Sona. Krishnamoorthy vs The Commissioner, HR and CE Department, Nungambakkam High Road, Chennai and Others

V. Ramasubramanian, J.—A devotee of Lord Subramanya of Thiruchendur filed a writ petition seeking the issue of a writ of Mandamus to

forbear the Board of Trustees of Tiruchendur temple from constructing, on the occasion of the kumbabhishekam of the temple, the yagasala for the

uthsavamurthy Shanmugar, outside the compound wall of the temple, contending that it was opposed to the mandate of Agama Sastras. Finding

that there are conflicting views on the issue among scholars, the learned Judge dismissed the writ petition holding that it is beyond the realm of this

Court to resolve the issue. Aggrieved, the devotee is on appeal. We have heard Mr. V. Raghavachari, Learned Counsel for the appellant, Mr.

K.M. Vijayakumar, learned Additional Government Pleader for the first respondent, Mr. Srinivasaragavan, Learned Counsel for the temple and

Mr. R. Thiagarajan, learned Senior Counsel for the respondents 3 to 7, who are the Board of Trustees of the temple.

Thiruchendur is one of the six major celebrated abodes (Arupadai Veedu) of Lord Muruga, located near Veera Mahendragiri hills, on the shore

of the Gulf of Mannar. The waves of the Gulf of Mannar splashing at the eastern perimeter wall of the temple, present a spiritually scintillating view,

giving Thiruchendur another name ""Thirucheeralaivai"". Historians place the date of establishment of the temple to the Sangam period of Tamil

literature.

Sri Adi Sankara, the propounder of ""Advaita"" system of philosophy, is stated to have visited this temple and composed hymns known as

Subramanya Bhujangam"", in praise of the Lord. Since there are references to the visit of Sri Adi Sankara to Thiruchendur temple, the temple must

be at least more than 1300 years old (even if Adi Sankara belonged only to the 8th century), though there are references to its existence for about

2000 years. It is the case of the appellant that ever since the construction of the temple, the consecration ceremony (Kumbabhishekam) had been

performed innumerable times (almost once in 12 years) and that at all times, the yagasala was always located inside the temple. But this time, the

respondents decided to perform Kumbabhishekam on 2.7.2009 and made preparations for locating the yagasala for the utsavamurthy, outside the

precincts of the temple. The appellant objected to the same on the ground that it is violative of Agama Sastras, but the respondents overruled the

objections on the ground that they needed a bigger place for locating 49 homa kundas (pits where sacrificial fire is to be developed for the

performance of religious oblations) in the yagasala and to facilitate easy access to devotees, lakhs of whom are expected to throng the temple for

the occasion.

It is admitted by both sides that in the past, the yagasala was always located within the precincts of the temple. Therefore, Mr. V. Raghavachari,

Learned Counsel for the appellant primarily raised two contentions namely, (a) that the rituals in temples, especially those of Saivaite sect are

governed by the prescriptions in Agamas, which mandate the construction of yagasala within the temple precincts and (b) that a religious custom or

practice, followed for several centuries, cannot be tampered with by the administration, merely on the ground of convenience, since such customs

and practices have a Constitutional protection under Articles 25 and 26.

In response to the first contention, Mr. R. Thiagarajan, learned Senior Counsel appearing for the respondents 3 to 7, contended that the

Agamas do not contain an express prohibition for the construction of the yagasala outside the compound wall of the temple. The learned Senior

Counsel also relied upon certain passages from ""Vamadeva Paddhathi"", in support of the said submission. With regard to the second contention,

the learned Senior Counsel contended that a custom or practice, can always be changed in tune with the necessities of time and that what is done

in the best interest of the worshippers cannot be termed as an interference with religious rights.

In support of his first contention, the Learned Counsel for the appellant could not produce any religious text. The Agama Encyclopaedia

authored by Prof. S.K. Ramachandra Rao, to the extent to which we could be enlightened, does not give a clear indication that there is any

prohibition in the Agamas for locating the yagasala outside. However, the Learned Counsel for the appellant relied upon an article titled ""The

Construction and Concept of Yagasala"" written by Dr. S.P. Sabarathinam, an expert in the Agamas. In that article, the learned author also says:-

generally a yagasala may be built in the first or the second or the third enclosure (prakara) of a temple (having 5 prakaras) not concealing the inner

most sanctum sanctorum.

But, with great respect to the learned author, he has not cited any textual authority from the Agamas (in the Notes appended to the article), on

the basis of which the above opinion was formed by him. Interestingly, the learned author has pointed out in the very same article that there are

conflicting views among the Agamas about the direction in which the yagasala is to be located. The author says:-

It may be constructed in any one of the eight directions. Some treatise, do not agree with the rule that the construction of yagasala can be in the

south or in the south-west. But it cannot be denied that there is a preference in the Agamic texts for the construction of yagamantapa in the south or

south-west.

In the Notes appended to his article, the learned author has cited verses from ""Purva Karana"", for coming to the above conclusion with regard

to the direction in which the yagasala is to be located. However the learned author has not cited any Agama for coming to the conclusion that the

yagasala should be located inside. Therefore, we are unable to proceed on the strength of the said article, despite the fact that the article is simply

fascinating and it reflects the great scholarship of the author.

It is claimed that ""Chintya Agamam"", one of the 28 Siva Agamas, contains a verse, reading ""Alayagrama bahirdese na kuryathu yagamantapam"".

It means that the yagamantapam should be located inside the temple. But it appears that this Chintya Agama is not available in print and the time

available is too short for us to verify the manuscript from the French Institute of Indology, Pondicherry. Therefore we are not in a position, as on

date, to accept the first contention of the Learned Counsel for the appellant that there is a prohibition in the agamas for the construction of the

yagasala outside the temple.

In support of his second contention, Mr. V. Raghavachari, Learned Counsel for the appellant first relied upon the decision of the Supreme

Court in Seshammal and Others, Vs. State of Tamil Nadu, In that case, the hereditary Archakas and Matadhipatis of some ancient Hindu temples

challenged the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, by which, the hereditary system

of appointment of all office holders in Hindu temples was abolished. Though the challenge ultimately failed with the dismissal of all the writ petitions

by the Constitution Bench of the Supreme Court, the Court made certain observations with regard to the religious practices in Hindu temples. Mr.

V. Raghavachari, Learned Counsel invited my attention to these observations:-

With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as ''Agamas''. The

authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaru and Others Vs. The State of

Mysore and Others, Agamas are described in the last case as treatises of ceremonial law dealing with such matters as the construction of temples,

installation of idols therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the most important of them

being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the

Vikhanasa and the Pancharatra. The Agamas contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be

consecrated, and where the other Devatas are to be installed and where the several Masses of worshippers are to stand and worship. 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. On the consecration of the image in the temple the Hindu

worshippers believe that the Divine Spirit has descended into the image and from then on the image of the deity is fit to be worshipped. Rules with

regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit. The rituals have a two-fold object.

One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of

worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second

object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image

is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation which every devotee or worshipper looks upon

with horror. Pollution or defilement may take place in a variety of ways. According to the Agamas, an image becomes defiled if there is any

departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the

shrine Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, 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 ritual is found in the case of His Holiness Peria Kovil Kelvi

Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vs. Prathivathi Bhavankaram Venkatacharlu and Others ( 73 IA 156) 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 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. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari shall step

inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has

to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the

ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to

enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court.

Mr. V. Raghavachari, Learned Counsel for the appellant next relied upon the decision of the Supreme Court in Ram Jankijee Deities and

Others Vs. State of Bihar and Others, wherein the Supreme Court held as follows:-

God is omnipotent and omniscient and its presence is felt not by reason of a particular form or image but by reason of the presence of the

omnipotent. It is formless, it is shapeless and it is for the benefit of the worshippers that there is manifestation in the images of the supreme being.

The supreme being has no attribute, which consists of pure spirit and which is without a second being i.e., God is the only being existing in reality,

there is no other being in real existence excepting Him"" - (see in this context Golap Chandra Sarkar, Sastri''s Hindu Law, 8th Edn.). It is the human

concept of the Lord of the Lords - it is the human vision of the Lord of the Lords. How one sees the deity, how one feels the deity and recognises

the deity and then establishes the same in the temple (sic depends) upon however performance of the consecration ceremony. The Shastras do

provide as to how to consecrate and the usual ceremonies of sankalpa and utsarga shall have to be performed for proper and effective dedication

of the property to a deity and in order to be termed as a juristic person.

A simple piece of wood or stone may become the image or idol and divinity is attributed to the same. As noticed above, it is formless, shapeless

but it is the human concept of a particular divine existence which gives it the shape, the size and the colour.

The above decisions only reiterate the following well established principles viz.,:-

(i) that the protection of Articles 25 and 26 is not limited to matters of doctrine or belief, but extend also to acts done in pursuance of religion and

hence contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion; and

(ii) that what constitutes an essential part of a religion or a religious practice has to be decided by the Courts with reference to the doctrine of a

particular religion and include practices which are regarded by the Community as part of its religion.

That the court has the power to determine whether a particular rite or observance is regarded as essential, by the tenets of a particular religion,

is now well settled, by the decisions of the Apex court starting from The Commissioner, Hindu Religious Endowments, Madras Vs. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . In that case the court held that ""if the tenets of any religious sect of the Hindu prescribe that the

offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at

certain periods of the year or that there should be daily recital of sacred texts or oblations to sacred fire, all these should be regarded as parts of

the religion"" and that ""all of them are religious practices to be regarded as matters of religion within the meaning of Article 26(b)."" In Cow Slaughter

case ( Mohd. Hanif Quareshi and Others Vs. The State of Bihar, the court considered whether the slaughter of cows on the day of Bakr Id was an

essential practice of Islam. In Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, the court went into the question as to

whether the existence of public temples was inconsistent with the tenets of Vallabh denomination and its religious practices. In Ananda Margis-1

case Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, the court considered whether the

performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. While considering the

Constitutional validity of section 118 of the Indian Succession Act, 1925, in John Vallamattom and Another Vs. Union of India (UOI), the

Supreme court held that the message of charity and compassion, though preached by every religion, cannot be held to be part of the religious

practice within the meaning of Article 25.

Therefore, this Court, in the light of the controversy now raised, can go into the question whether the practice of construction of the yagasala

inside the temple, followed for years in Tiruchendur temple, is an integral part or an essential practice as per the Agamas. We have seen from the

decisions of the Supreme Court relied upon by the Learned Counsel for the appellant, that courts have recognised the significance and importance

of Agamas both in the construction of temples and in the observance of rituals. Therefore the question raised here is one of significance.

But before we take a dive into the above factual issue, we may have to have an understanding of the elementary principles of the Agama

sastras which govern the construction, consecration and maintenance of temples and the rituals associated with temples. The term ""Agama

primarily means ""tradition"". Agamas broadly deal with (i) Jnana (knowledge) (ii) Yoga (meditation) (iii) Kriya (rituals) and (iv) Charya (ways of

worship). Before the unification of all the six indigenous religions viz., (i) Gaanapathyam (ii) Kaumaram (iii) Souram (iv) S''aktham (v) Saivam and

(vi) Vaishnavam, by Sri Adi Sankara, it appears that each of them had its own Agamas. But today, 28 Saiva Agamas and 2 principal Vaishnava

Agamas (known as Vaikhanasa and Paancharathra) alone appear to have survived, apart from ""Tantra"". Kashmir has its own Saivism with 64

Agamas. Tirumular, in his Thirumanthiram, makes a reference to 28 Saiva Agamas, as follows:-

All the Agamas which are now available, are not available in full and complete form. Many of the palm leaf manuscripts scattered over several

places, for centuries, appear to have been lost. Therefore, it is now almost impossible even for experts in the field to assert any opinion of

uniformity, since all opinions could be based only upon the available material, which is not full and complete.

Many of the Agamas also have Upa Agamas, which are what riders to theorems are. Since the Agamas contain prescriptions in a terse

manner, the rules of practice for the proper execution of those prescriptions, were developed by great seers known as ""Sivacharyars"". These rules

of practice are known as ""Paddhatis"" and we have about 18 Paddhatis. Apart from 18 ancient Paddhatis, the practitioners of Sivagamas have also

accepted one more Paddhati known as ""Vamadeva Paddhati"", composed by Sri Vamadeva Sivacharya.

If Agamas could be equated to statutes, Paddhatis could be compared to the rules of practice. Therefore both have not only sanctity but also

the force of law and authority, in so far as rituals in Hindu temples are concerned. But if Paddhatis contain any prescription that would militate

against a rule enunciated in the Agamas, the scholars opine that the Agamas will prevail over the Paddhatis. This is based upon the theory of

hierarchy of laws, which appear to have reached an advanced stage here in India, centuries before Kelson could formulate it.

Keeping the above brief prelude in mind, if we take the case on hand, Mr. V. Raghavachari, Learned Counsel for the appellant, has not been

able to point out, either in the Agamas or in the Paddhatis, any specific and direct prohibition for locating the yagasala outside the compound wall

of the temple. This is why the Learned Counsel obviously took pains to project his case mostly from the point of view of custom and practice,

which according to the dictate of the Supreme Court, had to be honoured.

But it is not every custom and practice that could be placed on a high pedestal along with those religious rites and rituals, which are inviolable.

In his remarkable and inimitable style, Sri Ramakrishna Paramahamsa gave a parable, which may aptly suit this view point. There was a hermit, into

whose hermitage, a cat sneaked. Out of compassion, the hermit did not drive the cat away and hence it stayed there. When the hermit decided to

perform a yaga, he directed his disciples to tie the cat to a pole, in order to ensure that it did not desecrate the place. Though it was done out of

necessity, the disciples mistook the same to be a practice that was part of the ritual and they started believing that whenever a yaga was

performed, it was necessary to catch hold of a cat and tie it to a pole. Some of the customs and practices are of this nature and hence we may

have to exercise great care and caution before identifying those customs and practices which are inviolable and those which could always give way

to the necessities of time.

Now coming to the case on hand, there is no dispute that the very construction of the yagasala is pivotal to the consecration of the temple,

since the performance of oblations to the sacred fire is considered to be an animating process by which the temple stands vivified, deified and

vitalised. The appellant could not produce any material to show that there is any prohibition in the Agamas or Paddhatis, to the construction of the

yagasala outside the precincts of the temple. From the references that we could make to the best of our ability, we could come across a few

expressions in the Agamas viz., (i) Praasaadam (ii) Alayam and (iii) Harmyam which are capable of denoting the tower of the sanctum (Vimana) as

well as the entire precincts of the temple. The prescription in some places that the yagasala should be located in front of Praasaadam or Alayam or

harmyam, is capable of being interpreted to mean either the place in front of the tower of the sanctum or the whole temple. If it is understood to

mean the former, the yagasala is to be inside and if it connotes the latter, the yagasala can be outside.

Therefore, it is not clear as on date, whether there is any express prohibition in the Agamas or in the 18 Paddhatis, for the construction of

yagasala outside the precincts of the temple. But, on the contrary, the Vamadeva Paddhati, to which we have made a reference earlier, contains

specific passages about the construction of the yagasala outside the temple. Verses 468 to 474 of Vamadeva Paddhati, transliterated in English,

read as follows:-

LAKSHANAM YAGA S''ALAYAHA VAKSHYATHE S''RUNU SHANMUKHA

YAAGAAYA MANDAPAM THATHRA PRAASAADHASYA ATHA PARS''VAYOH

EINDHREVAA PAVAKE VAAPI YAAMYEVAA RAAKSHAS''EPIVAA

VAARUNE VAAYUBHAGEVAA SOMECHA IS''AANAKEPIVAA

AALAYASYA IS''AKONEVAA YAAGAK-SHETHRAM PRAS''ASYATHI

AALAYASYA BAHIRDES''E YAAGAS''ALA BHAVEDYADI

THADAGRE S''ODHANAM SAMYAK KARTHAVYAM ITHI NISCHAYAHA

AALAYASYA ANTHARE YATHRA YAGAS''ALA VIRACHYATHE

THATHRA BHOOS''ODHANAM NAIVA KARTHAVYAM ITHI NISCHAYAHA

BHOOMIM SAMS''ODHAYETH SAMYAK HASTHADAGNAM SHADAANANA

TATHAIKA HASTHOTH SEDHANCHA CHATHURAS''RAM PRAKIIRTHITHAM

The above verses, when translated, would read as follows:-

Oh Shanmukha! Please listen now to the essential requirements of a yagasala!

Yagasala may be constructed on both sides of the precincts of the temple, in the East, southeast, south, south west, west, north-west, north and

north-east which are the directions respectively of Indra, Yama, Agni, Niruthi. Varuna, Vayu, Kubera and Isanam.

The place for locating the Yagasala of Devi may also be decided as above or on the left hand side of the Yagasala constructed for Lord Siva.

In the event of the Yagasala being located outside the temple, the place should be purified certainly.

If the Yagasala is located inside the temple, the cleansing of the earth need not be done.

Oh! Shanmukha! The earth should be cleansed to a depth of the fore-arm. Thereafter, the land should be raised to a height of the fore-arm and the

Yagasala should be constructed in quadrangular shape.

The above passage in Vamadeva Paddhati expressly allows the construction of the yagasala outside the precincts of the temple. But it also

prescribes a condition that in the event of the yagasala being located outside the temple, certain purification ceremonies have to be performed in

advance. According to its prescription, the entire land where the yagasala is proposed to be located, has to be excavated to a particular depth and

all impure objects such as dried twigs, thorns, splinters etc., have to be removed. Thereafter, the land has to be not only levelled with quality sand,

but also raised to a particular height. The entire process is termed as ""Bhoo S''odhanam"" or even ""Salyoddharanam"" (cleansing of the earth).

Therefore, in the absence of any material to show that the Agamas or the 18 ancient paddhatis expressly prohibit the construction of the

yagasala outside the temple, we may have to go only by the authority of Vamadeva Paddhati. Though this Paddhati is not accorded the same status

as that of the Agamas or the 18 ancient Paddhatis, it can be taken atleast to be a ""Manual of Instructions"", since it also relies only upon the

authority of the Agamas.

It is well settled that while an essential religious practice is protected by Article 25(1), an optional religious practice is not. State of West

Bengal, etc. Vs. Ashutosh Lahiri and others, quoted with approval by a 7 member Constitution Bench in State of Gujarat Vs. Mirzapur Moti

Kureshi Kassab Jamat and Others, . Therefore, it is clear that while the very construction of the yagasala is undoubtedly an essential religious

practice, the practice of locating the same inside the temple, though followed for centuries in the temple, cannot be taken to be an an essential

religious practice, which is inviolable, especially in the light of the license expressly granted by Vamadeva Paddhati, to the location of the yagasala

outside. If a custom or practice followed for several years, is altered or deviated from, and such deviation has the sanction of some ancient

religious texts, it cannot be said to be an infringement of Articles 25 and 26 of the Constitution. Therefore the contention of the Learned Counsel

for the appellant that the change of location of the yagasala amounted to an infringement of Articles 25 and 26, cannot be accepted in view of (i)

the non availability in our hands, of any prohibition for the same in the Agamas or Paddhatis and (ii) the express stipulation contained in Vamadeva

Paddhati permitting the location of the yagasala outside. In the result, we hold that the location of the yagasala outside the temple, cannot be found

fault with and the order of the learned Judge, dismissing the writ petition is perfectly in order. However, since the very text Vamadeva Paddhati

relied upon by the respondents, contain a mandate to perform certain purification ceremonies known as Bhoo S''odhanam or Salyoddharanam, the

respondents are directed to perform the same strictly in accordance with the dictate of Vamadeva Paddhati and thereafter proceed with the

consecration ceremonies. As a matter of fact, Mr. R. Thiagarajan, learned Senior Counsel appearing for respondents 3 to 7 also expressed, in the

course of hearing of the appeal, the willingness of his clients to carry out such ceremonies in accordance with the directions contained in Vamadeva

Paddhati. The writ appeal is disposed of with the above directions. No costs. Consequently connected miscellaneous petition is closed.