The Judicial Interpretation of Temple Archaka Appointments and State Intervention: An unresolved Dichotomy
On the 16th of December 2015, the Indian Supreme Court ruled on a matter that embodied a longstanding tension between the freedom to practice traditional -
| religious customs and concerns of caste discrimination comments Arpan Banerjee.
The case Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another1 (hereinafter Adi Saiva) revived the issue of temple Archakas (priests) customarily being appointed from within certain Brahmin sects within the broader religious denomination. The matter involved a Tamil Nadu State Government Order (hereinafter G.O) that sought to break the monopoly of the Brahmin priests over what was a public office under the powers of appointment of an agent of the State, the temple trustee, by making all Hindus irrespective of caste eligible for the office of Archaka. This, according to the appellants, violated their freedom to religious practices protected by Article 25 and 26 of the Constitution. The Bench comprising of Justices Ranjan Gogoi and N.V Ramana, having heard the competing claims observed that the appointment of Archaka could not be in contravention to the constitutional principles, referring to equality and freedom from caste discrimination.
However, they acknowledged the claims of the appellants insofar as Archaka appointments could not be made in contravention to diktats imposed by the Agamas, the religious scriptures that governed a Hindu temple. Despite engaging in a critical analysis of the established jurisprudence on the matter, the Court curiously did not provide any conclusion to the central question at hand that of the constitutionality of the challenged order, rather held that its validity would be adjudged on a case-to-case basis. In the above context, this paper suggests that this conclusion of the Court not only fails to resolve the legal question at hand, but also embodies a rather perplexing proposition, that the Constitutionality of a law can vary circumstantially. While attempting to derive a conclusive interpretation from within the
1. Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another, W.P (Civil) No. 354 of 2006, (Supreme Court, 16/12/2015)
Court’s own reasoning, the paper also highlights the internal dichotomy that characterizes the qualitative nature of Archaka appointments from a constitutional perspective.
CONTEXTUALISING THE ISSUE OF ARCHAKA APPOINTMENT
Customary exclusion based on hereditary principle
The origins of the conflict around Archaka appointments lie in the 1970 amendment to the Tamil Nadu Religious and Charitable Endowments Act, 1959, which abolished the entitlement of a person to the Archaka post based on hereditary succession. This amendment was challenged in Seshammal and Others, Etc. Etc. vs. State of Tamil Nadu2, (hereinafter referred as the Seshammal case) where it was heard by a Constitutional Bench of the Supreme Court. Interpreting the Agamas and religious scriptures, the Bench found that the appointment of an Archaka did not constitute an essentially religious act, but rather was secular in nature. This was of immense significance as Article 25(2)(a) empowers the State to legislate on a “secular activity which may be associated with religious practice”3 in contrast to an essentially religious matter. In other words it meant that, as appointment was a secular activity, the Government was competent to amend a practice regulating the same.
The Bench in Seshammal however, also engaged with a second question, whether while appointing an Archaka the trustee was to be bound the requirement of the Agamas of belonging to a specific religious denomination. The Court referring to the views of experts observed that appointment of a person outside the denomination, irrespective of their caste and expertise, would necessarily defile the image of God. Hence the Agamas could not be disregarded. This meant that while the post of Archaka was no longer a hereditary post, it was to remain within persons of the religious denomination itself, as the Agamas prescribe. This preserved the religious custom of the denomination under Article 26(b), but not the longstanding secular custom regarding hereditary appointment.
Removal of prescribed denominational barriers
The abolition of the hereditary rule however, still fell short of the aim of the Tamil Nadu Government of removing caste discrimination in Archaka appointment. Notifications seeking
2. (1972) 2 SCC 11
3. Art. 25, the Constitution of India
applications still required caste as a specific criterion.4 Thus in 2006 a Government Order (G.O) was issued to the effect that, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as an Archaka in Hindu temples” which was immediately challenged before the Supreme Court in Adi Saiva. The primary question in front of the Court was whether opening the post of Archaka to all Hindus irrespective not only of caste but also of denomination5, could be reconciled with both the essential religious practices of the Hindu’s enshrined in the Agamas and the Constitutional provisions governing the same. The appellants claimed that the issues pertaining to the instant case were covered and decided in Seshammal where the Bench unambiguously held that any deviation from the Agamas would be a clear violation of religious freedom, under Article 25 and right of the denomination to manage its own affairs, under Article 26(b). The respondents however contended that by upholding the Amendment of 1970, the Bench had negated the exclusive right of appointment of a particular group, and thus in addition to merit, consistency with Articles 14 and 16 was a required qualification.
Rejecting the primary claim of the appellants that the issues of the instant case were the same as and had been conclusively decided in Seshammal, the Court found Seshammal relevant to the limited extent of its finding that “some of the Agamas do incorporate a fundamental religious belief of necessity of performance of the Poojas by Archakas belonging to a distinct denomination”6 violation of which would amount to defilement. However, explicitly stating “constitutional legitimacy must supersede all religious beliefs”7 the Court emphasised that rights guaranteed by Articles 25 and 26, are “to be enjoyed within constitutionally permissible parameters,”8. Article 25 contained an exception under laws providing social welfare and reform while Article 26(b) guaranteed a denomination “full freedom to manage its own affairs insofar as matters of religion are concerned, subject to public order, morality and health” and also subject to law made under 25(2)(b). 9
4. This was perhaps because Seshammal had explicitly found customary practice to be essential and protected after declaring the validity of the amendment, a fact which the traditional groups argued was the true ratio of Seshammal and not a mere concession made by the Advocate General of the State before the Constitutional Bench.
5. Unlike the 1970 amendment, the G.O sought to make any Hindu eligible for appointment.
6. Supra 1,at para 44
9. Ibid, at para 39
The Bench also took cognizance Article 16(5) of the Constitution, “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination”10. This suggested that the Constitution itself permitted denomination based discrimination while appointing an Archaka. Thus having acknowledged that in light of the above the Government order had “the potential of falling foul of the dictum laid in Seshammal” the Court failed to resolve the conflict, and instead arrived at the absurd conclusion that “the necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable” stating that validity of the order would be decided according to the circumstances of each case.
CONSTRUCTING A CONCLUSIVE INTERPRETATION
Within the judgment authored by Justice Gogoi lies sufficient matter and analysis to derive an opinion that possibly settles the position of law regarding the question of Archaka appointment. By its own recognition of issues, the Court found two distinct principles which embodied the conflicting concerns. On one hand there lay the Agamas that were essential religious practices and therefore inviolable. On the other lay the principles of equality and non discrimination embodied in the Constitution. Thus the validity of Government Order (G.O) must be decided reconciling the above, apparently conflicting notions.
The Courts, both in Seshammal and Adi Saiva, have unequivocally held that Agamas constitute essential practices, and therefore cannot be circumvented. And the Agamas clearly hold that the Archaka must belong to a particular denomination, failing which there will be defilement of the deity. Claims of this being practiced as caste based discrimination were dismissed by the Court, observing that high caste Brahmins from another denomination, with the highest expertise are still not eligible to be an Archaka in a temple of another denomination. This means that insofar as eligibility criteria is concerned, denomination must be a prerequisite but caste cannot. Absence of the former will violate Agamas, thus essential practices, and presence of the latter will be contrary to constitutional principles. In this context it is important to take note of the G.O.
10. Indian Const. art. 16, cl. 5
The order allows any person who is a Hindu to be eligible for the post of Archaka. This, while eliminating caste discrimination also removes the prerequisite of denominating hence violating the essential practices. Hence insofar as the G.O allows all Hindus, irrespective of denomination, to be appointed as Archaka, it falls foul of the Agamas and consequently violates the religious freedoms of the appellants. Thus the G.O seen in light of the essential religious practices should have been annulled as violating the religious freedoms provided under Article 25 and 26 of the Constitution.
In addition to the above, Article 16(5) which the Court acknowledged as applicable but “virtually unnoticed”, greatly strengthens the above conclusion. The provision explicitly allows the denominational temples to use denomination of the Archaka as a factor for eligibility, which is carved in as an exception to the right of non-discrimination and equality in matters of employment under the Constitution. Keeping in mind that the Constitution specifically highlights denomination as an acceptable criterion for eligibility for any office in connection with a religious denomination, clearly suggests that any attempt to open the post to Archakas of all denominations would be not only at odds with the basic tenets of the religion, but more importantly the Constitution itself. In other words opening the post to all Hindus irrespective of their denomination violates Article 16(5), a clear reason to conclude on the invalidity of the G.O.
THE INHERENT DICHOTOMY IN ARCHAKA APPOINTMENTS
The fundamental premise and indeed the crucial deciding factor in Seshammal was the fact that an Archaka was not a religious but rather a secular appointment, because the post drew its authority from the agent of the secular state, the trustee. This enabled the Constitutional Bench to uphold the G.O by finding that the State was competent to legislate on a secular matter, a principle that Adi Saiva acknowledged. Yet in both cases the Court's observed that while appointment was a secular matter, it was governed by religious scriptures or the Agamas that the State was obliged to respect. However, the Courts did not just hold the Agamas to be mere religious practices, but essential religious practices, entails an element of inviolability and complete protection from State action. For example, as the Court in Seshammal observed, deviance from the rules in the Agamas regarding denomination of an Archaka would amount to defilement and since it is the essence of any faith that there can be no defilement, any state action that permits the same would prima facie be invalid under Article 25(1).
This proposition carries a fundamental dichotomy. On one hand there is a clear acknowledgment of the fact that appointment of Archaka is a secular matter. As per Article 25(2)(a) this means that nothing in the article itself, or any claim under religion can prevent any State legislation on the matter. A secular matter would thus suggest that the State is competent to act and unfettered by any religious claim. But clearly that is not so, as the State's exercise of power is, in this case, greatly limited by religious tenets. Nothing in Article 25 suggests that while legislating on a secular matter the State is bound by considerations of religion, in fact the articulation of the Article seems to suggest quite the opposite. The Constitutional Bench in Seshammal found the position of an Archaka, the act of appointment by the trustee a secular act, because the Archaka “owes his appointment to an essentially secular authority”. They also clarified that the mere fact that an Archaka performs worship is not sufficient reason to consider it to be a religious post. While that may be true, the question remains whether the secular nature of the source of authority, the State in this case, is sufficient reason to declare the post itself is secular in nature, especially if it is acknowledged that the post is entirely controlled and governed by inviolable and essentially religious diktats. Thus, whether the nature of the post is derived from its appointee or judged based on the norms that govern it, is perhaps the fundamental question which requires discussion to resolve the dichotomy that characterizes the legal position on Archaka appointments.
However ad arguendo even if the appointment was to be merely a religious practice, there would still be the question of whether the G.O could be justified under 25(2)(b) as legislation in furtherance of social reform and welfare, a question that would have required judicial interpretation. But this entire question is circumvented by the fact that both Benches have held that rules of appointment in the Agamas as not just matters of religion, but essential religious practices which, by its own admission, the Courts or the Government cannot violate under any constitutional provision. In other words the fundamental flaw in the judicial interpretation of Archaka appointments lies in its conflicting observations that appointment is a secular practice, yet must be in accordance essential religious practices, thus imposing a fetter that undermines the entire purpose of Article 25(2) which is primarily an enabling provision not subject to any religious concern. Resolving this underlying incongruity was perhaps the primary burden of the Bench in Adi Saiva, a concern that the Court failed to even acknowledge, let alone address.
In a broader context, Adi Saiva clearly elucidates the concerns of evolving a clear ecclesiastical jurisprudence, particularly in the Indian context where the line between social practices and religious practices is often blurred. Yet it’s primary failing lies in its inability not only to point out the internal conflict in Archaka appointment, but its adoption of a faulty interpretation to pronounce a legally and logically inconsistent judgment, that the validity of the G.O varies circumstantially. In subsequent litigation that is bound to arise in the next instance of Archaka appointment, it is important for the Judiciary to not only develop a settled and conclusive position of law, but also engage with the qualitative dichotomy within temple appointments.
| Arpan Banerjee is a student pursuing B.A. LL.B (Hons.) from NALSAR, Hyderabad and can be reached at email@example.com.