Apparently confusing but abysmally potent with amazing candour
By Senthamizh Velvi Chadhurar M. P. Sathiyavel Muruganar
Much ado has sprung into action in the wake of promulgation of the judgement in respect of writ filed by 7 Battacharyaas of Sri Meenakshi Amman Temple of Madurai in No. 354 of 2006 against the validity of G. O. M. S. No. No. 118 dated 23.05.2006 issued by the then Govt. of Tamilnadu with regard to the Scheme of training Archakar from all caste. I am one among the respondents in the case. Though the judgement has been long awaited with much expectancy from both sides of the petitioners and by the people of interest with tension, it came, as could be understood in the worldview, as a bolt from the blue in the morning on 16.12.2015, much hotter in contrast to the extremely heavy rain fall that recently subverted Chennai topsy-turvy.
Opinions variegated have gone sprung up from various cross sections of the general public, plebeian and pedant and the din, not supposed to settle down, but resonates higher and higher with each dawn and dusk. Generally, it is noted, a cluster of noteworthy political leaders have vented critically their dissent which even culminated to the extent of urging the Govt. of Tamilnadu to appeal against the judgement and to contest for an outcome of considered justice. They are, as seen from the reports, of the opinion that the judgement, in spite of having upheld the impugned G.O., that in the same breath closed the doors to Archakars from castes other than Brahmin by enjoining they be appointed as per stipulations of Agama. They feel, of what use then by upholding the G. O.? Some think that this is self contradictory and to some it is confusing and inexplicable.
Now the question is whether the judgement is incompatible and incongruous?
No, it may seem so for a glimpse and dabbling, but a skeletal analysis would reveal how enigmatic the judgement is. In fact, it throws open the gates to the Archakar of all castes deliberately maintaining the fibre of rationale through and through. Of course, it needs amplified explanation with attempts of meticulous details.
What does the judgment say in respect of Archakar which is the bone of contentions and concerns expressed by those opposing it? The portion of judgment is extracted below in this regard.
“44. Consequently and in the light of the aforesaid discussions we dispose of all the writ petitions in terms of our findings, observations and directions above, reiterating that as held in Seshammal (supra), appointments of Archakar will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with the constitutional mandates and principles as discussed above.”
Yes, appointments, no doubt, are to be made in accordance with the Agamas. It is not a blanket statement but subject to a condition that Agamas, before appointment, shall be scrutinised for its identification for conformity with the constitutional mandate and principles. Which are the constitutional mandates and principles ? The judgment clarifies them “as those discussed above.”
In the para, prior to the above i.e. para 43, it is given as follows:
“What is found and held to be prescribed by one particular or set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue”.
In accordance with the above, the judgment narrows down to what is determinative to sort out the whole issue. To arrive at this, the Court takes carefully the fact into consideration that all temples are not controlled and operated by one particular Agama. There are as such 28 Agamas as per conventional saying, one not conforming to the other in content and configuration of temple prescribed or promoted by it and modus operandi of the worship. For some of the Agamas there may be number of temples and some other a few, and in certain cases there may be only one temple existing and perhaps in all probability some Agamas may have none either.
This is what is found expressed in the statement above like, “what is found and held to be prescribed by one particular or set of Agamas for a solitary or a group of temples.” It is clear therefore that the Court has duly taken note of the fact that there are different temples controlled and operated by different Agamas each in its own way.
Such being the case, before embarking on appointment of Archakar, the authority concerned must ascertain to which temple the ArchaKar to be posted, whether the candidate is conversant with the principles and methods of worship of the denominations prescribed by the particular Agama which the temple belongs to and lastly if any of the denomination is proscribed by the Agama for entry.
Hence there are three criteria looming before the appointment authority for consideration which are recapitulated below for clarity:
- Which Agama is pertaining to the temple in question?
- Whether the candidate aspiring for appointment has knowledge of the particular Agama?
- Is there any denomination proscribed by that particular Agama in which the aspirant befalls?
These three criteria are determinative in appointing the Archakars which is duly expressed in the statement above tersely.
Here again, there shoots up another question: whether all the above three are desiderata without which having been fulfilled, there can be no appointment?
Yes, the Court says that the first two are necessarily to be determined before appointment of Archakars as when Agama different to the particular temple is practised, the entire operation and worship would default in obligation and may also end in defiling the image.
Hence the Court has rightly held that in terms of our findings, observations and directions, appointments of Archakars will have to be made in accordance with the Agamas as what held in Seshammal (Supra) .
But the Court has hastened to emphasize a point with regard to the criterion 3 said above which is as follows:
“In this regard, it will be necessary to re-emphasize what has been already stated with regard to purport and effect of Article 16 (5) of the Constitution, namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakar would not violate Article 14 so long such inclusion / exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.”
According to the emphatic expression made above by the Court that it does not bother about any inclusion / exclusion of any particular denomination in matters of permitting or otherwise inside the temple for carrying out worship until that sort of exclusion / inclusion is not based on the criteria of caste, birth, or any other constitutionally unacceptable parameter. If violation found so, the Court would immediately take the authority over Agama and ban such proscription / prescription.
From the above, the Court has clearly stated that while insisting that appointment of Archakars is to be as per Agama concerning the temple, the exclusion or inclusion of any particular denomination based on caste, birth or any other constitutionally unacceptable parameter will not be permitted or encouraged by the Court.
Is it not throwing open the gates to Archakars of all castes? Yes, the justice stands upright, the ramrod straight, reaching upper realms of the sky, more than ever for the first time in the history. Of what more required for those oppressed from time immemorial, knowing not what they were and are being oppressed for and when the presser would release and by whom.
Hence, it is high time that those prefer to harp discordantly in this regard must attempt to comprehend that the long nourished grouse has very well been addressed by the judgement.
I am to add in this regard further that a great solace may be identified in the judgement that it has not quashed the G. O. concerned although it points out certain observations in it to mend matters.
For example, the statement below in the verdict is noteworthy and attracts urgent attention:
“The impugned G. O. 118 dated 23.05.2006 by its blanket fiat to the effect, ‘any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archakar in Hindu temples has the potential of falling foul of the dictum laid down in Seshammal (Supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. will have to be decided in each case of appointment of Archakar whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is “inevitable and unavoidable.”
Whereas Seshammal (Supra) had not traversed the contours of Agama but simply contented with stating that appointment of Archakar must be as per Agama, the Court in this case has meticulously traced the contours of Agama in its findings and observations and incorporated the same in the verdict well definitively.
For example, let us take the phrase of the G.O. i.e. “any person who is a Hindu” is wanting in further details and certain other specifics. The merest mention that any person who is a Hindu is not suffice. Is there any other attribute such as caste / birth? No, they can’t be mentioned for two reasons firstly, that the purpose of G. O. is to include all caste and secondly, caste / birth are the constituents which are prohibitive in the light of the express provisions of the respective constitution clauses.
What then is required? Is it qualification and training? These have been duly provided in the G.O. and therefore do not matter. What is left by oversight is the ‘contours of a claimed custom or usage’ which are imperative as pointed out in the verdict.
More than qualification and training, the custom and usage play an important role which must have been provided for and incorporated duly in the G.O. qualifying the person. For example the custom required in all Agamas irrespective of the differences whatsoever among them is initiation of the person. In regard to usage, it is decided by the Agama that controls the particular temple. These two things must have been envisaged and incorporated properly in the G.O. qualifying that ‘Hindu person’ whosoever might have been referred to.
In spite of this, the Court preferred, in all probabilities for the reason stated below that G.O. need not be struck down but can be set right in implementation whenever and wherever the need be and so it pronounced that seeking specific judicial verdicts in the future is inevitable and unavoidable.
There remains another question as to whether the Court has thought of all contingencies in the due gravity of the issues and proper light stated above or whether the above is just a projection based on notions or surmises of interest as the case may be. It is an onerous duty though and must definitively be explained away.
The Court has duly taken note of the following points in making out and determining in its light the colour and character of the judgement:
- The challenge therein (Adithyan – Supra) was by a Namboodri Brahmin to the appointment of a non-Namboodri Brahmin………. It has been a long standing practice and usage in the temple that its priests are appointed exclusively from Namboodri Brahmins.
(The Court has noticed that there are various denominations appointed in various Hindu temples according as the long practice and usage.)
- (In) the decision in Seshammal (Supra) it was held that rights claimed solely on the basis of caste cannot enjoy the protection of Article 25 & 26.
- No earlier decision of this Court including Seshammal (Supra) would support the contention that even duly qualified persons can be barred from performing Poojas on the sole ground that such a person is not a Brahmin by birth or pedigree.
(Caste discriminations in performing Poojas is noted as not permitted by Law.)
- Even proof of any such practice since the pre-constitutional days cannot sustain such a claim, as the same would be in derogation of constitutional values and opposed to public policy or social decency.
(Here any practice since the pre constitutional days relating to discrimination has also been declared unconstitutional by which it is implicit that even such practices if prescribed in Agamas, no matter the same is pre constitutional or post constitutional could be very well quashed as unconstitutional.)
- The discussions in para 12 of Seshammal (Supra) proceeds on the basis that entry to the sanctum sanctorum for a particular denomination is without any reference to caste or social status.
(The Court has, in framing the verdict, given due weight to the fact above.)
Court’s opinion on G. O.
- “The preceding discussion indicates the gravity of the issues arising and the perceptible magnitude of the impact thereof on Hindu society. It would be therefore incorrect, if not self defeating to take too pedantic an approach at resolution either by holding the principle of resjudicata or locus to bar an adjudication on merits or to strike down the impugned G.O. as an executive fiat that does not have legislative approval.”
The Court is of the view that the G.O. is just an executive fiat not supported and confirmed by an Act passed in the Legislative Assembly of Tamilnadu and hence frail in maintainability before the test of strength in a Court of Law.
Be it as may, the Court has taken a stand not to strike down the G.O. for the reason that it considered the same would be too pedantic an approach and incorrect, if not self defeating considering the gravity of the issue and the perceptible magnitude of the impact thereof on Hindu Society. The stand taken thus by the Court had saved the G.O. finally. So the People of interest in the efficacy and implementation of the G.O. may, in all due respects, rest contented and appreciate the spirit of the Court evinced in social justice to the Hindu Society.
This has been further substantiated duly by the Court as follows:
- “What is sought to be emphasised is that the same, by itself, cannot be determinative of the invalidity of the G.O. which will have to be tested on certain other premises and foundation treating the same to be an instance of exercise of executive power in an area not covered by any specific Law.”
The passage above is construed to mean that granting the G.O. is only an executive fiat not supported by any suitable legislated law, it remains reasonable that the G.O. might be permitted to have the process of testing its legal veracity on its course on certain other premises and foundation in the absence of any specific law in that area. This sounds much reasonable and in all certainty not a travesty of natural principles of justice.
Court’s opinion on Agamas
Whereas the other judgements meted out in the past have assumed unquestionable authority in certain respects of Agama, the Court in this case have strived to get across the Agamas vis-à-vis the temples relating to them with insight which is made known in citing the portions relevant from Seshammal (Supra) as follows:
“Seshammal (Supra) is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular group of temples lay down with regard to the question that confronts the Court, namely whether any particular denomination of worshippers or believers have an exclusive right to be appointed as an Archakar to perform Poojas. Much less, has the judgement taken note of the particular class or caste to which the Archakar of the temple must belong as prescribed by the Agamas.”
Here the short-sighted observation made flatly in the Seshammal (Supra) about the Agama without reference to its relativity to the temple concerned has been exposed in candid terms. The fact that there are various temples, though considered generally as belonging to Agamas, found to be varying in certain particularities according as the particular Agama governing them, has been given due weight by this judgement.
Granting that particularity of a temple and its Agama, the Court has hastened to add that the same would not be taken to hold that any particular Agama with its particularities whatsoever is vested with powers of constitutional validity to prohibit any denomination of Archakar based on Caste, Birth or any other constituent not accepted by the constitutional provisions. This is explicitly expressed in the judgement as follows:
“……Some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the Poojas by the Archakar belonging to a particular and distinct sect / group / denomination, failing which, there will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question do not proscribe any group of citizens from being appointed as Archakar on the basis of caste or class, the sanctity of Article 17 or any other provision of Part III of the Constitution or even the protection of Civil Rights Act 1955 will not be violated………The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Article 25 & 26, the Law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”
From the above, it is very clear, more than required, that the Court is against exclusion of any denomination of Archakar on the basis of caste which is much in consonant with the purpose of G.O. throwing open the gates for Archakar of all caste.
Again the Court, unlike provided in other judgements has a clear perspective of Agamas. It does not hype the authority of Agamas in overtones nor treat them with disrespect anyway. It is clear from its following observation:
“Moreover, there is some amount of uncertainty with regard to the prescriptions contained in the Agamas. Coupled with the above is the lack of easy availability of established works and the declining numbers of acknowledged and undisputed scholars on the subject……..Any contrary opinion would go rise to large scale conflicts of claims and usages as to what is essential religious practise with no acceptable or adequate forum for resolution.”
Eventhough, the perspective that the Agama is the base of any temple under discussion and the worship relating to it cannot be given a go-by in entirety, the Court takes due note of the existing situation wherein no established work of Agama is available, no consensus in the teeth of any conflicting claims and usages is obtainable as there are no undisputed Agamic Scholars and the number of persons knowledgeable in Agama is also on the rapid decrease with each day as of now. In spite of this stark truth the Court is constrained not to abolish the prevalence of Agama in matters of temple while it, as what it could do, maintains firmly that the discrimination in kind of caste in anyway shall not be permitted as per the dictates of constitutional provisions.
Under such piquant situation, the Court has at best, exercised its jurisprudence expediently and rendered justice with an eye to social welfare and reform in such a way that no one can reasonably cavil at. I hastened to add that it would be overstated if I go say the judgement has met all the contingencies that may arise out of it in implementation and addressed all the grouses and grievances of Tamils and Tamil Archakars trained by the Government of Tamilnadu under the impugned G.O. Without any reservation, let the Tamil Community knuckle down concertedly in all sincerity to sort out the issues, if any, threatening for immediate attention and mending of matters.