Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee

In one of the earliest judgments dealing with religious freedom, namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee, 1952 SCR 849, Supreme Court was concerned with the temple at Badrinath, which is an ancient temple, being a public place of worship for Hindus.

A representative suit was filed under Order I Rule 8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who, as guides or escorts of pilgrims, sought a declaration that they cannot be obstructed from entering the precincts of the temple along with their “clients” for darshan of the deities inside the temple. Supreme Court held: ―

It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of “darshan” or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved.

As the Panda as well as his client are both Hindu worshippers, there can be nothing wrong in the one‘s accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of “darshan” or worship of the deities or that the Panda gets remuneration from his client for the services he renders, does not in any way affect the legal rights of either of them.

In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.

This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the “Holy of Holies” where the deity is actually located. Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple.

Good conduct or orderly behaviour is always an obligatory condition of admission into a temple, and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye-laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it [Vide Section 25(1)(m)].

The true position, therefore, is that the plaintiffs‘ right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form.”

Shirur Math case, viz., The Commissioner, Hindu Religious Endowments, Madras

In chronological sequence, next comes the celebrated Shirur Math case, viz., The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005.

This case concerned itself with the settlement of a scheme in connection with a Math known as the Shirur Math, which, legislation in the form of the Madras Hindu Religious and Charitable Endowments Act, 1951, sought to interfere with.

In history, the Shirur Math is stated to be one of the eight Maths situated at Udipi in the district of South Kanara and reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in Hinduism. This judgment being a seminal authority for a large number of aspects covered under Articles 25 and 26 needs to be quoted in extenso. The Court first dealt with the individual right contained in Article 25 as follows: ―

“We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word “persons” here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose.

A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25.

It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.”

With regard to whether a Math could come within the expression ‘religious denomination’ under Article 26, Supreme Court laid down the following tests:

In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., (1964) 4 SCR 99, a majority of 9 Judges held that the S.T.C., which is a company registered under the Indian Companies Act, 1956, is not a citizen within the meaning of Article 19 of the Constitution of India. In a concurring judgment by Hidayatullah, J., the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1) clearly refer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to hold that in Articles 14, 20, 27 and 31, the word ‘person’ would apply to individuals as well as to corporations.

What is conspicuous by its absence is Article 25(1), which also uses the word ‘person’, which, as Shirur Math (supra) states above, can apply only to natural persons. Consequently, the argument that an idol can exercise fundamental rights contained in Article 25(1), as urged by some of the Respondents, must be rejected.

As regards Article 26, the first question is, what is the precise meaning or connotation of the expression ‘religious denomination’ and whether a Math could come within this expression. The word ‘denomination’ has been defined in the Oxford Dictionary to mean ‘a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name’.

It is well known that the practice of setting up Maths as centers of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, — in many cases it is the name of the founder, and has a common faith and common spiritual organization.

The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As Article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.”

With regard to what constitutes ‘religion’, ‘religious practice’, and ‘essential religious practices’, as opposed to ‘secular practices’, Supreme Court held: ―

It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property 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.

It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies. What then are matters of religion? The word ‘religion’ has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition.

In an American case [Vide Davis v. Benson, 133 US 333 at 342], it has been said ‘that the term ‘religion’ has reference to one‘s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.’

We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44(2) of the Constitution of Eire and we have great doubt whether a definition of ‘religion’ as given above could have been in the minds of our Constitution-makers when they framed the Constitution. 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 Jainism 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.

The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion’ in Article 25. Latham, C.J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the ‘free exercise of any religion’ made the following weighty observations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]: ―

‘It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion.

Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.”

These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices.