IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19..3..2008 Coram The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice K.CHANDRU W.P. Nos. 15791 and 16932 of 1998 and W.M.P. Nos. 23847 of 1998 and 25575 of 1998 in respective W.Ps. V.S. Srikumar .. Petitioner in W.P. No.15791/98 M. Pitchai Battar .. Petitioner in W.P. No.16932/98 -vs- 1. State of Tamil Nadu, rep. by Secretary to Government Hindu Religious & Charitable Endowments Dept. Fort St. George, Chennai 600 009. 2. The Commissioner Hindu Religious & Charitable Endowments Chennai – 34 .. RR 1 & 2 in both W.Ps. 3. The Deputy Commissioner Hindu Religious and Charitable Endowments Sivagangai 4. Dewan and Administrative Secretary Ramnad Samasthanam representing Arulmigu Mangalanayaki Sametha Sri Mangalanathaswamy at Thiru Uthira Kosa Mangai Ramnad District ..RR3 & 4 in W.P. No. 16932/98 W.P. No. 15791 of 1998 filed under Article 226 of the Constitution of India praying to issue writ of mandamus forbearing the respondents from interfering in any manner with the ceremonies, poojas and mode of performing the poojas, daily rituals of temples by customary traditional mode of worship. https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 16932 of 1998 filed under Article 226 of the Constitution of India praying to issue writ of mandamus forbearing the respondents from implementing the Tamil language in the performance of poojas / archanas in the temples contrary to the Agamic principles. For Petitioner in WP.15791/1998 : Mr. R. Venkatakrishnan For Petitioner in WP.16932/1998 : Mr. V. Raghavachari For Respondents : Mr. M.R. Murugesan, Spl.GP COMMON ORDER K.CHANDRU, J. The short question that arises for consideration in these two writ petitions is as to whether the action of the official respondents in providing for archanas to be performed in Tamil at the request of the devotees in addition to the existing practice of reciting archanas in Sanskrit, would offend the right to profess Hindu religion guaranteed under Article 25 of the Constitution of India. 2. In W.P. No. 15791 of 1998, the petitioner claims to be the President of the Hindu Temple Protection Committee and seeks for a direction to prevent the respondents State of Tamil Nadu and the Commissioner for Hindu Religious and Charitable Endowments (for short, HR&CE) Department from interfering in any manner with the ceremonies, poojas and mode of performance, daily rituals of temples by customary traditional mode of worship. 3. In W.P. No. 16932 of 1998, the petitioner, a hereditary archaka of the temple at Uthirakosamangai, Ramnad District, seeks for a prayer to forbear the respondent State and the subordinates from implementing the Tamil language in performance of poojas / archanas in the temple contrary to the Adamic principles. 4. In both the cases, notice of motion was ordered and counter affidavits have been filed by the State. In view of the interconnectivity between the writ petitions, the two writ petitions were taken up for hearing together. 5. Heard the arguments of Mr. R. Venkatakrishnan and Mr. V. Raghavachari, learned counsel appearing for the petitioners in W.P. Nos. 15791 and 16932 of 1998 respectively and Mr. M.R. Murugesan, learned Special Government Pleader for HR&CE and other impleaded parties and https://hcservices.ecourts.gov.in/hcservices/ have perused the records. Though the matter was heard quite sometime back, since one of us [K. Chandru, J.] was posted at the Madurai Bench during the second half of 2007, the orders could not be pronounced earlier. 6. Before we proceed to determine the issue on hand, it is necessary to first understand the concept of 'Hindu religion'. 7. When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more. 8. In defining these concepts, Dr. Radhakrishnan, in his book on Indian Philosophy (Vol. I - page 48) wrote as follows: "Though philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many-sided and different views contained different aspects of truth which no one could fully express. This knowledge inevitably bred a spirit of tolerance and willingness to understand and appreciate the opponent's point of view. That is how "the several views set forth in India in regard to the vital philosophic concepts are considered to be the branches of the self-same tree. The short cuts and blind alleys are somehow reconciled with the main road of advance to the truth.'' 9. In this context, we have to see, whether the attempt of the petitioners to bring in agamic injunctions against the authorities to permit the pooja / rituals to be performed in Tamil in addition to the existing practice, that too, only at the request of the worshippers / devotees, can be countenanced. Agamas are Hindu scriptures laying down the separate theological disciplines and doctrines for the worship. Agamas guide the faithful who are moved by their devotion to the Supreme God to worship one of His manifestations. 10. While the petitioners are so certain and plead that Devanagari is the only language to communicate with the Gods and there can be no https://hcservices.ecourts.gov.in/hcservices/ interference with that practice and that chanting the manthras in Sanskrit is an essential part of religious practice and that the Tamil language is not one of recognised form of worship, there has been counter view points throughout the history of the Tamil Nadu. Even before 10 centuries, which is described by the Historians as the 'Bhakthi' Movement or Renaissance Tamil was used as a language to propagate 'Saivism' and 'Vaishnavism'. The "Devaram" and "Thiruvasagam" were created for the purpose of propagating the Saivite philosophy so that even the common man can understand. Religious endowments were created to chant the "Devaram" and "Thiruvasagam" known as the Tamil Vedas in the Saivite temples and never there have been any protest before the one which has now been brought to this Court by the petitioners. 11. In fact, the revolutionary poet Bharathidasan, in his compilation of poems titled as Tamil Resurgence (English translation by M.S. Venkatachalam), in an angry outburst in the poem titled as "nfhapyhu; " - (Inside the Temples) wrote as follows: nfhapyhu; Inside the Temples "capu;nghd;w c';fs; jkpH; Do you think that Tamil, which is dear flt[Sf;nf ctg;gjhy; like your life, is not liked by God? ,y;iy nghYk; If your life-like Tamil is used for prayers, won't it be relished by God?" capu;nghd;w c';fs; jkpH; ciuj;jf;fhy; flt[sij xg;ghu; nghYk; " 12. Further, he lamented in the same poem which is as follows: "jpUg;goapy; epd;wgo If, by standing just near the sanctum bre;jkpHpy; bgUk;goahu; sanctorum mUspr; bra;j we sing the hymns of our hoary bards, And make them reach the ears of our cUg;goia mg;gona men, Cuwpa[k; goa[iuj;jhy ; they will have a sway over all their goa[k; be";rpy; " minds. 13. In fact, the earlier attempt by one of the petitioners having failed as will be seen later and similar writ petitions have been rejected, the petitioners have once again come forward with similar plea, that too, without disclosing the result of the earlier attempts. https://hcservices.ecourts.gov.in/hcservices/ 14. The petitioner in W.P. No. 15791 of 1998 contended that there are two types of Temples in Tamil Nadu, viz., Saivite and Vaishnavite, and both follow the basic Sastras in respect of Agamas for performance of periodical poojas and other festivals and most of the temples in Tamil Nadu have the history of atleast 3 to 4 centuries and there are also temples which have history over 1000 years. The regular poojas and festivals were performed traditionally by certain families and the founders of the temples have made perpetual provisions for their maintenance and landed properties were also donated to the temples for carrying out these poojas. The HR&CE Act 1959 was enacted to control the administration of the temples. But in the guise of administration, there is no vested right on the State to interfere with any aspect leading to rituals practiced in the temples including the mode of worship of idols consecrated therein. 15. It is also stated that the respondent State had ordered the archakas and gurukkals in the temples under the control of HR&CE Department in Tamil Nadu to do archana in Tamil. They are also compelling the persons in charge of administration of the temple to do the 'Kumbabhishekams' only in Tamil language. In paragraph 9 of the affidavit, the petitioner had averred as follows: Para 9: "The language Devanagari is supposed to be the language to communicate with God/ Gods. Apart from that the Saivite principles of the concept of The Lord Shiva and the Idol form of worship is one and the same and cannot be different. One cannot change the form of the Idol and still claim that it is a particular God. Similarly the language cannot be changed and the new recitals cannot be called as Mantra. Therefore the change in language goes to the root of the basic faith and belief of Hindus throughout this country. This cannot be perpetrated against the temples." 16. The petitioner had also stated that the respondent State had issued administrative instructions threatening the archakas and poojaris even though they had issued a clarification that there was no compulsion in implementing their orders. In the light of the above, the petitioner sought for the prayer referred to above. 17. Similarly, the petitioner in W.P. No. 16932 of 1998 had stated that the agamic sanctions cannot be replaced by preference to Tamil language and by giving directions, the respondents cannot interfere with the daily rituals substituting recognised form of Sanskrit to one of Tamil and on 29.8.1997, the Commissioner, HR&CE wrote a circular letter to all the subordinate officers to perform the Laktcharchana and Kodi Archana in Tamil. Likewise, on 18.9.1997, the Commissioner of HR&CE gave a direction to the Joint Commissioners to https://hcservices.ecourts.gov.in/hcservices/ ensure that the Tamil archanas are performed in all the temples. It is also stated that two Notice Boards have been placed in the temples stating that the archanas would be performed in Tamil and also in Sanskrit and it depends upon the wishes of the devotees. According to the petitioner, agama is not merely concerned with recitation of slogas. But it deals with heavier steps like Town Planning, Architect of temple, Astronomy, Geology, construction of tanks, consecration of idols, daily worship and other details and, therefore, this cannot be altered by any direction and Article 25 of the Constitution of India guarantees the citizen of India to practice, propagate and freely profess any religious order subject to the restrictions contained in the said Article. 18. Therefore, they submitted that the persons, who do not believe in reciting manthras in Sanskrit, are well advised to construct their own temples and utter Tamil manthras in those places and in paragraphs 19 and 23 of the affidavit, it is stated as follows: Para 19: "I respectfully submit that according to the Manthra in sanskrit language is an established and essential part of worship. The State shall not interfere in such affairs by calling upon the temples to offer Pooja and Archana in tamil. Imposition of Tamil on religious worship will not enhance the image of language or capacity of the State in its administration. On the other hand, it will have detrimental and serious effect." Para 23: "I respectfully submit that the tamil language is not one of the recognised form of worship and compelling the Saivite to recite the Mantra in Tamil would be against the Agamic principles...." 19. In response to the averments made in the affidavit, the respondent State in their counter affidavit in W.P. No. 15791 of 1998 had categorically stated that there was no interference with any rights of any persons and that in terms of the HR&CE Act, the authorities are having the power of superintendence and control over the religious institutions and they are strictly adhering to the powers and responsibilities vested on them. It was also stated that there was no compulsion on all the archakas and gurukkals to perform the archanas in Tamil. The language of the archana is the option of the devotees and performance of such wish of the devotees is only done by the persons, who are familiar with Sanskrit or Tamil as the case may be and there is no compulsion on the archakas and gurukkals to do archana in Tamil. There was no threat to any person so as to carry any orders of the Department. 20. Even the Supreme Court, while disposing of Civil Appeal vide order dated 02.4.1992, had observed that performing archanas in Tamil is done along with Sanskrit without any interference to traditional form of worship. They have also quoted from the ancient Tamil Literature https://hcservices.ecourts.gov.in/hcservices/ Tholkappiyam to the effect that what language the learned Saints command, that language will be the language of Gods. Even in the Tamil Literature Thirumarai describing the worship of God by the Tamils in the olden days, it is stated that Lord Shiva expresses His desire that His devotees singing in Tamil which itself considered as archana. In ordering for the six times poojas, the Department was advised by a committee of scholars and they have not violated any agamic principles in this regard. After referring to the two orders of this Court and the Supreme Court, it was stated that there was no violation of any rights on the parties. 21. Further, it was contended that by G.O. Ms. No. 520 Commercial Taxes and Religious Endowments Department dated 18.11.1997, a Committee was formed comprising of scholars and experts to compile the archanas found in religious literature so that uniformity can be maintained in all temples in performance of archanas in Tamil. The Committee suggested certain measures and the view of all the Religious Heads and Madathipathis were also obtained and all of them unanimously welcomed the Tamil archana in temples in Tamil Nadu and appreciated the efforts of the Department on the promotion of Tamil archanas. In fact, Agnihothoram Ramanuja Thatachariar, a great Scholar in Vaishnavisham, has stated that archanas are not advocated in Agamas and it is only performed in temples to satisfy the devotees. It is further stated that Devanagari cannot be the only language to communicate the Gods and from time immemorial, both Devanagari and Tamil have been in usage in offering worship in the temples. 22. Similarly, in the counter affidavit in W.P. No. 16932 of 1998, it was contended by the State that the allegation made by the petitioner, who was hereditary archaka himself, was imaginary and the Department is not concerned about the non-believers and it is only concerned about the believers and the issue was whether the archana in Tamil could be performed in the temple by the archakas who have knowledge in it and if any such devotee wishes any Tamil archana in a temple, that is axiomatic that the person performing Tamil archana must also be proficient in the Tamil manthras whenever such alternative request is made by the devotees. It is also stated that it is not the intention of the Government to introduce Tamil in the temples and only petitioner's averments show his ego in having specific attachment to a particular language. The Supreme Court itself has never prohibited the alternative use of Tamil language in the archanas and that there is a wealth of Tamil religious literature providing for archanas and religious rituals to be performed using manthras written in Tamil. 23. In both the writ petitions, though there is no particular attack against any order, general statements have been made. However, in this respect, it is necessary to recall the reply sent by the State Secretary to Government dated 10.02.1998 in response to the legal notice https://hcservices.ecourts.gov.in/hcservices/ issued by one of the petitioners, which is verbatim reproduced though some sentences are not clear in the original itself: "2) No circular is issued preventing performing archanas in Sanskrit as mentioned in your letter. I am advised to submit that by the circular dt. 18.11.96 by the Commissioner, H.R. & C.E. it was only advised to keep two notice boards in temples stating that Archanas will be performed in Tamil and Archanas will be performed in Sanskrit Further all the temples in Coimbatore district archanas were being performed both in Sanskrit and in Devanagiri according to the wishes of the devotees. Similarly, the Government has no intention to remove all the traditional Saivite Archakas and replace them with persons of Poojaris tradition in the guise of introducing Tamil archanas. In the letter referred by you, for the purpose of uniform understanding to the devotees advised were given to the subordinate officers only with respect to devotees who require archanas to be performed in Tamil. Whileso, the Government feels that it is not necessary to recall and withdraw the circulars issued by the Commissioner. I am advised to inform the same to you." 24. Before proceeding to deal with the rival submissions, it is necessary to note that similar issues have arisen for consideration of this Court and the Supreme Court and those proceedings may be usefully referred to. 25. In W.P. (C) No. 294 of 1974, etc. batch cases, the Supreme Court by an order dated 02.4.1992 recorded the agreement between the petitioner in those petitions and the respondent State, which reads as follows: "The agama form of worship adopted in temples is in Sanskrit which is according to tradition. At the same time, there is priceless tamil devotional literature in Thevaram and Thiruvachakam which is also adopted to suit the worshippers. Tamil Archanas in this form deserves promotion. In general the traditional Agama form of worship will be followed. Where the Archakas are proficient in performing archanas in Tamil and where there is a demand by the devotees for Tamil Archanas, such facility can be extended." [Emphasis added] 26. Similarly, when the petitioner in W.P. No. 15791 of 1998, earlier, along with two other persons, filed W.P. No. 8873 of 1982 for similar relief, a learned single Judge of this Court, vide order dated https://hcservices.ecourts.gov.in/hcservices/ 17.6.1992, dismissed the writ petition with the following observation: "In the identical matters the Division Bench of this court in W.P. Nos. 2895/1971 1. V.N. Devanathan 2. K. Munirathna Naidu vs. 1. State by the Secretary, Hindu Religious and Endowments, Government of Tamil Nadu, fort St. George, Madras – 9 2. The Commissioner, Hindu Religious and Charitable Endowments Board, Madras – 34. 3. The Deputy Commissioner, Hindu Religious and Charitable Endowments Board, Madras – 34 and 2666/1972 – Dakshinamoorthy Bhattar vs. 1. The Rajah of Sivaganga, Hereditary Trustee of Sivaganga Estate Devasthanam (Somanathaswami Temple at Manamadurai) 2. The Commissioner for Hindu Religious Endowments Board, Madras, 3. The State of Tamil Nadu through the Secretary of Hindu Religious and Charitable Endowments, Fort St. George, Madras – 9 have held that the impugned circulars are not violative of the constitution or any other law and on that view the abovesaid writ petitions were dismissed by the Division Bench on 10th January 1974. Respectfully following the above judgments the present writ petition has also to be dismissed and accordingly it is dismissed. No costs." 27. It is rather surprising that the petitioner had not disclosed about the disposal of his earlier writ petition, which was filed with more or less identical relief, was rejected by this Court and had suppressed the same in the affidavit filed in the present writ petition. On this ground, the writ petition is liable to be dismissed. 28. In the order dated 17.6.1992, this Court referred to the order dated 10.01.1974 passed in W.P. No. 2666 of 1972 in Dakshinamoorthy Bhattar vs. The Rajah of Sivaganga, Hereditary Trustee of Sivaganga Estate Devasthanam (Somanathaswami Temple at Manamadurai) and others where the Court observed as follows: "The impugned circulars have nowhere stated that Archana should not be done in Sanskrit. Insistance of Archana being done in Tamil does not necessarily mean prevention of Archanas being done in Sanskrit. The circulars are not shown to affect the freedom of conscience or the right to freely profess, practice and propogate religion, language is no part of religion and it cannot be taken that unless religious matters are expressed in a particular language, they ceased to be religion or religious practices." 29. Inspite of that, once again, the petitioner has come forward to wake up the issue all over again. Since there is also another writ petition, it is necessary to deal with the legal submissions made by them in some detail. https://hcservices.ecourts.gov.in/hcservices/ 30. The learned counsel appearing for the petitioners relied upon the judgment of the Supreme Court reported in AIR 1954 SC 282 [The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt] and referred to the following passage found in paragraph 19: Para 19: "If the tenets of any religious sect of the Hindus prescribe that 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 the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Art. 26(b). 31. It is not clear as to how this passage can help the case of the petitioner. On the contrary, the Supreme Court held in that case that in regard to matters of religion, the right of management given to a religious body for performing activities pertaining to religion was a guaranteed fundamental right and no legislation can take away that right. 32. Thereafter, the learned counsel relied upon the judgment of the Supreme Court reported in AIR 1954 SC 388 [Ratilal Panachand Gandhi and others v. State of Bombay and others]. That was a case relating to the right of the religious sect or denomination to manage its own affairs in the matter of religion which includes the right to spend trust property or its income. But, however, the following passage found in paragraph 12 and 13 may be usefully quoted: Para 12: "It may be noted that 'religion' is not necessarily theistic and in fact there are well-known religions in India like Buddhism and Jainism which do not believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well." https://hcservices.ecourts.gov.in/hcservices/ Para 13: "Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if