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The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, s3, 437, 438, 439, 440 441, 442, 445 and 444/71 are filed by the Archakas, and I Writ Petitions 13 and 14/1971 are filed by the Mathadhipatis to whose Math some temples are attached. As, common questions were involved in all these petitions, arguments were addressed principally in Writ Petitions 13/1971 and 442/ 1971, and we are, assured by counsel for both sides that they cover the points involved In all the other petitions. The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu religious and Charitable Endowments Act, 1959 being (Tamil Nadu Act xxii of 1959) hereinafter referred to as the principle Act. It came into force on December 2, 1959. It was an Act to amend and consolidate the law relating, to the administration and governance of Hindu Religious an Charitable Institutions and Endowments in the State of Tamil Nadu. it applied to all Hindu religious public institutions and endowments in the we of Tamil Nadu and repeated several Acts which had previously governed the administration of Hindu Public Religious Institutions. It is sufficient to say here that the provisions of the Principal Act applied to the temples in the present Petitions and the petitioners have no complaint against any of its provisions. Section 55 of that Act provided for the appointment of office holders and servants in such temples, and section 56 provided for ;he, punishment of office-holders kind servants. Section 55, broadly speaking, gave the trustee of the temple the power to appoint the office-holders or servants of the temple and ;also provided that where the office or service is hereditary the person next in the line of succession shall be entitled to succeed. In only exceptional cases the trustee was entitled to depart from the, principles of next-in-the-line of succession, but even so, the, trustee was under an obligation to appoint a fit person to perform the functions of the office or perform the service after having due, regard to the claims of the members of the family, Power to make rules was given to Government by section 116 (2) (xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary 'servants for succession to office and the conditions of service of all such officers and servants. Under this rule making power the State Government made the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Under these rules an Archak or Pujari of the deity came under the definition of 'Ulthurai servant'. 'Ulthurai servant' is define as, a servant whose duties relate mainly to the performance of rendering assis- tance in the performance, of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance of recitation. Rule 12 provided that every 'ulthurai servant', whether hereditary or nonhereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding, or appoint to an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special order or from the head of, a math recognised by the Commissioner, by general or special order, or such other person as may be designated by the Commissioner, from time to time, for the purpose. By this rule the proper worship in the temple, was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimina- tion in the matter of distribution of prasadam or theertham to the Hindu worshippers. That was a reform in the right direction and there is no challenge to it. The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the temples.

tion of temple worship has an ancient history and, according to Dr. Kane, temples of deities had existed even in the 4th or 5th century B.C. (See : History of Dharmasastra Vol. II Part-II page

710. ) With the construction of temples the institution of Archakas also came into existence, the Archakas being professional men who made their livelihood by attending on the images. Just when the cult of worship of Siva and Vishnu started and developed into two distinct cults is very difficult to say, but theme can be no doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two deities. (See page 725 supra.) With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as 'Agamas'. The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaru v. The State of Mysore(1). Agamas are described in the last case as treatises of ceremonial law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity. There are 28 Aganias relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The Agamas contain ela- borate 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. Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. 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 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 of 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 belief 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 (1) [1958] S.C.R. 895.

(1) 73 Indian Appeals 156.

hibit is his appointment as an Archaka in a temple, of a different denomination' DR. Kane has quoted the Brahmapurana on the topic of Punah-pratistha (Re-consecration of images in temples) at page 904 of his History of Dharmasastra referred to above. The Brahmapurana says that "when an image is broken into two or is reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other detities or is rendered impure by the touch of outcastes and the like-in these ten contingencies, God ceases to indwell therein." The Agamas appear to be more severe in this respect. Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies in important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.

It has been recognised for a long time that where the ritual in a temple cannot be performed except by a person belonging to a denomination, the purpose of worship will 'be defeated : See Mohan Lalji v. Gordhan Lalji Maharaj(1). In that case the claimants to the temple and its worship were Brahmins and the daughter's sons of the founder and his nearest heirs under the Hindu law. But their claim was rejected on the, ground that the temple was dedicated to the sect following the principles of Vallabh Acharya in whose temples only the Gossains, of that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the temple or to perform the worship. In view of the Amendment Act and its avowed object there was nothing, in the petitioners submissions to prevent the Government from prescribing a standardized ritual in all temples ignoring the Agamic requirements, and Archakas being forced on temples from denominations unauthorised by the Agamas. Since such a departure, as already shown, would inevitably lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution. The force of the above submissions made on behalf of the petitioners was not lost on the learned Advocate General of Tamil Nadu who appeared on behalf of the State. He, however, side tracked the issue by submitting that if we, were to consider in (1) 35 Allahabad (p.c) 283 at page 289.