Madras High Court
C.Ganesan vs The Commissioner on 25 February, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:572
W.P.No.6704 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.6704 of 2025
C.GANESAN ... Petitioner
Vs
1. THE COMMISSIONER,
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ADMINISTRATION DEPARTMENT,
CHENNAI - 34.
2. THE ASSISTANT COMMISSIONER,
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ADMINISTARTION DEPARTMENT,
COLLECTORATE ADDITIONAL BUILDING,
NAMAKKAL. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India for the
issuance of Writ of Mandamus, directing the first respondent to consider and
approve the recommendation of the second respondent made in Na.Ka.No.
2568/2020/A6 dated 04.02.2021 for separation of Arulmighu Ponkaliamman
Temple from the group of Temples consisting of " Arulmighu Mariamman,
Angalamman and Perumal Temples and Arulmighu Ponkaliamman Temple"
within a strict time frame fixed by this Court by considering the petitioner's
representations dated 05.01.2024 and 31.01.2025.
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For Petitioner : Mr.T.S.Vijaya Raghavan
For R1 & R2 : Mr.S.Ravi Chandran
Additional Government Pleader
ORD E R
“rhjpfs; ,y;iyao ghg;gh - Fyj; jhH;rr; p cah;rr; p brhy;yy; ghtk;”
—— Bharathiyar”
This writ petition is filed with a prayer directing the first respondent to
consider and approve the recommendation of the second respondent made in
Na.Ka.No. 2568/2020/A6 dated 04.02.2021 for separation of Arulmighu
Ponkaliamman Temple from the group of Temples consisting of "Arulmighu
Mariamman, Angalamman and Perumal Temples and Arulmighu
Ponkaliamman Temple" within a time limit fixed by this Court by considering
the petitioner's representations dated 05.01.2024 and 31.01.2025.
2. The petitioner's representation and the affidavit filed in support of
the writ petition state that all three temples have been combined for
administrative purposes. The petitioner asserts that one of the temples,
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Arulmighu Ponkaliam m a n Te m pl e , is solely worshipped, maintained, and
administered by members of the petitioner's caste, whereas other caste people
are also involved in the other temples. Therefore, he requests that this temple
be separated and not grouped with the others.
3. Thus, the request oozes with caste perpetuation and hatred for other
fellow human beings as if they are different creatures. Even if there is a
recommendation from the second respondent, the same cannot be
countenanced by this Court under the jurisdiction of Article 226 of the
Constitution of India. This Court has already decided in W.P.No.3838 of 225
that a casteless society is the constitutional goal and that anything related to
the perpetuation of caste cannot be considered by this Court in the exercise of
its jurisdiction under Article 226 of the Constitution of India. The relevant
portion is extracted hereunder for ready reference :
“4. Caste is a social evil. Casteless society is our
constitutional goal. Anything towards perpetuation of
caste can never be considered by any Court of law.
The reason is very simple. Firstly, it is not decided by
what one learns or does in life. It is by birth. Thus, it
hits at the very basic ethos of the society that all men
are born equal. (gpwg;bghf;Fk; vy;yh caph;fF
; k;) . Further,
it divides society, leads to discrimination and violence
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and is against growth. The same has been emphatically
laid down by the Hon’ble Supreme Court of India, in
Ashoka Kumar Thakur -Vs- Union Of India (2008 6
SCC 1). After noting down the contention that the
Constitution does not think of a casteless society, in
paragraph No.238, it was held that "the ultimate object
is to see that no person gets discriminated against
because of his caste. If that be so, it would not be right
to say that the ultimate objective is not the casteless
society." In paragraph No.298, it is held that "ultimate
aim is a casteless and classless society in line with the
dream of the Constitution-framers that has to be
chewed out." In paragraph No.310, it is held that "It
needs no emphasis that if ultimately and indisputably
the constitutional goal is the casteless and classless
society.…" In paragraph No.328, it is stated that "when
the object is elimination of castes and not perpetuation
to achieve the goal of casteless society and a society
free from discrimination of caste, judicial review within
the permissible limits is not ruled out." In paragraph
No.363, it is mentioned that "our leaders have always
and unanimously proclaimed with one voice that our
constitutional goal is to establish a casteless and
classless society." In paragraph No.605, it has been
held "...caste matters and will continue to matter as
long as we divide society along caste lines. Caste-
based discrimination remains. Violence between castes
occurs. Caste politics rages on. Where casteism is
present, the goal of achieving a casteless society must
never be forgotten. Any legislation to the contrary
should be discarded." In paragraph No.666, it is
mentioned that "caste has divided this country for ages.
It has hampered its growth. To have a casteless society
will be the resolution of a noble dream." Thus, if at all
it can only be taken into account, it can only be to
provide reservation and positive discrimination to uplift
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the downtrodden/backward classes.
5. D e s pit e se v e nt y - five year s of our C o n s titution,
se ction s of the so ci et y are yet to shed this unwa nt e d
bagg a g e. The very operation of the C o n s titutional sch e m e
is frustrat ed, and the ca st e sy st e m leads to the
perv er sion of the goals and value s of the so ciety. Thus,
any pray er mad e which is in the nature of or which has
the eff e c t of perp etu ation of cast e will not only be
unc on stitutional but would be opp o s e d to public policy.
The time has co m e for this C o urt to emph atically declar e
so.
6. Dr. B.R. Ambedkar, in his fam o u s spe e c h on
2 5 t h Nov e m b e r, 19 4 9, on con clu sion of deliberation s of
the C o n s titu ent A s s e m b l y, stated;
“In India there are ca st e s. The ca st e s are anti -
national. In the first plac e bec a u s e they bring about
sep ar ation in so cial life. The y are anti - national also
bec a u s e they gen er at e jealou s y and antipathy bet w e e n
cast e and cast e. But w e must ov er c o m e all thes e
difficulties if w e wish to bec o m e a nation in reality. For
fraternity can be a fact only wh en there is a nation.
Without fraternity, equality and liberty will be no de e p er
than coat s of paint”.
Thus, it would be violen c e to the C o n s titution to
entertain pray er s on ca st e basis and ex er ci s e the
jurisdiction under Article 2 2 6 of the C o n s titution of India.
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7. In this case, we are in the realm of prayer
relating to the temple practice. In this context, nobody
can understand our religions better than Swamy
Vivekananda. If religion and worship are for the
benefit of the soul, he said,
“The soul has neither sex nor caste nor imperfection”
4. The temple is a public temple and, as such, can be worshipped,
managed, and administered by all devotees. Even a social group identifying
itself by the name of the caste may have a particular way of worship and will
be entitled to their customary rights regarding that manner of worship. Caste,
in itself, is not a ‘religious denomination.’ Believers in caste discrimination
try to disguise their hatred and inequality under the guise of ‘religious
denomination,’ viewing temples as fertile ground for nurturing these divisive
instincts and creating social unrest. Many public temples are being labeled as
belonging to a particular ‘caste.’ Articles 25 and 26 of the Constitution of
India protect only essential religious practices and the rights of religious
denominations. No caste can claim ownership of a temple. The administration
of the temple based on caste identity is not a religious practice. This matter is
no longer res integra. The Hon’ble Supreme Court of India, in Sri Adi
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Visheshwara of Kashi Vishwanath Temple v. State of U.P.,1 examined the
issues about religious denomination and religious practice in detail. It has laid
down that ‘denomination’ pertains to ‘religion.’ ‘Caste’ is not ‘Religion’. It is
essential to extract the following passages for ready reference:
“23. The question is whether Sri Kashi Vishwanath
Temple is a denominational Temple and whether the Act
interferes with freedom of conscience and the right to profess,
practise and to propagate religion of one's choice and
whether the devotees of Lord Vishwanath are members of
religious denomination and shall have the fundamental right
to manage its affairs in the matter of religion guaranteed
under Articles 25 and 26 of the Constitution or to administer
the properties of the Temple in accordance with law. In
the Law Lexicon by P. Ramanatha Iyer (1987, Reprint Edn.)
at p. 315, the author says that “denomination” means a class
or collection of individuals called by the same name; a sect; a
class of units; a distinctively named church or sect as clergy
of all denominations. The maxim Denominatio est a
digniore means “Denomination is from the more worthy”
(Burrill). “Denominatio fieri debet a dignioribus”, another
maxim means “denomination should be deduced from the
more worthy” (Wharton's Law Lexicon). “Denomine proprio
non est curandum cum in substantia non erretur quia nomina
mutabilla sunt res autem immobiles meaning” means “as to
the proper name, it is not to be regarded when one errs not in
substance; because names are changeable, but things are
immutable”. (Bouvier Law Dictionary; American
Encyclopaedia) In Commr., H.R.E. v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005 : AIR
1954 SC 282] , the precise meaning of the word
“denomination” had come up for consideration before the
Constitution Bench. It was held, following the meaning given
in Oxford Dictionary, that the word “denomination” means a
1 (1997) 4 SCC 606
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collection of individuals or class together under the same
name, a religious group or body having a common faith and
organisation and designated by a distinctive name. On the
practices of the Math, the meaning of the connotation
“denomination” in that behalf, it was held that each such sect
or special sects which are founded by their organiser
generally by name be called a religious denomination as it is
designated by distinctive name in many cases. It is the name of
the founder and has common faith and common spiritual
organisation. Article 26 contemplates not merely a religious
denomination but also a section thereof. Therefore, it was
held that Shirur Mutt [1954 SCR 1005 : AIR 1954 SC 282]
was a religious denomination entitled to the protection of
Article 26. In Durgah Committee v. Syed Hussain Ali [(1962)
1 SCR 383 : AIR 1961 SC 1402] another Constitution Bench
considering the ratio laid in Shirur Mutt case [1954 SCR
1005 : AIR 1954 SC 282] explained Sri Venkataramana
Devaru case [Sri Venkataramana Devaru v. State of Mysore,
1958 SCR 895 : AIR 1958 SC 255] and had laid down that the
words “religious denomination” under Article 26 of the
Constitution must take their colour from the word religion and
if this be so the expression religious denomination must also
specify three conditions, namely, it must be (1) a collection of
religious faith, a system of belief which is conducive to the
spiritual well-being, i.e., a common faith; (2) common
organisation; (3) a designation by a distinctive name.
Therein, the endowment to the tomb of Hazrat Khwaja Moin-
ud-din Chishti of Ajmer, under the Khadims Durgah Khwaja
Saheb Act, 1955 was challenged by the respondents as
violative of their fundamental rights under Articles 25, 26,
19(1)(f) and (g) of the Constitution. This Court had held that
Hazrat Khwaja Moin-ud-din Chishti tomb was not confined to
Muslims alone but belonged to all communities, i.e., Hindus,
Khwajas and Parsis who visit the tomb out of devotion for the
memory of the departed soul and it is a large circle of
pilgrims who must be held to be the beneficiary of the
endowment made to the tomb. Considered from that
perspective, it was held that the right to receive offerings was
not affected or prejudiced by the Act, though they had a right
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to worship in accordance with their faith. Article 26 requires
to be carefully scrutinised to extend protection and it must be
confined to such religious practices as are an essential and
integral part of it and no other. The management of the
properties was in the hands of the officers. Article 26 does not
create rights in any denomination or a section which it never
had. It merely safeguards and guarantees the continuance of a
right which such denomination or the section had. If the
denomination never had the right to manage property in
favour of a denominational institution as per reasonable terms
on which the endowment was created, it cannot be had
(sic said) to have it. It had not acquired the said right as a
result of Article 26 and that the practice and the custom
prevailing in that behalf which obviously is consistent with the
terms of the endowment should not be ignored. The Act cannot
be treated as illegal and the administration and management
should be given to the denomination. Such a claim is
inconsistent with Article 26. In Bramchari Sidheswar
Shai v. State of W.B. [(1995) 4 SCC 646] the relevant facts
were that the Ramakrishna Mission had established
educational institutions to which approval and affiliation were
granted by the Government and the University. The dispute
arose as regards the composition of the Governing Body, viz.,
whether the Government's nominee would be associated on a
standard pattern? Ramakrishna Mission claimed “minority”
status being a denomination. In that perspective, this Court
while rejecting the claim of the Mission as a minority
institution under Article 30(1), upheld its denominational
character within the meaning of Article 26(a) of the
Constitution. It was held that it being a denomination was
entitled to administer the educational institutions. Therein, the
vires of the statute did not come up for consideration in the
context of the followers of Shri Ramakrishna who are
professing the line of teachings and doctrines of Shri
Ramakrishna. The followers were considered to be a
denominational section of the citizens. The ratio therein,
therefore, does not apply to the facts of the present case.
26. It would appear from the judgment of the High
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Court that the Advocate General contended that the protection
of Articles 25 and 26 was not available to the Hindus as a
community but as a denominational sect or section thereof
and that Hindus are not denominational section. One of the
learned Judges in that background considered the scope of
denomination and held that Shaivites among Hindus are a
denominational section and that, therefore, they are entitled
to the protection of freedom of conscience and to establish
and manage the religious institution or properties attached to
it. It is a well-settled law that secularism is the basic feature
of the Constitution. The Constitution seeks to establish an
egalitarian social order in which any discrimination on
grounds of religion, race, caste, sect or sex alone is violative
of equality enshrined in Articles 14, 15 and 16 etc. of the
Constitution. India is a land of multi-religious faiths and the
majority are Hindus; Hinduism is their way of life, belief and
faith. Unfortunately, they are disintegrated on grounds of
caste, sub-caste, sect and sub-sect. Unity among them is the
clarion call of the Constitution. Unity in diversity is the
Indian culture and ethos. The tolerance of all religious faiths,
respect for each other's religion are our ethos. These pave the
way and foundation for integration and national unity and
foster respect for each others' religion; religious faith and
belief. Integration of Bharat is, thus, its arch. Article 15(2),
therefore, lays emphasis in that behalf that no citizen shall, on
grounds only of religion, race, caste, sect, place of birth or
any of them be subjected to any disability, liability, restriction
or conditions with respect to access to shops, public
restaurants, hotels, places of public entertainment or the use
of wells, tanks, baths and places of public resorts maintained
wholly or partly out of State fund or dedicated to the use of
general public. Congregation and assimilation of all sections
of the society, in particular in place of worship generates
feeling of amity assured in the Preamble and fosters
fraternity for social cohesion, harmony and integration.
Thus, the Constitution lays seedbed to integrate the people
transcending various religious, regional, linguistic, sectional
diversities, castes, sects and/or divisive actions or acts.
Integration of all sections belonging to different castes, sub-
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castes, sects and sub-sects or people professing different
religious faiths transcending the diversity of religious
beliefs. Apart from communion of the individual with his
perceived cosmos or divinity, the primary aim of all religious
faiths is to inculcate the feeling of oneness among all people,
to imbibe the good of that religion or that faith teaches; to get
rid of unfounded or superstitious beliefs and to make a person
self-disciplined. Every right carries with it the co-relative
duty. Article 51-A of the Constitution enjoins every citizen to
abjure violence, to cultivate the spirit of tolerance, reform
and enquiry, in other words, rational thinking and to
distinguish between good and bad; to discard bad and
viciousness and to imbibe good and to improve the faculty of
constructive thinking. So, all religions are equally entitled to
constitutional protection under Articles 25 and 26.
27. The right to establish and maintain institutions for
religious and charitable purposes or to administer property of
such institutions in accordance with law was protected only in
respect of such religious denomination or any section thereof
which appears to extend help equally to all and religious
practice peculiar to such small or specified group or section
thereof as part of the main religion from which they got
separated. The denominational sect is also bound by the
constitutional goals and they too are required to abide by law;
they are not above law. Law aims at removal of the social ills
and evils for social peace, order, stability and progress in an
egalitarian society. In A.S. Narayana Deekshitulu v. State of
A.P. [(1996) 9 SCC 548] a Bench of this Court (to which one
of us, K. Ramaswamy, J., was a member) considered in
extenso the entire case-law in the context of abolition of the
hereditary rights of archakas and mathadipatis (trustees) and
of the attached right to share in the offerings, plate collections
etc. and appointment of Executive Officer to religious
institution and endowment under the A.P. Charitable and
Hindu Religious Institutions and Endowments Act, 1987 (for
short “the A.P. Act”). There is a difference between
secularism and secularisation. Secularisation essentially is a
process of decline in religious activity, belief, ways of thinking
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and in restructuring the institution. Though secularism is a
political ideology and strictly may not accept any religion as
the basis of State action or as the criterion of dealing with
citizens, the Constitution of India seeks to synthesise religion,
religious practice or matters of religion and secularism. In
secularising the matters of religion which are not essentially
and integrally parts of religion, secularism, therefore,
consciously denounces all forms of supernaturalism or
superstitious beliefs or actions and acts which are not
essentially or integrally matters of religion or religious belief
or faith or religious practices. In other words, non-religious
or anti-religious practices are antithesis to secularism which
seeks to contribute in some degree to the process of
secularisation of the matters of religion or religious
practices. For instance, untouchability was believed to be a
part of Hindu religious belief. But human rights denounce it
and Article 17 of the Constitution of India abolished it and
its practice in any form is a constitutional crime punishable
under Civil Rights Protection Act. Article 15(2) and other
allied provisions achieve the purpose of Article 17.
28. The religious freedom guaranteed by Articles 25
and 26, therefore, is intended to be a guide to a community
life and ordain every religion to act according to its cultural
and social demands to establish an egalitarian social order.
Articles 25 and 26, therefore, strike a balance between the
rigidity of right to religious belief and faith and their intrinsic
restrictions in matters of religion, religious beliefs and
religious practices and guaranteed freedom of conscience to
commune with his Cosmos/Creator and realise his spiritual
self. Sometimes, practices religious or secular, are
inextricably mixed up. This is more particularly so in regard
to Hindu religion because under the provisions of the ancient
Smriti, human actions from birth to death and most of the
individual actions from day-to-day are regarded as religious
in character in one facet or the other. They sometimes claim
the religious system or sanctuary and seek the cloak of
constitutional protection guaranteed by Articles 25 and 26.
One hinges upon constitutional religious model and another
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diametrically more on traditional point of view. The
legitimacy of the true categories is required to be adjudged
strictly within the parameters of the right of the individual and
the legitimacy of the State for social progress, well-being and
reforms, social intensification and national unity. Law is a
tool of social engineering and an instrument of social
change evolved by a gradual and continuous process. As
Benjamin Cardozo has put it in his Judicial Process, life is
not logic but experience. History and customs, utility and the
accepted standards of right conduct are the forms which
singly or in combination all be the progress of law. Which of
these forces shall dominate in any case depends largely upon
the comparative importance or value of the social interest that
will be, thereby, impaired. There shall be symmetrical
development with history or custom when history or custom
has been the motive force or the chief one in giving shape to
the existing rules and with logic or philosophy when the
motive power has been theirs. One must get the knowledge
just as the legislature gets it from experience and study and
reflection in proof from life itself. All secular activities which
may be associated with religion but which do not relate or
constitute an essential part of it may be amenable to State
regulations but what constitutes the essential part of religion
may be ascertained primarily from the doctrines of that
religion itself according to its tenets, historical background
and change in evolved process etc. The concept of essentiality
is not itself a determinative factor. It is one of the
circumstances to be considered in adjudging whether the
particular matters of religion or religious practices or belief
are an integral part of the religion. It must be decided whether
the practices or matters are considered integral by the
community itself. Though not conclusive, this is also one of the
facets to be noticed. The practice in question is religious in
character and whether it could be regarded as an integral and
essential part of the religion and if the court finds upon
evidence adduced before it that it is an integral or essential
part of the religion, Article 25 accords protection to it.
Though the performance of certain duties is part of religion
and the person performing the duties is also part of the
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religion or religious faith or matters of religion, it is required
to be carefully examined and considered to decide whether it
is a matter of religion or a secular management by the State.
Whether the traditional practices are matters of religion or
integral and essential part of the religion and religious
practice protected by Articles 25 and 26 is the question. And
whether hereditary archaka is an essential and integral part
of the Hindu religion is the crucial question.
31. The protection of Articles 25 and 26 of the
Constitution is not limited to matters of doctrine. They extend
also to acts done in furtherance of religion and, therefore,
they contain a guarantee for rituals and observances,
ceremonies and modes of worship which are integral parts
of the religion. In Seshammal case [Seshammal v. State of
T.N., (1972) 2 SCC 11] on which great reliance was placed
and stress was laid by the counsel on either side, this Court
while reiterating the importance of performing rituals in
temples for the idol to sustain the faith of the people, insisted
upon the need for performance of elaborate ritual ceremonies
accompanied by chanting of mantras appropriate to the deity.
This Court also recognised the place of an archaka and had
held that the priest would occupy place of importance in the
performance of ceremonial rituals by a qualified archaka who
would observe daily discipline imposed upon him by the
Agamas according to tradition, usage and customs obtained
in the temple. Shri P.P. Rao, learned Senior Counsel also does
not dispute it. It was held that Articles 25 and 26 deal with
and protect religious freedom. Religion as used in those
articles requires restricted interpretation in etymological
sense. Religion undoubtedly has its basis in a system of beliefs
which are regarded by those who profess religion to be
conducive to the future well-being. It is not merely a doctrine.
It has outward expression in acts as well. It is not every aspect
of the religion that requires protection of Articles 25 and 26
nor has the Constitution provided that every religious activity
would not be interfered with. Every mundane and human
activity is not intended to be protected under the Constitution
in the garb of religion. Articles 25 and 26 must be viewed with
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pragmatism. By the very nature of things it would be
extremely difficult, if not impossible, to define the expression
“religion” or “matters of religion” or “religious beliefs or
practice”. Right to religion guaranteed by Articles 25 and 26
is not absolute or unfettered right to propagate religion which
is subject to legislation by the State limiting or regulating
every non-religious activity. The right to observe and practise
rituals and right to manage in matters of religion are
protected under these articles. But right to manage the Temple
or endowment is not integral to religion or religious practice
or religion as such which is amenable to statutory control.
These secular activities are subject to State regulation but the
religion and religious practices which are an integral part of
religion are protected. It is a well-settled law that
administration, management and governance of the religious
institution or endowment are secular activities and the State
could regulate them by appropriate legislation. This Court
upheld the A.P. Act which regulated the management of the
religious institutions and endowments and abolition of
hereditary rights and the right to receive offerings and plate
collections attached to the duty.”
5. Thus, a careful reading of the Judgment, it would be clear that ‘caste’
by itself can never be a religious denomination. Only if they follow a
particular philosophy or are guided by a guru or have a distinct way of
carrying on their faith, etc., can any sect or sub-sect be a ‘denomination’. It
can be further seen that the protection of Articles 25 and 26 do extend only to
essential religious practices. When no religious denomination or essential
practice of religion is involved, the protection does not extend. Thus, the
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claim that only particular caste owns a temple or the caste members alone can
be Trustees of the temple in general does not come within the exceptions
carved out and under the Fundamental Rights guaranteed under Article 25
and 26 and as such, should be tested within the secular fabric and thus, cannot
stand scrutiny of the Constitutional goal, and public policy, that is against
perpetuation of caste.
6. In this case, the petitioner's request for a separate administration is
based solely on the grounds that in other temples, individuals of different
castes are involved, whereas in the present temple, only members of his caste
alone are present. The petitioner's request cannot be accepted, and therefore,
the writ petition is dismissed. No costs.
25.02.2025
Neutral Citation: Yes
nsl
To
1. THE COMMISSIONER,
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ADMINISTRATION DEPARTMENT,
16/18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/03/2025 07:06:14 pm )
W.P.No.6704 of 2025
CHENNAI - 34.
2. THE ASSISTANT COMMISSIONER,
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ADMINISTARTION DEPARTMENT,
COLLECTORATE ADDITIONAL BUILDING,
NAMAKKAL.
D.BHARATHA CHAKRAVARTHY, J.
nsl W.P.No.6704 of 2025 17/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/03/2025 07:06:14 pm ) W.P.No.6704 of 2025 25.02.2025 18/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/03/2025 07:06:14 pm )