Madras High Court
J.Jayaseelan vs The Assistant Commissioner on 7 November, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.18787 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 18.10.2022
Pronounced On 07.11.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.18787 of 2010
and
M.P.Nos.1 & 3 of 2010
J.Jayaseelan ... Petitioner
Vs.
1.The Assistant Commissioner,
H.R.N.C. Board,
Cudalore District.
2.The Revenue Divisional Officer,
Cudalore.
3.The Deputy Superintendent of Police,
Panruty, Cudalore.
4.The Secretary to Government,
Department of H.R. & C.E.,
Fort St.George, Chennai – 9.
5.The Commissioner,
H.R. & C.E. Board,
Nungampakkam, Chennai – 34.
6.Chief Secretary to Government,
Government of Tamil Nadu,
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 22
W.P.No.18787 of 2010
Secretariat, Fort St. George,
Chennai - 600 009. ... Respondents
[R4 & R5 impleaded as per order dated
19.08.2010 in M.P.No.2/2010 &
R6 suo motu impleaded by this order.]
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, to call for the records
in Na.Ka.No.3241/2010/A1 dated 02.08.2010 on the file of the first
respondent and quash the same as illegal and direct the first respondent
to conduct the car festival of Mariammal deity of Pallavarayanatham to
pass through the Dalits Street of the said Village during the period
17.08.2010 to 21.08.2010.
For Petitioner : Mr.R.Sankarasubbu
For R1, R4 & R5 : Mr.K.Karthikeyan
Government Advocate
For R2 & R3 : Mr.N.Naveen Kumar
Government Advocate
ORDER
The petitioner has challenged the impugned order dated 02.08.2010 bearing reference Na.Ka.No.3241/2010/A1 passed by the first respondent Assistant Commissioner, H.R. & C.E. Department. ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 22 W.P.No.18787 of 2010
2. By the impugned order, the request of the petitioner to allow and pass temple car carrying the deity through the streets where persons belonging to Dalit Communities reside has been rejected based on Government Circular No.89337/c/2-58 dated 20.08.1958.
3. The operative portion of the impugned order rejecting the request of the petitioner reads as under:-
gy;ytuhaej;jk; mUs;kpF khhpak;kd; jpUf;Nfhapy; jpUtpohtpd; NghJ 3 ehs; cw;rtk; MjpjpuhtplH kf;fshy; nra;agLtjhfTk;. vdNt 3 ehs; cw;rtj;jpd; md;W Rthkp NjH vq;fs; gFjpf;F topghl;bw;F tuNtz;Lk; vd NfhhpAs;sHP .
ghHitapy; fz;Ls;s jq;fsJ 2 kDf;fSk; ghprPypf;fg;gl;lJ. 1958- Mk; Mz;L Mf];L khjk; 20k; Njjp 89337/c/2-58 murhq;f Fwpg;ghizapy; fPo;fz;lthW njhptpf;fg;gl;Ls;sjhy; jq;fs; Nfhhpf;if epuhfhpf;fg;gLfpwJ vd;gij njhptpj;Jf;nfhs;fpNwd;.
Nkw;gb Fwpg;gpy; Nfhapy;fSf;Fr; nrd;W nja;tj;ij topgl jw;NghJ `hp[dq;fshy; ,aYkhjyhy; nja;tj;ij CHtykhf nfhz;L nry;tJ mtHfSf;F mt;tsT Kf;fpakhdjhfhJ.
xU fpuhkk; my;yJ efuj;jpYs;s vy;yhj; njUf;fspd; topahfTk; nja;tj;ij CHtykhf nfhz;L nry;tjpy;iy. NkYk; Fwpg;gpl;lj;
njUf;fspd; topahfj; nja;tj;ij CHtykhf
nfhz;L nry;tJ ePzl ; fhykhf ,Ue;J tUk;
tof;fj;ij mDrhpj;J Kiwahf eilngw;W
tUfpwJ. mj;jifa gof;f tof;fj;ij
khw;wpaikg;gjw;fhf rl;lk; ,aw;wg;gl
Ntz;Lnkd;why; mJ jPuhj jfuhWfSf;Fk;
nryTkpf;f tof;FfSf;Fk; toptFf;Fk;. NkYk;
jw;NghJs;s eilKiw `hp[d njUf;fs; jdpahf ,Uf;f Ntz;Lnkd;gjhd epiyia mikj;J ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 22 W.P.No.18787 of 2010 tpLtjhf nghUs; nfhs;s $lhJ. rl;l Kiwg;gb rka epiyaq;fspd; rka rhHgw;w eltbf;iffspd; kPJ “epHthfk; nra;a murpdUf;F mjpfhuk; cs;sNj jtpu rka rk;ge;jkhdtw;wpy; murpdH jiyapLtjpy;iy” vd njhptpf;fg;gl;Ls;sJ.
4. Relevant portion of the Government Circular dated 20.08.1958 reads as under:-
`hp[dq;fs; trpf;Fk; njUf;fspd; topahfj;
nja;tq;fis CHtykhf nfhz;L nry;tJ.-
Nfhapy;fSf;Fr; nrd;W nja;tj;ij topglj;
jw;NghJ `hp[dq;fshy; ,aYkhjyhy; nja;tj;ij CHtykhff; nfhz;L nry;tJ mtHfSf;F mt;tsT Kf;fpakhdjhfhJ. xU fpuhkk; my;yJ efuj;jpYs;s vy;yhj; njUf;fspd; topahfTk; nja;tj;ij CHtykhff; nfhz;L nry;tjpy;iy. NkYk; Fwpg;gpl;lj; njUf;fspd; topahfj;
nja;tj;ij CHtykhf nfhz;L nry;tJ> ePzl; fhykhf ,Ue;JtUk; tof;fj;ij mDrhpj;J Kiwahf eilngw;W tUfpwJ. mj;jifa gof;f tof;fj;ij khw;wpaikg;gjw;fhfr; rl;lk; ,aw;wg;gl Ntz;Lnkd;why;> mJ jPuhj jfuhWfSf;Fk; nryTkpf;f tof;FfSf;Fk; top tFf;Fk;. NkYk; jw;NghJs;s eilKiw> `hp[d njUf;fs; jdpahf ,Uf;f Ntz;Lnkd;gjhd epiyia mikj;JtpLtjhfg; nghUs; nfhs;sf; $lhJ. rl;l Kiwg;gb> rka epiyaq;fspd; rkar; rhHgw;w eltbf;iffspd; kPJ epHthfk; nra;a murpdUf;F mjpfhuk; cs;sNj jtpu> rka rk;ge;jkhdtw;wpy; murpdH jiyapLtjpy;iy.
5. The learned counsel for the petitioner submits that rejection of the petitioner's request was improper as the Hindu Religious and Charitable Endowments Department (H.R. & C.E.) cannot be a party to ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 22 W.P.No.18787 of 2010 discrimination.
6. The learned counsel for the petitioner has drawn attention to a decision of a learned Single Judge of this Court in Board of Arulmighu Poottai Mariamman Temple and others Vs. Revenue Divisional Officer-cum-Executive Magistrate, Villupuram District and others, (2010) 4 MLJ 1077.
7. The learned counsel for the petitioner submits that in the light of the above decision of this Court, the impugned order is unsustainable. That apart, it is submitted that an interim order was passed by this Court on 15.10.2019, wherein, the District Collector, Cuddalore District, was directed to conduct a peace community meeting by issuing notice to all the community people who belong to the Pallavarayanatham Village for arriving at a peaceful settlement between the members of different communities for conducting the festival peacefully in future.
8. It is submitted that though several peace committee meetings were conducted, it was not conducted in consonance with the ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 22 W.P.No.18787 of 2010 interlocutory order of this Court. It is further submitted that in the light of the provisions of the Constitution of India, the practice of barring a particular community from participating in the temple festival cannot be countenanced as it still amounts to practice of untouchability indirectly. It is submitted that there are no records of the purported peace committee to substantiate that peace committee meetings were indeed held in accordance with the order of this Court and therefore, there should be a positive direction by quashing the impugned order as prayed for in this Writ Petition.
9. The respondents in their counter have referred to the aforesaid Circular as follows:-
“Taking Deities in procession through Harijan Streets:-
When Harijans are now enabled to enter the temples and worship the deity, the taking of deity in procession is not of much significance to them. The deity is not taken in procession through all the streets in a village, or town and the taking of the deity in procession through particular streets is regulated by long established custom and usage. Any legislation to change such custom and usage would lead to endless dispute and costly litigation.
______________ https://www.mhc.tn.gov.in/judis Page No 6 of 22 W.P.No.18787 of 2010 The existing practice should not be construed as perpetuating the discrimination. Under the frame work of the Act, the Government have no administrative control over the religious institutions on their secular activities only and they do not interfere in religious matter.”
10. It is submitted that the temple deity cannot be taken through any other streets in the village as it would be in violation of the existing custom, usage and practice. It is submitted that the petitioner has two alternate remedies both under Section 21A and/or under Section 21 of the Hindu Religious Charitable Act, 1959 either before the Joint Commissioner or before the Commissioner to work out an appropriate remedy and therefore, this Writ Petition is liable to be dismissed.
11. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocates for the respondents.
12. The point for consideration in this Writ Petition is whether the first respondent was justified in passing the impugned order dated ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 22 W.P.No.18787 of 2010 02.08.2010 rejecting the request of the petitioner for directing the Car Festival of Mariammal Temple to pass through streets where the persons belonging to Dalit Community reside.
13. The dispute pertains to temple festival which was to be held between 17.08.2010 and 21.08.2010. This Writ Petition has thus prima facie become infructous.
14. However, during arguments, it was conceded that these temple festivals are conducted every year. The dispute is of perennial nature. It, therefore, deserves the attention of this Court to give finality to the dispute. Therefore, I hold this Writ Petition has not become infructous. I therefore proceed to pass this detailed order.
15. Article 26 of the Constitution of India protects the right to freedom to manage religious affairs while Article 25 of the Constitution of India protects freedom of conscience and allows free profession, practice and propagation of religion. Article 25 & 26 of the Constitution of India read as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 8 of 22 W.P.No.18787 of 2010 Article 25 Article 26 Freedom of conscience and free Freedom to manage religious affairs. profession, practice and propagation — of religion.—(1) Subject to public Subject to public order, morality and order, morality and health and to the health, every religious denomination other provisions of this Part, all or any section thereof shall have the persons are equally entitled to right— freedom of conscience and the right freely to profess, practise and (a) to establish and maintain propagate religion. institutions for religious and (2) Nothing in this article shall charitable purposes;
affect the operation of any existing (b) to manage its own affairs in law or prevent the State from making matters of religion;
any law— (c) to own and acquire movable and immovable property; and
(a) regulating or restricting any (d) to administer such property in economic, financial, political or other accordance with law. secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
______________ https://www.mhc.tn.gov.in/judis Page No 9 of 22 W.P.No.18787 of 2010
16. The right that has been recognized under Article 26 of the Constitution of India is subject to public order, morality, and health as held in Dr.Subramanian Swamy Vs. State of Tamil Nadu and others, (2014) 5 SCC 75 : AIR 2015 SC 460. Under Article 17 of the Constitution of India, any form of untouchability is forbidden. It reads as under:-
Article 17: Abolition of Untouchability.— “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.
17. In Tamil Nadu, the Tamil Nadu Temple Entry Authorization Act, 1947 has been enacted. As per the said Act, there is no bar for a person belonging to Hindu Religion from visiting any of the temples.
18. Under Article 38 of the Constitution of India, it is the duty of every State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
______________ https://www.mhc.tn.gov.in/judis Page No 10 of 22 W.P.No.18787 of 2010
19. In particular, the State shall strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
20. Under the Constitution of India, there is no scope for the exhibition of any religious practice in public space which indirectly tries to reinforce supremacism. A right to practice one’s faith in open public space is to be shunned and is normally expected to be confined to one’s home, personal space and within the precinct of a temple, a church and/or a mosque and in other place of worship of other religions.
21.The practice of taking temple procession through the streets is an archaic practice. Though not documented, it is an accepted practice and it is being allowed to continue. It is being allowed to be continued even in these modern times with the hope to foster goodwill and a sense of belonging and camaraderie among the citizens. ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 22 W.P.No.18787 of 2010
22. To allow such practice by excluding a section of the population is to indirectly perpetuate the practice of untouchability and reinforce the age-old prejudicial practice of supremacy of race. It is scourge and continues to divide the society on communal lines. Such a practice is an affront to the laudable goals and object sought to be achieved under the Constitution and therefore results in indirect violation of Article 17 of the Constitution of India.
23. Temple processions through the streets cannot exclude a section of a particular community, particularly, when there is a strong will and a desire from the members or a section of members of a particular community to be part of it.
24. The procession can be allowed to continue as long they act as a catalyst for transforming the society and foster a sense of belonging among all the citizens to bring a lasting peace and homogeneity in the society. Such processions cannot be allowed which encourage any form of direct or indirect discrimination and/or exclusion and/or bestows a special honour/privilege on any person based on one’s community and ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 22 W.P.No.18787 of 2010 foster a false sense of pride, for under the eye of law, every citizen is equal and deserves an equal treatment without discrimination.
25. Further, it is also the fundamental duty of every citizen under the Constitution to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities and to renounce practices derogatory to the dignity of women.
26. Considering the fact that the temple festival are otherwise intended to foster goodwill and to inculcate essence of fraternity, equality, liberty, brotherhood and etc. among the citizens, such temple festival / procession can be allowed provided that there is no exclusion of a particular section of the society who were earlier subjected to the aged- old practice of prejudice and discrimination.
27. Though these processions have embraced modernity with the use of serial lights, use of motors, generators, fossil fuels, loudspeakers, and crackers etc., they yet carry with them the baggage of past prejudice ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 22 W.P.No.18787 of 2010 and discrimination and thus continue to perpetuate the scourge of untouchability indirectly and to divide the citizen on caste and communal lines. Such practice of discrimination is to be eschewed.
28.Therefore, the Hindu Religious and Charitable Department being a department of Government cannot be seen neglecting and breaching the promise under the Constitution. It cannot be blind to such prejudice and turn a Nelson's eyes. It has to strive to eliminate inequalities in status among the citizen when it accords any permission.
29. I cannot rely on the Government Circular No.89337/c/2-58 dated 20.08.1958 which itself uses archaic expression and treats a class of persons in a condescending manner. Thus, the Government Circular No.89337/c/2-58 dated 20.08.1958, based on which, the request of the petitioner was rejected vide impugned order, cannot be continued to operate perennially for the times to come.
30. In Board of Arulmighu Poottai Mariamman Temple case cited to supra by the learned counsel for the petitioner, the Board of ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 22 W.P.No.18787 of 2010 Arulmighu Poottai Mariamman Temple prayed for setting aside the order of the Revenue Divisional Officer-cum-Executive Magistrate, Kallakurichi dated 27.07.2009 and to forbear the first respondent RDO from in any manner interfering with the Religious Rites and Customs of the temple in performing the Temple Car Festival of the Temple on the last Friday of Tamil Month 'Aadi' as per the Hindu Customs and Usage. After considering overall facts and circumstances of the case, this Court observed as under:-
20. The status of a Mariamman temple was considered by this Court in Pinnaiyakkal vs. The District Collector, Madurai and others reported in 2008 (3) TLNJ640 (civil). When once that a position is accepted, the question arises for consideration is whether the custom or usage pleaded has any legal sanction. In the present case, even the long custom claimed was also denied by the HR & CE Department. Then in reality the temple trustees, who are caste Hindus of the village are unreasonably denying the rights of the dalits' participation in the Car festival. When once the petitioner Temple is a listed temple coming under the control of the HR & CE Department, the Trustees or the Villagers cannot claim some exclusive right denying the rights of the Dalits of the village. Such an attempt of the Caste Hindus is nothing but an act of untouchability prohibited by Article 17 of the Constitution. The petitioner cannot seek for a right which is neither available under any law nor under an order passed ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 22 W.P.No.18787 of 2010 by the Department upholding the custom. No such right is protected by Article 25 of the Constitution.
Article 25 of the Constitution only guarantees a right if it is an essential part of the religion and not all types of practices which are claimed by parties.
22. Therefore, in the absence of any established custom and right, there is no scope for the Trustees to assert a right of taking the temple car through a particular route thereby denying the right of the colony Dalits from worshipping the deity in the colony itself. Infact the only constraint can be the width of the road leading to the colony. In the earlier Peace meeting, the residents of the colony namely, the Dalits have agreed to take the deity in a small car (Sagadai) to the colony and bring it back to the main road so as to complete the route of the procession.
26. In the light of the above said judgment, the attempt by the Trustees to prevent the Dalits from taking the temple car to the Colony during the Temple Car festival held during the month of Aadi cannot be accepted by this Court. Any such order in their favour will amount to perpetuating untouchability which has been specifically prohibited by Article 17 of the Constitution of India. The temple Trustees have failed to establish any custom or usage in charting the route for the deity to be taken in the temple Car. For the last three years due to their intransigence and caste supremacy, the festival has been stopped. It is not as if there is no place in the colony by which the deity can reach the dalit, but there is place in the heart of the caste Hindus of the village to accept the dalits as Their brethren - so as to have a whole community worship. ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 22 W.P.No.18787 of 2010 In such circumstances, the Government cannot be a spectator in denying the rights of the dalits of the colony and the constitutional mandate will have to be enforced through all legal means.
31. Discrimination cannot be allowed in this modern world. The petitioner is therefore entitled to demand that the procession of the Temple Car should pass through their streets.
32. The demand of the petitioner for the Temple Car Festival carrying the deity of the temple to pass through streets where persons belonging to the Dalit Community reside is legitimate and therefore cannot be rejected as it is a manifestation of indirect form of untouchability.
33. Effective participation of persons belonging to a particular community cannot be allowed as such practice would amount to a practice of untouchability and offend under Article 17 of the Constitution of India.
______________ https://www.mhc.tn.gov.in/judis Page No 17 of 22 W.P.No.18787 of 2010
34. There has to be inclusivity by involving all persons from every spectrum of society if there is a strong will to be part of such festivity. Unless there is cohesiveness by including all those who desire to participate in such temple festival / procession, it cannot be said that the laudable objectives under Constitution of India can be achieved. Thus, the impugned order dated 02.08.2010 of the first respondent deserves to be quashed and is accordingly quashed.
35. A word of caution is required. Public processions including religious processions in public spaces are not to be allowed if they have the propensity to stir a law and order problem and/ or can cause inconvenience to the general public and/or can be a reason for traffic snarls and congestion hampering free flow of traffic. Public roads and streets are meant only for convenience of public for commuting between one place to another place. They are not specifically meant for processions or demonstrations.
36. Convenience and safety of the public are paramount considerations which cannot be lost sight of and therefore while granting ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 22 W.P.No.18787 of 2010 any permission, these factors have to be kept in mind. It is noticed that there is no proper law in place for regulating such procession.
37. The practice of marriage, temple processions and other processions to pass through streets, therefore, requires to be regulated with a minimal inconvenience to the public.
38. Any temple procession or any other form of procession which spills into public space such as public streets and public roads involves an indirect invisible expenditure to the State. Therefore, such expenditure should be compensated. Unless the user pays and compensates the State and Local Bodies, such procession involving indirect expenses and stress on the State resources should not be allowed to continue. It needs to be regulated.
39. The Chief Secretary, Government of Tamil Nadu, is suomotu impleaded as the sixth respondent. The sixth respondent Chief Secretary shall endeavour to frame a proper regulation and issue appropriate G.O., so that, processions through public streets and roads are properly ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 22 W.P.No.18787 of 2010 regulated and the organizers seeking permission do not practice any form of discrimination or while taking procession, cause inconvenience to the general public and that for use of public space, a proper method for compensation to the State is evolved for the scarce resources of the State that are used by the organizers.
40. Accordingly, this Writ Petition stands allowed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
07.11.2022 Internet : Yes/No Index : Yes / No Jen To
1.The Assistant Commissioner, H.R.N.C. Board, Cudalore District.
2.The Revenue Divisional Officer, Cudalore.
3.The Deputy Superintendent of Police, Panruty, Cudalore.
______________ https://www.mhc.tn.gov.in/judis Page No 20 of 22 W.P.No.18787 of 2010
4.The Secretary, Department of H.R. & C.E., Fort St.George, Chennai – 9.
5.The Commissioner, H.R. & C.E. Board, Nungampakkam, Chennai – 34.
6.Chief Secretary, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.
______________ https://www.mhc.tn.gov.in/judis Page No 21 of 22 W.P.No.18787 of 2010 C.SARAVANAN, J.
Jen Pre-Delivery Order in W.P.No.18787 of 2010 and M.P.Nos.1 & 3 of 2010 07.11.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 22