No Hindu Can Claim That They Want To Personally Perform Services Which Archakas Alone Can Perform: Kerala High Court

The Division Bench comprising Justice Anil K Narendran and Justice P G Ajithkumar relying upon the Apex Court decision in Sri Venkataramana Devaru v. State of Mysore (1985), Seshammal v. State of Tamil Nadu (1972) stated that Archakas are temple priests who perform essential poojas or ceremonies (Agamas) and it was considered as integral and essential religious practise protected under Article 25 of the Constitution of India.

“As held by the Constitution Bench of the Apex Court in Sri Venkataramana Devaru [AIR 1985 SC 255] the right protected by Article 25(2)(b) of the Constitution is the right to enter into a temple for the purpose of worship. It does not follow from this that, this right is absolute and unlimited in character. No member of Hindu public could claim as part of the rights protected by Article 25(2)(b) that a temple must be kept open for worship at all hours of the day and night or that he should personally perform those services, which the Archakas alone could perform.”

Background

The petitioners allege that Malayala Brahmin does not have any special privilege and such restrictions are arbitrary and illegal and violative of Article 14, 15, 16 and 17 of the Constitution of India.

Relying upon Adithyan v. Travancore Devaswom Board (2002), it was argued that appointment should not be based on the criteria of caste or pedigree or any other criteria. 

Relying upon Seshammal v. State of Tamil Nadu (1972), it was submitted that there was no law mandating that such appointments would be governed by the usage of hereditary succession. They submit that as long persons were fully versed, qualified perform to poojas, trained in duties, mantras, tantras, necessary vedas, irrespective of their caste, there was no infringement of freedom of religion under Article 25 and 26.

On the other hand, the Travancore Devaswom Board and the Devaswom Commissioner submitted that the selection process was conducted as per the directions of the Apex Court and the High Court in various decisions. They submitted that the appointment of Melsanthies was not a caste-based selection or a matter of public employment, but a religious practice since time immemorial and thus discrimination could not be alleged. It stated that this being a matter of religious practice, the Kerala Devaswom Recruitment Board Act, 2015 and rules framed thereunder would not apply and that the opinion of the Tantri of the temple was final and binding.

Observations

The Court stated that Tantris of the temple were responsible for conducting poojas and religious ceremonies in the temple. It stated that Tantris who were responsible for conducting pooojas and ceremonies were not made a party in the writ petitions. And, it stated that the duties of members of the Travancore Devawsom Board were purely administrative in nature for ensuring that religious rites, traditions were followed in accordance with recognized usages and that they do not touch upon the religious affairs of the Devaswoms. “We find absolutely no merits in the contention that the State of Kerala, through the Revenue (Devaswom) Department, have administrative control over Sabarimala Devaswom and Malikappuram Devaswom and that, the Travancore Devaswom Board is fully controlled by the State”, stated the Court.

Referring to Krishnan Namboothiri S. v. Travancore Devaswom Board and others (2015), the Court stated that selection to the post of Melsanthi cannot be treated as a selection merely for public employment and the canvas in which grounds relating to Articles 14, 16, etc., of the Constitution of India would be etched, will not necessarily be carried, as a whole, into such matters.

"selection to the post of Melsanthi cannot be treated as a selection merely for public employment and the canvas in which grounds relating to Articles 14, 16, etc., of the Constitution of India would be etched, will not necessarily be carried, as a whole, into such matters"

It referred to Rajesh J. Potty v. Travancore Devaswom Board (2018) to state that the selection of Melsanthies was not to discriminate against persons but only based to protect the sanctity of the deity.

The Court relying upon various decisions stated that the parties have to plead their case and produce evidence to substantiate their pleadings which was lacking in these writ petitions. It stated that the Apex Court and High Court have framed guidelines pertaining to the selection of Melsanthies, and that the petitioners have not pleaded a case referring to that aspect and that there was total lack of pleadings.

It stated that there no proper plea or sufficient proof produced by the petitioners to go into invalidity of the eligibility conditions in the notification with respect to Articles 14 to 17 and 21 of the Constitution.

The Court stated that until statutory rules were made by the Trvancore Devaswom Board, the guidelines laid down by the Apex Court and High Court have to be followed.

Also, the Court refrained from going into the interplay between freedom of religion under Articles 25, 26 of the Constitution and the provisions in Part III, particularly Article 14, and connected issues since the matter was already considered in a review by a larger bench of the Supreme Court in women's entry at Sabarimala case - Kantaru Rajeevaru v. Indian Young Lawyers Association (2020).

Referring to Seshammal (supra), the Court found that Archaka was a servant of the temple and his appointment by the Trustees of the temple would be a secular function. “The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka….”, stated the Court. It noted that worshippers insist that Agamas-treatises of ceremonial law, could only be performed by Archakas appointed by the temple authorities, otherwise it would lead to defilement or pollution.

The Apex Court further had stated that state action or state reforms that would interfere with religious faith and practices of the Hindu worshipper would be invalid under Article 25 of the Constitution. In that case, Apex Court noticed that the hereditary principle of appointment followed was a vital religious practise under Article 25, 26 of the Constitution of India and regarded it as a secular activity. It also found that if hereditary principle of selection was followed by a denomination, state reforms contrary to it would be violative of religious freedoms.

“The Constitution Bench noticed that any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution”, added the Court.

In Sri Venkataramana Devaru v. State of Mysore (1958), the issue was that except persons belonging to Gowda Saraswath Brahmins, all others were prohibited from entering or worshipping in the temple. The Madras High Court held that all classes of Hindus were entitled to enter into the temple for worship, but it stated that there were evidences to show Gowda Saraswath Brahmins could only participate in certain religious ceremonies and that right was protected under Article 26(b) of the Constitution. The Apex Court agreed with the findings of the High Court based on evidence that persons other than Gowda Saraswath Brahmins have to be wholly excluded for certain religious ceremonies, since it was a denominational temple founded for the benefit of the Gowda Saraswath Brahmins.

It also stated that there was no violation of Article 17 of the Constitution.

The Court referred to Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya [1966 (3) SCR 242 : AIR 1966 SC 1119] which held that as long as the actual worship of the deity is allowed to be performed only by the authorized Poojaris of the temple and not by all devotees permitted to enter the temple, there can be no grievance made regarding 'untouchability'.

“Therefore, we find absolutely no merit in the contention of the learned counsel for the petitioner in W.P.(C)No.14136 of 2021 that the condition stipulated in clause 1 of the notification issued by the Devaswom Commissioner, that the applicant for appointment as Melsanthies of Sabarimala Devaswom and Malikappuram Devaswom shall be a 'Malayali Brahmin' would amount to untouchability abolished under Article 17 of the Constitution of India.”

Accordingly, the writ petition was dismissed.

Citation: 2024 LiveLaw (Ker) 143

Case title: Vishnunaryanan v The Secretary & Connected Cases

Case number: WP(C) NO. 26003 OF 2017 & Connected Cases

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