BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.1515 of 2010 and M.P.(MD)No.1 OF 2010 M.Karuppiah .. Petitioner Vs. 1.The Revenue Divisional Officer, Devakottai, Sivagangai District. 2.The Tahsildar, Thiruppathur (Tk.) Sivagangai District. 3.A/m.Kailasanadar Nidya Kalyani Devasthanam, Elayathangudi, Sri Muthumariamman Koil, Keeranipatty, Thiruppathur (Th.) Sivagangai (Dt.) 4.S.Ramiah Pillai. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents 1 and 2 from any way affecting the customary practice of conducting festival by the petitioner and his community men in the third respondent temple or any way compelling the writ petitioner to accept donations from the fourth respondent for the conduct of Pongal festival in the third respondent temple. !For Petitioner ... Mr.Veerakathiravan ^For Respondents... Mr.S.C.Herold Singh, GA for RR1 and 2 Mr.T.S.Mohamed Mohideen for R4 - - - - :ORDER
The petitioner who is a resident of Kiranipatty village, Kurvikondanpatty,
Pudukkottai District, has filed the writ petition, seeking for a direction to
forbear the first and second respondents from in any way affecting the customary
practice of conducting festival by the petitioner and his community men in the
third respondent temple and further compelling the petitioner to accept the
donations from the fourth respondents for the conducting of Pongal festival in
the third respondent temple.
2.The writ petition was admitted on 12.2.2010. Pending the writ petition,
an interim injunction was granted for a period of four weeks. Subsequently, on
31.3.2010, this court directed that since festival is to schedule on 4.4.2010,
the fourth respondent and his men can very well participate in the Pongal
festival and the petitioner will not prevent the fourth respondent from
participating in the temple festival. With reference to the contribution, it is
open to the petitioner to make contribution in the Hundial.
3.It is the case of the petitioner that in the previous year, the fourth
respondent had filed W.P.(MD)No.2043 of 2009 which was taken by the division
bench. In the prayer, he sought for a direction to implement the decision of the
Peace Committee meeting held by the Revenue Divisional Officer, Sivaganga, dated
1.12.2008 and for a subsequent direction to the writ petitioner not to lift the
deity or clime in the Chariot in the festival by excommunicating other caste
people in the Arul Migu Muthu Mariamman Thirukoil, Keeranipatti village. That
writ petition was disposed of by a final order dated 13.4.2009 stating that both
sides had agreed that all parties are entitled to enter the temple to worship
the deity without any discrimination. They are also entitled to participate in
the Car festival. But with reference to the right of taking the deity to the
Chariot, it was found that such right could be adjudicated only under Section
63(C) of the Tamil Nadu H.R.&C.E. Act. But, however, a petition, dated
28.10.2009 was given by the fourth respondent that except for those Karumaravar
community, the other community people are being excluded in the Pongal festival.
The R.D.O., Devakottai, the first respondent, by a notice, dated 13.11.2009
directed the parties to appear for an enquiry. It is challenging the said
notice, the petitioner has come forward with the present prayer.
4.The contention was that the first respondent was in hand-in-glove with
the fourth respondent. The conduct of the Pongal festival before the temple is
the exclusive right of Kallar community people. It cannot be allowed to share by
the other community people. This system of worship was followed for several
hundred years. Therefore, the question of accepting donations from the fourth
respondent will not arise.
5.The prayer made by the petitioner cannot be countenanced by this court
for more than one reasons. Every practice cannot become automatically a practice
associated with the religion thereby giving scope for a right to profess or
practice any religion covered by Article 25 of the Constitution. Even in such a
case, the issue will have to be decided whether the practice is an essential
part of religion?
6.The issue as to what constitute an essential part of religion came to be
considered by a Division Bench vide its decision in V.S.Srikumar v. State of
Tamilnadu and others reported in 2008 (3)MLJ 17, wherein in paragraphs 44 and 45
it was held as follows:
44.The Supreme Court, in N. Adithayan v. Travancore Devaswom Board and
others [2002 (8) SCC 106], while considering the scope of Travancore – Cochin
Hindu Religious Institutions Act, 1950 as well as Agamas in relation to
appointment of temple poojaris selected from communities other than Malayala
Brahmin, held that ‘there was no right based upon a custom which existed before
the Constitution and which involves omission of non-Brahmins from performing
poojas in the temple if they are otherwise trained and qualified for doing the
same’. In this context, it is relevant to refer to the following passage
found in paragraph 10 and quoted in approval of the earlier order of the
Supreme Court in Bhuri Nath v. State of J&K [1997 (2) SCC 745]. The
following passage found in paragraph 13 may also be quoted:
Para 10: “It has also been held that compilation of treatises on construction
of temples, installation of idols therein, rituals to be performed and conduct
of worship therein, known as “Agamas” came to be made with the establishment of
temples and the institution of Archakas, noticing at the same time the further
fact that the authority of such Agamas came to be judicially recognized. It has
been highlighted that: (SCC p. 9, para 11)
“Where the temple was constructed as per directions of the Agamas the idol
had to be consecrated in accordance with an elaborate and complicated ritual
accompanied by chanting of mantras and devotional songs appropriate to the
deity.”
Thereafter for continuing the divine spirit, which is considered to have
descended into the idol on consecration, daily and periodical worship has to be
made with twofold object to attract the lay worshippers and also to preserve the
image from pollution, defilement or desecration, which is believed to take place
in ever so many ways. Delving further into the importance of rituals and Agamas
it has been observed as follows: (SCC pp. 19-21, paras 11-12)
“Worshippers lay great store by the rituals and whatever other people, not
of the faith, may think about these rituals and ceremonies, they are a part of
the Hindu religious faith and cannot be dismissed as either irrational or
superstitious. An illustration of the importance attached to minor details of
rituals is found in the case of His Holiness Peria Kovil Kelvi Appan
Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram
Venkatacharlu which went up to the Privy Council. The contest was between two
denominations of Vaishnava worshippers of South India, the Vadagalais and
Tengalais. The temple was a Vaishnava temple and the controversy between them
involved the question as to how the invocation was to begin at the time of
worship and which should be the concluding benedictory verses. This gives the
measure of the importance attached by the worshippers to certain modes of
worship. The idea most prominent in the mind of the worshipper is that a
departure from the traditional rules would result in the pollution or defilement
of the image which must be avoided at all costs. That is also the rationale for
preserving the sanctity of the Garbhagriha or the sanctum sanctorum….”
Para 13: “In Bhuri Nath v. State of J&K this Court while dealing with the
validity of the J&K Shri Mata Vaishno Devi Shrine Act, 1988, and the abolition
of the right of Baridars to receive share in the offerings made by pilgrims to
Shri Mata Vaishno Devi, observed their right to perform pooja as only a
customary right coming from generations which the State can and has by
legislation abolished and that the rights seemed under Articles 25 and 26 are
not absolute or unfettered but subject to legislation by the State limiting or
regulating any activity, economic, financial, political or secular which are
associated with the religious belief, faith, practice or custom and that they
are also subject to social reform by suitable legislation. It was also
reiterated therein that though religious practices and performances of acts in
pursuance of religious beliefs are, as much a part of religion, as further
belief in a particular doctrine, that by itself is not conclusive or decisive
and as to what are essential parts of religion or belief or matters of religion
and religious practice is essentially a question of fact to be considered in the
context in which the question arises on the basis of materials # factual or
legislative or historic if need be giving a go-by to claims based merely on
supernaturalism or superstitious beliefs or actions and those which are not
really, essentially or integrally matters of religion or religious belief or
faith or religious practice.”
45.Further, the Court also emphasised in paragraph 16 that what
constitutes essential part of religion or religious practice will have to be
decided by the Courts only and the following passage found in paragraph 16 may
be quoted usefully:
Para 16: “The legal position that the protection under Articles 25 and 26
extends a guarantee for rituals and observances, ceremonies and modes of worship
which are integral parts of religion and as to what really constitutes an
essential part of religion or religious practice has to be decided by the courts
with reference to the doctrine of a particular religion or practices regarded as
parts of religion, came to be equally firmly laid down.”
7.A similar controversy came to be considered by a Division Bench of this
Court presided by M.Katju,C.J. (as he then was) in Puthiya Tamilagam rep. By its
President, Dr.K.Krishnasamy v. State of Tamil Nadu and others reported in 2005-
3-L.W. 140. In that case, the Division Bench by referring to the earlier case
in G.Krishnan & Others v. Union of India and others held that in the modern age,
no one should be insulted, humiliated or looked down upon, as this is the age of
equality. Our constitution also envisages equality, which includes special help
and care for the weaker and oppressed sections of the society, who have been
downtrodden for thousands of years.
8.Thereafter, the Bench observed in paragraph 10, which is as follows:-
“10. ….This Court will no longer tolerate such kinds of treatment of the
S.C./S.T. Communities as they also are equal citizens of our country and are
hence entitled to a life of dignity in view of Article 21 of the Constitution of
India, as interpreted by the Supreme Court of India. In our opinion, to deny
them the right to participate in the pulling of the Temple Car is violation of
Article 21 of the Constitution, apart from being violative of the orders of the
Court dated 6.7.1998 and of the Commissioner dated 26.6.1999, and it will simply
not be tolerated by this Court.”
9.After referring to G.Krishnan’s case (Cited supra), the Division bench
in paragraphs 13 and 14 held as follows:-
“13. It is alleged that some representatives of the Nattar community claim that
there is a custom that members belonging to the Scheduled Caste and Scheduled
Tribe Communities have no right to pull the temple car. Although this
contention is denied, yet even assuming that there is such a custom, it will be
wholly illegal and unconstitutional, as it is against the right to a life of
dignity envisaged in Article 21 of the Constitution. After the promulgation of
the Constitution, all customs which are in violation of Articles 14,21 and other
constitutional provisions are null and void, and have to be disregarded, since
the Constitution is the fundamental law of the land.
14. We, therefore, direct the District Collector cum District Magistrate,
Sivaganga District, to ensure strict compliance of the order of this Court dated
6.7.1998 in W.M.P.NO.14132 of 1998 in W.P.No.9235 of 1998 as well as the order
of the Commissioner of the H.R. & C.E. Department dated 26.6.1999, both in
letter and spirit. We make it clear that the District Collector cum District
Magistrate will be personally held responsible if the order we are passing today
is not complied with. The District Collector cum District Magistrate must act
fairly to all castes and communities and ensure that everyone is given equal
respect in this Car Festival and even otherwise. The District Collector cum
District Magistrate will submit a report to this Court about the conducting of
the Car Festival and as to whether our orders have been complied with in letter
and spirit. This Court will continue monitoring the matter even in future.”
10.Assuming without admitting that the petitioner had an exclusive right
of worship or offering of Pongal and on the exercise of such a right if the
local situation lead to breach of peace or disturbance of law and order, the
first and second respondents being the Executive Magistrates are entitled to
establish law and order in the village. The fact that there has been dispute is
seen from the earlier order, dated 13.4.2009 where this court directed the
parties to approach the HR&CE authorities under Section 63 to establish their
customary practice. The said order will hold good even for the petitioner who
claims to have an unbroken custom over several hundred years. If he is claiming
a particular community / caste right which is disputed by others, then the
petitioner will have to go before an appropriate authority and not to rush to
this court. Even this court, by an interim order found that if there are
disputes between the parties, they can make some workable arrangements. It is
not clear whether the parties have made use of such interim order. In any event,
the present prayer of the petitioner cannot be countenanced by this court. They
can establish their customary right before the appropriate authorities under
Section 63 of the HR&CE Act. Hence the writ petition is misconceived.
Accordingly, the writ petition will stand dismissed. However, there will be no
order as to costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
1.The Revenue Divisional Officer,
Devakottai,
Sivagangai District.
2.The Tahsildar,
Thiruppathur (Tk.)
Sivagangai District.