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Does The Right To Freedom Of Religion Include The Hereditary Right To Succeed The Position Of Archaka In Temples?

On June 27th, 2023, a single bench of the Madras High Court, presided by Justice N. Anand Venkatesh, delivered a judgement[1] wherein the court held that the appointment of Archaka is a secular act and any person belonging to any caste or creed can be appointed as an Archaka provided he is well-versed and an accomplished person in the Agamas and the rituals necessary to be performed in a temple.[2]

Caste is not a barrier when it comes to the appointment of a priest and anyone can be appointed as long as he satisfies the requirement and other paraphernalia of the post[3]. The case has brought into light "the right to freedom of religion" and "the doctrine of essential practice."

The right to freedom of religion is a fundamental right that is guaranteed from Art 25 to Art. 28 in the Indian Constitution. In India, the state has no religion of its own.[4] The concept of a secular state was there even before the insertion of the term "secular" by the 42nd Amendment, 1976. Under Article 25, 2 (a), the term "secular activity" shows the intention of the drafters to establish such a secular state.

The Constituent Assembly debates portray the difference our legislators had over contours of Indian secularism. There were attempts made to insert "secular state" in our constitution while some advocated the insertion of God in the preamble though both were in vain.[5] The State protects all religions but interferes with none, except in matters of public order, morality, and health.

Usually, the litigation revolves around the central idea of the distinction between secular and religious practice. The legal challenges have led the courts to evolve the "doctrine of essential practice" to determine what constitutes a part of the essential practice of that religion.

Facts Of The Case
The petitioner, Muthu Subramania Gurukkal, belonged to a family of Sivachariyas. They have been performing pooja and functions for a long time and hence, claimed the position of Sthanikam as a hereditary right. Accordingly, after his grandfather, the petitioner superseded the post of Sthanikam and performed the functions therein.

The issue arose when respondents 2 and 3 i.e. the Assistant Commissioner, Hindu Religious and Charitable Endowment Department and the Executive Officer of Sri Sugavaneswarar Swamy Temple, respectively, issued the impugned advertisement calling for the position of Archakas/Sthanikam of the temple. It was contended that the advertisement infringed on his hereditary right to practice the religious custom and usage in the line of succession.

Relevant Issues
There are pertinent issues that the court has dealt with, which are as follows:
  1. Whether there exists any hereditary right to succeed in the position of Archakas?
  2. Does caste have a role to play in the succession of the post of Archakas?
  3. Is the advertisement violative of Art 25 i.e. freedom of conscience and free profession, practice, and propagation of religion?
  4. Can the Executive officer issue such an advertisement as he is an officer of the department and not traditionally appointed?

Submissions On Behalf Of Petitioner

The learned Counsel, for the petitioner, submitted that the contended temple was an Agamic one and any appointment made so far was to be made as per the customs and usages only.

He substantiated his argument by placing reliance on certain documents that are as follows:
  1. Section 38 of the Hindu Religious and Charitable Endowments Act, (HR&CE), 1933, wherein the hereditary right to perform functions such as Abhishegam, Archana, Deeparadhana, Puja etc., in the temple and the person performing the same would not be entitled to any Maanyam (remuneration), has specifically been mentioned.
  2. The judgment in O.S.No.207 of 1946 passed by the District Munsif, Salem which held that nothing in the Madras Hindu Religious Endowments Act[6] should affect the rights of those persons who are otherwise entitled under the custom.
  3. The Board's order dated 09.12.1946 wherein it was held that there are no powers under the Hindu Religious and Charitable Endowments Act to alter or modify or cancel the rights acquired and enjoyed by the concerned person due to long standing usage and custom.[7]

Further, the learned Counsel submitted that the qualifications, in the notification, are completely dehors of the requirement under the relevant Agama. He cited the judgement of Adi Saiva Sivachariargal Nala Sangam and Others v. Government of Tamil Nadu and Another, 2016[8], wherein it was observed "the determination for appointment as Archagar/Sthanigar cannot be dehors the custom or usage and whenever that issue is raised, the qualification prescribed under the notification must satisfy the requirement under the Agama for the purpose of performing the function of Archaka/ Sthanikam."

Submissions On Behalf Of Respondent

The learned Special Government Pleader, on behalf of the respondents, submitted that as per the Apex court's judgement of Seshammal and Others v. State of Tamil Nadu[9]1972, the claim for the hereditary right is no longer available to the petitioner.

As per Section 55(2) of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, amended in 1970 , the trustee is no longer bound to follow the rule of next-in-line succession where the usage was to appoint the Archaka on the hereditary principle. Thus, the legislation nowhere interferes in the matter of religion.

Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, proper provision is already made for the appointment and the petitioner have no objection to the rule. The petitioner apprehended that government may prescribe a standardized format of regulation leading to interfering with their customs, however, there seems no probable rationale as to government want to revolutionize the temple.

Additionally, Section 107 of the Principal Act[10] protects the right to freedom of religion by emphasizing that any duty or power conferred by the Act shall not be in contravention of any rights conferred on religious denominations under Article 26[11] of the Indian Constitution.

Regarding the customs, the applicant is to produce a fitness certificate to the Chief priest confirming to the customs and usages of the temple. Moreover, the appointment by the Executive officer is in line with the rules as observed in the All India Adi Saiva Sivachariyargal Nala Sangam's[12] case that the executive authority will be interpreted as a Trustee and in his absence the Fit Person can be appointed.[13]

The Ratio Decidendi Of The Court

The Hon'ble court held that the prayer for succeeding the position as a hereditary right stand rejected as per Seshammal case.[14] The Apex court, in the latter case, held that the appointment of an Archaka is a secular act. There is no ground for holding that the appointment is either a religious practice or a matter of religion.

The Court held that the appointment of the Acharka is a secular act and the performance of a function is religious service, an integral part of religion, whereas the Priest or the Acharka performing such an act is not. Thus, no matter what caste or creed, anyone can be appointed as long as he satisfies the requirements of an Archaka.[15]

Correspondingly, the Executive officer can perform the functions of the trustee and can make appointment.[16]Therefore, the advertisement notice cannot be questioned to be impugned on this ground.

Is The Act Religious Or Secular: A Thin Line Demarcation To Determine Essential Practice Of A Religion

The legal challenges, legislations, and developments have led the courts to ponder what constitutes an 'essential practice of a religion'. Generally, the State is not allowed to interfere in matters of religion except in cases of public order, morality, and health. However, if the practice is "extraneous or unessential" to the doctrine of that religion, the State is allowed to intervene. The doctrine of essential practice is now an established principle to determine the religious and secular nature of the act in question.

The doctrine has made it easier for the courts to decide cases wherein there is a dilemma regarding constitutional protection to such practice or to determine the legitimacy of a legislative act managing religious institutions.[17] It dates back to the colonial era principle of justice, equity and good conscience. After independence, in the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt[18], also known as the Shirur Mutt case, the issue came into limelight. The Apex court tried to consider where should the line be drawn between "what are matters of religion and what are not?". Accordingly, the court concluded that to determine an essential part of a religion, the doctrine of that religion be ascertained per se.

The court approved State control of Hindu temples and religious institutions.
Thus, the landmark case of Shirur Mutt[19] contributed to the recognition and protection under Articles 25 and 26 of the Constitution, to the acts done in pursuance of religion, such as worship, rituals, to be consider integral to religious practice and not only the doctrine or belief.

Important Precedents Cited:

  1. Adi Saiva Sivachariargal Nala Sangam & Others Vs. Government of Tamil Nadu & Another, 2016 (2) SCC 725
    The Apex court has held that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14[20] so long as such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.[21] So long as, the appointment is in accordance with the Constitutional mandate, it cannot be questioned.
  2. A.S.Narayana Deekshitulu Vs. State of A.P. & Others, 1996 (9) SCC 548
    In this case, the Apex court made distinction between a person who performs the service and religious service. The performance of the religious function according to the tenets, customs and usages is an integral part of religious faith and worship and thus, legislature cannot intervene. However, the service of the priest (Archaka) is a secular part. The hereditary right as such is not an integral part of the religious practice but is a source to secure the services of the priest independent of it.[22]
  3. N.Adithayan Vs. Travancore Devaswom Board, 2002 (8) SCC 106
    The Apex court held that there is no justification that a Brahman, alone can perform the functions, rites, and rituals[23]. It can be performed by anyone who is well versed, properly trained and qualified to perform the Pooja in a proper manner and it would not be violative of Art 25 of the Indian Constitution.
  4. Seshammal & Others Vs. State of Tamil Nadu, 1972 (2) SCC 11
    It was held that the act of appointment of an Archaka by trustee is a secular act and he owes his appointment to a secular authority[24]. The rule of next-in-line succession cannot be held to be valid and trustee is free to choose anyone as long as that person fulfils the criteria.

Does The State Appointment Means Undermining The Traditional Set Up Of The Temples?

The apprehension that the State might involve itself in the appointment and other regulations of the religious act is palpable. The doctrine of essential practice has led to the fear of the bureaucratization of religion.

The State appointed authorities take over the running of the temple at the expense of the traditional authorities which severely affects the customs and usages of that temple. Law recognises customs as a source of law, which also needs to be considered while dealing with such cases. The extensive State regulation of temples such as Tirupati, Jagannath, Vaishno Devi has often been criticized and challenged.

The judgement has implications over the regulation of appointment and freedom to profess, practice and propagate religion. The sole fact that some of the temples are following the hereditary succession does not give right to establish it as religious but secular act. The claim of hereditary right is rightly denied to the petitioner, which opens up the opportunity for others in line with Article 14 of the Indian Constitution to apply for the post.

The liberalization of appointment is a rational step towards achieving equality and removing any kind of bigotry emanating in the name of religion. However, the appointment must not be dehors to the custom and usages of that temple. To maintain transparency, the Committee shall consist of a group of experts to decide whether such person satisfies requirements according to that particular Agama.

  1. Muthu Subramania Gurukkal V. The Commissioner, Hr&Ce Department And Others, 2023 SCC OnLine Mad 4174.
  2. Seshammal & Others Vs. State of Tamil Nadu [reported in 1972 (2) SCC 11].
  3. Upasana Sajeev, "Caste Has No Role To Play In Appointment Of Temple Priests: Madras High Court" (Live Law, 2023) available at: (last visited July 6, 2023).
  4. Dr. J.N Pandey, Constitutional Law of India 170 (Central Law Agency, Allahabad, 59th edn., 2022).
  5. Sujit Chowdhry and Madhav Khosla, (eds.), The Oxford Handbook of The Indian Constitution (Oxford University Press, London, 2016).
  6. The Madras Hindu Religious Endowments Act, 1951 (Madras Act No. 15 of 1951).
  7. Supra note 1.
  8. (2) SCC 725,� 50.
  9. (1972) 2 SCC 11.
  10. Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act No. 22 to 1959), s. 107.
  11. The Constitution of India, art. 26.
  12. Supra note 9, �38 & � 39.
  13. Supra note 10, s. 49.
  14. Seshammal & Others v. State of Tamil Nadu [1972 (2) SCC 11], �21.
  15. A.S.Narayana Deekshitulu v. State of A.P. & Others [reported in 1996 (9) SCC 548].
  16. Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020, 2(g).
  17. Supra note 5.
  18. AIR 1954 SC 282.
  19. Ibid.
  20. The Constitution of India, art.14.
  21. 2016 (2) SCC 725, �50.
  22. 1996 (9) SCC 548, �118.
  23. 2002 (8) SCC 106, �17.
  24. 1972 (2) SCC 11, � 21.

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