SUPREME COURT OF INDIA
M.P. Gopalakrishnan Nair
Vs
State of Kerala
Civil Appeal No. 6675 of 1999 (with C.A. No. 6674 of 1999)
(H.K.Sema and S.B.Sinha)
20/04/2005
S.B. SINHA, J.
Background Fact:
1. Sri Krishna Temple situated at Guruvayoor is one of the most famous temples
in the world. The history and legends of the temple are intimately linked with
great saints like Villwamangalam Swamiyar, Melpathur, the author of
Narayaneeyam, Poonthanam and Kururamma. The Temple attracts millions of
devotees from all over the world. Zamorin Raja and the Karanavan of the
Ministry Illom were the hereditary trustees of the temple. Disputes and
differences arose between the Zamorian Raja and the Karanavan of the Illom
mainly about Orrayma rights which were ultimately determined by a judgment of
the Madras High Court in A.S. No. 35/1887 on 1.11.1880.
2. After the Madras Hindu Religious and Charitable Endowments Act, 1926 came
into force, a scheme for administration of the Temple and its properties was
framed in terms whereof the Zamorin Raja was entrusted with the management of
the Temple under the supervision of the officers of the Board. The Karanavan of
the Mallissery Illom thereupon filed O.S. No. 1 of the 1929 before the District
Court of South-Malabar.
3. The worshippers of the Temple also filed O.S. No. 2 of 1929 in the same
court praying for framing up of a proper scheme which would give appropriate
representation to the non-hereditary trustees from among the devotees. The
District Court by a judgment and decree dated 25.10.1929 upheld the claim of
the Karanavan of the Mallissery Illom to be made a joint trustee along with
Zamorin Raja as a result whereof the scheme was amended. The Zamorian Raja
preferred an appeal there against before the High Court of Madras which were
marked as A.S. No. 211 and 212 of 1930. The High Court of Madras disposed of
the appeals by a common judgment dated 21.11.1930 confirming the decision of
the District Court rejecting the prayer for appointment of non-hereditary
trustees. Some modifications in the said scheme were made later on.
4. The Guruvayoor Devaswom Act, 1971, Act 6 of 1971 was framed after the
Government established a Commission to enquire into the cause of the fire, which
destroyed the temple in 1970. The validity of the Act was challenged before the
Kerala High Court by the hereditary trustees in O.P. No. 812 of 1971, claiming
infringement of their fundamental rights under Articles 19, 25 and 26 of the
Constitution of India. A Full Bench of the Kerala High Court dismissed the said
writ petition. The Act was thereafter amended by Act 12 of 1972, which again
came to be challenged in O.P. No. 314 of 1973 in a writ petition filed on
behalf of the denomination of the temple. A Bench of Five Judges of the Kerala
High Court struck down the said Amending Act in Krishnan vs. Guruvayoor
Devaswom Managing Committee (Since reported in 1979 KLT 350 ). The
Governor of Kerala promulgated an ordinance known as Guruvayur Devaswom Ordinance,
No. 25 of 1977.
5. The Legislature of the State of Kerala thereafter enacted Guruvayoor
Devaswom Act, 1978 (the 1978 Act) with a view to make provision for the proper
administration of the Guruvayoor Devaswom. The 1978 Act was enacted having
regard to the decision of the 5-Judge Bench of Kerala High Court in Krishnan
(supra).
Proceedings Before the High Court:
6. The First Appellant herein is President, Kerala Kshethra Samrakshina Samithi
and the Second Appellant herein is the General Secretary, Vishwa Hindu
Parishad, Kerala State. They filed a writ petition before the High Court
praying for the following reliefs:
"i) declare that the Hindus in the Council of Ministers of the Leftist
Democratic Front, respondents 4 to 14 herein, have no manner of authority to
nominate Members to the Guruvayoor Devaswom Managing Committee in the light of
the pronouncement of this Honourable Court in 1985 KLT 629 and other
ruling of the Kerala High Court and that any move initiated by them to so
nominate and constitute the Managing Committee will be illegal and
unconstitutional and violative of the petitioners Fundamental Rights under
Articles 14, 21, 25 & 26 of the Constitution of India;
ii) issue a writ of mandamus or any other appropriate writ, order or direction
directing respondents 4 to 14 to refrain from nominating any members to the
Guruvayoor Devaswom Managing Committee in pursuance of the provisions of
Section 4 of the Guruvayoor Devaswom Act 1978;
iii) issue an interim order of stay of all steps initiated by respondents 1
& 4 to 14 to nominate any member/ members to the Guruvayoor Devaswom
Managing Committee pending disposal of the above original petition before this
Honourable Court"; *
7. A Division Bench of the said Court having regard to the importance of the
question involved in the writ petition by an order dated 9th July, 1999
referred the matter to a larger bench. By reason of the impugned judgment, a
5-Judge Bench of the Kerala High Court dismissed the said writ petition. The
Appellants herein, are, thus, before us.
Submissions:
8. Mr. M.K.S. Menon, learned counsel appearing on behalf of the Appellants
would contend that the expression 'Hindu' having not been defined either in the
1978 Act or Travancore Cochin Hindu Religious Institutions Act must be
construed in the light of the series of decisions rendered by the Kerala High
Court, as a person who believes in god and temple worship and professes Hindu
faith. A person belonging to the denomination in relation to a temple,
according to Appellants; must not only be entitled to attend at the performance
of the worship or service but also must be in the habit of attending such
performance. As the Hindu members of the then Council of Ministers (Respondent
Nos. 4 to 14) did not satisfy such requirements having regard to their
political affiliation as they owe their allegiance to the leftist (Marxist)
ideology and as they were against such religious practice; any nomination made
by them as members of the Committee is ultra vires Articles 25 and 26 of the Constitution
of India. Strong reliance in this behalf has been placed on Krishnan (supra),
K. Krishnankutty & others vs. State of Kerala 1985 KLT 289 ),
Narayanan Namboodiri & others vs. State of Kerala ( 1985 KLT 629 ) and
Muraleedharan Nair vs. State of Kerala 1990 (1) KLT 874 ).
9. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the
Respondents, on the other hand, would support the impugned judgment of the High
Court contending that the management of a temple or religious endowment is a secular
aspect which can always be subject matter of control by a State. Reliance in
this behalf has been placed on A.S. Narayana Deekshitulu vs. State of A.P. and
others 7 ) and Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and others vs. State of U.P. and others 1997
(4) SCC 606 ).
10. Mr. Iyer would urge that the worshippers never enjoyed any right in the
denomination to have a person in the Management Committee and in any event, the
Appellants herein have failed to establish that there had been a religious
practice which had been existing as on the date of coming into force of the
Constitution, the writ petition was not maintainable.
11. Mr. Iyer submitted that the expression 'Hindu' having not been defined in
the 1978 Act, the High Court rightly did not extend the meaning thereof to a
person having a faith in the temple worship and other rituals connected
therewith. It was pointed out that keeping in view the decision of the Kerala High
Court in Krishnan (supra), the power of nomination is vested in a smaller body
and not in the Government. It is the smaller body of Hindus amongst the members
of the Council of Ministers who would nominate persons who must fulfill the
qualifications laid down in Sub-sections (2) and (4) of Section 4 of the 1978
Act.
Questions before the High Court:
12. The High Court framed the following questions for its determination:
(1) Whether the Hindu Ministers in the Council of Ministers should have faith
in God and Temple worship while nominating the members to the Managing
Committee of the Guruvayoor Devaswom under Section 4 of the Guruvayoor Devaswom
Act? And
(2) Whether Hindu Ministers who are not believers in God and Temple
Worship can, by reason of their not having faith in Hindu God and Temple
worship, are disqualified from nominating the members of the Managing Committee
of the Guruvayoor Devaswom, who should have faith in God and Temple worship,
and must also make and subscribe an oath affirming their faith in God and Hindu
Religion and believe in Temple worship.
Judgment of the High Court
(a) The High Court noticed that in Krishnan (supra), the 5-Judge Bench upheld
the validity of the 1978 Act holding that the Committee did not represent the
denomination.
(b) Article 25 merely secures to every citizen, subject to public order,
morality and health, a freedom specified therein but the State has the
requisite power to make laws regulating economic, financial, political or other
secular activity which may be associated with religious practice.
(c) Furthermore, the State has reserved unto itself the power to make laws
providing for special reform and social welfare even though they might
interfere with religious practices.
(d) The Bench in Krishnan (supra) merely directed for consideration of the
Government whether the nomination could be given to a statutory body other than
the State Government with sufficient guidelines furnished to it for ensuring
that such nominations would be effected in such a way so as to make the
committee a truly representative of the denomination consisting of the
worshipping public.
(e) Section 4(1) of the 1978 Act was declared invalid as by reason thereof the
State had been conferred with a naked and arbitrary power without any safeguard
being provided for ensuring that the Committee will be a body representing the
denomination.
(f) The observations made by a 3-Judge Bench in Narayanan Namboodiri (supra) to
the effect that the requirements of Article 26(d) would be satisfied only if
those in charge of Devaswom represent denomination are not in consonance with
the observations and findings of Krishnan (supra).
(g) What is necessary is that the Managing Committee should be the
representative of the religious denomination and it is not necessary that the
persons nominating should form part of it.
(h) The Bench in Narayanan Namboodiri (supra) having been called upon to
determine the lis as to whether Section 4 was ultra vires Article 14 of the
Constitution was not correct in making the observations that the requirement of
Article 26 would be satisfied only if the Hindu Ministers among the Council of
Ministers should also have belief in God and temple worship and, thus, it was
not correctly decided.
(i) The management and administration of a temple being a secular matter, the
State can control and administer the management thereof.
(j) The concession made by the Additional Advocate General and the Special
Counsel appearing for the Devaswom to the effect that the persons nominating
the members of the Managing Committee should also belong to the denomination as
a result whereof Section 4(1) of the Act was not struck down by the Kerala High
Court. It was held, that such a concession was not binding upon the State.
(k) Having regard to the concept of secularism and tolerance as reflected in
our constitutional scheme as would appear from Clause 3 of Article 164 of the
Constitution of India, Section 4(1) cannot be read in the manner as was
submitted by the Appellants in view of the fact that the administration of the
property of a religious institution is not a matter of religion.
(l) The Appellants herein have failed to establish that there had been a
religious practice which was subsisting on the date of the coming into force of
the Constitution of India to the effect that the denomination of the temple
worshipers had a right to be in the Management Committee and members of the
Management Committee were to be elected or nominated by an electoral college
consisting of members of such denomination.
(m) The 1978 Act is not violative of Articles 25 and 26 of the Constitution of
India.
(n) It was observed:
"39. Before parting with this case, we want to make it clear that it is
a very important function or duty that is assigned to the nominating persons,
namely, the duty of constituting a Committee for the efficient management and
administration of Guruvayur Temple. It is true that the Act prescribed that
persons who are elected as members of the Managing Committee should be persons
who have faith in Temple Worship and they have also to give a declaration to
that effect. But, every man who believes in God and Temple worship may not be a
good or efficient administrator or may not be aware of the formalities of
temple management. It is our earnest hope and desire that the persons nominated
by the Hindu Ministers should be of high integrity and honesty and should
discharge the functions of management and administer with care, sincerity and
in the interests of the religious denomination and in public interest. With a
view to avoid politics among the members of the Committee, it is desirable that
no politician from any party should be nominated to the Committee." *
Statutory Provisions:
13. Section 2(c) of the 1978 Act defines 'committee' to mean the Guruvayoor
Devaswom Managing Committee constituted under Section 3 thereof. 'Devaswom' has
been defined in Section 2(e) to mean the Temple and includes its properties and
endowments and the subordinate temples attached to it. The expression 'person having
interest in the Temple' has been defined to mean a person who is entitled to
attend at, or is in the habit of attending, the performance of worship or
service in the temple or who is entitled to partake, or is in the habit of
partaking, in the benefit of the distribution of gifts thereat.
14. By reason of Section 3 of the 1978 Act, the administrative control and
management of the Devaswom is vested in a committee constituted in the manner
provided for under Section 4 thereof. The said committee is a body corporate
and has perpetual succession having a common seal and shall by the said name
sue and be sued through the Administrator. In terms of Section 4 of the 1978
Act, the Management Committee is to consist of nine members as provided for in
Clauses (a) to (e) of Sub-section (1) thereof. Sub-section (2) of Section 4 of
the 1978 Act provides for disqualification for being nominated under clause (e)
of Sub-section (1) of Section 4 if:
"(i) he believes in the practice of untouchability or does not profess
the Hindu Religion or believe in temple worship; or
(ii) he is an employee under the Government or the Devaswom; or
(iii) he is below thirty years of age; or
(iv) he is engaged in any subsisting contract with the Devaswom; or
(v) he is subject to any of the disqualifications mentioned in clauses (a), (b)
and (c) of sub-section (3) of section 5." *
15. Sub-section (3) of Section 4 of the 1978 Act provides for election of one
of its members of the members of the Committee as its Chairman at its first
meeting. Sub-section (4) of Section 4 enjoins every member of the Committee to
make and subscribe an oath in the presence of the Commissioner in the following
form, that is to say –
"I, A, B, do swear in the name of God that I profess the Hindu Religion
and believe in temple worship and that I do not believe in the practice of
untouchability." * Constitutional Right of the Appellants:
16. Before adverting to the questions raised at the Bar, we must place on
record that the Appellants herein did not question the constitutionality of
Section 4 of the 1978 Act. The provisions of the Act merely were required to be
read in the light of the different judgments rendered by the Kerala High Court.
While it may be true that in certain cases a statute in the nature of the 1978
Act may have to be read in the light of the provisions contained in Articles 25
and 26 of the Constitution of India; but the same would not mean while doing so
the Court shall extend the protection granted thereby. Article 25 and 26 of the
Constitution of India read; thus:
"25. Freedom of conscience and free profession, practice and
Propagation of Religion.
(i) Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.
Explanation I
The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II
In sub-clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist
religion and the reference to Hindu religious institutions shall be construed
accordingly.
26. Freedom to Manage Religious Affairs
Subject to public order, morality and health, every religious denomination or
any section thereof shall have the right –
(a) to establish and maintain institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law." *
17. Article 25 guarantees that every person in India shall have the freedom of
conscience and shall have the right to profess, practice and propagate religion
subject to the restrictions imposed by the State on the following grounds, viz;
(i) Public order, morality and health;
(ii) other provisions of the Constitution;
(iii) regulation of non-religious activity associated with religious practice;
(iv) social welfare and reform; and
(v) throwing open of Hindu religious institutions of a public character to all
classes of Hindus.
Secularism:
18. India is a secular country. Secularism has been inserted in the Preamble by
reason of the Constitution 42nd Amendment Act, 1976. The object of inserting
the said word was to spell out expressly the high ideas of secularism and the
integrity of the nation on the ground that these institutions are subject to
considerable stresses and strains and vested interests have been trying to
promote their selfish ends to the great detriment of the public good.
19. A 9-Judge Bench of this Court in S.R. Bommai vs. Union of India 6)
observed:
"197. Rise of fundamentalism and communalisation of politics are
anti-secularism. They encourage separatist and divisive forces and become breeding
grounds for national disintegration and fail the parliamentary democratic
system and the Constitution. Judicial process must promote citizens' active
participation in electoral process uninfluenced by any corrupt practice to
exercise their free and fair franchise. Correct interpretation in proper
perspective would be in the defence of the democracy and to maintain the
democratic process on an even keel even in the face of possible friction, it is
but the duty of the court to interpret the Constitution to bring the political
parties within the purview of constitutional parameters for accountability and
to abide by the Constitution, the laws for their strict adherence." *
20. It is now well-settled;
(i) The Constitution prohibits the establishment of a theocratic State.
(ii) The Constitution is not only prohibited to establish any religion of
its own but is also prohibited to identify itself with or favouring any
particular religion.
(iii) The secularism under the Indian Constitution does not mean constitution
of an atheist society but it merely means equal terms of all religious without
any reference in favour of or discrimination against any one of them.
Statutory Interpretation:
21. The management or administration of a temple partakes to a secular
character as opposed to the religious aspect of the matter. The 1978 Act
segregates the religious matters with secular matters. So far as, religious
matters are concerned, the same have entirely been left in the hands of the
'Thanthri' He is the alter ago of the deity. He gives mool mantra to the
priests. He holds a special status. He prescribes the rituals. He is the only
person who can touch the deity and enter the sanctum sanctorum. He is the final
authority in religious matters wherefor a legal fiction has been created in
Section 35 of the Act in terms whereof the Committee or the Commissioner or the
Government is expressly prohibited from interfering with the religious or
spiritual matters pertaining to Devaswom. His decision on all religious,
spiritual, ritual or ceremonial matters pertaining to Devaswom is final unless
the same violates any provision contained in any law for the time being in
force. The impugned provisions of the Act must be construed having regard to
the said factor in mind. By reason of Section 4(1) of the 1978 Act, the
Committee will consist of nine members. The nomination of one person from the
Council of Ministers as a representative of the employees of the Devaswom and
five persons, one of whom shall be a member of a Schedule Caste, are required
to be nominated by the Hindus among the Council of Ministers from amongst the
persons having interest in the temple. The area within such nomination can be
made by the Hindus amongst the Council of Minister is, thus, limited.
Hindu-Concept of
22. The word 'Hindu' is not defined. A Hindu admittedly may or may not be a
person professing Hindu religion or a believer in temple worship. A Hindu has a
right to choose his own method of worship. He may or may not visit a temple. He
may have a political compulsion not to openly proclaim that he believes in
temple worship but if the submission of the Appellants is accepted in a given
situation, the 1978 Act itself would be rendered unworkable. Idol worships,
rituals and ceremonials may not be practised by a person although he may
profess Hindu religion.
23. A 5-Judge Bench of the Kerala High Court in Krishnan (supra) in paragraph
40 of its judgment noticed:
"... It is well known that there are sections of Hindus whose schools
of thought and philosophy do not consider idol worship, rituals and ceremonials
as necessary or even conducive to the spiritual progress of man. There are also
political creeds or social theories which openly condemn such forms of worship
as being based on mere superstition and ignorance. Many persons, who are born
Hindus and who may be said to profess Hinduism solely because they have not
openly renounced the Hindu faith by any recognized process, may ardently
believe in such political or social ideologies which do not view temple worship
with favour." *
24. The legislature has not chosen to qualify the word 'Hindu' in any manner.
The meaning of word is plain and who is a Hindu is well known. The legislature was
well as aware that 'Hindu' is a comprehensive expression (as the religion
itself is) giving the widest freedom to people of all hues opinion,
philosophies and beliefs to come within its fold. (See Shastri Yagnapurushdasji
and others vs. Muldas Bhundardas Vaishya and another, and Dayal Singh
and others vs. Union of India and others ), para 37).
25. The legislature was also well aware of the conglomeration/ diversity of
thought that prevailed in the Hindu religion but it did not choose to limit
'Hindus' to the category propounded by the appellants - namely those who
believe in temple worship. There is no absurdity or ambiguity which compels a
departure from the plain language and to read section 4 as meaning something
more than what is a expressed and, thus there is no reason to construe the
expression 'Hindu' in the manner sought to be done by the Appellants. To debar
all 'Hindu' Ministers of leftist Government, from nominating members to the
Managing Committee of the Guruvayoor Devaswom will lead to stalemate in the
Management of the Devaswom.
Determination
26. The Bench in Krishnan (supra) upheld the right of the Executive Government
to oversee control and management of a temple, but merely made the following
observations:
"We may, however, observe that in the light of the recent amendment of
the preamble to the Constitution emphasizing the secular character of the State
it is desirable that the legislature should consider whether the power to
nominate the members of the Committee should not be conferred on an independent
statutory body other than the State Government with sufficient guidelines
furnished to it for ensuring that the nominations will be effected in such a
way as to be truly representative of the denomination consisting of the worshipping
public." *
27. The only ground, which weighed with the Bench declaring Section 4(1) of the
1978 as unconstitutional, in confirmation of naked and arbitrary power upon the
Government without any safeguard being provided for ensuring that the Committee
would be a body representing the denomination. The 1978 Act was, as noticed
hereinbefore, enacted to overcome the same. The composition of the body which
would have the power of nomination in terms of Sections 4(1)(d) and 4(1)(e)
would consist of the Hindu Ministers professing Hindu religion only. While
making such nominations, they are statutorily bound to nominate such persons
who would fulfill the criteria laid down therein. Section 4, therefore, lays
down guidelines for ensuring that the Committee would be a body representing
the denomination.
28. From its provisions it is clear that the Act has ensured that only persons
who believe in temple worship are to be in the management of the temple. The
Act has further ensured that none except the Thanthri gets any voice in the
spiritual administration of the temple and that his voice alone will prevail in
such matters. The practice of religion by the denomination including customs,
practices and rituals is, therefore, preserved in its entirety and there is no tampering
therewith in any manner whatsoever.
29. It is not clear how vesting of such a right on the Hindus in the Council of
Ministers can effect their denominational rights when the members of the
Managing Committee, the Commissioner and the Administrator have all got to be
believers in temple worship. To insist on such a qualification in the
electorate will be as bad saying that when the law relating to a temple is
under consideration in the legislature, only Hindu legislatures can vote and
they must further be qualified as believers in temple worship.
30. It is expected that the action of such a body would be bona fide and
reasonable. Once a committee is constituted which would be representing the
denomination, in our opinion, it would be not be correct to contend that even
the authority empowered to nominate must also be representative of the
denomination. #
31. Indisputably the State has the requisite jurisdiction to oversee the
administration of a temple subject to Articles 25 and 26 of the Constitution of
India. The grievance as regard the violation of the constitutional right as
enshrined under Articles 25 and 26 of the Constitution of India must be
considered having regard to the object and purport of the Act. For fulfilling
the said requirements, the denomination must have been enjoying the right to
manage the properties endowed in favour of the institutions. If the right to
administer the properties never vested in the denomination the protection under
Article 26 of the Constitution of India is not available.
32. Assuming such a denomination exist, the question which is required to be
posed is, what is the right that is sought to be protected. The right sought to
be preserved is that under clauses (d) and (e) of Section 4(1). It does not
depend upon the persons who nominates the members of the Managing Committee.
The crux of the matter is who are the persons who are qualified to be in the
Managing Committee. To fulfill the said object, the statute has taken
particular care to see that only those who believe in temple worship among the
Hindus can be nominated under clauses (d) and (e) of Section 4.
33. The High Court in its impugned judgment has arrived at a finding as
regard categorical existence of a subsisting religious practice that as on the date
of coming into force of the Constitution of India it has not been established
that the denomination of temple worshippers had any right to be on the
management committee or the members of such a committee were being elected /
nominated by an electoral college consisting exclusively of members of such
denomination. Nothing has been pointed out before us to show that such a
finding is contrary to the materials on records. #
34. The freedom guaranteed under Article 25 of the Constitution is not an unconditional
one. A distinction exists between the matters of religion, on the one hand, and
holding and management of properties by religious institutions on the other.
What is necessary to be considered for determining the issue is as to whether
by reason of the impugned Act the administration of the institution had been
taken from the hands of the religious denomination and vested in another body.
If the answer to the said question is rendered in the negative, attack to the
constitutionality of the Act would not survive.
35. Furthermore, it is permissible for a legislature to take over the
management of the temple from the control of a person and vest the same in a
Committee of which he would remain the Chairman. (See Raja Bira Kishore Deb,
hereditary Superintendent, Jagannath Temple, P.O. and District Puri vs. The
State of Orissa,).
36. It is also now trite that although State cannot interfere with the freedom
of a person to profess, practise and propagate his religion, the secular
matters connected therewith can be the subject matter of control by the State.
The management of the temple primarily is a secular act. The temple authority
controls the activities of various servants of the temple. It manages several
institutions including educational institutions pertaining to it. The
disciplinary power over the servants of the temple, including the priest may
vest in a committee. The payment of remuneration to the temple servants was
also not a religious act but was of purely secular in nature. (See Shri Jagannath
Temple Puri Management Committee represented through its Administrator and
another vs. Chintamani Khuntia and others 0
), Pannalal Bansilal Pitti and Others vs. State of A.P. and another 4 and Bhuri Nath and others vs. State of J & K and
others ).
37. State of Rajasthan and others vs. Shri Sajjanlal Panjawat and others
) relied upon by Mr. Menon was also a case where the statute enabled the
Government to appointed a committee of management. The provision was upheld.
When the Government in terms of a statute is entitled to appoint a management
committee for the temple, without violating the constitutional provisions, the
more remote aspect of the mode of nomination of the members of the Managing
Committee cannot be said to constitute violation of any constitutional mandate.
38. Yet again in Sri Adi Visheshwara of Kashi Vishwanath Temple Varanasi
(supra), this Court held:
"31. It is a well-settled law that administration, management and
governance of the religious institution or endowment are secular activities and
the State could regulate them by appropriate legislation..." *
(See also N. Adithayan vs. Travancore Devaswom Board and others 0 , para 6).
39. Recently in Guruvayoor Devaswom Managing Committee and Another vs. C.K.
Rajan and others ), a bench of this Court of which one of us (S.B.
Sinha, J.), was a member observed:
"60. It is possible to contend that the Hindus in general and the
devotees visiting the temple in particular are interested in proper management
of the temple at the hands of the statutory functionaries. That may be so but
the Act is a self-contained code. Duties and functions are prescribed in the
Act and the Rules framed thereunder. Forums have been created thereunder for
ventilation of the grievances of the affected persons. Ordinarily, therefore,
such forums should be moved at the first instance. The State should be asked to
look into the grievances of the aggrieved devotees, both as parens patriae as
also in discharge of its statutory duties." *
40. The decision of the Kerala High Court in Krishnan (supra) did not lay down
any proposition of law that the person authorized to nominate the persons of
the Managing Committee should also form part of the denomination. With respect,
the Full Bench in Narayanan Namboodiri (supra) misread and misinterpreted
Krishnan (supra). Even assuming that the decision in Narayanan Namboodiri
(supra) is correct (which it is not) it is not proper or correct to brand all
Ministers of leftist Government as persons not believing in temple worship.
There is no presumption that a Communist or Socialist (who may normally form
part of a leftist Council of Ministers) are ipso facto non believers in god or
in temple worship. Such a sweeping allegation or premise on which the prayer is
based need not be correct. It depends on each individual approach. The
observations in a judgment should not be, it is trite, read as a ratio. A
decision, as is well-known, is an authority of what it decides and not what can
logically be deduced therefrom. (See Chandra Sarkar vs. Rajesh Ranjan @ Pappu
Yadav and another para 42 - (2005) 1 SCALE 385) and Haryana State Coop. Land
Dev. Bank vs. Neelam, 2005 (2) JT 600).
41. So far as the decision of Narayanan Namboodiri (supra) is concerned, we are
of the opinion that the High Court in its impugned judgment has rightly held
the same to be not applicable to the fact of the present case.
42. In Muraleedharan Nair (supra), whereupon Mr. Menon has placed strong
reliance, the Bench was concerned with the interpretation of Sections 4 and 6
of the Hindu Religious Institutions Act, 1950. In that case for the purpose of
contesting election, the candidate in the nomination paper itself was required
to comply with Rule 3(b) mentioned in the Scheduled II which reads thus:
"3(b) The person nominated shall affix his signature to the nomination
paper before it is delivered to the Chairman, stating that he believes in God
and professes the Hindu Religion and believes in temple worship and that he is
willing to serve as a member of the Board, if elected." *
43. The Court rightly proceeded on the basis that the function of the court is
to apply to law as it stands. It is whilst analyzing the provisions of the Act
and the Rules, the Bench referred to the dictionary meaning of temple and
observed:
"So only persons who have faith in God or in temple worship, will be
taken in by the word 'Hindu', occurring in Act XV of 1950. It is implicit that
only such of those who have faith in God and in temple worship, will be aware
of its efficacy, necessity and importance and can be entrusted with the
administration, supervision and control of the Devaswom and other Hindu
Religious Endowments. However wide the meaning of the word 'Hindu' may be under
the general law, under Act XV of 1950, only those Hindus who believe in God and
in temple worship, will fulfill the requirement of the word 'Hindu' occurring
in the Act. Our conclusion aforesaid necessarily flows from the title and
preamble of the Act as also the definition contained in S.2(b) of the
Act." *
44. The High Court for the aforementioned purpose considered the history of the
provisions as was understood at the relevant time. It noticed the Full Bench
decision of Krishnan (supra) and while doing so fell into an error as was done
in Krishnankutty (supra) that therein a proposition of law has been laid down
in the fact that the person who professes Hindu religion but not a believer in
temple worship and may even be opposed to the practice of idol worship cannot
be considered a representative of the public having believed in God and temple
worship.
45. This decision cannot, thus, be said to be an authority for the proposition
that the "electoral college" should also be believers in temple
worship.
46. The crucial question may now be addressed whether the vesting of power in
the "Hindus" in the Council of Ministers to nominate the members of
the Managing Committee could be held to violate Articles 25 and 26. The temple
is visited by millions every year. Apart from proper management of the funds
flowing from these devotees, the Devaswom also owns other properties, runs a
college, a guest house, choultries etc., all of which require efficient and
prompt management. This is quiet apart from the spiritual management dealing
with religious side which is under the sole control management and guidance of
the Thanthri. It is the secular aspect of the management that is vested in the
Management Committee.
47. We have noticed hereinbefore that it is one thing to say that prejudice may
be caused if the management of temple is entrusted to a person who has no faith
in temple worship it is another thing to say that such persons are nominated by
those who may not have any such faith but those nominated would not only be
believers in God but also in temple worship. The function of a statutory and
constitutional authority while exercising its power of nomination cannot be
equated with the power of management of a temple, particularly, in relation to
the religious aspects involved therein.
48. One further question which may arise is as to whether Articles 25 or 26 can
be invoked on the facts of the present case. There is no case for the
Appellant that Section 4 insofar as it provides for the constitution of the
Managing Committee is violative of any rights. If this be the position, the
claim that the right of nomination has not been vested in a proper body is
beside the point. The right to manage the Devaswom was at the inception of the
Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of
Calicut and the Karnavam (Manager) of the Malliseery Illom (A Namboodri
Family). The denomination of devotees at large had no say in the
administration, except to watch the counting of the contents, the Bhandarams of
the hundies of sealed locks where the devotees deposit their offering to
prevent any defalcation or pilferage. [See Krishnan (supra), para 3] The
denomination of devotees had no say or right in the administration - secular or
religious - of the temple. Article 26 does not create any rights in any
denomination which it never had. It only safeguards and guarantees existing
rights, which such a denomination had. # [See Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi (supra)]. Since the denomination had no right prior
to January 26, 1950, they cannot claim any such rights after the enactment of
the impugned Act. If it had no such right even in the matter of management of
the temple, it is all most so in the matter of the constitution of the
"electorate".
49. The said decision, therefore, also has no application to the fact of the
present case.
50. The submission of the learned counsel to the effect that in Narayanan
Namboodiri (supra) Section 4(1) was read down on the basis of the concession
made by the Additional Advocate General and Special Counsel appearing for the
Devaswom, in our opinion, with respect, have rightly been held to be not
binding on the State by the High Court.
51. In Sanjeev Coke Manufacturing Company vs. M/s. Bharat Coking Coal Limited
and Another [ : ], this Court held:
"25..No Act of Parliament may be struck down because of the
understanding or misunderstanding of parliamentary intention by the executive
Government or because their (the Government's) spokesmen do not bring out
relevant circumstances but indulge in empty and self-defeating affidavits. They
do not and they cannot bind Parliament Validity of legislation is not to be
judged merely .by affidavits filed on behalf of the State, but by all the
relevant circumstances which the court may ultimately find and more especially
by what may be gathered from what the legislature has itself said." *
52. In P. Nallammal and Another vs. State represented by Inspector of Police
[1999 (6) SCC 559: 1999 (5) JT 410], this Court observed:
"7....The volte-face of the Union of India cannot be frowned at, for,
it is open to the State or Union of India or even a private party to retrace or
even resile from a concession once made in the court on a legal proposition.
Firstly, because the party concerned, on a reconsideration of the proposition
could comprehend a different construction as more appropriate. Secondly, the
construction of statutory provision cannot rest entirely on the stand adopted
by any party in the lis. Thirdly, the parties must be left free to aid the
court in reaching the correct construction to be placed on a statutory
provision. They cannot be nailed to a position on the legal interpretation
which they adopted at a particular point of time because saner thoughts can
throw more light on the same subject at a letter stage." *
53. The High Court, therefore, in our opinion, did not commit any error
whatsoever in allowing the State to file a supplementary affidavit resiling
from such concession made in the earlier case as had been noticed in paragraph
5 of the impugned judgment.
54. A wrong concession of law cannot bind the parties, particularly when the
constitutionality of a statue is in question.
55. The contention by the Appellant that the "electorate" should be
representative of the denomination of believers in temple worship (assuming
such a denomination exists) also cannot be accepted, who will determine the
electorate from amongst the millions of devotees of Lord Krishna visiting the
temple? It will be impossible and impracticable to select such a College of
"electors" from among them. The whole exercise will be arbitrary and
time consuming and will be open to further challenge. The present mode has the
advantage of being precise as the same has the advantage that only believers in
temple worship are put incharge of the administration.
56. A statute, it is trite, should not be interpreted in such a manner as would
lead to absurdity. [See Nandkishore Ganesh Joshi vs. Commissioner, Municipal
Corporation of Kalyan & Dombivali and Ors. 2004 (9) JT 242 and Ranjitsingh
Brahmajeetsingh Sharma vs. State of Maharashtra and Anr. 2005 (4) JT 123].
57. It is necessary to bear in mind the principle 'ut res magis valeat quam
pereat' in terms whereof a statute must be read in such a manner which would
make it workable. [See Balram Kumawat vs. Union of India, , Nandkishore
Ganesh Joshi (supra), para 19 and Pratap Singh vs. State of Jharkhand and Anr.,
2005 (2) JT 271 , para 82].
58. For the reasons aforementioned, we do not find any infirmity in the
impugned judgment which is hereby affirmed. These Appeals are dismissed. No
costs.