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

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

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 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 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 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 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 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 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 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

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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

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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 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 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 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 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 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 : .. -;;nfir;f ~ <ml 'I ~"ll'it '!"ii 'l!ll'll 'I ~ 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 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, 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 appointment for life. The priesthood was systematised among the families of priests having faith and devotion initiated with Diksha and learning in the respective Agamas. They succeeded from generation to generation subject to good conduct and were terminable due to acts of misconduct. Hereditary succession is not an exorable rule. Due to non-availability of persons from .the family eligible to be priest, outsiders would also become eligible. Normally, succession to the priesthood upto the lifetime of the priest is open to his successors. In some instances, priests from same Gotra were inducted and in their absence, even the 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 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

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 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 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 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 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 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 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 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 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 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

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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