Kerala High Court
Moorkoth Prakash vs State Of Kerala
Bench: T.R.Ramachandran Nair, K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936
WP(C).No. 3747 of 2014 (P)
---------------------------
PETITIONER(S):
--------------------------
MOORKOTH PRAKASH
SAKTHI ILLAM, VADIVU NAGAR, MAKKINAMPATTY P.O.
POLLACHI, COIMBATORE DISTRICT, TAMIL NADU-642003.
BY ADVS.SRI.E.N.VISHNU NAMBOODIRI
SRI.P.P.NARAYANAN
SRI.S.P.SURESH KUMAR
RESPONDENT(S):
----------------------------
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEVASWOM DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. MALABAR DEVASWOM BOARD
REPRESENTED BY THE COMMISSIONER
MALABAR DEVASWOM BOARD, KOZHIKODE, PIN-
3. TRAVANCORE DEVASWOM BAORD
REPRESENTED BY THE COMMISSIONER
TRAVANCORE DEVASWOM BOARD, THRIUVANANTHAPURAM, PIN-
4. COCHIN DEVASWOM BOARD
REPRESENTED BY THE COMMISSIONER, COCHIN DEVASWOM
ERNAKULA, PIN-
5. GURUVAYOOR DEVASWOM BOARD
REPRESENTED BY THE COMMISSIONER, GURUVAYOOR, PIN-
R3 BY ADV. SRI.D.SREEKUMAR, SC, TDB
R4 BY ADV. SRI.UNNIKRISHNAN V.ALAPATT, SC, COCHIN DEVASWOM
BOARD
R2 BY ADV. SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD
R5 BY SRI.P.GOPAL
R1 BY GOVERNMENT PLEADER SHRI A. RANJITH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-3-2014, THE COURT ON 23-5-2-14 DELIVERED THE FOLLOWING:
T.R.RAMACHANDRAN NAIR &
K. ABRAHAM MATHEW, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) NO.3747 of 2014
- - - - - - - - - - - - - - - - - - - - - - - - - -
DATEDTHIS THE 23RD DAYOF MAY, 2014
JUDGMENT
Ramachandran Nair, J.
The petitioner herein has approached this Court seeking for a declaration that any restriction imposed on the devotees in the matter of wearing of clothes inside the Nalambalam of the Temples in Kerala has to be declared as unreasonable. Accordingly, he is seeking for a direction to the respondents to permit the devotees to enter into the place immediately surrounding the sanctum sanctorum (Nalambalam) to wear clothes in the form of shirt, baniyan, jubba, etc.
2. Going by the averments in the writ petition, the petitioner is a person from Pollachi in Coimbatore District of Tamil Nadu who came to Kerala on 22.1.2014 and he visited Sree Subramanya Swami Temple situated at Payyannur. The first respondent in the writ petition is the State of Kerala represented by the Secretary to Government, Devaswom Department, the second respondent is Malabar Devaswom Board represented by its Commissioner, the third respondent is Travancore WPC No.3747/2014 -2- Devaswom Board represented by its Commissioner, the fourth respondent is Cochin Devaswom Board represented by its Commissioner and the fifth respondent is Guruvayoor Devaswom Board represented by its Commissioner.
3. We heard learned counsel for the petitioner Shri P.N. Vishnu Namboodiri, learned Government Pleader and learned Standing Counsel for the respective Devaswom Boards.
4. According to the petitioner, when he happened to enter into the space immediately surrounding the sanctum sanctorum of Sree Subramanya Swami Temple at Payyannnur wearing a shirt, objections were raised by the authorities including the 6th respondent. It is submitted by the learned counsel for the petitoiner that the same is an unreasonable restriction. Similar restriction is not there in any other temples outside Kerala.
5. Learned Standing Counsel for the respective Devaswom Boards submitted that the Boards are duty bound to protect the custom and usage in temples. The petitioner cannot insist for wearing of a particular dress inside Nalambalam and he will have to abide by the custom and usage which has been in vogue from time immemorial. There is no restriction with regard to the right to offer prayers also. He cannot insist that he will have to offer WPC No.3747/2014 -3- prayers by wearing a particular dress inside the Nalambalam. The enactments in force in the State bind the authorities of the Devaswom to administer the temples in accordance with the usage and custom. It is submitted that the practice of not allowing to wear shirts, etc. inside Nalambalam cannot be termed as an unreasonable restriction with regard to any religious rights guaranteed under the Constitution to any of the devotees also. Learned Standing Counsel for the respondents relied upon a judgment of a Division Bench in O.P.No.4654/1995 and that of another Division Bench in Mohandas v. State of Kerala (2007 (4) KLT 10).
6. We have considered the rival submissions. As far as the Temples in Kerala are concerned, they are Thanthric representations symbolising the physical body and subtle body of human forum. The Temples in Kerala have got distinct character in regard to their architecture, rituals and traditions which distinguish them from those elsewhere in India. The rituals are being conducted according to the thanthric rites. The concept of temple as well as the consecration of the deity have got intimate connection with the human body.
7. In "The Travancore State Manual" by Shri T.K. Velu Pillai, at page 552 the above aspect has been highlighted in the following words: WPC No.3747/2014 -4-
"The Thanthras and Manthras, if properly performed, are believed to elevate the spiritual atmosphere in the temples. "The temple is thus the centre of divine influence, the place where the presence of the gods is known and felt, where the glory of the gods would now and again shine forth in the eyes of the worshippers, and where the love of the bhaktha would draw down a visible manifestation of the compassion of the deity. Every one coming with love and devotion to such a temple found descending upon him a celestial influence that calms the mind, that elevates the spirit,that changes all thoughts of world into thoughts of heaven, and that made prayer arise unchecked by any obstacle, so that the man felt for the time being, as if he had entered within the very gates of Svarga. So mighty a force is there that even the most careless man who came there was for the moment changed and spiritualised by the wondrous force which dwelt in the temples, by the power radiated from the image of the god within it............Such in truth it was in the old days and such it might be to-day."
The author further says at page 553 that "the essential characteristic of Hinduism is faith. Purity of character is ensured by rules which regulate the practice of the worshippers as well as that of the priests."
8. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) the Apex Court had occasion to consider various aspects concerning WPC No.3747/2014 -5- religion. In paragraph 17 it was held as follows:
"A religion undoubtedly has its basis in a system of belief or doctrines which are regarded by those who profess that religion as conductive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress."
Therefore, the above legal position will show that a religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.
9. In O.P.No.4654/1995 the petitioner therein sought to declare Rule 3(a) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The Division Bench elaborately considered the concepts particularly with respect to Kerala Temples. After considering various decisions of the Apex Court including Sri Lakshmindra Thirtha Swamiar's case (AIR 1954 SC 282) and Articles 25 and 26 of the WPC No.3747/2014 -6- Constitution of India, the Division Bench in paragraph 15 held as follows:
"So far as Hindu Temples are concerned, there are certain rules and regulations prescribed by the 'Agamas' which has to be strictly observed by the worshippers. As per this, all worshippers cannot as of right to enter into any part of the Temples and at all times."
Relying upon the dictum laid down in Nar Hari v. Badrinath Temple Committee (AIR 1952 SCR 849) by the then Honourable Justice B.K. Mukherjea, it was observed by the Division Bench in paragraph 15 that "the right of entry into a public Temple is, however, not an unregulated or unrestricted right. It is open to trustees of a public Temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the Temple, e.g. the inner sanctuary or as it is said the 'Holy of Holies' where the deity is actually located. The Division Bench, in the said paragraph, relied upon the following excerpts from the book titled as "The Hindu Law of Religious and Charitable Trust", by the then Honourable Chief Justice B.K. Mukherjea, Fifth Edition, page 156:
"After a deity is installed, it should be worshipped daily according to Hindu Sastras. The person founding a deity becomes morally WPC No.3747/2014 -7- responsible for the worship of the deity even if no property is dedicated to it............... The daily worship of a consecrated image includes the sweeping of the temple, the process of smearing, the removal of the previous day's offerings of flowers, the presentation of fresh flowers, the respectful obligation of rice with sweets and water and other practices. "The deity in short is conceived of as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through, with minute accuracy, the vivified image is regaled with necessaries and luxuries of life..........."
10. The Division Bench further relied upon the principles discussed in Sri Venkataramana Devaru and others v. The State of Mysore and others (1958 SCR 895) and the following observations were also quoted at page 28:
"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 case to be written for its exposition. These are known as Agamas.........These Agamas contain elaborate rules as to how the temple 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."
WPC No.3747/2014 -8-
Finally, in para 18 it has been held as follows:
"It is clear from the various decisions of the Supreme Court and other High Courts that the Agamas contain elaborate rules as to how the temple 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. 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 or 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 beliefs 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."
11. As far as the system in Kerala Temples is concerned, the above WPC No.3747/2014 -9- principles will give a clear view. As we have already observed, the poojas and rituals are conducted in terms of the thanthric rites and various customs and usage have come to stay. As pointed out by the learned Standing Counsel for the Travancore Devaswom Board and the learned counsel appearing for the Devaswom Managing Committees, the Devaswom Boards are really conducting the affairs as trustees and they are bound to administer the Temples in accordance with the custom and practices which were in vogue.
12. Section 31 of the Travancore Cochin Hindu Religious Institutions Act, 1950 provides as follows:
"31. Management of Devaswoms.-- Subject to the provisions of this Part and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to is usage."
The interpretation of the word "usage" therein, came up for decision before a Division Bench of this Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and others (AIR 1993 Ker. 42). In paragraph 29, the Bench observed as follows: WPC No.3747/2014 -10-
"In other words, the Travancore Devaswom Board can arrange worship in the temples under their control only in accordance with the prevailing usages."
The meaning of the term "usage" was then considered in paragraph 37. Therein, the Bench noted the following aspects in paragraph 37:
"Usage as defined in New Wabster's Dictionary means habitual or customary use or practice. In Venkataramaiya's Law Lexicon and Legal Maxims, "usage" is defined as one regularly and ordinarily practised by the inhabitants of the place. According to him it is not necessary to require proof of its existence for any length of time in order to establish "usage".
The meaning of the very same word was considered by a Full Bench of this Court in Adithyan v. Travancore Devaswom Board (1996 (1) KLT 1) wherein, in paragraphs 9 and 10, after considering Sections 24 and 31 of the very same Act, the Full Bench has expressed the following view:
"9.............. "Usage" and "custom" are words of congnate expression, but nevertheless both have some different perceptions and nuances. The word 'usage' generally denotes a habit or a mode of conduct or a course of action. Though such behaviour may generally be linked with human actions it is not the identity of the person vis-a-vis his caste which matters in discerning the contours of any 'usage'. In Black's Law Dictionary, the word 'usage' is WPC No.3747/2014 -11- described as different from custom as there is no usage through inheritance though a right can be acquired by prescription. The following passage is worthy of extraction here:
"Usage in its most extensive meaning, includes both custom and prescription, but in its narrower signification, it refers to a general habit, mode or course of procedure. A usage differs from a custom, in that it does not require to be immemorial to establish the same, but the usage must be known, certain, uniform, reasonable and not contrary to law."
10. Thus, usage has been referred to a course of dealing, or a mode of conducting transactions of a particular kind......................"
13. We will now refer to the rules framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. Rules 2 and 4 are worth mentioning. They are extracted below:
"2. Worshippers shall conform to the regulations made by the executive authority of a place of public worship for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein.
4. No person shall enter into premises of any place of public worship unless he has had bath and wears clean clothes or such materials and in such manner as is customary, in such place of public worship, no person shall enter a place of public worship with any footwear.
WPC No.3747/2014 -12- No person shall--
(i)xxxxx
(ii)xxxxx
(iii) do any act which is opposed to custom or established usage of the place or public worship or would tend to derogate from the purity and cleanliness of the place of public worship and its premises."
14. As to the system in Kerala Temples, covering the practices being followed by devotees, in the book titled as "Kshethra Chaithanya Rahasyam" by Shri P. Madhavaji, in Chapter XII at page 193 while referring to the system being followed it is mentioned that in Kerala, men enter temples without wearing the shirt. Therefore, it can be seen that such a usage was in existence while offering worship in temples.
15. It cannot be disputed that certain restrictions and usages have come to stay with regard to offering of worship by devotees inside the Nalambalam. The question is whether it will affect the right of a devotee to offer worship in a temple. It cannot be said that there is a total restriction for exercise of his right, as such. Any devotee entering the temple for offering worship will have to abide by the rules and regulations of the temple. There may not be uniformity in all such matters in respect of WPC No.3747/2014 -13- individual Temples. The authorities of the temple including the Devaswom Boards have been insisting for various observances and it cannot be said that these observances really affect the fundamental right of any devotee to offer worship. The temples really provide a solemn atmosphere for any devotee who approach it to offer his worship. It cannot be said that he has got an absolute right to use the premises of a temple according to his will and pleasure. The idea of construction of a temple and consecration of deity being one with a noble aim, the petitioner cannot insist that he should be allowed to wear whatever dress he wants and whichever places he wants to enter into the temple.
16. In Mohandas's case (2007 (4) KLT10), the Division Bench was considering an issue with regard to the wearing of dress by women devotees in Guruvayoor Temple. Therein, the Devaswom Managing Committee permitted the women to wear churidar instead of the traditional saree which was challenged before this Court. This Court did not accept the contention of the petitioner. In paragraph 5, while considering the importance of customs in temples, the following observations have been made:
"Customs are habits of action or patterns of conduct which may relate to dress or rites. Society always moves away from the letter WPC No.3747/2014 -14- of the law by evolving new practices that may influence or simply bypass existing practices. Customs are habits of action or patterns of conduct and may relate to dress code or to etiquette or to rites surrounding important events of life such as performance of marriage, religious practices, etc."
17. We are therefore not persuaded to accept the contention of the petitioner that he is entitled for a declaration as sought for in the writ petition. He has not sought support from any religious texts or authorities to contend for the position that the practice is really abhorrent or against the religious beliefs also. The modification, if any, to be made in the matter of religious practices and customs is within the province of the authorities concerned. Under Article 226 of the Constitution of India, this Court will not be justified in interfering in such matters. No other argument has been raised by the learned counsel for the petitioner also.
For all these reasons, we find no reason to entertain this writ petition which is accordingly dismissed. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) (K. ABRAHAM MATHEW, JUDGE) WPC No.3747/2014 -15- kav/