Law takes government course in Dravidian Land - I
by B R Haran on 05 Aug 2009 1 Comment

Tamil Nadu has been under the successive spell of ‘Dravidian’ governments since 1967. Branding ‘Non-Brahmins’ as ‘Tamil-Dravidians’ and ‘Brahmins’ as ‘Sanskrit-Aryans,’ the ‘stalwarts’ of the Dravidian Movement have been trying to separate the Tamil people from the ‘Hindu’ fold, to de-Hinduise the state.

One stalwart, poet Barathidasan, wrote: “That day we demolish “Sriranganathan” (Bhagwan Ranganatha of Srirangam) and “Thillai Natarajan” (Bhagwan Nataraja of Chidambaram) with a tanker, will be a great day for us.” Others also propagated that evil intent. 

Now, the statue of Dravidian-racist icon EVR Periyar stands in front of the magnificent Srirangam Temple, as a permanent show of obscenity, and Dravidian leaders feel a cheap sense of lowly pride in being able to place it in front of the famous temple, though they could not demolish the mandir. Thanks to the constitution of the HR&CE Department, the government has been able to meddle in the temple administration, including the Goshala, to the utmost satisfaction of Dravidian politicians. 

Chidambaram Sabanayagar (Natarajar) Temple Case

As the Chidambaram Temple has been under the direct control of Dikshidars for centuries, the government couldn’t do much, but it had never stopped its attempt to takeover the temple. Every now and then, successive Dravidian governments, driven by dubious motivations, would attempt to usurp the temple from the Dikshidars, who managed to find a legal remedy each time. The latest attempt was the AIADMK Government’s Order dated 31 July 1987, which was passed as an ordinance in the state assembly by the present DMK government in 2006. 

The ‘Podhu Dikshidars Sangam’ (PDS) challenged the ordinance in the Madras High Court (“WP No: 18248 of 2006” and “M.P.Nos.2/2006 and 1/2008”), as they have traditional rights over the administration, customs and rituals of the temple for centuries. In their petition, they rightly claimed ‘denomination’ status, and averred that the appointment of an executive officer amounts to interference in their religious affairs, and also goes against Article 26 of the Constitution, as per which they rightfully enjoy a special (Denomination) status with complete autonomy in administering the temple, its properties, and conduct of rituals. 

Order of the Single Judge

On 2 February 2009, the single judge, Hon’ble Justice Mrs. R Banumathi, before whom the case came up, observed that the PDS could claim protection only under Article 25 of the Constitution. She opined that the right to manage the temple is not part of religious practice, and as such comes under the control of HR&CE. She also said that it has been consistently held by the Supreme Court that ‘secular’ activities are subject to statutory control.

The Hon’ble Judge, under consideration of the above, further said that the PDS is not entitled to protection under clause (b) and (d) of Article 26 of the Constitution, and upheld the appointment of the EO by the HR&CE Department of the State Government. 

Right to Freedom of Religion 

Article 25 says:
1] Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (Carrying kirpans by Sikhs is included in ‘profess’)
2] Nothing in this article shall affect the operation of any existing law or prevent the State from making any law —
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus including Sikhs, Jains and Buddhists.

Article 26 says:
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right —
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion; prohibition of employment of children in factories, etc. freedom of conscience and free profession, practice and propagation of religion; prohibition of traffic in human beings and forced labour; freedom to manage religious affairs;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

Denomination’ Status

‘Denomination Temple’ means a temple where the community owning the temple has exclusive rights of deciding the customs, rituals and running of the temple. A concept called ‘Ceremonial Law’ has also been mentioned and practiced in respect of ‘Denomination Temples’. That is, the Customs and Rituals (opening time, closing time, puja times, methodology) and their ways and means could be decided only by the Community which owns the temple, and those decisions are also binding on the community, apart from outsiders.

Even the worshipping pattern (mode of worship) cannot be changed.  In ‘denomination temples,’ the expectations or rights of devotees and worshippers are limited and they are bound by the rulings of the denominated Community.

Previous Judgments

- ‘Shirur Mutt Case’ (Commissioner, HR & CE Madras Vs. Sri Lakshimindra Thirtha Swamiar of Shri Shirur Mutt – SPA 1954): Supreme Court categorically observed that, “Under Article 26 (b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

- Mr. Narahari Shasthri vs Badrinarayanan Temple (AIR 1952 SC 245; SCR 1952 page 849): The court upheld the concept of ‘Ceremonial Law.’

- Thiruvengada Chariyar vs. Krishnaswamy in 1915 (p. 281 of Madras Weekly Notes):  The Supreme Court ruled that one mode of worship has to be followed at a given time and it cannot be interfered by another mode of worship.

- A judgment by Allahabad High Court in Karamat Hussain vs. Janaki Prasad case (AIR 1931, p. 674), and Supreme Court judgment in Ismail Farooqui vs. Union of India (SC 1994 - 6 cases – p. 361) corroborate the earlier judgment of 1915 that one form of worship cannot be interfered with another form of worship.

- Recently, with reference to the administration of Sri Karaneeswarar Temple, Saidapet, Chennai, when the HR&CE Department appointed an Executive Officer to administer the temple, the Hon’ble High Court, admitting petitions filed by the ‘Senguntha Mudhaliar’ community (WP No: 15468 of 2003 and WP No: 15469 of 2003), ruled that the appointment of EO is unnecessary and observed that the EO could operate only as an ‘implementing functionary’ of the dictates of the Senguntha Mudhaliar community. It is pertinent that the judgment was in favour of the Senguntha Mudhaliar community despite it not enjoying ‘denomination’ status.

- As recently as 2008, the Andhra Pradesh government recognised the worship and administration of the Chilkur Balaji Temple, Hyderabad, as unique and confirmed it through a special government order (GO M/s No 260 dated 29/2/08), allowing it to continue as it is, thereby assuring that the government would not interfere in the administration of the temple in future too. 

Previous judgments confirming Denomination status of Chidambaram Temple

- India Case Report 14, Madras, p. 103: In 1891, the British authorities originally pronounced confirmation of ‘denomination status’ on the Chidambaram Temple.

- ‘Mr.Venkateswara Thambulu vs. State of Mysore’ (AIR 1958 SC 255 – SC reporter 1958 p. 895): The Supreme Court, vide its verdict in this case, confirmed denomination status of Chidambaram Temple as an off-shoot judgment.

- The most important (very vital in the present circumstances) act of the Supreme Court was to dismiss the appeal (Civil Appeal no: 39 of 1953) of the Tamil Nadu government against the judgment and order of the Madras High Court dated 13 December 1951, in writ petition 379 and 380 of 1951. Hon’ble Justices Satyanarayana Rao and Rajagopalan of Madras High Court in their order confirmed the denomination status of the Dikshidars and quashed the government’s notifications, but also certified that under Article 132 of the Constitution, the case was fit for appeal to the SC.

- As the Tamil Nadu state government went for appeal to the Supreme Court, the Union of India, State of Bombay, State of Travancore-Cochin and the State of Andhra applied as interveners. The Rural Welfare Department of the Tamil Nadu government filed a Civil Miscellaneous Petition (CMP no: 49 of 1954) also praying for permission to urge additional grounds.

- On 9 February 1954, a five judge bench headed by Chief Justice Mehr Chand Mahajan along with Justices Bijan Kumar Mukherjee, Sudi Rajan Das, Vivian Bose and Ghulam Hasan gave the following verdict: 

“The Appeal and the Civil Miscellaneous Petitions above mentioned being called on for hearing before this court on the 9th day of February 1954, UPON hearing the Advocate General, Madras on behalf of the appellants and counsel for the respondents and upon the said Advocate General appearing on behalf of the State of Madras agreeing to withdraw the notification G.O. Ms. No: 894 Rural Welfare Department dated 28-8-1951 published in Fort St. George Gazette dated 4-9-1951 in the matter of Sabanayagar Temple, Chidambaram, South Arcot District. THIS COURT DOTH ORDER that the appeal and the civil miscellaneous petitions above-mentioned be and the same are hereby DISMISSED and THIS COURT DOTH FURTHER ORDER that there shall be no order as to costs witness.”
(To be continued…)
The author is a senior journalist and lives in Chennai

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