Archakas of all hues

On 14 August 2021, the Government of Tamil Nadu appointed 24 trained archakas (priests) in temples across the state which come under the control of the Department of Hindu Religious and Charitable Endowments. On the same day, posts for odhuvar, poosari, mahout, garland stringers and umbrella carrier were also filled. In the weeks since, a series of writ petitions have come to be filed before the High Court of Madras assailing these appointments. The High Court will now have an opportunity to consider interesting constitutional questions that will fundamentally alter our societal structure. 

The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (“HR&CE Act”) is the governing law on the administration of Hindu temples and religious institutions. The HR&CE Act has been amended on at least 56 occasions but the most far-reaching of these took place in 1971 and 2006. In 1971, Section 55 of HR&CE Act was amended to abolish hereditary priesthood and in 2006, the amendment provided for appointment of appropriately trained Hindus irrespective of their caste as Archakas archakas to Hindu temples by the Government. Challenges to both amendments were taken to the Supreme Court and ultimately, the law, as amended, has been upheld.

Nevertheless, calls to whittle down the scope and authority of HR&CE Act have not diminished. In recent years, there has been a concerted campaign seeking to “liberate temples” from the “clutches of government”. Building on this, Bharatiya Janata Party’s manifesto for the elections to the Legislative Assembly of Tamil Nadu in 2021 even included a proposal to hand over administration of Hindu temples to a “separate board consisting of Hindu scholars and saints”. 

Constitutional Challenges to the HR&CE Act:

The constitutional courts have had plenty of opportunities to consider the various challenges made to HR&CE Act. In Seshammal vs. Union (1971), the Supreme Court of India observed that the amendment to HR&CE Act abolishing hereditary priesthood did not mean that the Government intended to bring about any “change in the rituals and ceremonies followed in the temples”.  Similarly, in the case of Adi Saiva Sivachariyargal v. State of Tamil Nadu (2015), the Supreme Court observed that ‘the constitutional legitimacy, naturally, must supersede all religious beliefs or practices’. The Supreme Court further went on to state that appointments should be tested on a case-to-case basis and any appointment that is not in line with the Agamas will be against the constitutional freedoms enshrined under Articles 25 and 26 of the Constitution of India. 

The Supreme Court has recognized that the arguments using Agamas have been commonly used in petitions filed against any perceived government interference in the matters of temple administration. As such, beginning from Seshammal vs. Union of India (1971) till Adi Saiva Sivachariyargal v. State of Tamil Nadu (2015), the Supreme Court has consistently held any contention of violation of Agamas must be tested on a case-to-case basis. This is to say that no omnibus relief can be granted based on a bald averment that an executive decision or order has infringed Agamas or essential religious practices. 

Evolution of constitutional jurisprudence

Nevertheless, the evolution of rights-based jurisprudence over the last 3 years is of relevance. In the cases of Joseph Shine v. Union of India (2018) and Indian Young Lawyers’ Association v. State of Kerala (“Sabarimala case”), the Supreme Court has reiterated the need to eliminate “historical discrimination which has pervaded certain identities”’, “systemic discrimination against disadvantaged groups” and rejected stereotypical notions used to justify such discrimination. 

In all of the above cases, the Supreme Court has carefully prioritised judicial balancing of various constitutional rights. In the Sabarimala case, the Supreme Court held that “in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III’. The judgment went on to further clarify that “though our Constitution protects religious freedom and consequent rights and practices essential to religion, this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality.“

The Way Forward

The courts will now be called upon to build on the gains of Sabarimala case when it comes to administration of temples, in so far as it concerns matters that are not essentially religious. While doing so, they would be guided by principles of constitutional morality and substantive equality. The judgment of the Supreme Court in and Navtej Singh Johar v. Union of India (2018) has recast the interpretation of Article 15 into one that is wide, progressive and intersectional. The Supreme Court, while rejecting the formalistic approach towards Article 15 of the Constitution, explained theat intersectional nature of sex discrimination. Today, while most of the debate is around whether men from all caste groups can become Archakas, we have failed to recognize the gender bias inherent to these discussions. Therefore, the present set of cases before the Madras High Court provides us with the right opportunity to expand the scope of debate to why women and trans persons should not be appointed as Archakas.  At once, caste orthodoxy and patriarchy entrenched within the realm of the HR&CE Act can be eliminated; and in its place, the constitutional order with a vision of a just, equal and dignified society, as envisaged by the Supreme Court, could be supplanted. 

Link to the Article: https://www.thehindu.com/opinion/op-ed/archakas-of-all-hues/article36440384.ece