TMI Blog2005 (4) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mallissery Illom were the hereditary trustees of the temple. Disputes and differences arose between the Zamorin 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. 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 1929 before the District Court of South-Malabar. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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; 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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: 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 belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession made by the Additional Advocate General and the Special Counsel appearing for the Devaswom to the effect that the persons nominating the members to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Sub-section (3) of Section 4 of the 1978 Act provides for election of one of its members by 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-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: 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 subjected to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of the public good. A 9-Judge Bench of this Court in S.R. Bommai Vs. Union of India [(1994) 3 SCC 1] 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 interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest in the temple. The area within which such nomination can be made by the Hindus amongst the Council of Minister is, thus, limited. HINDU-CONCEPT OF 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary 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. 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. It is not clear how vesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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. 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. 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, AIR 1964 SC 1501] It is also now tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. This decision cannot, thus, be said to be an authority for the proposition that the electoral college should also be believers in temple worship. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Sanjeev Coke Manufacturing Company Vs. M/s. Bharat Coking Coal Limited and Another [(1983) 1 SCC 147 : AIR 1983 SC 239], 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. In P. Nallammal and Another Vs. State represented by Inspector of Police [(1999) 6 SCC 559 : JT 1999 (5) SC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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