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Judgment
K. Chandru, J.—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.
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.
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 u/s 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.
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.
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?
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 Ors. reported in 2008 (3)MLJ 17, wherein in paragraphs 44 and 45 it was held as follows:
The Supreme Court, in N. Adithayan Vs. The Travancore Devaswom Board and Others, , 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 and Others Vs. State of Jammu & Kashmir and Others, . 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.
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.
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 Ors. reported in 2005 3 L.W. 140. In that case, the Division Bench by referring to the earlier case in G. Krishnan and Ors. v. Union of India and Ors. 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.
Thereafter, the Bench observed in paragraph 10, which is as follows:
...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.
After referring to G. Krishnan''s case (Cited supra), the Division bench in paragraphs 13 and 14 held as follows:
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.
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.
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 u/s 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 u/s 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.