Surgery successful; patient dead (2.0): SC verdict on temple priests under sharp criticism

The 2006 ordinance by the DMK government has not been taken down, but its implementation will now depend on each and every case.
Surgery successful; patient dead (2.0): SC verdict on temple priests under sharp criticism
Surgery successful; patient dead (2.0): SC verdict on temple priests under sharp criticism
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In Tamil Nadu, it has been a custom for several centuries to appoint only sons of Brahmin priests as archakas in temples. A practice with foundation in religion, it was given legal sanction through the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 which recognized the Brahminical process of appointment or priests. In 1970, encouraged by Periyar who wanted to end the casteist practice, the DMK government led by Karunanidhi amended the law to ensure that the temples were not under legal obligation to appoint only priests' heirs as archakas. Hindu religious institutions hit back hard, with 12 petitions being filed in the Supreme Court against the amendment. The outcome of these petitions, now commonly known as the case of Seshammal vs State of Tamil Nadu, was an imperfect compromise.

In his detailed account of the entire history of the issue for Caravan magazine, Manuraj Shanmugasundaram describes the 1972 verdict thus.

The Supreme Court upheld the validity of the amendment, and so declared the appointment of archakas to be a secular function. However, in the same judgement, the court also observed that if archakas were “forced on temples from denominations unauthorised by the agamas” it would “inevitably lead to the defilement of the image and 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.” In other words, the court felt that any neglect of agama principles in selecting archakas would be constitutionally invalid. In one blow, it blocked the implementation of the very law it sought to uphold.

The Dravida Kazhagam-run newspaper Viduthalai summed up the judgement thus: “Surgery successful; patient dead.”

More than four decades later, the Supreme Court’s judgment on December 16, 2015, on the validity of an ordinance passed by the DMK government in 2006 abolishing the monopoly of Brahmins over archaka-ship of temples is a grim reminder of the 1972 judgment on the same issue.

In 2002, the SC ordered in Adithyan vs Travancore Devaswom Board that the appointment of archakas was a secular act and held that it would be constitutionally unacceptable, and a violation of fundamental rights, to insist that archakas come only from a particular caste. Following this in 2006, Karunanidhi-led DMK government passed an ordinance abolishing hereditary appointments, and set up institutes to train and certify those from other castes who wanted to become archakas. The ordinance was contested, and the verdict on Wednesday morning was the outcome of this case.

Delivering the verdict, Justice Ranjan Gogoi and NV Ramana arrive at the following.

1. Constitution is supreme and that “the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.”

2. The agama sastras have to be followed in the particular temples which prescribe it, and that is constitutionally protected by Article 16(5) which says, “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination”.

3. Thus the court says “it is the considered view of the court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment.”

You can read the entire judgment here.

In effect, the court has allowed status quo to prevail. The 2006 ordinance by the DMK government has not been taken down, but its implementation will now depend on each and every case. This has opened the door wide for far more litigations over each and every specific case.

The judgement has come under sharp criticism from those who have been seeking equality in appointment of archakas in temples.

“It is against the spirit of constitution by accepting the legitimacy of the agamas. It is a cunning judgment. They have not struck down the GO, but they have made sure it cannot be implemented. It is a shocking judgment,” says Dalit-right activist and General Secretary of VCK, D Ravikumar.

“They have given a new interpretation to article 25 that it does not have just to do with faith but also practices. Does that mean anyone can claim any discriminatory practice as freedom of religion? This is dangerous,” says Ravikumar, adding that, “They have also bypassed article 17 very easily by calling it irrelevant, which is wrong.”

In his public Facebook post on the verdict, senior journalist K Venkataramanan of The Hindu writes, “The judgment fails to note that ‘denomination’ in this context is essentially caste-based and applying it will automatically exclude all communities except Brahmins in most temples. To that extent it has failed to protect the right to equality. It fails to see that Article 16(5) is only an enabling provision to make a law prescribing a denomination for a particular appointment, and not an overarching principle that makes denomination sacrosanct. It ought to have upheld the right of the State to make a law deleting the denominational requirement for the post of priests.”

Further, as The Hindu's Sruthisagar Yamunan asks in his detailed analysis of the verdict, "who would determine if a person fulfilled the eligibility to become part of a particular denomination given that the court itself has admitted the difficulty in finding experts in this field. Do the Agamas allow women to don the role of priests?"

The moot point being made is that in upholding the agama sastras through Article 16(5), the Supreme Court has given a backdoor entry for caste-based practices to exist in the name of denominations. Such being the case, it remains impossible for say Dalits – who have no way of proving their ‘denominations’ – to aspire to become archakas at temples.

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