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K.V. Narayanan Namboodiri and ors. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 6392 of 1981 and 7572 of 1984
Judge
Reported inAIR1985Ker160
ActsConstitution of India - Articles 14, 25, 26 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 11, 40 and 92; (Kerala) Guruvayoor Devaswom Act, 1978 - Sections 3, 4, 4(1), 5(3), 11, 12, 14, 15, 18, 19, 20, 21, 22, 29, 32, 33, 35 and 35(2); Constitutional Law
AppellantK.V. Narayanan Namboodiri and ors.
RespondentState of Kerala and ors.
Appellant Advocate V. Sankara Raja and; Govind Bharathan, Advs.
Respondent Advocate Addl. Adv. General,; Trg. Warrier,; K.P. Dandapani,;
DispositionPetition partly allowed
Cases ReferredIn Commr. of H.R.E. v. L. T. Swamiar
Excerpt:
- - 2. the sree krishna temple at guruvayoor hallowed by legend and the memory of saints like villwamangalam swamiar (leela suka who wrote sree krishna karnamritham), melpathur, (the author of narayaneeyam), poonthanam, (who sang gnanapana) and kururamma, is unique in its importance to the devotees from all over india. renowned devotees like villwamangalam, melpathur, and others are reputed to have their life's mission realised by devotions offered to the deity at guruvayoor. not being satisfied with the provisions contained in the scheme framed by the board, certain worshippers, 24 in number, instituted o. existing law as well as the right of the state to make law providing for social welfare and reform or the throwing open of hindu religious institutions of a public character to all.....balakrishna menon, j.1. by these writ petitions three persons as worshippers inthe sree krishna temple at guruvayoor challenge the constitutional validity of the guruvayoor devaswom act, 1978 (act 14 of 1978). the petitioner in o. p. no. 7592 of 1984 is also the vice-president of the kshetra samrakshana samithi, a society registered under the societies registration act with objects inter alia to see that necessary measures are taken to ensure that the temples in kerala are administered and managed in the interests of the worshippers.2. the sree krishna temple at guruvayoor hallowed by legend and the memory of saints like villwamangalam swamiar (leela suka who wrote sree krishna karnamritham), melpathur, (the author of narayaneeyam), poonthanam, (who sang gnanapana) and kururamma, is.....
Judgment:

Balakrishna Menon, J.

1. By these writ petitions three persons as worshippers inthe Sree Krishna Temple at Guruvayoor challenge the constitutional validity of the Guruvayoor Devaswom Act, 1978 (Act 14 of 1978). The petitioner in O. P. No. 7592 of 1984 is also the Vice-President of the Kshetra Samrakshana Samithi, a society registered under the Societies Registration Act with objects inter alia to see that necessary measures are taken to ensure that the temples in Kerala are administered and managed in the interests of the worshippers.

2. The Sree Krishna Temple at Guruvayoor hallowed by legend and the memory of saints like Villwamangalam Swamiar (Leela Suka who wrote Sree Krishna Karnamritham), Melpathur, (the author of Narayaneeyam), Poonthanam, (who sang Gnanapana) and Kururamma, is unique in its importance to the devotees from all over India. The legend is that the idol, installed in the temple made of a rare stone 'Pathala Anjanam' was presented by Lord Vishnu himself to Lord Brahma who, later on gave it for worship to his son Kashyapa Prajapathi. By subsequent events it came to the hands of Vasudeva, father of Lord Krishna and the idol was worshipped by Vasudeva and Lord Krishna Himself. Lord Krishna at the time of his ascension to the Heavens instructed his foremost disciple Udhava to recover the idol that would be found floating on the surface of waters when Dwaraka would get submerged under the sea and to entrust the same to Brihaspathi, the Guru of the Devas, for its installation at a proper place for the benefit of devotees. Udhava recovered the vigraha as instructed and entrusted the same to Brihaspathi. Brihaspathi, the guru with the help of Vayu installed the idol at an auspicious time and at a place found appropriate. Since the idol was installed by Guru and Vayu, the place itself came to be known as Guruvayoor. Renowned devotees like Villwamangalam, Melpathur, and others are reputed to have their life's mission realised by devotions offered to the deity at Guruvayoor. Millions of devotees throng to the temple throughout the year for worship and devotions. To many a devotee Guruvayoorappan is a devine personality bestowing benedictions and fulfilling their desires.

3. The hereditary trusteeship of the temple vests in the Zamorin Raja of Calicut and the Karanavan of the Mallisseri Illam. There weredisputes between the Zamorin Raja and the Karanavan of the Illam regarding the Oorayma rights. The disputes were finally settled by judgment dated 1-11-1889 of the Madras High Court in A.S. No. 35 of 1887. The Madras Hindu Religious and Charitable Endowments Act, 1926 came into force on 8-2-1927. A scheme for administration of the temple and its properties was settled by the Hindu Religious Endowments Board under Section 63( 1) of the Act. As per the Scheme the day-to-day management of the temple was entrusted to the Zamorin Raja subject to supervision by the Officers of the Board. The Board did not recognise the rights of the karanavan of the Mallisseri Illam for hereditary trusteeship of the temple. Hence he filed O.S. No. 1/1929 in the District Court of South Malabar under Section 63 of the 1926 Act to amend the Scheme recognising his right to be a joint trustee with the Zamorin Raja. The worshippers at whose instance the Board had framed the Scheme also filed a suit, O.S. No. 2 of 1929, in the same Court contending that there was no sufficient safeguards in the Scheme for proper management of the temple and its properties and praying for the constitution of a Board of Trustees consisting also of three non-hereditary trustees, from among the devotees. The District Court by judgment dated 25-10-1929 upheld the claim of the Karanavan of the Mallisseri Illam to be a joint trustee along with the Zamorin Raja and amended the Scheme making provision for joint management by the two hereditary trustees. The judgments in O.S. Nos. 1 and 2 of 1929 are produced along with the counter-affidavit as Exts. R3 (b) and R3(c). The Zamorin Raja of Calicut filed A.S. Nos. 211 and 212 of 1930 before the High Court of Madras against the decision of the District Court. The appeals were disposed of by a common judgment dated 21-11-1930, produced along with the counter-affidavit as Ext. R3(b). The judgment affirmed the decision of the District Court in so far as it recognised the right of the Karanavan of the Mallisseri Illam to function as a joint hereditary trustee. The prayer for appointment of non-hereditary trustees was rejected. A provision was however made for the issue of a public notice intimating the date and time of the opening of Bhandarams in the temple sufficiently in advance to enable the worshippers interested to be present and to ensure that the collections are properly accounted for. A group ofworshippers thereafter filed O.S. No. 1 of 1933 before the District Court, South Malabar for a modification of the scheme and the District Court by judgment dated 10-9-1939 made certain modifications for more efficient administration and management of the temple and its properties. The temple and its properties were being managed and administered as per the provisions of the Scheme settled in O.S. Nos. 1 and 2 of 1929 as modified in O.S. No. 1 of 1933 at the time when the Constitution came into force. After the Madras Hindu Religious and Charitable Endowments Act, 1951 came into force on 30-9-1951, the Commissioner, H.R. & C.E. (Administration Department) filed O.P. No. 3 of 1965 in the Court of the Subordinate Judge of Trichur under Section 62(3)(a) of the Act for modification of the Scheme on lines indicated in a draft Scheme annexed thereto. During the pendency of O. P. No. 3 of 1965 a major portion of the temple was destroyed by fire in 1970. A Commission appointed by the Government to enquire into the cause of the fire came to the conclusion that the accident was the result of prolonged neglect in the matter of maintenance and timely repairs. It was also found that the buildings and the temple were in total disrepair and required immediate attention. The report disclosed gross neglect on the part of those in charge of the administration and management of the temple. Apparently with a view to make provision for proper management and administration of the temple the State Legislature passed the Guruvayoor Devaswom Act, 1971 (Act 6 of 1971), (hereinafter referred to as 'the old Act'). The validity of Act 6 of 1971 was challenged by the hereditary trustees in O. P. 812 of 1971 before this Court on the ground of violation of their fundamental rights under Articles 19(1)(f), 25 and 26 of the Constitution. The writ petition was dismissed by a Full Bench of this Court as per the judgment in Kunhettan Thampuram v. State of Kerala reported in 1973 Ker LT 106 : (AIR 1973 Ker 106). Act 6 of 1971 was amended by Act 12 of 1972 with a view to make provision for the renovation of the temple. The validity of the Act as amended was challenged in O. P. No. 314 of 1973 on behalf of the denomination consisting of the Hindu public having faith in temple worship as violative of Articles 14, 25 and 26 of the Constitution. The writ petition was in a representative capacity on permission granted by this Court under Order I, Rule 8, C.P.C. to thepetitioner therein to represent the denomination. A Full Bench of five Judges of this Court found the operative provisions of Act 6 of 1971 unconstitutional and void and the entire Act was struck down as per the decision in Krishnan v. Guruvayoor Devaswom reported in 1979 Ker LT 350 : (AIR 1978 Ker 68) (FB). The Governor of Kerala immediately thereafter promulgated the Guruvayoor Devaswom Ordinance No. 25 of 1977. It was later replaced by Act 14 of 1978 (hereinafter referred to as the new Act). The new Act purports to cure the infirmities in the old Act pointed out by the Full Bench in its judgment reported in 1979 Ker LT 350 : (AIR 1978 Ker 68).

4. The challenge in these writ petitions relates to Sections 3, 4, 5(3), 6, 14, 18, 29, 32, 33 and 35. If these provisions of the Act are found unconstitutional, the whole Act becomes unworkable and hence it is submitted that the entire Act is to be struck down as violative of Articles 14, 25 and 26 of the Constitution.

5. One of the contentions raised on behalf of the respondents is that the Sree Krishna Temple at Guruvayoor does not belong to any religious denomination, it is a public temple of which the hereditary trusteeship vested in the Zamorin Raja of Calicut and the Karanavan of the Mallisseri Illam, and hence these writ petitions by members of the denomination of Hindus believing in temple worship are not sustainable. We find this contention wholly untenable. It is no longer open to the respondents to raise a plea that the temple does not belong to the denomination of Hindus believing in temple worship. The question is concluded against them by the judgment of the Full Bench in O. P. No. 314 of 1973 reported in 1979 Ker LT 350 : (AIR 1978 Ker 68). As earlier stated, that writ petition was filed in a representative capacity on behalf of all members of the denomination of Hindus believing in temple worship and in that case, it is held that the temple belongs to the said denomination. This Court in its judgment in para 39 held as follows : --

'In the case of the Guruvayoor Temple it has already been seen that the worshipping public had been asserting and exercising their rights under the Madras Hindu Religious Endowments Act and the scheme itself wasoriginally framed by the Board on the petition filed by some worshippers. Not being satisfied with the provisions contained in the scheme framed by the Board, certain worshippers, 24 in number, instituted O. S. 2 of 1929 in the District Court of South Malabar to amend the said scheme. A. S. No. 212 of 1930 was an appeal filed in the Madras High Court by the hereditary trustee Zamorin Raja against the decree passed in that suit. It cannot therefore be said on the facts of this case that the denomination had either surrendered or lost its rights in relation to the administration of the Temple and Us properties by any process known to law prior to the commencement of the Constitution.'

In coming to this conclusion this Court noticed that the Scheme framed under the Madras Hindu Religious Endowments Act, 1926 which governed the temple at the time of the commencement of the Constitution had fully recognised the right of the worshippers to intervene for the purpose of preventing mismanagement of the temple and its properties. It was also mandatory under the provisions of the Act to give notice to 'persons interested' and to hear their representations before any action of consequence such as a modification of the Scheme, the sanctioning of alienation of temple properties etc. was taken up by the Board in relation to the temple and its properties. The 1926 Act defined the expression 'person having interest' in the case of a temple as a person entitled to attend at the performance of worship or service in the temple and who is in the habit of attending at such performance. There is clear finding in the judgment reported in 1979 Ker LT 350 : (AIR 1978 Ker 68) (FB) that the Guruvayoor temple belongs to the denomination of Hindus having faith in temple worship. It is also found in para 45 of the judgment that the denomination has all along been recognised as being the body in whom ultimately rests the right to maintain and administer the temple and the hereditary trustees have been functioning only as its representatives, their actions being liable to be called in question by the denomination either by proceedings before the statutory authorities constituted under the Madras Hindu Religious Endowments Act or before the civil Court by institution of suits as provided for in the said Act.

6. As per Article 25 of the Constitution all persons are equally entitled to freedom ofconscience and the right to freely profess, practice and propagate religion subject to public order, morality and health and also to the other provisions of Part III. Clause (2) of Article 25 saves the existing law and the right of the State to make law for regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Existing law as well as the right of the State to make law 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 are also saved by Clause (2) of Article 25. Article 26 of the Constitution guarantees to every religious denomination of any section thereof, subject to public order, morality and health, the right to (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. 'Religion' is not defined in the Constitution, but in the light of the decisions of the Supreme Court relating to these Articles, it is possible to say that religion is a matter of faith. It concerns the conscience and the spirit of man. In S. P. Mittal v. Union of India, (1983) 1 SCC 51 : (AIR 1983 SC 1) it is noticed that the followers of Ramanuja, the followers of Madhwacharya the followers of Vallabha and the Chishtia Soofies have been found or assumed by the Court to be religious denominations. In Govindlalji v. State of Rajasthan, AIR 1963 SC 1638 : (1964) 1 SCR 561 it was found that the members of the Pushtimargiya Vaishnava Sampradaya constitute a religious denomination in spite of the fact that the number of devotees visiting the Nathdwara Temple in Rajasthan runs into lakhs, there is no organisation which comprehensively represents the devotees as a class and there is no register of devotees. In the light of the decision of the Full Bench in Krishnan's case 1979 Ker LT 350 : (AIR 1978 Ker 68), it is unnecessary to go any further on the question as to whether the Hindu members of the public having faith in temple worship can be considered to be a religious denomination within the meaning of Article 26 of the Constitution.

7. At this stage it is necessary to refer to the salient features of the new Act. The Actpurports to be one to make provision for the proper administration of the Guruvayoor Devaswom. The Preamble of the Act refers to the Scheme under which the temple had been administered, the old Act passed in the interests of the general public and the decision of this Court striking down the old Act as violative of Articles 25 and 26 of the Constitution. It further states that if the administration and control of the temple is vested in the hereditary trustees, the same situation which had rendered it necessary to pass the old Act would again arise and it is in the public interest and in the interests of the worshippers of the temple, the new Act is passed for the proper administration of the Devaswom in accordance with law. Section 3 of the Act enacts that the administration, control and management of the Devaswom shall be vested in a Committee constituted as, per the Act. The Committee shall be a body corporate and shall have perpetual succession and a common seal; it may sue in its own name and may be sued through the Administrator. As per Section 4 the Committee is to consist of (a) the Zamorin Raja, (b) the Karanavan for the time being of the Mallisseri Illam at Guruvayoor, (c) the Thanthri of the temple, ex-officio, (d) a representative of the employees of the Devaswom nominated by the Hindus among the Council of Ministers and (e) not more than five persons, of whom one shall be a member of a Scheduled Caste, nominated by the Hindus among the Council of Ministers from among persons having interest in the Temple. Sub-section (2) enumerates the disqualifications for nomination as members of the Committee. Sub-section (3) provides for the election of a Chairman of the Committee and Sub-section (4) requires the members of the Committee before entering upon office to make and subscribe to an oath in the form mentioned therein. As per Sub-section (1) of Section 5 the nominated members, are entitled to hold office for a period of two years and are eligible for re-nomination. Subsection (2) relates to resignation by a member by notice in writing issued to the Government and Sub-section (3) empowers the Government to remove a member from office for any of the reasons mentioned therein. The member is entitled to a reasonable opportunity to show cause against his removal and is also entitled to institute a suit, in case he is removed from office. Section 6 empowers the Governmentby notification in the Gazette to supersede the Committee for such period not exceeding six months as the Government may deem fit. The section empowers any member of the superseded Committee to institute a suit to set aside the notification of the Government superseding the Committee. The Commissioner under the Act is required to exercise the powers and perform the functions of the Committee during the period of its supersession. Section 7 relates to the meetings of the Committee and Section 8 enacts that the proceedings of the committee shall not be invalidated for any of the defects mentioned therein. Section 9 states the members of the committee are not entitled to salary or other remuneration except such travelling or daily allowance, if any, as may be prescribed. Section 10 enumerates the duties of the committee; Section 11 provides for the sanction of the Commissioner before any property of the Devaswom is sold or alienated. The sanction referred to in the section can be granted only if the Commissioner is satisfied that the alienation in question is necessary or beneficial to the Devaswom. The section provides also for a suit against the order of the Commissioner sanctioning or declining to sanction alienation of property proposed by the committee. Section 12 enacts the limitations of powers of the committee to borrow on behalf of the Devaswom or lend its money to any person. Section 13 requires the committee to submit annual administration reports to the Commissioner. Chapter III of the Act relates to the administration and establishment. Section 14 empowers the Committee to appoint an officer of the Government not below the rank of a Deputy Collector to be the Administrator of the Devaswom from among a panel of names furnished by the Government. The Administrator should be a person professing Hindu Religion and having belief in temple worship. Section 15 provides for the conditions of service of the Administrator. The Government is entitled to appoint an officer of the Government not below the rank of a Deputy Collector to be in additional charge of the office of the Administrator when the post is vacant. Section 17 enumerates the powers and duties of the Administrator. The Administrator is required under Section 18 to prepare and submit an establishment schedule to the committee showing the duties, designations, grades etc. of the officers andemployees of the Devaswom and the committee is required to forward the same to the Commissioner with its recommendations. The Commissioner is entitled to make such modifications as are found necessary and the schedule would come into force on its approval by the Commissioner with or without modifications. The right to appoint officers and employees of the Devaswom is vested in the committee subject to the provisions of Section 19 of the Act. Section 20 requires the Committee to submit proposals to the Commissioner fixing the dittam or scale of expenditure and for allotment of funds for the various objects. The Commissioner is required to scrutinise the proposals and, subject to such modifications or alterations as may be made by him, the proposals submitted by the committee shall be final. The Committee is given a right to file a suit against orders if any passed by the Commissioner on the proposals submitted under Section 20. Chapter IV relates to budget, accounts and audit. Under Section 27 the committee is authorised to incur expenses for the purposes mentioned therein. The Committee is entitled to take and be in possession of all movable and immovable properties belonging to the Devaswom (vide Section 28). Section 29 relates to the protection of action taken by the Government, the Commissioner, the Committee or any member thereof or the Administrator or any other person acting under the instructions of the Committee for anything done in good faith or intended to be done under the Act or the Rules made thereunder. Section 32 enacts a bar of suits against any orders passed, decisions made or proceedings taken or other things done under the Act by the Government or the Commissioner except as expressly provided in the Act. Section 33 confers a power of revision on the Government in respect of the proceedings of the Commissioner or the Committee in all cases where no suit or application before a court is provided for under the Act. Section 34 enacts a saving clause in respect of any honour, emolument or perquisite to which any person is entitled by custom or otherwise from or in the Devaswom, or its established usage in regard to any other matter. Section 35(1) enacts a prohibition against the Committee or the Commissioner or the Government from interfering with the religious or spiritual matters pertaining to the Devaswom, and as per Sub-section (2) the decision of the Thanthri shall be final in all such matters,Sec. 36 relates to a transitory provision for removal of difficulties that may arise in giving effect to the provisions of the Act. Section 38 empowers the Government by notification in the Gazette to make rules to carry out the purposes of the Act. The Committee is authorised under Section 39 to make regulations not inconsistent with the provisions of the Act and the rules made thereunder to provide for the manner in which the duties imposed on it under the Act and its functions thereunder are to be discharged. Section 40 enacts that the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 shall cease to apply to the Guruvayoor Devaswom. Section 41 repeals the Guruvayoor Devaswom Act, 1971 and saves the orders passed, decisions made etc. under the Repealed Act in so far as they are not inconsistent with the provisions of the new Act. As per Section 42 the committee constituted under Section 4 shall be the successor of the Renovation Executive Committee constituted under the old Act. Section 43(1) repeals the Guruvayoor Devaswom Ordinance, 1977 and under Sub-section (2) anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the new Act.

8. The main provisions of the Act are challenged as violative of Articles 25 and 26 of the Constitution. The ambit and reach of these Articles are settled by the decision of the Supreme Court in Commr. H.R.E. v. L. T. Swamiar, AIR 1954 SC 282 and the decisions following the same. Article 25 secures to every person, subject to public order, health and morality, the freedom not only to entertain such religious belief, as may be approved by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper to propagate or disseminate his ideas for the edification of others. As per Clause (b) of Article 26 every religious denomination or any section thereof is entitled to manage its own affairs in matters of religion. The language indicates that there would be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. Clauses (c) and (d) of Article 26 guarantee to every religious denomination the right to acquire and own properties and to administer such property in accordance with law. Referring to the rights under Article 26(d) the Supreme Court in Commr. H.R.E. v. L. T. Swamiar, AIR 1954 SC 282 states at page 289 :--

'(17)..... The administration of itsproperty by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose.'

In the decision in Ratilal v. State of Bombay, AIR 1954 SC 388 it is stated at page 391 :--

'The language of the two els. (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; hut here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution'.

The same view is expressed in Govindlalji v. State of Rajasthan, (1964) 1 SCR 561 at p. 624 : (AIR 1963 SC 1638 at p. 1662) and also in S. P. Mittal v. Union of India, (1983) 1 SCC 51 at p. 102 : (AIR 1983 SC 1 at p. 32).

9. As per Section 3 of the new Act the administration, control and management of the Devaswom shall be vested in a Committee constituted under the Act. In considering the validity of a similar provision in Section 3 of the old Act the Full Bench in Krishnan's case 1979 Ker LT 350 : (AIR 1978 Ker 68) stated thus at page 376 (of Ker LT) : (at p. 91 of AIR) :--

'40..... Section 3 which states that theadministration, control and management ot the Devaswom shall be vested in a Committee called 'The Guruvayoor Devaswom ManagingCommittee' constituted in the manner provided in Section 4 is by itself unobjectionable provided that the Committee constituted under Section 4 can reasonably be regarded as a body representative of the denomination.'

The Full Bench however found that the Committee constituted under Section 4 of the old Act is not representative of the denomination and hence Section 3 takes away the right of the denomination to administer the properties of the Devaswom. At page 378 (of Ker LT) : (at p. 93 of AIR) the Full Bench observed :--

'The right to administer the Temple being vested in the denomination any statutory provision which completely ignores the denomination in the matter of setting up the Committee to administer the religious institution belonging to the denomination will necessarily be violative of Article 26 of the Constitution.'

Under Section 4 of the old Act the Committee was to consist of the two hereditary trustees, namely, the Zamorin Raja of Calicut and the Karanavan of the Mallissori Illam; three ex-officio members, namely, the Administrator appointed under Section 14, the Chairman of the Guruvayoor Township Committee and the Thanthri of the Temple; a representative of the employees of the Devaswom nominated by the Government; and not more than eleven persons nominated by the Government, of whom one shall be a Harijan. Thus out of the seventeen members constituting the committee, as many as twelve members are persons nominated by the Government; and even out of the remaining five, two are Government officers. The section also did not provide any guideline as to how the persons to be nominated are to be chosen by the Government. The only qualification stated was that the persons to be nominated must be professing Hindu Religion. It was found that a person professing the Hindu Religion need not necessarily be a believer in temple worship. He may be completely opposed to the practice of idol worship. The Full Bench observed that it is well known that there are sections of Hindus whose schools of thought and philosophy do not consider idol worship, rituals and ceremonials as necessary or even conducive to the spiritual progress of man. It was also noticed that there are political dogmas and social theories openly condemning such forms of worship as being based on meresuperstition and ignorance. There was nothing preventing the Government from nominating such persons to the Committee merely for the reason that they are born Hindus and have not openly renounced the Hindu faith by any recognised process. It was found that a Committee constituted of such members will hardly be representative of the denomination of Hindus having faith in temple worship. It was for these reasons that Sections 3 and 4 of the old Act were struck down as opposed to Article 26 of the Constitution.

10. Section 4 of the new Act relates to the composition of the committee. The Committee consists of (a) the Zamorin Raja; (b) the Karanavan for the time being of the Mallisseri lllom at Guruvayoor; (c) the Thanthri of the temple, ex-officio; (d) a representative of the employees of the Devaswom nominated by the Hindus among the Council of Ministers; and (e) not more than five persons, of whom one shall be a member of a Scheduled Caste, nominated by the Hindus among the Council of Ministers from among persons having interest in the Temple. The expression 'person having interest in the Temple' is defined in Section 2(f) to mean 'a person who is entitled to attend at, or is in the habit of attending, the performance of worship or service in the Temple or who is entitled to partake, or is in the habit of partaking, in the benefit of the distribution of gifts thereat'. As per Sub-section (2) of Section 4 a person shall be disqualified for being nominated under Clause (e) of Sub-section (1), if (i) he believes in the practice of untouchabilily or does not profess the Hindu Religion or does not believe in temple worship; or (ii) he is an employee under the Government or the Devaswom; or (iii) he is below thirty years of age; or (iv) he is engaged in any subsisting contract with the devaswom; or (v) he is subject to any of the disqualifications mentioned in Clauses (a), (b) and (c) of Sub-section (3) of Section 5. Sub-section (4) of Section 4 requires every member of the Committee, before entering upon office, to make and subscribe to an oath in the presence of the Commissioner in the form mentioned therein. The form of the oath requires that the member to swear in the name of God that he professes the Hindu Religion and believes in temple worship and does not believe in the practice of untouchability. The provisions of Section 4 clearly indicate that the Committee to be constitutedshould consist of members belonging to the denomination of Hindus having faith in temple worship. The Zamorin Raja and the Karanavan of the Mallisseri Illam are the hereditary trustees who were representing the denomination before the old Act had come into force. The Thanthri holds a hereditary post in the Temple and there can be no doubt that he is also a person competent to represent the denomination. The persons nominated under Clauses (d) and (e) of Sub-section (1) are required to subscribe to an oath to affirm faith in Hindu Religion and belief in temple worship. One of the reasons to invalidate Section 4 of the old Act by the Full Bench was that the persons nominated were not required to have faith in temple worship. There is nq such defect in Section 4 of the new Act. In Govindlalji's case (1964 (1) SCR 561 ; AIR 1963 SC 1638) it was found that the Nathdwara Temple at Rajasthan is a public temple, the Tilkayat was only its custodian and Manager, by a Firman issued by the Rana of Udaipur in 1934, the Udaipur Darbar had absolute rights to supervise the administration of the temple and its properties including also the right to depose the Tilkayat, and the right of administration of property and management of the Devaswom is purely a secular matter in the regulation of which it was open to the State to enact the Nathdwara Temple Act of 1959. It is stated at page 624 (of SCR) : (at p. 1662 of AIR) :--

'It is true that under the guise of regulating the administration of the property by the denomination, the denomination's right must not be extinguished or altogether destroyed. That is what this Court has held in the case of the Commr. Hindu Religious Endowments, Madras and Ratilal Panachand Gandhi v. State of Bombay (AIR 1954 SC 282 and AIR 1954 SC 388).'

In regard to the nomination of the members to the Board of Management of the Nathdwara Temple, the Supreme Court observed at page 626 (of SCR) : (at pp. 1662-63 of AIR):--

'We have already construed Section 5 and we have held that Section 5(2)(g) requires that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti-Margiya Vallabhi Sampradaya. It is true that these members are nominated by the State Government, but we have not been told how else this could have been effectively arranged in the interests of the temple itself.

The number of the devotees visiting the temple runs into lacs; there is no organisation which comprehensively represents the devotees as a class; there is no register of the devotees and in the very nature of things, it is impossible to keep such a register. Therefore, the very large mass of Vallabh's followers who constitute the denomination can be represented on the Board of management only by a proper nomination made by the State Government, and so, we are not impressed by the plea that the management by the Board constituted under the Act will not be the management of the denomination. In this connection, we may refer to Clause I of the Firman which vested in the Darbar absolute right to supervise the management of the property. As a successor-in-interest of the Darbar, the State of Rajasthan can be trusted to nominate members on the Board who would fairly represent the denomination. Having regard to all the relevant circumstances of this case; we do not think that the legislature could have adopted any other alternative for the purpose of constituting the Board. Therefore, we must hold that the challenge to the validity of the Act on the ground that it contravenes Articles 25(1), 26(b) and 26(d) must be repelled.'

Considering the question of validity of Section 4 of the old Act, the Full Bench in Krishna's case 1979 Ker LT 350 stated at page 377 : (AIR 1978 Ker 68 at p. 92) :--

'41. Though it was contended by the petitioner that the power of nomination of the members of the Managing Committee who will virtually be functioning as the trustees of the Temple should not be vested in the executive Government we are not prepared to go to the extent of holding that the conferment of the power of nomination on the Government is by itself illegal. We may, however, observe that in the light of the recent amendment of the preamble to the Constitution emphasising the secular character of the State it is desirable that the legislature should consider whether the power to nominate the members of the Committee should not be conferred on an independent statutory body other than the State Government with sufficient guidelines furnished to it for ensuring that the nominations will be effected in such a way as to be truly representative of the denomination consisting of the worshipping public.'

11. Section 4 of the old Act was declaredunconstitutional for the reason that the Committee constituted thereunder need not necessarily be representative of the denomination and hence it was a serious infringement of the right of the denomination to administer the temple and its properties and was found to be in clear violation of Article 26(d) of the Constitution. It was also in the context of Article 26(d) that the Full Bench considered the question as to the validity of the power vested in the Government to nominate members to the Committee. Even though the provision vesting such a power on the Government need not be held to be invalid, it was, nevertheless, felt advisable to have an independent statutory body invested with power to nominate members to the Committee with sufficient guidelines furnished for ensuring that the nominees are truly representatives of the denomination.

12. We have already seen that under Section 4 of the new Act the Committee is to consist of persons representing the denomination. The nominations under Clauses (d) and (e) of Sub-section (1) of Section 4 are, to be effected by the Hindus among the Council of Ministers. A similar provision in the Travancore-Cochin Hindu Religious Institutions Act (T.C. Act 15/1950) was held valid by a Full Bench of the Travancore-Cochin High Court in Nambooripad v. C. D. Board AIR 1956 Trav-Co. 19. The Full Bench observed at page 22 :--

'(8)..... What Section 63 has done is to createtwo electoral colleges, one consisting of the Hindus from among the Council of Ministers and the other from among the Hindu members of the Legislative Assembly and considering the nature and functions of the Board the restriction of the membership of the electoral colleges to members of the Hindu faith appears to be eminently reasonable.

Whether the voting should be by all the adults professing the Hindu faith or by an electoral college is but a matter of policy. So also are the qualifications which the members of an electoral college should possess and there is apparently nothing wrong in saying that the members of the college shall be not merely be Hindus but also Members of the Cabinet or of the Legislative Assembly thus emphasising the ability and aptitudes implicit in the membership of such democratic institutions.

In imposing such a qualification, no wedge is being driven between the Hindu members of the Council of Ministers and the Legislative Assembly, and those who do not follow the Hindu faith. The special needs of a situation will always demand a special treatment and so far as we can see there is no violation of the right to equality guaranteed by Article 14 of the Constitution.'

13. Counsel for the petitioners points out that in the context of varying political situations in the State, it is quite possible that there may not be a Hindu among the Council of Ministers in the State, and even if there are Hindus among the Council of Ministers, they need not be persons having faith in the Hindu Religion and belief in temple worship. It is also pointed out that the term of office of a Committee constituted under the Act may expire at a time when there is no Council of Ministers functioning in the State as it is not uncommon and there were occasions when the State was under President's Rule. The Supreme Court in Commr. H.R.E. v. L. T. Swamiar, AIR 1954 SC 282 observed at page 290 : --

'Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jamism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.'

Latham. C. J. in Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth (1943) 67 CLR 116 stated at page 123 : --

'What is religion to one is superstition to another.'

It was in view of such conflicting ideologies that the Full Bench of this Court in the passage quoted above thought it desirable to have anindependent statutory body for the purpose of effecting nominations to constitute the Committee of Management of the Devaswom with such guidelines as to ensure that the members nominated truly represent the denomination. Even though the power of nomination vested in the Hindu members among the Council of Ministers cannot be held to be invalid as opposed to Article 14 of the Constitution as held by the Full Bench of the Travancore-Cochin High Court, it cannot be said that the purpose of an independent body envisaged in the decision of the Full Bench in Krishna's case (AIR 1978 Ker 68) had been fully achieved. If the statutory body empowered to effect nominations to the Committee consists of members who do not have belief in temple worship and may be even opposed to it cannot be entrusted with the task of nominating members representing the denomination of Hindus having belief in temple worship. The requirements of Article 26(d) will be satisfied only if those in charge of administration of the Devaswom represent the denomination. It is therefore necessary to ensure that the Hindus among the Council of Ministers empowered to nominate members to the Committee are also persons having belief in temple worship. Shri T. R. G. Warrier, Advocate, appearing on behalf of the State of Kerala and the Additional Advocate General appearing on notice issued by this Court submit that Clauses (d) and (e) of Section 4(1) may be so construed as to mean that the Hindus among the Council of Ministers should also be persons having belief in temple worship. We record this submission made on behalf of the respondents and construe Clauses (d) and (e) of Section 4(1) as entrusting the power of nomination of members to the Committee to the Hindu members among the Council of Ministers having belief in temple worship.

14. The contingency of there being none among the Council of Ministers professing the Hindu Religion and having faith in temple worship and the possibility of there being no Council of Ministers at a time when nominations are to be effected are urged as grounds to invalidate the section. It is also pointed out that there are no guidelines in the Act for effecting nominations to the Administrative Committee and the arbitrary power vested in the Hindu members of the Council of Ministers is opposed to Article 14 ofthe Constitution. Strong reliance is placed in the decision in Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 : (AIR 1981 SC 487) wherein the new dimension of Article 14 of the Constitution laid down in E. P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 : (AIR 1974 SC 555), Maneka Gandhi v. Union of India (1978) 1 SCC 248 : (AIR 1978 SC 597) and in R. D. Shetty v. International Airport Authority of India ((1979) 3 SCC 489) : (AIR 1979 SC 1628) is emphasised, and stated at page 741 (of SCC) (at p. 499 of AIR) :--

'It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.'

In A. L. Kalra v. Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361 after referring to Royappa's case (AIR 1974 SC 555) and Ajay Hasia's case (AIR 1981 SC 487) it is stated at page 1367 : --

'It thus appears well settled that Article 14 strikes at arbitrariness in executive/ administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equality of protection by law. The Constitution Bench pertinently observed in Ajay Hasia's case andput the matter beyond controversy when it said 'wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Art 12, Article 14 immediately springs into action and strikes down such State action'. This view was further elaborated and affirmed in D. S. Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130. In Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : AIR 1978 SC 597, it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14.'

15. It cannot, however, be said that there are no guidelines in the new Act for the nomination of members to the Administrative Committee. The persons nominated are required to subscribe to an oath before the Commissioner that they profess the Hindu Religion and believe in temple worship. Nominations are to be effected by the Hindus among the Council of Ministers, and, in the way that we have construed Clauses (d) and (e) of Sub-section (1) of Section 4, they should also have faith in temple worship. In State of Mysore v. M. L. Nagada (1983) 3 SCC 253 : (AIR 1983 SC 762) it is stated at page 259 (of SCC) : (at pp. 765-66 of AIR) : -

'13..... It is by now well-recognisedthat guideline need not be found in the impugned provision. The same may be collected from the setting in which the provision is placed, the purpose for which the Act is enacted and even the Preamble of the statute in which the provision is incorporated. A legislation or statute is enacted to achieve some public purpose and the policy of law and the object sought to be achieved can furnish reliable guidelines for the exercise of discretionary power.'

The object and purpose of the Act as can be gathered from its Preamble is to put an end to the mismanagement of the Temple and its properties and to provide for an effective machinery for proper administration and management of the Devaswom. The Preamble refers also to the old Act struck down by a Full Bench of this Court as violative of Articles 25 and 26 of the Constitution and the new Act purports to remedy the defects pointed out bythe Full Bench in making provisions for the administration and management of the temple and its properties. As per Section 35 of the old Act the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 continued to apply to the Guruvayoor Devaswom except in respect of matters relating to which provision had been made in the Act. Section 5(3)(e) of the Madras Act excluded the operation of Sections 92 and 93 of the Code of Civil Procedure in so far as they relate to the Hindu Religious Institutions and Endowments. The effect of Section 35 of the old Act was to bar suits under Section 92 of the C.P.C. The new Act by Section 40 has completely excluded the operation of the Madras Hindu Religious and Charitable Endowments Act, 1951 to the Guruvayoor Devaswom. As at present there is no bar of suit under Section 92 of the C.P.C. if the nominations effected to the Administrative Committee are not in the best interests of the Devaswom. The administration of the Devaswom in regard to its secular affairs is vested in the Committee constituted under the Act. We have already seen that the Committee is fully representative of the denomination. The disqualifications under Section 4(2) take in also want of belief in temple worship. There are, therefore, sufficient guidelines gatherable from the Act itself for the nomination of members to the Administrative Committee. A right of suit under Section 92 C.P.C. is still available to persons interested against a wrong nomination. In Commr. of H.R.E. v. L. T. Swamier AIR 1954 SC 282 in considering the validity of the Madras H. R. & C.E Act, 1951 the Supreme Court observed at page 292 : --

'(24)..... An apprehension that thepowers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law.'

16. The mere possibility of there being no Hindu member in the Council of Ministers having belief in temple worship or the possibility of there being no Council of Ministers at a time when the nominations are to be affected, are not sufficient to invalidate the section itself. It is, no doubt true the legislature should have taken note of such possibilities, even though remote, and should have provided for the continuance of the existing committee even after the expiry of its terms of office until a new committee isconstituted. In the decision in R. K. Garg v. Union of India (1981) 4 SCC 675 : (AIR 1981 SC 2138) the Supreme Court, with reference to the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981, stated at page 691 (of SCC) : (at p. 2147 of AIR) :--

'The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.'

It is, therefore, clear that the remote possibilityof there being no Hindu Minister having beliefin temple worship in the Council of Ministersat some future point of time or the absence ofa Ministry at a time when the term of office ofan existing committee expires is not a validground to invalidate the section itself. Theseare all matters for the Legislature to foreseeand provide for such contingencies. Aprovision for the continuance of an existingcommittee after the expiry of its term until anew committee is constituted will be a sufficientsafeguard against the contingencies pointed;out by councel on behalf of the petitioners in jthese writ petitions. J17. Sections 5(3) and 6 of the Act arechallenged as violative of Articles 14, 25 and 26of the Constitution. As per Sub-section (1) of Section 5a member nominated under Clause (d) or Clause (e) of Sub-section (1) of Section 4 shall holdoffice for a period of two years from the dateof his nomination and shall be eligible for re-nomination. As per Sub-section (3) of Section 5 theGovernment may, by order, remove fromoffice a member referred to in Sub-section (1) if(a) he is of unsound mind and stands sodeclared by a competent court; or (b) he hasapplied for being adjudged as an insolvent, oris an undischarged insolvent; or (c) he hasbeen convicted of any offence involving moralturpitude; or (d) they are satisfied that he hasbeen guilty of corruption or misconduct in theadministration of the Devaswom; or (e) hehas absented himself for more than threeconsecutive meetings of the Committee and isunable to explain such absence to thesatisfaction of the Committee; or (f) he, being a legal practitioner, has acted or appeared on behalf of any person against the Devaswom in any legal proceeding after he has been nominated as a member of the Committee; or (g) he ceases to profess the Hindu Religion or to believe in temple worship; or (h) he has committed or abetted the commission of any act in support or furtherance of the practice of untouchability. Sub-section (4) of Section 5 enjoins that a member shall not be removed under Sub-section (3) unless he has been given a reasonable opportunity of showing cause against his removal, and under Sub-section (5) a member who is removed under Sub-section (3) is given a right to institute a suit to set aside the order of removal within one month from the date of receipt of the order by him. Section 6 empowers the Government, by notification in the Gazette, to supersede the Committee for such period not exceeding six months, as the Government may deem fit, if, after enquiry, the Government forms the opinion that the Committee is not competent to perform or makes defaults in performing the duties imposed on it under the Act or abuses or exceeds its powers. Sub-section (2) of Section 6 requires the grounds, upon which the Government proposes to supersede the Committee, to be communicated to the Committee and to give the Committee a reasonable opportunity to show cause against the proposal The Government is required to consider the explanations and objections of the Committee before an order is passed superseding the Committee. Sub-section (3) of Section 6 confers a right on the Committee to institute a suit against the order of supersession within a period of one month from the date of publication of the order in the Gazette. Sub-section (4) empowers the Commissioner to exercise all the powers and perform the functions of the Committee until the expiry of the period of its supersession. There are observations in the judgment of the Full Bench in Krishnan's case 1979 Ker LR 350 at p. 381 : (AIR 1978 Ker 68 at p. 97) that Section 5 of the old Act empowering the Government to remove a member of the Committee and Section 6 empowering supersession of the Committee are opposed to Articles 25 and 26 of the Constitution and the principle of secularism enshrined in the Preamble (as amended by the Constitution 42nd Amendment Act) as forming the basic feature of our Constitutionalstructure. Since, however, the Full Bench had held Section 4 of the old Act invalid as opposed to Articles 25 and 26(d) of the Constitution, it was found unnecessary to pronounce upon the validity of Sections 5 and 6 of the said Act. As per Sub-section (5) of Section 5 of the old Act, an order of removal of a member passed by the Government was final and was not liable to be questioned in a Court of law. The power of supersession vested in the Govt. under Section 6 of the old Act was also absolute and was not liable to be questioned in a Court of law. The Full Bench pointed out that by virtue of these provisions in the old Act the members of the Committee are to hold office during the arbitrary pleasure of the Government liable to be removed on the subjective opinion that the presence of the member concerned in the Committee is prejudicial to the interests of the Devaswom. So also an order of supersession under the old Section 6 could be passed on the subjective opinion of the Government that the Committee is not competent to perform or makes defaults in performing the duties imposed on it by the Act or exceeds or abuses its powers. The Full Bench noticed that the provisions contained in Sections 5 and 6 of the old Act had the effect of curbing the independence of the Committee and converting it into a body subservient to the executive Government The old Act conferred naked and absolute powers on the Government to remove a member and to supersede the Committee without any remedy to the member or the Committee even to institute a suit.

18. Section 5(3) of the new Act enumerates the grounds on which a member of the Committee can be removed by the Government. The power conferred on the Government is not arbitrary and the section itself contains in-built safeguards against arbitrary action by the Government. The member concerned is entitled to a reasonable opportunity of showing cause against his removal. He is also given a right to institute a suit in a civil Court to set aside the order of removal. The State is entitled to make law regulating the secular affairs of the Devaswom under Article 26(d) of the Constitution. It cannot be said that the investiture of power in the Government to remove a member from the Committee for any of the reasons enumerated in Sub-section (3) of Section 5 after giving him a reasonable opportunity and conceding to hima right of suit is not within the permitted bounds under Article 26(d) of the Constitution. Almost a similar provision in Section 46 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 investing the Commissioner appointed under the Act with power to remove a Mathadhipathi was upheld by the Supreme Court in the decision in Digyadarsan R. R. Varu v. State of A. P., AIR 1970 SC 181. It is stated at page 186 :--

'6..... The grounds on which hisremoval as mathadhipathi can be ordered have been specifically provided arid no exception has been or can be taken to them. The main attack is based on the power given to the Commissioner instead of the Court to make an inquiry into or try the allegations or charges against the Mahant and order his removal if such charges are established. It is not possible to see how a procedural change of this nature can be regarded as contravening either Article 19(1)(f) or Article 14 of the Constitution which is the other Article which has been pressed into service. The procedure which has been laid down makes all the proceedings before the Commissioner quasi-judicial. This is particularly so when the provisions of Section 104 of the Act are kept in view. Moreover if any order of removal is made that can be challenged in a Court of law and there is a further right of appeal to the High Court.'

The challenge against Section 46 of the Andhra Act was negatived and the section was upheld as falling within the permissible limits under Article 26(d) of the Constitution.

19. The power of supersession of the Committee for a short period not exceeding six months vested in the Government for any of the reasons mentioned in Sub-section (1) of Section 6 cannot also be assailed as arbitrary. The administration, control and management of the Devaswom vested in the Committee relate only to the secular affairs of the Devaswom. The power of supersession vested in the Government under Sub-section (1) of Section 6 is only regulatory of the Committee's right of administration of the secular affairs of the Devaswom within the meaning of Article 26(d) of the Constitution. The superseded Committee is also given a right of suit under Sub-section (3) of Section 6. In the view that we are taking in this judgment about the validity of Section 32 of the Act, the denomination will alsohave a right of suit under Section 92 of the C.P.C. We, therefore, hold that Sections 5 and 6 are not invalid for any of the reasons urged before us.

20. There is no specific challenge of Sections 11 and 12 of the Act. Section 11 requires the previous sanction of the Commissioner for alienation of the Devaswom properties on his satisfaction, after following the procedure prescribed in the section, that the alienation concerned is necessary or beneficial to the Devaswom. Section 12 imposes limitations on the power of the Committee to borrow or lend money unless sanctioned by the Commissioner as being necessary or beneficial to the Devaswom. Both these sections are only to safeguard the interests of the Devaswom and are within the competence of the Legislature under Article 26(d) of the Constitution.

21. Section 14 of the new Act is challenged as an unreasonable restriction on the right of the denomination to administer and manage its properties. Sub-section (1) of Section 14 requires the Committee to appoint an officer of Government not below the rank of a Deputy Collector to be the Administrator for the Devaswom from among a panel of names furnished by the Government. As per Sub-section (2) no person shall be appointed under Sub-section (1) unless he professes the Hindu Religion and believes in temple worship. Section 15 lays down the conditions of service of the Administrator. The Administrator shall be a full-time officer of the Devaswom and shall not undertake any work unconnected with his office without the permission of the Committee. He has to be paid out of the funds of the Devaswom such salary and allowances as the Government may, with the concurrence of the Committee, fix in that behalf. The Devaswom is required to contribute towards leave allowances, pension and provident fund of the Administrator to the extent required by the rules for the time being in force. The Government is required to withdraw the Administrator from office if a resolution recommending such withdrawal is passed by a majority of not less than two-thirds of the total membership of the Committee. Subject to the aforesaid provisions the conditions of service of the Administrator shall be such as may be determined by the Committee by regulations made in that behalf. Under Section 14 of the old Act the power to appoint an Administratorwas vested in the Government, and the Government was empowered to make rules providing for the manner of exercise of control by the Committee over the actions of the Administrator. Construing also the rules framed under the old Act the Full Bench in Krishnan's case 1979 Ker LT 350 stated at page 383 : (AIR 1978 Ker 68 at p. 99)

'50..... Section 14 in so far as it deprivesthe Committee of the crucial power to appoint its own Secretary who is also to be the chief executive officer of the Temple and confers such power on the secular Government undoubtedly makes a serious inroad into the fundamental right guaranteed to the denomination under Article 26(a), (b) and (d).....'

Section 15(4) of the old Act was held invalid for the following reason : --

'50..... The Administrator being anofficer of the Devaswom it should be left to the Committee to regulate his conditions of service and to exercise effective control over his work and conduct inclusive of full powers to take disciplinary proceedings for any misconduct. In so far as Section 15(4) violates the above principle it interferes with the denomination's right to administer the Temple under Article 26 and has to be declared invalid.'

There are no such infirmities as pointed out by the Full Bench in Sections 14 and 15 of the new Act. The Administrator is to be appointed by the Committee from a panel of names furnished by the Government. It is contended on behalf of the petitioners that if the Government submjts a panel only of two names, the Committee is obliged to appoint one of them as the Administrator of the Devaswom. We see no substance in this contention. It is open to the Committee to require the Government to submit a panel of as many names as it may deem fit and the Government is obliged to submit a panel under Sub-section (1) of Section 14 as requisitioned by the Committee. It is also stated in the counter-affidavit filed on behalf of the respondents that it is open to the Committee to reject the panel of names and call for a fresh panel for the purpose of appointment of an Administrator. Sub-section (1) of Section 14 does not in any way preclude the Committee from rejecting a panel and requiring a fresh panel of names to be submitted by the Government. The Committee represents, the denomination and the powerof appointment of an Administrator is vested in the denomination itself. Section 17 of the new Act expressly enacts that the Administrator shall be the Secretary to the Committee and its Chief Executive Officer and shall, subject to the control of the Committee, have powers to carry ou't its decisions in accordance with the provisions of the Act, Subject to Sub-sections (1), (2) and (4) of Section 15 the conditions of service of the Administrator shall be such as may be determined by the Committee by regulations made in that behalf. The salary and allowances of the Administrator are to be fixed by the Government with the concurrence of the Committee. The Government is obliged to withdraw the Administrator from office if a resolution recommending such withdrawal is passed by a two-thirds majority of the total membership of the Committee. From these provisions of the Act it is clear that the effective control over the Administrator is vested in the Committee. Sections 14 and 15 are perfectly valid and are within the permissible limits under Article 26(d) of the Constitution.

22. We do not also see any substance in the challenge against Section 18 of the new Act requiring the Administrator to submit a schedule to the Committee setting forth the duties, designations and grades of the employees who constitute the establishment of the Temple for transmission to the Commissioner with its recommendations for approval The Commissioner, after considering the recommendations of the Committee, is empowered to approve the schedule with or without modifications as he deems necessary and the establishment schedule will come into force on its approval by the Commissioner. These provisions of the Act are to safeguard the secular interests of the Devaswom and are perfectly within the permitted limits under Article 26(d) of the Constitution. Considering thequestion of validity of Section 54 of the Madras H.R. & C.E. Act, 1951, the Supreme Court in the Commr. of H.R.E. v. L. T. Swamiar, AIR 1954 SC 282 stated thus at page 293 : -

'(31)..... There seems to be nothingwrong or unreasonable in Section 54 of the Act which provides for fixing the standard scale of expenditure. The proposals for this purpose would have to be submitted by the trustee; they are then to be published and suggestions invited from persons having interest in the amendment. The Commissioner is to scrutinisethe original proposals and the suggestions received and if in his opinion a modifications of the scale is necessary, he has to submit a report to the Government, whose decision will be final. This we consider to be quite a reasonable and salutary provision.'

23. Section 19 of the Act invests the Committee with power to appoint all officers and other employees of the Devaswom. Selection of officers and employees is to be made by a sub-committee constituted by the Committee from among its members and the procedure for selection is to be determined by the Committee by regulations made in that behalf. Section 19 is in recognition of the right of the denomination to administer its properties. Section 20 of the Act requiring the Committee from time to time to submit to the Commissioner proposals for fixing the dittam or scale of expenditure to the Devaswom, publication of the proposals and scrutiny by the Commissioner with power of modification vested in him are all in the interests of the Devaswom and cannot be assailed as violative of Article 26(d) of the Constitution. Sub-section (4) of Section 20 authorises the Committee to file a suit to set aside or modify any order passed by the Commissioner altering or modifying the proposals submitted by the Committee. The provisions of Section 20 are similar to the provisions of Section 54 of the Madras H.R. & C.E. Act found valid by the Supreme Court in the Commr., H.R.E. v. L. T. Swamiar (AIR 1954 SC 282).

24. The power of supervision in regard to the administration of the Devaswom vested in the Commissioner appointed under the new Act is challenged as violative of Article 26(d) of the Constitution. Section 2(b) of the Act defines the 'Commissioner' to mean 'an officer not below the rank of Secretary to the Government, who professes the Hindu Religion and believes in Temple worship, appointed by the Government, by notification in the Gazette, to be the Commissioner for the purposes of this Act.' We have already seen the powers of the Commissioner under Sections 11, 12, 13, 18 and 20 of the Act and those sections are found valid. As per Section 21 of the Act the Committee is required before the end of March in each financial year to submit to the Commissioner a budget estimate of the receipts and expenditure of the Devaswom for the following financial year makingadequate provision for (a) the dittam or scale of expenditure for the time being in force; (b) the due discharge of all liabilities binding on the Devaswom; (c) the repair and renovation of buildings connected with the Devaswom; and (d) the maintenance of a working balance. Under Sub-section (3) of Section 21 the Commissioner may, after giving notice to the Committee in the prescribed manner and after considering its representations, if any, make such alterations, omissions or additions in the budget as he may deem fit; and under Sub-section (4) he is required to send a copy of the budget as approved by him to the Government. Section 22 provides for supplementary budget with a proviso that no alteration shall be made to the working balance without the consent of the Commissioner. These provisions in the Act conferring a supervisory jurisdiction on the Commissioner are perfectly valid and are within the competence of the Legislature under Art 26(d) of the Constitution. The Commissionerunder the Act is an officer of the rank of a Secretary to the Government and belonging to the denomination. Thus the power of supervision with regard to matters of administration vested in the Commissionerunder the Act are for the proper administration of the Devaswom in regard to its secular affairs. Similar powers vested in the Commissioner under the Madras H.R. & C.E. Act, 1951 were held valid by the Supreme Court in paragraphs 26 to 31 and 37 of its judgment in the Commr., H.R.R v. L. T. Swamiar (AIR 1954 SC 282). We have already adverted to the decision of the Supreme Court in Digyadarsan R. R. Varu's case AIR 1970 SC 181 where Section 46 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act was held valid A power to alter or modify the budget proposals vested in the Bihar State Board of Religious Trusts constituted under the Bihar Hindu Religious Trusts Act, 1950 was held valid in the decision of the Supreme Court in Moti Das v. S. P. Sahi, AIR 1959 SC 942. It is stated at page 949 : --

'(13) ..... On behalf of the appellantsit has been submitted that the power to alter or modify the budget relating to a religious trust or the power to give directions to a trustee may be exercised by the Board in such a way as to affect the due observance of religious practices in a math or templeso as to constitute an encroachment on -the rightguaranteed under Article 25, and learned counsel for the appellants had placed reliance on 1954 SCR 1005 : AIR 1954 SC 282, for his submission that freedom of religion in our Constitution is not confined to religious beliefs only, but extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. The answer to this submission is twofold : we have pointed out earlier that the power to alter the budget is subject to CL (6) of Section 60 of the Act and the Board is not authorised to alter or modify the budget in a manner or to an extent inconsistent with the wishes of the founder or with the provisions of the Act. The power to give directions to the trustee is also subject to a similar restriction, namely, the directions must be for the proper administration of the religious trust in accordance with the law governing such trust and the wishes of the founder in so far as such wishes can be ascertained and are not repugnant to such law. The keynote of all the relevant provisions of the Act is the due observance of the objects of the religious trust and not its breach or violation. Secondly, as was observed in 1954 SCR 1005 at p. 1030 : AIR 1954 SC 282 at p. 292, 'an apprehension that the powers conferred..... may be abusedin individual cases does not make the provision itself bad or invalid in law.'

W e are, therefore, clearly of the view that trie supervisory jurisdiction vested in the Commissioner under the Act is perfectly valid and cannot be assailed as violative of Article 25 or 26 of the Constitution.

25. Sections 29 and 32 of the new Act can be considered together. As per Section 29 of the Act 'No suit, prosecution or other legal proceeding shall lie against the Government or the Commissioner or the Committee or any member thereof or the Administrator or any other person acting under the instructions of the Committee or authorised by it, for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.' Section 32 enacts 'Save as otherwise expressly provided in this Act, no notification issued, order passed, decision made, proceedings or action taken or other thing done under the provisions of this Act by the Government or the Commissioner shall be liable to be questioned in any court of law.' I Section 29 of the new Act is a word for word I reproduction of Section 29 of theold Act, the validityof which was considered by the Full Bench in Krishnan's case (AIR 1978 Ker68). Section 29 of the old Act was held invalid at page 389 (of Ker LT) : (at p. 105 of AIR) for the following reasons :

'59.....Inasmuch as the remedy underS. 92 of the Code of Civil Procedure is made unavailable to the members of the denomination by reason of Section 5(3)(e) of the Madras Hindu Religious and Charitable Endowments Act the applicability of which to the Guruvayoor Devaswom is kept in force by Section 35 of the Act, the effect of this Section (Section 29) is to completely deprive the denomination of any right to approach the civil court for questioning the acts of the Administrator, the Committee or the Government and for safeguarding the interests of the Temple against mismanagement. In fact, this provision drives the last nail on the coffin so far as the denomination is concerned and it imposes a total restraint on the denomination from discharging its legitimate role in protecting the interests of the religious institution in respect of the maintenance and administration of which it has a guaranteed fundamental right. We do not find it possible to uphold the constitutional validity of Section 29 in the setting in which the said section occurs in this Act.'

Wehave already seen that by the repealof the old Act and the re-enactment of Section 40 in its present form in the new Act a right of suit under Section 92 C.P.C. is available to the denomination or on its behalf. The infirmity pointed out by the Full Bench has now been removed Section 37 of the Nathdwara Temple Act, 1959 barring suits against the State Government for anything done under the said Act which by Section 31 conceded a right of suit for the reliefs mentioned therein was held valid by the Supreme Court in Tilkayat Shri Govindlalji Maharaj's case (1964) 1 SCR 561 : (AIR 1963 SC 1638). The Supreme Court observed at page 637 (of SCR) : (at p. 1666 of AIR) :--

'That takes us to Section 37 which has been struck down by the High Court on the ground that it can be utilised as a defence to a suit under Section 31. We have already noticed that Section 31 empowers a person having an interest to institute a suit for obtaining any of the reliefs specified in Clauses (a) to (e) of that section. The High Court thought that Section 37 mayintroduce an impediment against a suit brought by a private individual under Section 31. We are satisfied that the High Court was in error in taking this view. All that this section purports to do is to provide for a bar to any suits or proceedings against the State Government for anything done or purported to be done by it under the provisions of the Act. Such provisions are contained in many Acts, like, for instance, Acts in regard to Local Boards and Municipalities. It is true that Section 37 does not require that the act done or purported to be done should be done bona fide, but that is presumably because the protection given by Section 37 is to the State Government and not to the officers of the State. The effect of the section merely is to save acts done or purported to be done by the State under the provisions of the Act; it cannot impinge upon the rights of a citizen to file a suit under Section 31 if it is shown that the citizen is interested within the meaning of Section 31(1). We are inclined to hold that the High Court has, with respect, misjudged the true scope and effect of the provisions of Section 37 when it struck down the said section as being invalid. We must accordingly reverse the said conclusion of the High Court and uphold the validity of Section 37.'

We are, therefore, clearly of the view that Section 29 of the new Act is perfectly valid. Section 32, however, enacts an absolute bar of suits against the Government or the Commissioner for anything done in purported exercise of powers under the Act except as expressly provided for under the provisions of the Act. This section invests the Government and the Commissioner with naked and arbitrary power to interfere in the administration of the Devaswom. The bar of a remedy under Section 92 C.P.C. was held by this Court in Krishnan's case (AIR 1978 Ker 68) (FB) as the last nail on the coffin so far as the denomination is concerned, imposing a total restraint on its right to protect the interests Of the religious institution. Investiture of such arbitrary powers is held invalid as oppose.d to Article 14 of the Constitution in the decisions in Ajay Hasia's case (1981) 1 SCC 722 : (AIR 1981 SC 487) and A. L. Kalra's case, AIR 1984 SC 1361 referred to earlier in this judgment. The revival of Section 92 of the C.P.C by virtue of the repeal of the old Act and enactment of Section 40 of the new Act cannot be taken as an express provision in the Act for the institution of a suit under Section 92 CP.C. Section 40 hasmerely made the Madras H.R. & C.E., Act 1951 inapplicable to the Devaswom thereby taking away the bar of suits under Section 92 C.P.C contained in Section 5(3) of the said Act. It cannot, however, be construed as an express provision in the Act for a suit under Section 92 C.P.C. We, therefore, hold Section 32 of the Act as unconstitutional and void

26. Section 33(1) of the Act empowers the Government to 'call for and examine the record of the Commissioner or of the Committee in respect of any proceeding, not being a proceeding in respect of which a suit or application to the Court is provided by this Act, to satisfy themselves that the provisions of this Act have not been violated or the interests of the Devaswom have been safeguarded and if, in any case, it appears to the Government that any decision or order passed in such proceeding has violated the provisions of this Act or is not in the interest of the Devaswom, they may modify, annul or reverse such decision or order or remit such decision or order for reconsideration'. The proviso to Sub-section (1) requires the Government to afford the party against whom an order is to be passed under Sub-section (1) an opportunity to make his representations. The revisional power vested in the Government under Section 33 to satisfy themselves that the provisions of the Act have not been violated is only regulatory of the denomination's right to administer its property. The Government, however, is invested with power to modify, annul or reverse the decisions of the Commissioner or the Committee if it appears to the Government that the decision or order is not in the interests of the Devaswom. The Government is thus invested with powers to pass any order in revision based on its subjective satisfaction without any guideline as to how the satisfaction is to be arrived at. We have already referred to the decisions in Ajay Hasia (AIR 1981 SC 487) and A.L. Kalra's (AIR 1984 SC 1361) cases, holding that the investiture of such naked and arbitrary power in a statutory authority is opposed to Article 14 of the Constitution. It will also be in violation of the denomination's right of administration of its property conferred on it under Article 26(d) of the Constitution. The Supreme Court in D. S. Nakara v. Union of India, (1983) 1 SCC 305 : (AIR 1983 SC 130) after referring to the decision in In re Special Courts Bill1978, AIR 1979 SC 478 wherein the requirements of an intelligible differentia, and a rational nexus with the objects sought to be achieved are referred to as the valid basis for classification stated thus at page 316 (of SCC) (at p. 134 of AIR) :--

'13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbides discrimination and there w ill be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in E.P. Royappa v. State of T.N., (AIR 1974 SC 555), it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination.'

After referring to the decision in Maneka Gandhi's case AIR 1978 SC 597 it is stated at page 317 (of SCR) : (at p. 134 of AIR) : -

'Affirming and explaining this view, the Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi, (AIR 1981 SC 487) held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14.'

The remedy in such casesof violation of Article 14 is mentioned at page 335 (of SCC) : (at p. 144 of AIR) as follows : --

'While examining the case under Article 14, the approach is not: 'either take it or leave it', the approach is removal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to remove the discriminatory part retaining the beneficial portion.'

Section 33 can well be sustained by removing the words 'or is not in the interest of the Devaswom' and the section read without these words will be perfectly valid. We, therefore, strike down these words and hold that Section 33 is otherwise valid.

27. Section 35(2) of the new Act is * challenged as violative of Articles 25 and 26(d) of the Constitution. Section 35 is quoted below : --

'35. Thantrito be final authority in religious matters -

(1) Nothing in this Act shall be deemed to authorise the Committee or the Commissioner or the Government to interfere with the religious or spiritual matters pertaining to the Devaswom.

(2) The decision of the Thantri of the Temple on all religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom shall be final, unless such decision violates any provision contained in any law for the time being in force.'

Sub-section (1) is the legislative affirmation of the right of the denomination under Article 26(d) 'to manage its own affairs in matters of religion'. It is also in conformity with Clause (1) of Article 25 under which subject to public order, morality and health and to the other provisions of Part III of the Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Sub-clause (a) of Article 25(2) however saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practices, and Sub-clause (b) reserves the State's power to make laws providing for social welfare and reform even though they may interfere with religious practices. Sub-section (2) of Section 35 if construed as conferring an absolute right on the Thanthri of the Temple to decide on all religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom would render the sub-section unconstitutional as opposed to Articles 25 and 26(d) of the Constitution. It is not open to the State to make law relating to the practice of I religion except to ensure public order, morality and health or for any of the purposes mentioned in Clause (2) of Article 25. The State cannot also make a law relating to the denomination's right to manage its own affairs in matters of religion except to ensure public order, morality and health. We have already referred to the decision of the Supreme Court in Commr. of H.R.E. v. LT. Swamiar, AIR 1954 SC 282 wherein it is clearly laid down at page 289 that the right of the denomination tomanage its own affairs in matters of religion falling under Clause (b) of Article 26 is a fundamental right which no legislation can take away. The same view is expressed in Ratilal's case, AIR 1954 SC 388 at page 391 :

'The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away.'

We have in a recent decision in Krishnankutty, M.L.A. v. State of Kerala reported in 1985 Ker LN 183 stated at page 195 (reported in AIR 1985 Ker 148 at p. 157) (FB) :-

'32. Matters of religion form the core of guarantee under Articles 25 and 26(d) of the Constitution. While both the Articles are subject to public order, morality and health, the freedom of conscience and the right freely to profess, practice and propagate religion guaranteed under Article 26 are subject to other provisions in Part III; however, the right guaranteed under Article 26(b) to manage its own affairs in matters of religion in favour of religious denomination or any section thereof is more absolute in its terms and beyond the pale of any legislative interference.'

28. In Commr. of H.R.E. v. L. T. Swamiar AIR 1954 SC 282 it is stated at page 290 : --

'(19) ..... If the tenets of any religioussect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character, all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).'

It is further stated at page 291 : --

'Under Article 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and nooutside authority has any jurisdiction to interfere with their decision in such matters.

Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent Legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose.'

The same principle is laid down in the decision in Ratilal's case, AIR 1954 SC 388, at page 392 :--

' 13. Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities, No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.

Of course, the scale of expenses to beincurred in connection with these religiousobservances may be and is a matter ofadministration of property belonging toreligious institutions; and if the expenses onthese heads are likely to deplete the endowedproperties or affect the stability of theinstitution, proper control can certainly beexercised by State agencies as the lawprovides.'

29. It is clear from the aforesaid decisionsthat the State cannot make a law relating to the fundamental right of the denomination 'to manage its own affairs in matters of religion'. If there is any dispute among the members of the denomination with respect to religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom it is a matter for adjudication by a civil Court and the decision of the civil court will be binding on all memebrs of the denomination. In Tilakayat's case (1964) 1 SCR 561 it is stated at page 620 : (AIR 1963 SC 1638 at p. 1660) :--

'In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to fo'od or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question in religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of Us religion'.

30. The learned Counsel for the respondents relies on certain passages from an ancient text 'Thanthrasamuchayam' and other texts in support of his proposition that the Thanthri is the ultimate authority in matters of religion. We cannot decide the rights and privileges of the Thanthri in these proceedings. Those are all matters which when occasionarises will have to be decided by a civil Court on evidence adduced before it. Since it is well settled by the decisions of the Supreme Court that the State is not competent to make any law in regard to matters of religion falling under Clause (b) of Article 26 of the Constitution, Sub-section (2) of Section 35 read as an independent provision conferring absolute rights on the Thanthri to decide on all religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom will be unconstitutional and void. Such consequence can, however, by avoided by reading Sub-section (2) operating as a proviso to Sub-section (1) of Section 35. We have already seen that the legislation can relate only to secular matters of religion, besides public order, morality and health. The Committee constituted under Section 4 is invested with the right of administration, control and management of the Devaswom and those matters can relate only to the secular affairs of the Devaswom. The supervisory jurisdiction of the Commissioner, and the Government under the Act can also relate only to the secular affairs. Secular affairs may incidentally trench upon religious, spiritual ritual or ceremonial matters as observed by the Supreme Court in Commr. H.REL's case (AIR 1954 SC 282) and Ratilal's case (AIR 1954 SC 388) referred to above. The Thanthri is a member of the Committee and in regard to such religious, spiritual, ritual or ceremonial matters as may have a bearing on the secular affairs of the Devaswom can very well be left to the decision of the Thanthri for acceptance by the Committee, the Commissioner and the Government. The decision of the Thanthri in regard to such matters cannot be questioned by the authorities mentioned in Sub-section (1) but Sub-section (2) of Section 35 cannot affect the right of the denomination or any person interested to have such matters adjudicated upon and settled by decision of a civil Court. We therefore hold that the decision of the Thanthri of the Temple on all religious, spiritual, ritual or ceremonial matters will be binding only on the authorities mentioned in Sub-section (1) of Section 35, and such decision will not preclude the denomination or any person interested from instituting a suit in a civil Court for adjudication of the religious, spiritual, ritual or ceremonial matters referred to in Sub-section (2).

31. Finally it is contended on behalf of the petitioners that the composition of theCommittee under Section 4 of the Act will not be effective unless there are provisions to ensure the attendance of the members at the meetings of the Committee. It is pointed out that the Zamorin Raja is the seniormost among the male members of three Kovilakams following marumakkathayam law and had been always a person advanced in age not capable of travel by ordinary means of transport for attending the meetings of the Committee. We have already seen that the hereditary trusteeship of the Devaswom vested in the Zamorin Raja and the Karanavan for the time being of the Mallisseri Illam at Guruvayoor. It is in recognition of their rights as hereditary trustees provision is made to include them as members of the Committee constituted under the Act for the administration, control and management of the Devaswom. The Supreme Court in the decision in Tilakayat Shri Govindlalji Maharaj's case, (1964) 1 SCR 561 : (AIR 1963 SC 1638) expressed its view that the Board constituted under the Rajasthan Act will do nothing to impair the status or affect the authority of the Tilakayat in so far as it is concerned with the religious part of worship in the temple. It was further observed that since the worship in the temple, Ceremonies and festivals are required to be conducted according to the custom and usage of the denomination, the authority of the Tilkayat in respect of the servants in charge of such matters will have to be respected. We need hardly state that the status of the Zamorin Raja and the Karanavan of the Mallisseri Illam as hereditary trustees of the Devaswom will have to be respected. Adequate provision will be made in the Rules and Regulations to be framed under the Act for their expenses of travel and stay to ensure their presence at the meetings of the Committee.

32. The results of the foregoing discussion are as follows :

(a) Clauses (d) and (e) of Sub-section (1) of Section 4, relating to nomination of members to the Committee by the Hindus among the Council of Ministers will be interpreted as 'Hindus among the Council of Ministers having faith in temple worship';

(b) Section 32 of the Act is declared as unconstitutional and void;

(c) Section 33 will be read omitting the words 'or is not in the interest of the Devaswom';

(d) Sub-section (2) of Section 35 will be read as aproviso to Sub-section (1) and the decision of the Thanthri of the temple on religious, spiritual, ritual or ceremonial matters will be final only as against the authorities mentioned in Sub-section (1) of Section 35; and

(e) The remaining provisions of the Act are valid and are perfectly within the competence of the State Legislature.

33. This original petition is allowed to the above extent. There will however, be no order as to costs.


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