fundamental, moral and religious ideas of the Hindus which lie at the root
of religious and charitable institutions, remain substantially the same. The
Hindu is inclined to believe the divine in every manifestation, whatever it
may be, and is doctrinally tolerant. Therefore, the Hindu· is disposed to
think synthetically and to regard other forms of worship, strange Gods, and E
divergent doctrines as inadequate rather than wrong or objectionable; he
tends to believe that the highest divine powers co-complement each other
for the well-being of the world and mankind. Religion, therefore, is one of
the personal beliefs, is more a cultural attitude towards a physical thinking
in that viay of life and is worship of the image of God in different
manifestation. F

In Shirnr Matt's, a locus classicus on constitutional religion and
protection of Articles 25 and 26 of the Constitution, this court had laid
down that a religion may not only lay down a code of ethical rules for its
followers to accept, it 1night prescribe rituals and observances, ceremonies G
and modes of worship which are regarded as integral parts of religion, and
.-t· these forms and observances might extend even to matters of food and
dress.

In Sri Ve11kataramana Devarn & Ors. v. The State of Mysore & Ors.,
[1958] SCR 895, this Court surveyed the historical background in enacting H
606 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A the Madras Religious and Charitable Endowment Act (29 of 1951) which
is a pre-cursor to predecessor Act 17 of 1966. The question therein was :
whether Sri Venkataramana of Moolky Petta was a private or a public
temple or a denominational institution? This Court had held that with the
•
growth and importance of temple and of worship therein more and more
attention came to be devoted to the ceremonial law relating to construction
B
of temple and conduct of worship of the Deity and numerous other trusts
that came to be established for its existence. While explaining the expres-
sion "matters of religion" used in Article 26(b), this Court said that prac-
tices which are regarded by the community as part of its religion and under
the ceremonial law pertaining to the temples, who are entitled to enter into
C them for worship and where they are entitled to stand for worship and how
the worship is to be conducted are all matters of religion. In The Durgah
Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., [1962] 1 SCR 383
at 411-412, another Constitution Bench of this Court explained the con-
notation of the above statement of law thus :

D "While we are dealing with this point it may not be out of place
incidentally to strike a note of caution and observe that 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
E an 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 super-
stitious beliefs and may in that senise be extraneous and unessential
accretions to religion itself. Unless such practices are found to
F
constitute an essential and integral part of a religion their claim
for the protection under Art. 26 may have to be carefully
scrutinised; in other words, the protection must be confined to
such religious practices as are an essential and an integral part of
it and no other."
G
The Act regulates administration and maintenance of charitable and
Hindu religious institutions and endowments in their secular administra-
tion. It Jays emphasis on preserving Hindu dharma and performance of
religious worship, ceremonies and poojas in religious institutions according
H to their prevailing Sampradayams and Agamas. Section 13 enjoins that the
I AS.N. DEEKSHITULU v. STATE [K. RAMASWAMY, J.] 607

Commissioner and every other functionary nnder the Act "shall not inter- A
fere with and shall observe the forms, usages, ceremonies and practices
obtaining in and appropriate to the religious institution or endowment".
Section 23(1) equally obligates the trustee that he "shall administer its
affairs in accordance with the terms of the trust, the usage of the institution
or endowment and all lawful directions" issued in respect thereof. Section B
142 puts that "nothing in the Act shall affect the performance or interfere
with religious worship, ceremonies and poojas in religious institutions"
according to Sampradayams and Agama followed in such institution. Sec-
tion 50(1) enjoins propagation of Hindu Dharma.

In Sardar Syedna Toher Saifuddin Saheb v. The Estate of Bombay, C
[1962) Supp. 2 SCR 496 at 521, Sinha, C.J had held, in his separate but
concurring judgment, that what are matters of religion and what are not is
not an easy question to decide. It must vary in each individual case
according to the tenets of the religious denomination concerned. The
expressions 'matters of religion' engrafted in Article 26(b) and 'activities D
associated \\ith religious practice' do not cover exactly the same ground.
What are exactly "matters of religion" are completely outside State inter-
ference, subject, of course, to public order, morality and health. But
activities associated with religious practice may have many ramifications
and varieties - economic, financiai political and other such activities as are
contemplated in Article 25(2) covering a field much wider than that E
covered by either Article 25(1) or Article 26(b). No demarcation can be
classified as to which are essentially and purely of a religious character and
those which are not essentially such. Considering the question whether
ex-coinmunication is a part of religious practice, on the facts in that case,

·- majority had held that it offends Article 25(1) and accordingly the F
provision was declared unconstitutional.

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 G
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 of 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. Religion is not necessarily theistic and in H
608 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A fact there are well-known religions in India itself like Budhisrn and Jainism
which do not believe in the existence of God. In India, Muslims believe in
Allah and have faith in Islam; Christians in Christ and Christianity; Parsis
in Zorastianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak
Devji, its founder, which is a facet of Hinduism like Brahamo, Samaj
B Aryasamaj etc.

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 aGpect
C 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, cannot 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
D 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 per-
sons which find their foot-hold in secular aspect of the Constitution.
Secular activities and aspects do not constitute religion which brings under
E 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
F 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.

In pluralistic society like India, as stated earlier, there are numerous
G religious groups who practise diverse forms of worship or practise religions,
rituals, rites etc.; even among Hindus, different denominants and sects
residing within the country or abroad profess different religious faiths,
beliefs practices, They seek to identify. religion with what may in substance
be mere facets of religion. It would, therefore, be difficult to devise a
H definition of religion which would be regarded as applicable to all religions
)
A.S.N. DEEKSHrmLUv. STATE [K. RAMASWAMY, J.] 609

or matters of religious practices. To one class of persons a mere dogma or A
precept or a doctrine may be pre-dominant in the matter of religion; to
others, rituals or ceremonies may be pre-dominant facets of religion; and
to yet another class of persons a code of conduct or a mode of life may
constitute religion. Even to different persons professing the same religious
faith some of the facets of religion may have varying significance. It may B
not be possible, therefore, to devise a precise definition of universal
application as to what is religion and what are matters of religious belief
or religious practice. That is far from saying that it is not possible to state
with reasonable certainty the limits within which the Constitution conferred
a right to profess religion. Therefore, the right to religion guaranteed under
Article 25 or 26 is not an absolute or unfettered right to propagating C
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 D
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. E

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 F
which are not essential and integral and the need for the State to regulate
or control in the interest of the community.

There is a difference between secularism and secularisation.
Secnlarisation essentially is a process of decline in religious activity, belief,
ways of thinking and in restructuring the institution. Though secularism is G
a political ideology and strictly may not accept any religion as the basis of
State action or as the criteria of dealing with citizens, the Constitution of
India seeks to synthesise religion, religious practice or matters of religion
and secularism. In secularising the matters of religion which are not
essentially and integrally parts of religion, secularism, therefore, conscious- H
610 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
I

A ly denounces all forms of super-naturalism 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 in some degree to the process of secularisation of the
B matters of religion or religious practices. For instance, untouchability was
believeC: to be the part of Hindu religious belief. But human rights
denounce it and Article 17 of the Constitution of India abolished it and its
practice in any form is a constitutional crime punishable under Civil Rights
Protection Act. Article 15(2) and other allied provisions achieve the pur-

c
pose of Article 17.
-
The religious freedom guaranteed by Articles 25 and 26, therefore,
is intended to be a guide to a community-life and ordain every religion to
act according to its cultural and social demands to establish an egalitarian
social order. Articles 25 and 26, therefore, strike a balance between the
D rigidity of right to religious belief and faith and their intrinsic restrictions
in matters of religion, religious beliefs and religious practices and guaran-
teed freedom of conscience to commune with his Cosmos, Creator and
realise his spiritual self. Sometimes, practices religious or secular, are
instricably mixed up. This is more particularly so in regard to Hindu
religion because under the provisions of ancient Samrity, human actions
E from birth to death and most of the individual actions from day to day are
regarded as religious in character in one facet or the other. They sometimes
claim the religious system or sanctuary and seek the cloak ·of constitutional
protection guaranteed by Articles 25 and 26. One, hinges upon constitu-
tional religious model and another diametrically more on traditional point
F of view. The legitimacy of the true categories is required to be adjudged
strictly within the parameters of the right of the individual and the
legitimacy of the State for social progress, well-being and reforms, social
intensification and national unity. Law is a social engineering and an
instrument of social change evolved by a gradual and continuous process.
As Banjamin Cardozo has put it in his "Judicial Process", life is not a logic
G but experience. History and customs, utility and the accepted standards of
right conduct are the forms which singly or in combination shall be the
progress of law. Which of these forces shall dominate in any case depends
largely upon the comparative importance or value of the social interest that
will be, thereby, impaired. There shall be symmetrical development with
H history or custom when history or custom has been the motive force or the
! AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 611

chief one in giving shape to the existing rules and with logic or philosophy A
when the motive power has been theirs. One must get the knowledge just
.... as the legislature gets it from experience and study and reflection in proof
from life itself. 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 ;,,hat constitutes the essential part of
religion may be ascertained primarily from the doctrines of that religion B
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 C
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 D
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 E
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?

Justice B.K Mukherjea in his Tagore Law Lectures on Hindu Law F
of Religious and Charitable Trust, at page 1 observed :

'The popular Hindu religion of modern times is not the same as
a religion of the Vedas though the latter are still held to be the
ultimate source and authority of alJ those held sacred by Hindus.
In course of its development, the Hinl'lu religion did undergo G
several changes, which reacted on the social system and introduced
corresponding changes in the social and religious institution. But
whatever changes were brought about by time it cannot be disputed
that they were sometimes of a revolutionary character - the fun-
damental, moral and religious ideas of the Hindu which lie at the H
612 SUPREMECOURTREPORTS [1996) 3 S.C.R.
\
A route of their religion and charitable institution remained substan-
tially the same and the system that we see around us can be said
to be a evolutionary product of the spirit and genus of the belief
passing through different ways of their cultural development" .
....
•
The basis of Hindu Dharma is two-fold. The first is the Vedas and
B the second are the Agamas. Vedas, in turn, consist of four texts, namely,
Samhitas, Bramhanas, Aranyakas and Upnishads.

Samhitas are the collections of mantras. Bramhanas explain the
practical aspects of the rituals as well as their meanings. They explain the
C application of the mantras and the deeper meanings of the rituals.
Aranyakas go deeper into the mystic meanings of the rituals, and Up-
nishads present the philosophy of the Vedas.
.
From the point of view of content, they are viewed as Karma Kanda
(sacrificial portion) and Jnana Kanda which explain the philosophical
D portion. The major portion of the Vedic literature enunciates the vedic
sacrifices or the rituals which inevitably culminate in the philosophy of the
Upanishads. That is why the Upanishads are called Vedantha or culmina-
tion of the Vedas.

The essence of the Vedic religion lies in Vedic sacrifices which not
•
E only purify the mind and the heart of those who participate in the sacrifices
but also reveal the true and unfragmented nature of the Karman (Action).
Erroneously, Western scholars explained the Vedic sacrifices in terms of
either sympathetic magic or an act of offering the fae to Gods emulating
the mundane act of offering gifts. Thus, for them Vedic religion is a
F primitive religion and Vedic Gods are simply representing insentient
departments of Nature; but it is not so. On the contrary, the term used for
Vedic Gods is "Deva' which literally means -"the shining ones". The
adorable ones - bestowing grace on the worshippers. The root 'Div' also
means that Devas are the embodiment of unfragmented consciousness,
which is ultimately one and non dual. Likewise, the Vedic sacrifice is an
G act of re-enactment of the cosmic creation; in our mundane life, our life of
action is simply a life of fragmented acts. This is because of Raga Dvesha
whereby the perception is limited. The fragmented acts emanate from our
deep rooted attraction and hatefulness. The Vedic sacrifice moves towards
"Poorna'', i.e., plenitude and thus overcoming the problem of fragmented
H action in our lives. Onwards, the seeker moves towards the knowledge of
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J'.J 613

self or the Brahaman. So many Upasanas are taught in the Vedas but not A
-. elaborated. The Agamas have elaborated these Upasanas such as Madhu
Vidya and Dahra Vidya.

Upanishads speak of Para Vidya and Apara Vidya. Apara Vidya
deals with Jnana through various methods. Agamas explain these Para ·
Vidyas. ·The Agamic texts contain four parts, namely, Vidya Pada, Kriya B
Pada, Charya Pada and Yoga Pada.

Each text of the Agamas has the first portion, called 'Samhita' which
contains the four parts namely the Vidya Pada, Kriya Pada, Charya Pada
and Yoga Pada. Vidya Pada offers an elaborate enunciation of the C
philosophy, whereas Kriya Pada deals elaborately with the act of worship.
Worship is viewed as Samurta Archana. In other words, the Gods are
endowed with form and this form of worship culminates into Amurta or
Nishkala Archana by which one worships and realises the formless. These
are the steps to be treated upon one after another.
D
The temples are taken to be sanctified space where entire unfrag·
mented Space and Time, in other words, the entire 'Universe' are
deposited and the image of the Deity is worshipped symbolising the
"Supreme". Although the Deities appear to be many, each and every Deity
is again viewed as the Supreme One and, therefore, the Supreme Reality
is one and non-dual. The multiplicity of the Gods has been effected in E
order to offer the paths which are required according to the entitlement
and evolution of each and everyone. That is why the progress towards the
ultimate evolutionary goal of man depends upon his level of comprehension
... and his capacity to learn. This is the whole concept of a Guru who knows
precisely the extent of spiritual evolution of the seeker and would know F
what is the stage from which the seeker has to proceed.

Hinduism cannot be defined in terms of Polytheism or Hennotheism
or Monotheism. The nature of Hindu religion ultimately is Monism/Ad-
vaita. This in contra distinction to Monotheism which means only one God
to the exclusion to all others. Polytheism is a belief of multiplicity of Goe.IS. G
On the contrary, Monism is a spiritual belief of one Ultimate Supreme and
manifests Himself as Many. This multiplicity is not contrary to Non-
Dualism. This is the reason why Hindus start adoring any Deity either
handed down by tradition or brought by a Guru or Swambhuru and seek
to attain the Ultimate Supreme. H
614
\ \

SUPREME COURT REPORTS (1996] 3 S.C.R.

A The construction of the temple, the nature of the sculpture and the
specific way of worshipping the Deity are taught in the respective Agamas,
namely, Vaishnava, Saiva, Shakti, Skanda, Saura (Surya) and Ganpatya.
The Vaishnava Agamas are divided into pancharatra and Vaikhanasa,
.-
whereas Saiva agamas are seen as non-dualistic, dualistic-cum-non-dualis-
B tic and dualistic together. Each sect follows its own Agamic text in con·
structing the temples, chiseling and consecring the Idol, the Images, as well
as performing worship. It was believed that the priest knew the texts,
receiving uninterruptedly from their predecessors in the family or from
Guru. This succession either through family or through the Guru is called
Parampara. It has now taken shape in Agama schools established by the
C State wherein Agamic education is taught. Purohit, thus educated, becomes
an accomplished priest fit to perform rituals a_ccording to particular
Agama and Sampradaya. The dispensation of these rituals in accordance
with the Agamic Shastras is meant for enlightened ones and not as a
common rule. The entire Indian history of art owes its development of
D Agamic texts which elaborate rules of temple architecture, image making,
ritualistic celebrations, music, paintings and dance etc.

The entire life is thus woven around the temples and the rituals
taking place all over the year. This is to symbolise the philosophy that these
actions are religious.
E Worship is a mystic act by which the devotee identifies himself with
the Deity which in turn represents the Cosmic Supreme. Thus the form of
worship varies from simple 'panchopachara' pooja to 'Shodhsaopchara'
pooja. The offerings of articles is related to elements of nature identifying
ourselves with the Cosmos. The entire basis of Agamas is to support the
F fundamental supposition of Hindu philosophy that there is the unity of
~xternal and internal as well as the Pinda and Bramhanda. Whatever ...
appears as Darkness externally, is ignorance internally. Whatever is light
externally, is knowledge internally. This is the reason why in the Agamic
way of worship, there are practices identifying the limited self with the
G Cosmos, and internalising of the external image. This principle is reflected
in:-
~ 'l'f'IT t<i ..m
"Devobhootva devam Yajet'

In fact the devotee is first expected to transform himself into the
H Deity and then approach the Deity and the purificatory exercise is meant
I
!
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 615

to prepare one for being one with the Deity. A

'Nyasa' means depositing the entire Cosmos into one's own body.
The entire Cosmos is invited into one's body. The devotee is becoming one
with the Cosmos. Likewise, there is Antaryaga and Bahiryaga. Antaryaga
means worshipping of the image which is externally present before people. B
From external worship, people move to internal worship and meditate
upon Swarupa of the Deity in devotee's heart. Finally, people identify
themselves with the Deity and realise the non-dual Supreme Reality. But
this is all in a given order. There may be one who does not need the external
worship but it cannot be dispensed with as a principle. External worship is
the first and essential step through which a process of '"'adual Formless C
can be reached.

In the temple worship to the respective Deities, prescribed rituals
should be conducted according to the aforesaid respective Agamas. The
worship may be simplistic or elaborate. It is believed that the 'Kala' or the D
'power' increases along with increase in investment of worship. The logic:
+ "The increased worship is effected into the wider participation - individual
as well as social. This is the gradual expansion of the grade bestowed on
the greater number of the men and women as well as all the creatures.
Therefore, right from Panchopchara to Devaupachara to Shodashaupchara
and to Rajopachara, all forms of worship have got their own importance. E
It is a matter of only one's capability. There is a definite correspondence
between Vedic and Agarnic worship. Agamic worship is worship of image
in or outside a temple. The Mandapa of the temple corresponds to the
,__ Vaidika in the Vedic rituals, the Yupa or the post outside the Mandapa
corresponds to the "Dhuaja". Offerings of articles in the Agamic worship F
correspond to offering of the Ahuti in Vedic Sacrifice.

Temple has become the most important centre of activities -
religious, cultural and social among the people, in particular rural India,
Temple is conceived in the likeness of human body. Parts of the temple
are named accordingly, by which the organic unity of the temple is em- G
phasised. Obviously, therefore, religious people endow their property for
upkeep of temples or propagation of religion. Majority people in India are
dedicated to Vishnu, Shiva, Shakti, Ganpathi and Hanuman of Hindu
Gods. The cardinal principle underlying idol worship is one of the four
modes for self-realisation. Dai1y routine life in performing rituals to Deity H
\
\

616 SUPREME COURT REPORTS (1996] 3 S.C.R.

A will be gone through with minute accuracy of Abishek (bathing), changing
of clothes, offering of food and the retirement (rest). Religion, therefore,
has occupied a significant place and role in the public life in our country. ·-
Hindus, therefore, believe that religion is an essential and powerful factor
in raising humanity to higher level of thought and being. The priest ( ar-
B chaka or by whatever name called) would conduct rituals to the Deity as
per prescribed Agamas, forms, practices and sampradayams.

Shri Suniti Kumar Chatterji in his Preface to the Cultural Heritage
of India, Institute of Culture, Vol. IV at page xv had stated thus :

c "Men are equal on the basis of their common humanity, though no
two individuals are the same in their intellectual and spiritual
framework, as much as in their physical complexion. There are
some people who are intellectually strong, and there are others
who are easy to move emotionally. And there is a larger group
D which reacts to impulses and instincts more than to anything else.
To people of these three main types of outlook, and those of other
types also, religion, both as an individual experience and practice
and as a social vehicle carrying the individual members of a
particular society in their progress in life, must ipso facto present
a bewildering series of diversities. The scriptural religions like
E Islam and Christianity theoretically insist on dogmas and a uniform
and unalterable creed. Yet we have in Christianity so many dif-
ferent sects, sometimes with notions and ideologies which go
counter to one another. And Islam too recognizes the seventy-two
firqahs or sectarian organisations. Christ is quoted to have said,
F 'In my Father's house are many mansions'. Could we not
legitimately take it to mean that a great latitude was allowed by
him in the sum total of the faith and behaviour of the elect, all
together forming the entire body of the faithful who believed in
Clu;ist? Similarly, in spite of the preachings in Islam of the path of
orthodoxy as embodied in a literal interpretation of the Word of
G God, Kalam Ilahi, which is the Quran, one of the Hadith or
traditional sayings as ascribed to the Prophet runs like this :
"Thruqu-Jlahi Ka-'adadi' anfasil-makhluqali" - the ways of God are
like unto the breathings of all created beings. There are many
people who therefore consider that it would be nothing less than
H blasphemy to assert that the ultimate Reality can be approached
I
I A.S.N. DEEKSHITULUv. STATE [K RAMASW_AMY, J.] 617

only by one path - and that path presumably is the one which the A
person making such an assertion believes in."
••
'
On the 'Vaikhanas Early History And Literature' at page 160-161, it
is stated that the Vaikhanasa Sastra sets great store by purity of conduct,
as is evident from Kalidasa's Sakuntala (I.22), where King Dusyanta in-
quires whether Sakuntala observes Vaikhanasa-Vrata. Vaikhanasas were B
entrusted with the management of temples and their land and property.
they entered into agreements with the revenue officers and the assemblies
in matters relating to the cultivation of assigned lands and sometimes also
of unassigned lands. They were the hereditary trustees of Visnu temples,
managed their properties, and conducted the divine service. Shrines of C
Ramanuja and the Alvars were added, and in the associated temples in
Tirupati town and Tiruchanur, the pancharatra form of worship was intro-
duced. Jiyars (monks of the Ramanuja school) took charge of the Balaji
temple, where the services were performed by vaishnavas of that School.
Yet pooja to Balaji (Sri Venkateswaraswamy) in the sanctum sanctornm D
continues to be done by the Vaikhanasa according to the Vaikhanasa
Sastra which is purely in Sanskrit. There are more temples in South India
•• today under the Vaikhanasa Agama than under the Pancharatra. Devotion
(bhakti) and self-surrender (Prapatti) to His will are together the master
keys to open the gates of divine grace. Vaikhanasa's chief contribution to
spiritual life is the emphasis on the worship, service, and adoration of the E
Lord in the area (image) form in which He 'descends with a non-material
body', and in which He is present eversince as the surest means of libera-
tion. Vaikhanasas place greater emphasis on area worship.

Brighu Kriyaadhikaare states that according to Vaikhanasa Sastra. F
The Priest (Acharya) must be one who is well-versed in Vedic lore, of
dharmic persuasion, thirsting for Jnana (wisdom), gentle having control
over senses, pure and attached with total dedication to the worship of Lord
alone. The priest shall carry on daily rituals of worship and all rites
according to sastric injunctions. In •Vaikhanasa Prakirnadhikara at page
443, it is stated that an Acharya (fully qualified man) alone should be G
appointed as the priest. It also indicates dismissal of a priest if he was
found having deflected from his duty and appointment of another person
in his place. At page 269 it states that the priest must be provided with
Dakshina (money for officiating priest) for his sustenance and maintenance
of himself and his family so as to keep the priest in comfort and free from H
\
\.
618 SUPREME COURT REPORTS [1996] 3 S.C.R.

A want. It also speaks of employment of a archaka for life. At pages 302 and
303, it is stated that the owner of the temple should appoint one or two
archakas according to his capacity. The archakas must be Vaikhanasa and ••
having the qualities mentioned above and free from vices. He is enjoined
to divide his earnings into three equal parts keeping for himself 2/3rd share
for maintenance of himself and his family and 1/3rd share for carrying out
B dharmik purposes. He is also directed to enjoy the gifted land according
to the stipulations.

Jn Prakirnadhikara, (para 12) it is mentioned that the income from
property of the temple be divided into three parts · first part to be retained
C for himself and his family; the second part for the temple; and the third
one for the construction of the temple · taking care of the residence of the
archaka. Jn Kashayappa Jhanakanda, para 21 also mentions the same. The
Agama text intended to avoid confmion in procedures of worship by
insisting upon the hereditary character of priesthood (either in the family
D ~through t~acher pupil line). Prakiranadhikara (17 & 39) says that when
a priest is already performing rituals no other priest must enter the sanctum
sanctonim. Only one person must do all the things himself prohibiting
others to participate. The order of Guru was described as binding as an
order of a king. The right to live in comfort on the provisions made by the
owner of the temples was inte11ded to keep the priest above want so as to
E enable him to attend to his duty without worry and the same finds mention
in Prakirnadhikar, paras 17, 84.and 86. It is also insisted that Guru (Priest)
or in his absence his son or grandson or great grandson or brother or his
disciple or his disciple's disciple or a Brahmachari should be chosen in
succession. As is found in Prakirnadhikara, the selected priest must be
p well-versed in Vaikhanasa Sastra with qualities like gentleness controlling
senses, purity, character and devotion to the worship of Shri Maha Vishnu
etc. The idea is that one devoid of divinity cannot get into any association
with divinity. Shri Paramapurush in Chapter II prescribes in para 35
appointment of archaka. The owner of the temple without executing a gift
of land in the aforementioned manner fixes monthly salary to the archaka,
G failure thereof leads to ruination of the owner's life. The owner should not
feel jealous of the earnings of the archaka and his prosperity. It does not
specify that archaka should belong to the specific denomination or group
of which the temple service is done traditionally according to Agamas.
According to Brighu Kriyaadhikara (302-304) Viriti Kalpapnam, a per-
H manent settlement has to be made for their maintenance and the worship
/ A.S.N.DEEKSHITULUv. STATE[K. RAMASWAMY, J.] 619

of Deities is done properly by qualified priest. A
In 'Sri Panchratraparamyam' by Dr. V. Vardacharyamaharshya at
page 21, he has stated that the Sanskaras like Niseha must be performed
according to one's own sutra or by the method of Pancharatra as might
have been followed by one's own family hierarchy. At page 70 he has
further stated that in Lakshmitantra in Telugu manuscript all priests do uot B .
have the right to perform worship in temples. Only panchratra followers
who know the kunna and madhyandina sahta are entitled to perform the
worship in Vishnu temples; only such great Munis (Rishis) in the line of
succession have right to perform rituals. In Jayakhasamhita of Pancaratra
Agma by E. Krishnamacharya at page 22, it is stated that priest of Vaish-
nava cult has the right to perform worship by heredity. In Satvata-Sanihita C
at page 411, the way the abhiseka (the ablution) may be done by the
principle priest, is mentioned. Others who had initiation (Diksha), disciple
of Guru, or the son, or disciple with good qualities mentioned above are
eligible to perform pooja. In this way the abhiseka would be done only by
those who are born is the family of Acharyas. The right of karsana etc. D
vests only in such persons. In "Laksmi-tantra", a Pancharatra Agama by
Pancli V. Krishnamacharya, it is stated at page 1 that in the Vaikhanasa
system only those priests who by the tradition of heredity belong to the
Vaikhanasa sutra perform the worship for sacraments like the birth
ceremony, naming ceremony etc. and follow the rules prescribed therein,
i.e., the Vaikhanasa sutras. At page 2, he has stated that in the Pancharatra E
system all priests have a right to worship the images (established in their
houses) for their own benefits. But for conducting worship in the temple
particularly in famous temples only the descendants of the priests properly
initiated (Diksha) especially by family traditions, are entitled to be the
~-
priests. O_thers having only a secondary right. The special initiation to
others is not prohibited. This is the current tradition. It is stated in Padma F
Samhita that for conducting worship for otru:'rs, Brahmins only are entitled
to perform worship. At page 165, he has stated that thereafterwards the
text prescribed that in the matter of performing worship for others only
the descendants of the family of Kashyapa etc. have the right, which is not
universal. But that text is .found only in the manuscript in Telugu script. G
There is some scope to conclude that this portion might have been con-
trived by some elements who wanted to establish their own exclusive right
to perform worship for others in the temples. That portion is also against
arrangements prevailing these days. In a narrative dialogue, he has stated
that Rishi Marich is stated to have said that 'O Padma' only those who are
H
\
'

620 SUPREMECOURTREPORTS [1996] 3 S.C.R.

A initiated in the Diksha spoken by you have a right to do the worship of
Vishnu. All others have no right in that worship. The worship for others
should be performed by persons born in the best gotra of the Kashyap "'
Muni etc. If the worship for others is done by other Bhagavatars on account
of ignorance, there will be much fall of the kings and the country. There-
fore, through all efforts one who is born in Kashayapa family duly initiated,
B though illiterate, should be appointed as priest by the Bhagavatars. He who
cultivates pure behaviour is the most deserving to perform worship.

The Agamas, thus, are a stream of traditions which have grown along
with the tradition of the Vedas. Many earlier works of Agama literature

c are fairly ancient in times. They are not anti-Vedic but advocate the
worship of God in the form of Idol. In the Vedic tradition, a very limited
..
number of Brahmins were conversant with the ritualistic lore but under
Agama they performed rituals visualising the Deity whom they invoked by
Mantras. Vedas deprived others including women and Sudras of the op-
portunity to participate in the rituals. But Agamas provided opportunity to
D all to perform worship of the God. Purity, good conduct, devotion and
dedication is insisted upon. In Mahabharatha, it is ordained thus :
..
'I -;;nfir;f ~ <ml 'I ~"ll'it '!"ii 'l!ll'll
~ fa"'oq'"" ~ ft° ~II
E Na Jatir na Kulam Tat na Swadhyayo Na cha Shrutam
Karnane Dwijatwasya Brittameb he Karnam.

'Not by caste, not by ancestry nor by scholarship nor by stndy of
Vedas does one acquire the twice-born status. One acquires it only
by virtue of his work'.
F ·~

As far as Vaishvanism is concerned, the Agamas are of two types -
Vaikhanas and Pancharatra. While the former is based purely on Vedic
traditions, the letter has Tantric character. Vaikhanasa and Pancharatra
followers have been known to be attacking each other on the ground of
acquiring more powers and emoluments in cash and kind from the temples.
G The Vaikhanasa turned to the Pancharatra Agamas for information on
several religious issues. The Vaishnavas is much indebted to the authority
of the Pancharatra Agamas. The Agamas categories worship as Svarth, i.e.,
for self in one's own home and Parartha. i.e., one performed by the priest
for others in a temple. The priests in order to be eligible have to undergo
H Diksha, which is described elaborately in the Agamas. Some of the Agamas
j
I
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 621

state that while worship for oneself can be performed by any one who is A

... initiated into th<; ritual but the worship to be performed for others in a
temple has to be by the priest who has inherited authority of acting as priest
by family succession. Krishnareharya has rationalised the synthesis between
Vaikhanasa and Pancharatra.

From the Vaikanasa literature referred to above the following B
prominent fe~tures would emerge :

· Temples were constructed by private owners or kings. In the respec-
... tive Agamas of either Vaishnava or Saiva form of worship, priests ap-
pointed are from amongst the sects who have implicit faith, devotion, C
dedication of a man of good character, integrity and piety. He must also
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 iden-
tification and personification. The right to work as priest is traceable to an D
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 E
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 disciples 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 F
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 the hailing from the same
sect remained· in the same temple or similar temples elsewhere. G

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 observan-
ces, ceremonies and modes of worships which are integral parts of the H
622 SUPREME COURT REP OR TS (1996] 3 S.C.R.
\
\

A religion. In Seshammal's case (supra) on which great reliance was placed
and stress was laid by the counsel on either side this Court while reiterating
the importance of performing rituals in temples for the idol to sustain the
faith of the people. insisted upon the need for performance of elaborate
' .
ritual ceremonies accompanied by chanting of mantras appropriate to the
Deity. This Court also recognised the place of an archaka and had held
B
that the priest would occupy place of importance in the performance of
ceremonial rituals by a qualified archaka who would observe daily dis-
cipline imposed upon him by the Agamas according to tradition, usage and
customs obtained in the temple. Sri P.P. Rao, learned senior counsel also
does not dispute it.
c
The main controversy is only of hereditary succession as an archaka.
The question is : whether abolition of hereditary right to perform such
service is an integral part of the religion? Sri Parasaran contended that
since this Court in first Shimr Math's case had held that the doctrine of a
D particular religion or usages and practices would include food and dress,
priest being an inseparable part of the Agamas without whom the
ceremonial temple worship would not start, archaka becomes part of idol
worship and a part of religions practice. Therefore, the abolition of
hereditary right to perform ceremonial worship by the priest would be an
affront to matters of religion offending Articles 25(1) and 26(b) of the
E Constitution. He contended that in Seshammal's case what was upheld by
this Court was the doing away of the line of succession on hereditary basis
but not hereditary right itself. This Court had upheld hereditary right as
such and given acceptance to legislative sanction to doing away with the
line of succession to hereditary descendant from the same family and gotra.
On the other hand. Sri Rao contended that the office of archaka is not ·•
F
done away with. Archaka is an important employee of the temple to
conduct daily ritual ceremonies in accordance with the Agamas, customs,
practices or Sampradayamas prevalent in the concerned temple. His ser-
vice is akin to that of any other employee of the temple. The hereditary
right offends Articles 14, 15(1) & (2) and 16(1) of the Constitution.
G
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
H legislature cannot intervene to regulate it. But the service of the priest
I
!

AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 623

(archaka) is a secular part. As seen earlier the right to perform religious A
'. 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 inde- B
pendent 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
y conduct, its abolition by sovereign legislature is equally valid and legal.
Regulation of his service conditions is sequenced to the abolition of C
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. So are the other office-holders or employees of
the temple. In Seshammal's case, this Court had upheld the legislative D
competence to take away the hereditary right as· such.

The real question, therefore, is : whether appointment of an archaka
is governed by the usage and whether hereditary succession is a religious
usage? If it is religious usage, it would fall squarely under Article 25(1)(b)
of the Constitution. That question was posed in Seshammal's case wherein E
this Court considered and held that though archaka is an accomplished
person, well-versed in the Agamas and rituals necessary to be performed
in a temple, he does not have the status of a head of the temple. He owes
his appointment to Dharmakarta or Shebait. He i., a servant of the temple.
In K Seshadri Aiyangar v. Ranga Bhattar, I.L.R. 35 Madras 631, the Madras F
High court had held that status of hereditary archaka of a temple is that
of a servant, subject to the disciplinary power of the trustee who would
enquire into his conduct as servant and would be entitled to take discipli-
nary action against him for misconduct. As a servant, archaka is subject to
the discipline and control of the trustee. The ratio therein was applied and
upheld by this Court and it was held that under Section 56 of the Madras G
Act 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 H
\
624 SUPREME COURT REPORTS (1996] 3 S.C.R.

A 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
B
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 rule or the Act. He owes his existence to •
C 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 Agamas Sastras, it is no ground to hold that this
appointment is either a religious practice or a matter of religion. It is not
D 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.

It is true that the position of the office of Pedda Jeeyanagar or
Chinna Jeeyanagar as a religious head in the context of matadhipathi of
E Ramanuja sect was upheld by the Privy Council, yet as regards his right in
the Lord Venkataramana temple, he performs the office as a nominee and,
therefore, he also owes his existence to the nomination which is antithesis
to hereditary succession. 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
F 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 appears to have been made to abolish them, yet their
inaction or omission to amend the law is no ground to hold that the
G 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.

H The next question is : whether abolition of the emoluments attached
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 625

lo the office is invalid in law? Shri Parasaran has forcefully and with A
vehemence at his command repeatedly argued that appointment of archaka
and right to receive emoluments or share in the offerings is an integral
usage and practice prevalent in Madras Province from centuries. Jn
Seshammal's case, the usage was not an issue since the hereditary right or
usage or practice was not avoided in the Madras Act. Section 34(1) (b) has B
done away with the appointment on usage or custom; when the appoint-
ment is on the basis of usage and custom which acquired the status of law
and is a part of religious practice, Section 34(1)(b) is unconstitutional. It
is true that in Seshanunal's case the issues whether appointment of an
archaka should be made on the basis of custom or usage prevalent in an
institution or whether such appointment is in contravention of Article 25(1) C
of 26 (b) of the Constitution were not directly addressed. So long as the
statute did not intervene regulating the secular appointment of an archaka,
the appointment according to prevailing usage or custom was upheld by
the courts. Consequently, the right to succession or appointment remained
valid. But with the statutory intervention, unless the custom or usage is held D
an integral part of the relib<ion, the legislature has power to regulate the
appointment of an archaka or other office-holder. In view of the settled
legal position that the appointment of an archaka is a secular act, the
previous custom or practice or usage in making an appointment to the
office of an archaka is regulated under the Act. As an object in that behalf
the hereditary rigbt or custom or usage, prevalent in that behalf, was E
statutorily abolished.

Jn Gazula Dasaratha Rama Rao v. State of Andhra Pradesh & Ors.
AIR (1961) SC 564 the qnestion arose : whether the hereditary right to
hold office of village Munsiff under the Madras Hereditary Village Offices F
Act, 1985 was constitutionally valid? A Constitution Bench of this Court
held that the appointment on grounds of 'descent' violates the fundamental
right under Articles 14, 15 and 16, (1) of the Constitution. In that context,
after elaborate consideration, the Court had held that what goes with the
office is its emoluments - whether in the shape of land, assignment of
revenue, agricultural produce, money, salary or any other kind of G
I remuneration. They are granted or continued in respect of or annexed to
~

the office by the State. Apart from the office, there is no right to the
emoluments. In other words, when a person is appointed as Village Mun-
sif~ it is an appointment to the office by the State to be remunerated either
by use of land or by money or salary etc. When the emoluments consisted H
\
I

626 SUPREME COURT REPORTS [1996] 3 S.C.R.

A of land, the land did not become the family property of the person
appointed to the office whether by virtue of an hereditary claim to the
office or otherwise. It was an appendage to the office, inalienable by the
office-holder and designed to be the emoluments of the officer into the
hands of whosoever the office might pass. It does not take out from the
purview the office under clauses (1) and (2) of Article 16 of the Constitu-
B tion. An office has its emoluments and it would be wrong to hold that
though office is an office under the State, it is not within the ambit of
Article 16 to take away the emoluments attached to the office, because
prior to the Constitution the law recognised a custom by which there was
a preferential right to the office in the members of a particular family. The
C customary pre-existing right of the family to the property in the shape of
emoluments of the office is not independent of or irrespective of the
office. There was no pre-existing right apart from the office. It was accord-
ingly held that appointment on principle of descent was violative of Article
16 (1) and (2) of the Constitution.
D It deserves to be noted 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
E which such powers are exercised or functions are performed. In Shirur
Math's case this Court had upheld similar State action whether the offend-
ing provision was in conformity with the rules, practices, usages or customs
of the Math in dealing with the right of the head of the Math. Similarly,
Section 142 preserves continuance of existing customs etc. by a savings
clause as under :
F
"Savings : Nothing in this Act shall -

(a) affect any honour to which any person is entitled by custom,
the performance of or interference with the religious worship,
ceremonies and poojas in religious institutions according to the
G
sampradayams and Agams followed in such institutions ; or (b)
authorise any interference with the religious or spiritual functions
of the head of a math including those relating to the imparting of
religious instructions or rendering of spiritual service."

H A conjoint reading thereof preserves the existing customs, perfor-
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 627

mances, religious worships, ceremonies and poojas according to A
Sampradayams and Agamas followed in such institutions. Section 142
i , 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 faceti and performance of ceremonies, B
practices, customs or usages in 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 inde-
pendently survives. The further contention is that interference with matters c
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 religious matters.
D
It is next contended that as per rules laid down in· Agmas, the
archaka of particular denomination alone is entitled to enter sanctzan
sanctomm and touch the image of God. A touch by a person of different
denomination defiles the image of God. Therefore, persons belonging to
that particular family, sect or denomination alone are entitled to perform E
pooja or ceremonial rituals of daily worship and that the abolition of
hereditary right amounts to interference with the religion offending Article
25(1). Ex-facie the argument being attractive, we had put a pointed ques-
tion to Shri Parasaran that when with the advancement of education and
r- the liberty of a person to pursue liberal higher education of his choice to F
.._ improve his excellence, persons born in a particular sect or denomination
acquire 'liberal education and migrate, as is usual, to a foreign country and
settle themselves in profitable avocation, and no other person from that
particular family, sect/sub-sect or denomination having knowledge,
proficiency and accomplishment is available, what would happen to the
performance of rituals in that particular temple. The counsel, after due G
consideration, was frank to submit that in that eventuality the management
of the institution has to seek a suitable person from outside the family,
seat/sub-sect or denomination. With increased modern facilities for liberal
higher education and learning and ample opportunities to improve excel-
lence to seek advantageous avocation, a child in traditional Vedic family H
\
628 SUPREME COURT REPORTS [1996] 3 S.C.R.

A may not fall in line with father to practise his archakatwam, avocation or
services and no one can compel him to do so, Therefore, what would be
relevant is not that the candidate who seeks to serve as an archaka must .,
be from that family etc., but must b e 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
B 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 ..
C 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
hitherto performing the the same. Earlier, the field of choice to appoint a
D 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
E principle under Section 34 is not violative of either Article 25(1) or 26(b)
of the Constitution.

It is next contended that there are no proper guidelines in the Act
to exercise the power and wide discretion has been conferred on secular
F authority, i.e., the Commissioner to decide as to who should be appointed
to the offices abolished under Section 34. The State has no jurisdiction
'
either to exercise adjudicatory power or legislative power in matters relat-
ing to freedom of conscience. We find no force in the contention. 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
G 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 J_
under Section 155 to supplement these provisions. Three schools to impart
education one Agama Sastras etc. are established in each in Andhra,
H Telangana and Rayalseema regions. Vide GOMS 2920 dated December 19,
! A.S.N. DEEKSHITULUv. STATE[K. RAMASWAMY,J.] 629

1958 Board of Examiners from Specialist Pandits was constituted to impart A
training and conduct examinations and papers were set out on each subject;
(. QOMS No. 1252 dated November 30, 1971 prescribes rules to conduct
examinations in Agamas; Vide GOMS No. 1051 dated September 20, 1976
Advisory Hoare!, ronsisting 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
B
facilities and conducting examinations in the prescribed manner. The Act,
therefore, is not arbitrary. The procedure prescribed therefor is neither
vague nor arbitrary.

Yet another serious contention of Sri Parasaran is that the archaka c
and other office-hol,lers llave a right to a share in the Prasadam offered
to the Lord. It cannot be characterised either as an economic, political or
secular activity associated with religious practice. Food offered to God
becomes Prasadam. The devotee as well as office-holders are eligible and
entitled to a share in the Prasadam. The archakas are entitled to remunera- D
tion from the worshippers for services rendered to the worshippers. For
instance, 1/2 of each broken coconut is offered to the Deity as Neyvedyam.
Similarly, in Anjitasawas, worshippers make payment for such services.
Devasthanamas/temple charges fee from devotees, and from it archakas are
entitled to their share as they render services to the Deity. They are entitled
to separate remuneration for the services they render to the worshippers. E
The denial thereof, therefore, is unconstitutional, unjust and unfair. He
placed strong reliance on a decision of the Madras High Court in Tirnmalai
Tiripati Devasthanan1 Conunittee, by its Conunissioner v. Archakani
Seshachalam Dikshithulu & 2 Ors., (1990) 1 LW 34 at 37 - Journal Section,
Shri Rao resisted the contention and pointed out that the archaka and F
other mirasidars and under a contract certain percentage of shares in the
offering to the Lord Venkteshwaraswamy. The statute has nullified the
contract and introduced principle of payment of salary for services
rendered. Prasadam is actually offered to the Lord at the time of worship
and a part thereof is given for personal consumption. The archaka or other
service holders have no right to a share in other collections. The decision G
of the Madras High Court has no application to the facts of this case.

Having given our anxious consideration to the respective contentions,
we find that there is no force in the contentions of Sri Parasaran, Lord
Venkteswaraswamy Temple of TTD has its centuries old history. It had its H
630 SUPREME COURT REPORTS [1996] 3 S.C.R.
\
A glory with the patronage of Cholla Kings, Pallava Kings, Vijayanagara
Kings who donated large tracks of lands for its maintenance and upkeep.
Equally, it supported the plunder by the French invaders and British
.'
empire who used its income as part of public exchequer. It has regained
its resplendent glory with immense faith and devotion the people have in
Lord Venkteswaraswamy who visit daily in lacs, wait in queue for a day for
B
darshan for a few seconds. Its income grew from voluntary offering in
Hundi and sale of Prasadams (food) and Laddus (Sweet-meat). Its ad-
ministration and management is a systematised feature. The Act and the
predecessor Act 17 of 1966 regulated the same in providing every facility
to the pilgrims and devotees and cared to minimise inconvenience to
C devotees during darshan-stay in the precincts or outside-wait at Thirumalai
and at Tirupathi down the hills. Chapter VIX of the Act exclusively deals
with the management ofTTD. It is seen 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 collec-
D tions 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
E the abolition of the hereditary right, the right to receive customary payment
associated with an office equally stood abolished under Section 144. Sec-
tion 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 payme11t of salary
F prescribed under the rules for services rendered by an archaka etc. Con-
sequently, 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 accord-
ance with the scales prescribed under the rules made thereunder. The
Division Bench of the Madras High Court had gone into the question prior
G to the abolition of the rights. Therefore, principle laid therein no longer
operates in view of the statutory interposition abolishing those entitlements.

The gamekars (who prepare food items offered to God including
Laddus) are species of mirasidars doing service to Lord Deity on
H hereditary principle. Though they perform the duty of preparing food etc.
I A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 631

according to Agama prescription, usages and practices obtaining in each A
temple, their right 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. ·
B
It was next contended that prescription of the qualifications to the
archaka is arbitrary, unjust and unfair. We find no force in the contention.
It is true that prior to the Act came into force, the succession to the office
was based on hereditary principles. But Section 37 of the predecessor Act
....,_ 17 of 1966 prescribes qualifications of archaka which are in pari materia C
with those prescribed in Section 36 of the Act. 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., D
Andhra, Telengana and Rayalseema were established and trainin,g in fact
is imparted to·the candidates. The recognition of the qualifications by the
Coni.missioner 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 on the sub- E
jects. 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 Agamasastras. A pandit in that branch of speciality is
in service of the department. With his assistance and of other persons, the
Commissioner would adjudged the suitability of the respective candidates. ·F
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 vices 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 G
not arbitrary, unjust or unfair.

Yet another serious contention of Sri Parasaran is that the power of
transfer under Section 39 is within the grinding teeth of Article 25(1) of
the Constitution. It is his contention that each temple has its own rules laid H
632 SUPREME COURT REPORTS [19%] 3 S.C.R.
\
A down by Agamas, practices and customs prevalent in that temple; archakas
will have special knowledge of working in the temple; an archaka trans-
ferred to another temple of transferee-substitute bereft of that knowledge )

in the performance of rituals defile the image of the presiding Deity,
leading to serious repercussions and, therefore, Section 39 is ultra vires the
Constitution. We find no force in the contention. It is seen that Sections
B 13 and 142, which have already been adverted to, would take care of the
apprehended catastrophe. On mere apprehension, 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, prac-
tices or Sampradayams applicable to that particular temple, it would be
C considered and dealt with accordingly. It cannot be expected that the -,
Commissioner would act in violation thereof and would act in a way
inconsistent with Sections 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
D be declared arbitrary or ultra vires or unjust.

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
E 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 sub-
mitted by Shri Markandeya but we did not have the occasion to have them
F 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 state that liberty
is given to place those necessary and material evidence before the Govern-
ment which would constitute a Committee consisting of Deputy Secretary,
G Finance Department, Joint Secretary to the Government, Revenue (En-
dowment Department) and Joint Commissioner, Endowment Department.
The Committee would go into the question to rationalise 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 respon-
H dents should place the same before the Court for further approval.
)
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 633

Though we have upheld abolition of hereditary right to appointment A
as an archaka other office-holders, the evidence from Vaikhanasa literature
and other material indicate that archaka should bestow his total dedication
to the Deity in the performance of daily rituals; at the same time, he and
his family members must be kept in comfort. That property endowed for
his services of the income derived from the offerings of the payment of B
salary, if any, is identified as a source for his living in comfort. The State
exercising its secular power. regulates appointment of archakas, as upheld
hereinbefore; equally, he, along with his family, is required to be kept with
daily comfort so that he would continue to dedicate himself to perform the
ritual worship of the Deity. As indicated earlier, the State is required to
determine his service conditions, scale of pay and other emoluments ac- C
cording to the grade of the temple in which he works and to regulate the
period of duty and of service. That apart, welfare measures in addition
should be initiated as a measure of social welfare to the archakas and other
employees of the temple and pandits working in the temples and under the
supervision of the Commissioner. Therefore, the State should come for- D
ward with a scheme to provide the archakas, other employees and their
family members like suitable accommodation, education by way of
refresher courses and courses in Agamas in the respective region, medical
facilities, educational facilities to their children, loans for construction of
their own houses, and wherever accommodation in the temple is available
Jetting the same to them on reasonable rent, group insurance scheme, E
unforeseen contingencies like accident, death etc., rehabilitation of the
widow or educated unemployed youth or such other measures as may be
incidental and part of economic welfare. The extent of the similar facilities
already existing and provided for may be excluded from proposed scheme.
For other items appropriate scheme should be formulated. F

In that behalf the State Government is directed to constitute a
Committee consisting of the Additional Commissioner, Endowments
Department, a joint Secretary/Deputy Secretary (Endowment)_ Revenue
Department; two representatives of the archakas to be nominated by their
associations and one representative of other officer/servants of the temples. G
It would be open to the representatives of the archakas etc. to place their
views and material before the Committee in the formulation of the scheme.
The Committee will undertake an indepth study into the schemes and
formulate the same. After the scheme is formulated, the Government
would take a decision thereon and would place the duly approved scheme H
634 SUPREME COURT REP OR TS [1996] 3 S.C.R.
\
,.

A before this Court within six months from today for further action thereon.

We are of the view that to effectuate the scheme, tentatively a
consolidated fund of Rs. 75 crores would be set up as corpus and proce-
dure would be evolved by the Government as to in which nationalised Bank
or income yielding Government Securities the same would be deposited;
B as to who would operate and disburse the income accrued from the fund
from time to time. Subject to further revision, if any, in the above con-
solidated fund, the TTD is directed to deposit a sum of Rs. 20 crores into
the fund during the financial year 1996-97 by end of June 1996. Each
financial year, a sum of Rs. 10 crores be deposited till the corpus of Rs.
C 75 crores is reached. The Government is also directed to call upon other
major temples like Narasimhaswamy temple. Yadagirigutta; Sri Malikar-
junaswamy temple, Karimnagar; Ugra Narasimhaswamy temple, Visak-
hapatam; Satyanarayanaswamy temple, Annavaram; and Kanakaduragmba
temple, Vijayawada etc. with annual income of Rs. 20 lakhs or more, to
D contribute to the said fund of Rs. 75 crores. These temples may deposit
the amount in annual instalments spread over a period not exceeding five
years. During the financial 1996-97, a sum of Rs. 5 crores by each of the
major temple may be directed to be deposited and in subsequent four
years, a sum of Rs. 1 crore every year may be directed to be deposited. In
case of any difficulty, the Government would be at liberty to seek from this
E Court further direction~ or clarification or modification in that behalf. It
would also be open to the Government to seek donations from other
charitable institutions within or outside the State of Andhra Pradesh or
from non-resident Indians. The State Government would also approach the
Income-Tax Department and the Government of India to exempt from the
income-tax the said donations as well as the income derived by way of
F
interest or otherwise on the corpus of or further amounts deposited into
the Fund.

When the matter has come up for admission, on June 22, 1987, this
Court had directed status quo as to the rights of the hereditary archakas,
G trustees and mirasidars as on the date the Act had come into force. This
Court had further directed that the archakas, trustees and mirasidars "shall
keep an account of the offerings, both in case and in kind, and the value
thereof as may by taken by the hereditary archakas, trustees, mirasidars as
their remuneration, salary and perquisites as used to be taken by them
H immediately before the commencement of the Act and submit the same to
I
A.S.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.] 635

the Executive Officer or to the Commissioner of Religious Endowments, A
as the case may, every month by the 15th day of the next succeeding month.
The first of such accounts shall be submitted by 15th July, 1987 for the
month of June, 1987". On October 13, 1987, the said order was modified
to the extent of archakas receiving more then Rs. 10,000 as monthly
emoluments. Direction was given to furnish security either by way of bank B
guarantee or immovable property security as ordered for archakas and
gamckars in the main case. By further order dated August 25, 1987, an
order was made to protect the interests of the TID and two working
groups, viz., archakas and gamekars thus :

"Therefore, as an interim arrangement we direct that archakas shall C
furnish a consolidated security of Rs. 20,00,000 (Rupees twenty
lakhs) either by way of bank guarantee or by way of property
security to the satisfaction of the Additional District Judge,
Tirupati within four weeks hence. Similarly, the other group who
is incharge of preparing prasadams will furnish either bank guaran-
tee or property security to the satisfaction of the same Additional D
District Judge of Tirupati of Rs. 20,00,000 (Rupees Twenty lakhs)
within the same period. This amount has been fixed taking into
consideration the possibility of this case being disposed of by this
Court in course of 1988."
E
Though liberty was given to obtain further directions if the cases
would not be disposed of by the year 1988, we do not find that any further
directions were given by this Court. This Court had reiterated the interim
direction dated June 22, 1987 referred to hereinabove .

.i.. In view of the fact that writ petitions and transfer cases are being F
disposed of, it would be open to the Executive Officer of TTD etc. to work
out the payments made to the archakas, mirasidars and gamekars etc. and
also the rights consistent with the law and would take action accordingly.

The writ petitions and the transfer cases are dismissed subject to th,e G
above directions. In the circumstances of the case, however, the parties are
.\,· directed to bear their own costs.

HANSARIA, J. It may look pedantic to say anything more in the face
of the very scholarly .and erudite judgment of my learned brother with
whom I am in respectful agreement on all counts. This concurring note is H
\,
'
636 SUPREME COURT REPORTS [1996] 3 S.C.R.

A only to highlight one facet of this case, which had not been traversed
earlier, but which has its own importance. The same is the difference
between 1'religion", a \Vord used in Articles 25 and 26, and ''dharma" known
to our psyche. I wish to put on record the difference in my own way and
to Say that our constitution makers had used the word "religion" in these
two articles in the sense conveyed by the word "dharma".
B
11
Very often the words "religion and dharma are used to signify one
11 11

and the same concept or notion; to put it differently, they are used
inter-changeable. This, however, is not so, as would become apparent from
what is being stated later, regarding our concept of dharma. I am of the
C considered view that the word religion in the two articles has really been
used, not as is colloquially understood by the word religion, but in the sense
of it comprehending our concept of dharma. The English language having
had no parallel word to dharma, the word religion was used in these two
articles. It is a different matter that the word dharma has now been
D accepted even in English language, as would appear from Webster's New
Collegiate Dictionary which has defined it to mean : "Dharma : n. (Skt. fr.
dharayati be holds;) akin to L firmus firm : custom or law regarded as duty
: the basic principles of cosmic or individual existence : nature : conformity
to one's duty and nature." The Oxford Dictionary defines dharma as :
11
Right behaviour, virtue; the Law (Skt = a decree,. custom)".
E
The difference between religion and dharma is eloquently manifested
when it is remembered that this Court's precept is 'l<iT ~ 'll'I: . It
is apparent that the word dharma in this canon oi, for that matter, ill our
saying : 'll1l ;:e;ifu <f!8l!: does not mean religion, but the same has been
used in the sense defined in the aforesaid two dictionaries. This is how the
F
President of India, Dr. Shanker Dayal Sharma, understood the word dhar-
ma in his address at the First Convocation of the National Law. School of
India University delivered on 25th September, 1993 at Bangalore.

Our dharma is said to be 'Sanatana' i.e. one which has eternal values;
G one which is neither time-bound nor space-bound. It is because of this that
Rg. Veda has referred to the existence 'Sanatan Dharmani'. The concept
of 'dharma', therefore, has been with us for time immemorial. The word is
derived from the root 'Dh.r' - which denotes : 'upholding', 'supporting',
'nourishing' and 'sustaining'. It is because of this that in Karna Parva of the
H Mahabharata, Verse-58 in Chapter 69 says :
AS.N. DEEKSHITULUv. STATE [K. RAMASWAMY, J.) 637

"Dharma is for the stability of the society, the maintenance of social A
order and the general well-being and progress of humankind.
Whatever conduces to the fulfilment of these objects is Dharm~;
that is definite."

(This is the English translation of the Verse) as finding place in the
aforesaid Convocation Address by Dr. Shanker Dayal Sharma.) B

The Brhadaranyakopanisad identified Dharma with Truth, and
declared its supreme status thus :
..
\
"There is nothing higher than dharma. Even a very weak man hopes
to prevail over a very strong man on the strength of dharma, just C
as (he prevails over a wrong-doer) with the help of the King. So
what is called Dharma is really Truth. Therefore people say about
a man who declares the truth that he is declaring dharma and
about one who declares dharma they say he speaks the truth. These
two (dharma and truth) are this." D
(English translation of the original text as given in the aforesaid
convocation address).

The essential aspect of our ancient thought concerning law was the
clear recognition of the supremacy of dharma and the clear articulation of E
the status of 'dharma', which is somewhat akin to the modern concept of
the rule of law, i.e. of all being sustained and regulated by it.

In Verse-9 of Shapter-5 in the Ashrama Yasika Parva of the Mahab-
harata, Dhritrashtra states to Yudhisthira : "the State can only be preserved
by dharma - under the rule of law." F

Ashoka mentioned about victory of dharma in his rock edict at Kalsi
which proclaimed bis achievement in terms of the moral and ethical
imperatives of dharma, and exemplified the ancient dictum : -q<it ~ "I'!:
(where there is Law, there is Victory),
G
We may with profit refer to another learned speech given by the
President of India at the valedictory session of Parliament of Religions held
at Calcutta on 19th September 1993, Dr. Sharma was there. principally
speaking on the contnbntions of Swami Vivekananda to our religion and
referred in this connection to the address of Swamiji given at the Interna- H
638 SUPREME COURT REPORTS (1996] 3 S.C.R.

A tional Conference of Religions held at Chicago in September 19, 1893,
when he explained many salient features of the Vedic and Vedantic body
of thought and defined the characteristics of a religion "whose whole,
scope, whole force, will be centred in aiding humanity to realize its own
true ... nature." The President further quoted another thought of Swami
Vivekananda where he had said : "Religion is neither word nor doctrine ... .lt
B
is deed. It is to be and become. It is the whole soul changed into that which
is believed .....11

Aforesaid was the Indian concept of religion of which the framers of
the Constitution were aware and it is because of this that the word
C "religion", as used in Article 25 and 26 of the Constitution cannot be
confined, cabined and crabbed, according to me, to what is generally
thought to be religion.

Swami Rama in his book 'A Call to Humanity', published by the
D Himalayan International Institute of Yoga Science and Philosophy of the
U.S.A. in 1988 has taken pains to demonstrate the difference between
religion and dharma. It would be profitable to note what this great saint ~
has said in this regard. The word religion, as presently understood, is
comprised of rituals, customs, and dogmas surviving on the basis of fear
and blind faith; whereas dharma encapsulates those great laws and dis-
E ciplines that uphold, sustain, and ultimately lead humanity to the sublime
heights of wordly and spiritual glory. Dharma shines in the form of truth,
non-violence, love, compassion, forb_earance, forgiveness, and mutual shar-
ing.

F Swami Rama mentioned in this connection what the great master,
Krishna, stated to Arjuna about the essence of the Upanishads. He intro-
duced a healthy lifestyle through which people could attain the state of
peace here and now. But with the passage of time, people formed a cult
around Krishna, giving birth to new religion with various branches.

G The distinction between religion and dharma has also been explained
by saying that religion is enriched by visionary methodology and theology,
whereas dharma blooms in the realm of direct experience. Religion con-
tributes to the changing phases of a culture; dharma enhances the beauty
of spirituality. Religion may inspire one to build a fragile, mortal home for
H God; dharma helps one to recognise the immortal shrine in the heart.
A.S.N. DEEKSHITULUv. STA!E[K: RAMASWAMY, J.] 639

The author goes on to say thatthe perennial truths, rules,.. and laws A
that help maintain peace and harmony in one's individual and -in the
community life constitute d_harma. It applies for all times and in all P.laces.
Social laws and even national constitutions devoid of such a dbarma will
lead a society toward an inevitable -decline.

Thus, having love for: all human ·beings is dharma. Helping others
B
ahead of one's personal ·gain is the dhatma ·of lhose who follow the path
·of selfless service.· Defending one's nation and society is the dharma of
..... soldiers and warriors. In other words,.any·action, big or small, that is free
from selfishness is part of dharma.
c
Swami Rama has farther stated that dharma -has ·been a great force
'in uplifting the human race: bharma can help•up today as it did·in ancient
times; but only if we start living by Truth, ·not ·merely ·believing in truth.
'Turning away from ·dharma and distancing oneself from the'Truth is not a
·desirable way of living.' It ultimately >leads to misery. In 'the: practice of : D
dharma, one is advised_ to shed the veil of ignorance and practice truthful-
ness 'in one's thoughts, speech, •and actions.-·How can -dharma be secret,
·having revelation-as its sot1tce? Withholding nothing; all the great sages in
· the world shared theii knowledge with 1!11mani1y: 'hi the Bhagavad Gita, the
Bible, Koran, and Dharttmapada • Kliowledge,,like 'the sun, shines for all.
.E
It is because of the above that if·one were·to ask ~.vhat are the ·signs
·and symptoms of dharma?", the answer is : that Which has no room for
narrow-mindedness, sectarianism,' ·blind .fnith, and 'dogma. 'The putity ·of
dharma, therefore; cannot be compromised ·With sectarianism.· A sectarian
_).
religion is open to a limited group of people ·whereas dhatma embraces all F
and excludes none.:this is•the core of·our dhatma; our psyche.

Nothing further is required ·to bring home the- distinction between
religion and dhatma; and so' I say •that:the ·wotd 'religion" in Articles 25
and-26 has to be nnderstocid not in·a narrow sectarian sense but.·encom-
. passing our ethos of" -~··'lt<F!!·-~:. ". Let us strive to achieve G
·this; let us spread the message -of our ·dharma by availing and ,taking
advantage of the freedom guaranteed by Articles 25 and 26 of our constitu-
tion.

T.NA. · Petition dismissed. ' H