January 06, 2016

India: To what extent can courts deal with religious matters?

The Telegraph, January 6, 2016

Man proposes, court disposes
- To what extent can courts deal with religious matters? A recent Supreme Court judgment suggests that they can do so only to a limited extent, says Kavitha Shanmugam

In full faith: The verdict, delivered on a writ petition by priests of the Meenakshi temple, Madurai, allows for priests in Tamil Nadu to be appointed as per religious treatises

Can a non-believer nominate a member to the Guruvayur temple board in Kerala? Can a Kerala Muslim minister take the oath of office in the name of Allah instead of God? Can the mantras in a temple be chanted in Tamil? Can non-Namboodiri Brahmins become priests in Kerala temples?

These are some of the issues behind writ petitions filed in Indian courts over the years. And they lead to a question that is often asked — how far can courts wade into religious matters?

Apparently not very far, going by a recent Supreme Court judgment. A two-judge bench said in Adi Saiva Sivachariyargal Nala Sangam & Ors vs the Government of Tamil Nadu & ANR, 2015, that temple priests in Tamil Nadu will be appointed only on the basis of a religious treatise, the agamas. The agamas or “that which has come down” are ancient scriptures or ceremonial law relating to temple matters.

Wouldn’t the verdict violate Article 17 of the Constitution which abolishes “untouchability”, since this could imply that only Brahmins can be members of the board? Not quite, since the judgment also says that some Brahmins are excluded from entering the temple’s sanctum sanctorum and performing pujas.

Elaborating on the “true tenets” of Hinduism, Justices Ranjan Gogoi and N.V. Ramana said last month that the decisions would be taken in accordance with the agamas or customs of each temple, as long as they did not violate the Constitution.

Interestingly, the judgment did not strike down a 2006 Tamil Nadu order of the M. Karunanidhi-led government which, in an attempt to allow non-Brahmins to become temple priests, had stated that “any person who is a Hindu and possessing the requisite qualification and training can be appointed archakas [priests] in Hindu temples”. The government had also set up a training institute for non-Brahmin priests where 200 people had enrolled.
“The judgment simply empowers the agamas and is inconclusive. It does not squash the government order and the government can always go for a review,” says former Supreme Court judge A.R. Lakshmanan, who is no stranger to judgments related to religion.

In Gopalakrishnan Nair & Anr vs State of Kerala & Ors, he and others had ruled in the Kerala High Court that the council which appoints members to the managing committee of the Guruvayur temple board need not consist of believers, since the appointment was a secular function. In another case, his was the sole dissenting voice in a three-judge bench judgment which banned an Ananda Margi skull dance procession in Calcutta. His positions — that the right to practise one’s religion was as important as the freedom to believe and that the authorities had no right to sit in judgement over them — were used in the Adi Saiva… judgment.

But the Chennai-based former Supreme Court judge S. Mohan questions the position of the agamas when the Manusmriti — an ancient Hindu legal text — itself is no longer followed by Hindus.
“The Manusmriti says that marriage is a sacred union and divorces are not permitted. It does not give rights to women. Yet women are entitled to property today and divorces abound. We have to move with the times; religion has to expand as civilisation advances,” he says. The Supreme Court judgment, he holds, has taken a “narrow view” of religion. Priests are not the medium to reach God and their appointments should be a secular function.
In Seshammal & Ors, etc. etc. vs State of Tamil Nadu, 1972, which had upheld the abolition of the hereditary appointments of archakas, it was clearly established that an archaka appointment was secular.

“An archaka has never been regarded as a spiritual head, however accomplished and well-versed in the agamas and rituals he may be. He is a servant of the temple… That being his position the act of his appointment by the trustee is essentially secular…,” the judgment said.

However, in the most recent Supreme Court judgment, which ironically often referred to the Seshammal verdict, the criterion for appointing archakas prescribed under the agamas was viewed as “essential” to the practice of religion.
“[But] it is really difficult to determine what is essential practice and non-essential practice,” points out former Madras High Court judge S. Chandru wryly. “In a judgment by the Madras High Court, the Ganesha idol immersion is considered an essential religious practice but the route the procession takes is not. The court has still not given a judgment on the Jain santhara practice of fasting unto death.”

Justice Chandru believes the Adi Saiva… judgment perpetuates the caste system and has not seized the chance for reform. “No Dalits or women can become pujaris now,” he says.

Tamil Nadu officially has 38,000 temples, which fall under the Hindu Religious and Charitable Endowments Board. But there are also thousands of small temples, village deities and sub-cultures and other temples which are not governed by the agamas.

“It is a complex and sensitive issue. The customs and beliefs vary in each temple. The question is whether the appointments violate the principle of non-discrimination,” says Professor Madhava Menon, founder-director of the National Law School of India University and West Bengal National University of Juridical Sciences, Calcutta.

Menon does not criticise the recent judgment, but refers to N. Adithayan vs Travancore Devaswom Board, 2002, apex court judgment, which allows a non-Namboodiri Brahmin to become a priest in a Shiva temple in Kerala’s Ernakulam district. “We have non-Brahmin priests in temples in Kerala,” he points out.

Justice K.S. Panicker Radhakrishnan, another Supreme Court judge, however, holds that the Adi Saiva… verdict is “balanced” since some Brahmins are also prohibited from entering the sanctum sanctorum. He, incidentally, delivered a judgment in favour of a Kerala MLA who took the oath of office in the name of Allah and not God in the Madhu Parumala vs Speaker, Kerala Legislative, 2006.

Radhakrishnan says that the Adi Saiva… judgment delivered on a writ petition filed by an association of archakas and individual archakas of the Meenakshi temple in Madurai applies only to them and each temple has to follow its own agama. But many in the legal fraternity argue that it is unlikely non-Brahmin priest candidates will file suits in the court for each temple.

There is nothing new or bold in this judgment, holds Lakshmanan. He points out that deciding on matters of religion in a country soaked in different customs and beliefs is an “ocean” and difficult to deal with. But one thing is clear: the Adi Saiva… judgment seems to shy away from entering the choppy waters of reform and charts a safe course.