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I. LOCUS STANDI / MAINTAINABILITY :

14. It is contended, on behalf of the respondents, that the Writ Petition filed by Dr. Subramanian Swamy is not a Public Interest Litigation, but is a political interest/publicity oriented litigation; it does not fulfil the requirement of the High Court PIL Rules; Dr. Subramanian Swamy has not stated, in the Writ Petition, that the taking over of the management of the temples is against larger public interest; in Dr. Subramanian Swamy v. State of Tamil Nadu & others[22], cited by the petitioner, the question of either his right to file a Writ Petition in public interest, or his locus standi to represent a large section of the public, unrepresented before the Court concerned, did not arise for consideration; the present Writ Petition is a Publicity Interested Litigation as is evident from the statements made by petitioner through the print and social media before filing the present PIL; in Dr. Subramanian Swamy[22], the case was originally filed by the religious denomination itself; the petitioner had intervened later, and since the appeals before the Supreme Court were filed both by the religious denomination and the petitioner, the said case would not justify the petitioner being permitted to invoke the public interest litigation jurisdiction of this Court; and since it is the right of a religious denomination which is alleged to have been violated, no third party can espouse their cause, that too in public interest as the fundamental right under Article 26 of the Constitution is not the right of the general public, but is the right of a religious denomination or a section thereof.

19. Under Rule 3(3)(a), it is only causes of such sections of society, which are in no position to access justice, that may be espoused by another. It is also true that the question of locus of Dr. Subramanian Swamy was not put in issue before the Supreme Court in Dr. Subramanian Swamy[22] and, consequently, the fact that he was permitted to appear would not, by itself and without anything more, justify a PIL Petition filed by him being entertained by this Court. We also find considerable force in the submission of the respondents that, since the fundamental rights under Article 26 is the right of religious denomination, it is only if it is asserted in the Writ Petition that a particular religious denomination lacks the means to avail its judicial remedies, would it be permissible for another to espouse their cause. No such plea is, admittedly, taken in the Writ Petition.

20. Rule 3(3)(a), however, also stipulates that matters, relating to the enforcement of fundamental rights which Dr. Subramanian Swamy complains as having been violated by the provisions of the 2019 Act, can be agitated by a PIL petition. Even otherwise, we see no reason to non-suit Dr. Subramanian Swamy on this score since, in any event, the society of Gangotri Dham (petitioners in Writ Petition (M/S) No.700 of 2020) is, admittedly, entitled to invoke the jurisdiction of this Court questioning the validity of the 2019 Act. As elaborate submissions have been made by Dr. Subramanian Swamy on the validity of the 2019 Act on the touch-stone of Articles 14, 25, 26 and 31-A, and these contentions have been largely adopted by Mr. Rajendra Dobhal, learned Senior Counsel appearing on behalf of the petitioners in Writ Petition (M/S) No.700 of 2020, the objection, to Dr. Subramanian Swamy's lack of standing to file the Writ Petition, is rejected.

(m) THE JUDGMENT OF A TWO JUDGE BENCH CANNOT BE UNDERSTOOD AS HAVING HELD CONTRARY TO THE LAW DECLARED BY A CONSTITUTION BENCH OF THE SUPREME COURT :

102. The conclusion, on application of the principles of res judicata, does not amount to a declaration of law by the two Judge bench of the Supreme Court, in Dr. Subramanian Swamy[22], that invariably, even if the temple is not established by a religious denomination, it can nonetheless administer it, for that would fall foul of the law declared by the Constitution bench of the Supreme Court in S. Azeez Basha[64] wherein the words "establish and maintain" in Article 26 were held to be conjunctive; and it was held that only such institutions, which were established by a religious denomination, which could be maintained by it. As the right to manage the affairs of the Char Dham temples would only be available to a religious denomination which has established these temples, and as it is not even the case of Dr. Subramanian Swamy that any particular religious denomination had established any of the Char Dham temples, the 2019 Act cannot be said to have violated the right under Article 26(d) of the Constitution. It is only on grounds of res judicata did the Supreme Court, in Dr. Subramanian Swamy[22], hold that the earlier constitution bench judgments of the Supreme Court, in S. Azeez Basha[64]; and Khajamian Wakf Estates[68], were inapplicable to the case before it. A two judge bench of the Supreme Court, in Dr. Subramanian Swamy[22], could not otherwise have, nor did it, take a view contrary to the earlier Constitution bench judgments of the Supreme Court.