Case: Sri Venkataramana Devaruand Others Vs. The State Of Mysore And Others(With Connected Petition)

to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2) (b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform. It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship. Thus, the right recognised by Art. 25 (2) (b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonizing the right conferred by Art. 25(2)(b) with that protected by Art. 26 (b). 32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26 (b), must yield to the overriding right declared by Art.25(2)(b) in favour of the public to enter into a temple for worship.But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25 (2) (b) overrides that rights so as extinguish it, but whether it is possible - so to regulate rights of the persons protected by Art. 25 (2) (b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25 (2) (b), then of course, on our conclusion that Art. 25 (2)(b) prevails as against Art. 26 (b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25 (2) (b) as to give effect to Art. 26 (b), and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected. 33. The question then is one of fact as to whether the rights claimed by the appellants are strictly denominational in character, and whether after giving effect to them, what is left to the public of the right of worship is substantial.That the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record. P. W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins. He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.This rights will be hit by Art. 25 (2) (b), and cannot be recognised. P. W. 1 put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognised, what is left to the public of their rights under Art. 25 (2) (b) is substantial.The learned Solicitor-General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him. On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by Art. 25 (2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection. 34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are unable to agree with this submission. The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a mater which was not in issue, and decide the rights of parties on the basis of that finding.We have accordingly declined to entertain this contention.We hold, agreeing with the Courts below, that the Sri Venkataramana Temple at Moolky is a public temple, and that it is within the operation of Act V of 1947Both the courts below have concurrently held that at the inception the temple was founded for the benefit of Gowda Saraswath Brahmins; but the Subordinate Judge held that as in course of time public endowments came to be made to the temple and all classes of Hindus were taking part freely in worship therein it might be presumed that they did so as a matter of right, and that, therefore, the temple must be held to have become dedicated to the Hindu public generally. The learned Judges of the High Court, however, came to a different conclusion. They followed the decision in Devarja Shenoy v. State of Madras (A) (supra), and held that the temple was a denominational oneNow, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols were installed therein.We are therefore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple,in other words, not as a mere denomination, but as a religious denomination. From the evidence of P. W. 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in Moolky Petah are followers of the head of the Kashi Mutt, and that it is he that performs some of the important ceremonies in the temple. Exhibit A is a document of the year 1826-27. That shows that the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders. The uncontradicted evidence of P. W. 1 also shows that during certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded.This evidence leads irresistible to the conclusion that the temple is a denominational one, as contended for by the appellantsThe law on the subject is well settled.When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible, and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well. For, as observed in Bhagwan Din v. Gir Har Saroop 67 Ind App 1 : (AIR 1940 PC 7  ) (B), "it would not in general be consonant with Hindus sentiments or practice that worshippers should be turned away". On the findings of the Court below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally. On consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins,supported as it is by the conclusion reached by another Bench of learned Judges in Devaraja Shenoy v. State of Madras (A) (supra). In this view, there is no need to discuss whether this issue is res judicata by reason of the decision in Writ Petition No. 668 of 195117. It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law. There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas. On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads describing the Supreme Being as omnipotent, omniscient and omnipresent and transcending all names and forms. When we come to the Puranas, we find a marked change. The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka :20. We have held that maters of religion in Art. 26 (b) include the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution. Under this Article, therefore, the appellants would be entitled to exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship. Art. 25 (b) enacts that a law throwing open public temples to all classes of Hindus is valid. The word public includes, in its ordinary acceptation, any section of the public, and the suit temple would be a public institution within Art. 25 (2) (b), and S. 3 of the Act would therefore be within its protection. Thus, the two Articles appear to be apparently in conflict22. The true position, therefore, is that the excluded classes were all entitled to the benefit of the dedication, though their actual participation in the worship was insignificant. It was to remove this anomaly that legislation in Madras was directed for near a decade. First came the Malabar Temple Entry Act (Madras XX of 1938), Its object was stated to be "to remove the disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into, and offering worship in, Hindus temples". Section 2 (4) defined temple as "a place which is used as a place of public worship by the Hindu Community generally except excluded classes .........". Section 4 and 5 of the Act authorised the trustees to throw such temples open to person belonging to the excluded classes under certain conditions. This Act extended only to the District of Malabar. Next came the Madras Temple Entry Authorisation and Indemnity Act (Madras Act XXII of 1939). The preamble to the Act states that "there has been a growing volume of public opinion demanding the removal of disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples", and that "it is just and desirable to authorize the trustees in charge of such temples to throw them open to......the said classes". Section 3 of the Act authorised the trustees to throw open the temples to them. This Act extended to the whole of the Province of Madras. Then we come to the Act, which has given rise to this litigation, Act V of 1947. It has been already mentioned that, as originally passed, its object was to lift the ban on the entry into temples of communities which are excluded by custom from entering into them, and temple was also defined as a place dedicated to the Hindus generallyThere is considerable force in this argument. One of the problems which had been exercising the minds of the Hindu social reformers during the period preceding the Constitution was the existence in their midst of communities which were classed as untouchables. A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth could not be considered reasonable and defended on any sound democratic principle, and efforts were being made to secure its abolition by legislation. This culminated in the enactment of Art. 17, which is as follows :" Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law."24. Construing Art. 25 (2) (b) in the light of Art. 17, it is arguable that its object was only to permit entry of the excluded classes into temples which were open to all other classes of Hindus, and that that would exclude its application to denominational temple25. The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25 (2) (b).It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein. The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature. Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended. We must therefore hold that denominational institutions are within Art. 25 (2) (b)26. It is then said that if the expression "religious institutions of a public character" in Art. 25 (2) (b) is to be interpreted as including denominational institutions, it would clearly be in conflict with Art. 26 (b), and it is argued that in that situation, Art. 26 (b) must, on its true construction, be held to override Art. 25 (2) (b). Three grounds were urged in support of this contention, and they must now be examined. It was firstly argued that while Art. 25 was stated to be "subject to the other provisions of this Part" (Part III), there was no such limitation on the operation of Art. 26, and that, therefore, Art. 26 (b) must be held to prevail over Art. 25 (2) (b).But it has to be noticed that the limitation "subject to the other provisions of this Part" occurs only in Cl. (1) of Art. 25 and not in cl. (2). Clause (1) declares the rights of all persons to freedom of conscience and the right freely to profess, practise and propagate religion. It is this rights that is subject to the other provisions in the Fundamental Rights Chapter. One of the provisions to which the right declared in Art. 25 (1) is subject is Art. 25(2). A law, therefore, which falls within Art. 25(2)(b) will control the rights conferred by Art. 25(1), and the limitation in Art. 25(1) does not apply to that law27. It is next contended that while the right conferred under Art. 26 (d) is subject to any law which may be passed with reference thereto, there is no such restriction on the right conferred by Art. 26(b). It is accordingly argued that any law which infringes the right under Art. 26 (b) is invalid, and that S. 3 of Act V of 1947, must accordingly be held to have become void. Reliance is placed on the observations of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (C) (supra) at page 1023 (of SCR) : (at pp. 289-290 of AIR), in support of this position.It is undoubtedly true that the right conferred under Art. 26 (b) cannot be abridged by any legislation, but the validity of S. 3 of Act V of 1947, does not depend on its own force but on Art. 25 (2) (b) of the Constitution. The very Constitution which is claimed to have rendered S. 3 of the Madras Act void as being repugnant to Art. 26 (b) has, in Art. 25 (2) (b), invested it with validity, and, therefore, the appellants can succeed only by establishing that Art. 25 (2) (b) itself is inoperative as against Art.26 (b)28. And lastly, it is argued that whereas Art. 25 deals with the rights of individuals, Art. 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Art. 25 (2) (b). This contention ignores the true nature of the rights conferred by Art. 25 (2) (b).That, is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Art. 25 (1) or against a denomination under Art. 26 (b). The fact is that though Art. 25 (1) deals with rights of individuals. Art. 25 (2) is much wider in its contents and has reference to the rights of communities, and controls both Art. 25 (1) and Art. 26 (b)29. The result then is that there are two provisions of equal authority, neither of them being subject to the otherThe rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Art. 25 (2) (b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26 (b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25 (2) (b) will prevail. While, in the former case, Art. 25 (2) (b) will be put wholly out of operation in the latter, effect can be given to both that provision and Art 26 (b).We must accordingly hold that Art. 26 (b) must be read subject to Art. 25 (2) (b)Those modifications refer to various ceremonies relating to the worship of the deity at specified times each day and on specified occasions. The evidence of P. W. 1 establishes that on those occasions, all persons other than Gowda Saraswath Brahmins were excluded from participation thereof. That evidence remains uncontradicted, and has been accepted by the learned Judges, and the correctness of their finding on this point has not been challenged before us. It is not in dispute that the modifications aforesaid relate, according to the view taken by this Court in Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar (C) (supra), to matters of religion, being intimately connected with the worship of the deity. On the finding that the suit temple is a denominational one, the modifications made in the High Court decree would be within the protection of Art. 26 (b)We agree that the right protected by Art. 25 (2) (b) is a right to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2) (b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform. It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship. Thus, the right recognised by Art. 25 (2) (b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonizing the right conferred by Art. 25(2)(b) with that protected by Art. 26 (b)32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26 (b), must yield to the overriding right declared by Art.25(2)(b) in favour of the public to enter into a temple for worship.But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25 (2) (b) overrides that rights so as extinguish it, but whether it is possible - so to regulate rights of the persons protected by Art. 25 (2) (b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25 (2) (b), then of course, on our conclusion that Art. 25 (2)(b) prevails as against Art. 26 (b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25 (2) (b) as to give effect to Art. 26 (b), and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffectedThat the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record. P. W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins. He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.This rights will be hit by Art. 25 (2) (b), and cannot be recognised. P. W. 1 put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognised, what is left to the public of their rights under Art. 25 (2) (b) is substantial.The learned Solicitor-General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him. On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by Art. 25 (2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights18. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokashana) have to be performed for restoring the sanctity of the shrine : Vide Judgment of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar (D) (supra). In Sankaralinga Nadan v. Raja Rajeswara Dorai, 35 Ind App 176 (PC) (E), it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust.Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practise and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindu. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must accordingly hold that if the rights of the appellants have to be determined solely with reference to Art. 26 (b),then S. 3 of Act V of 1947, should be held to be bad as infringing it17. It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law. There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas. On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads describing the Supreme Being as omnipotent, omniscient and omnipresent and transcending all names and forms. When we come to the Puranas, we find a marked change. The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka :"That from which all beings are born, by which they live and into which they enter and merge."The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation. These injunctions have had such a powerful hold over the minds of the people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu. It was during this period that temples were constructed all over the country dedicated to Vishnu, Rudra, Devi, Skanda, Ganesha and so forth, and worship in the temple can be said to have become the practical religion of all sections of the Hindus ever since. With the growth in importance of temples and of worship therein, more and more attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and conduct of worship of the deity, and numerous are the treatises that came to be written for its exposition. These are known as Agamas, and there are as many as 28 of them relating to the Saiva temples, the most important of them being the Kamikagama, the Karanagama and the Suprabhedagama, while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas. These 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 classes of worshippers are to stand and worship.