Madras High Court: The Division bench of Munishwar Nath Bhandari, CJ. and N. Mala, J. has held that the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. ( ‘The Rules 2020')
The Court observed that:
“If any appointment of Archaka is made offending the Agamas, it would be amenable to challenge before this court by the individual aggrieved person. It is again clarified that the direction in this judgment would apply only to temples which were constructed as per Agamas, and not for any other temple and, therefore, we have not accepted the challenge to Rules 2(c), 2(g), 7, 9 and 11 to 15 of the Rules of 2020, but apply the doctrine of reading down to protect the rights guaranteed under Articles 16(5), 25 and 26 of the Constitution of India”.
In the present case, a batch of writ petitions were filed challenging constitutionality of certain provisions of the Rules, 2020 in reference to Articles 16(5), 25 and 26 of the Constitution of India and the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. (‘The Act, 1959'). It is regarding the appointment of Archaka in those temples where construction, installation of idols and worship of deity is as per Agamas. The petitioners argued that the government, by ignoring the rituals and customs stipulated in the Agamas, framed the Rules of 2020 of prescribing eligibility and qualification for different posts, including Archaka.
The Court reiterated Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11, and Adi Saiva Sivachariyargal Naia Sangam v. Government of Tamil Nadu , (2016) 2 SCC 725, wherein the appointment of Archaka has been allowed as per the Agamas. The Court was of the view that the judgments of the above two cases need to be squarely applied to the facts of the present case, but certain clarification on the facts is required and for that even the issue is to be addressed in reference to the challenge to the Rules of 2020.
The Court first dealt with the constitutionality of Rule 2(c), of the Rules of 2020 which defines the term “appointing authority”, under which the appointing authority is not only trustee, but even a Fit Person. The petitioners challenged the authority of the Fit Person to appoint Archakas.
The Court observed that the definition of the term “appointing authority” is not offending the constitutional provisions in any manner or even the provisions of the Act of 1959. The Court also stated that “the right to make appointment of the Archakas lies with the trustees, but this court cannot be oblivious to the fact that in the absence of the trustees, the affairs of the temple have to be looked after by someone. Only in the absence of trustees or for any reason given in Section 49 of the Act of 1959, a fit person is appointed to exercise the power of trustees”.
The Court directed the government to not continue the arrangement of fit person for indefinite period and ordered that the trustees should be nominated or appointed at the earliest.
Further, Rules 7 and 9 of the Rules of 2020 have been challenged mainly on the ground that they stipulate eligibility, qualification and age even for appointment of Archakas, and even if an Archaka is performing pooja for last many years and gained experience, he would be ineligible for appointment in the absence of requisite qualification. The Court, while upholding the constitutionality of Rules 7 and 9 of the Rules of 2020, read down these provisions in regard to the appointment of Archakas in the temple or group of temples, which were constructed as per Agamas and observed that “if Rules 7 and 9 of the Rules of 2020 are struck down, it will create a situation where the appointment to other posts than of Archakas would remain unguided (…). However, the appointment of Archakas in the temples constructed as per Agamas would be governed by the Agamas and for that the Rule under challenge would not apply. It would otherwise offend Articles 25 and 26 of the Constitution of India.”.
It was further observed that Rule 2(g) of the Rules of 2020 that provides the definition of the term “Executive Authority”, do not offend any constitutional provision because Section 28(1) of the Act of 1959 directs the trustees to administer the affairs of the temple in accordance with the terms of the trust or the usage of the institution. Hence, the inclusion of the word “Executive Officer” after the words trustee and fit person would not be any person other than who can administer the religious institution.
Rule 11 to 15 of Rules 2020 were held to be constitutional. Further, the Court, by not holding Rule 17 to be unconstitutional, held that “Necessary protection given under Article 26 of the Constitution of India would be maintained and thereby the transfer of the Archakas would not be permissible unless it is a case of transfer of Archaka of the temple governed by a particular Agama to a temple governed by same Agama”.
The Court clarified that this judgment would not be applicable to those temples which are not constructed as per the Agamas. It also pointed out the grey area as to the identification of the temples constructed as per the Agamas and observed that “while the Apex Court recognized the right of a doctrine or belief guaranteed under Article 26 of the Constitution of India, it left it open for the individual to challenge the appointment of Archakas in the temples which were constructed as per Agamas”. Thus, the Court has issued direction to the State Government to constitute a Five-Member Committee and appointed M. Chockalingam, Retired Judge of the Madras High Court as its Chairperson to identify the temples which were constructed as per Agamas.
[All India Adi Saiva Sivacharyargal Seva Sangam v. State of Tamil Nadu, Writ Petition No 17802 of 2021 decided on 22-08-2022]
Advocates who appeared in this case :
Advocate General. P Valliappan, Advocate, Counsel for the Petitioners;
R. Shanmugasundaram and N.R.R. Arun Natarajan, A.G.Shakeenaa, Advocates, Counsel for the Respondent.