The Badrinath-Kedarnath Temple Committee asked for a ban on admission of non Hindus. It is pertinent to mention herein that the committee stated that the decision will be imposed on Mukhba, winter residence of Maa Ganga. The Temple committee has stated affirmly that the prohibition against Non Hindus will strongly be enacted. It is quiet evident from the history that whenever an action being taken for the protection of Hindu Dharma and its purity, comments and objections from different ideologies start holding the floor. Jamat Ulema Hind President Arshad Madani remarks came amid declaration by temple committee seeking to enforce long standing religious customs at these reserved shrines. Madani stated “some people thinks country belongs only to them” and claimed that minorities were being unfairly targeted.
Whereas the Vishwa Hind Parishad has welcomes the decision of the Temple committee. By releasing the video International Joint General Secretary Dr. Surendra Jain stated that “not only in these three places but the entry of non hindus should be prohibited at all sacred Hindu pilgrimage sites in India”. By striking and condemning the statement made by Arshad Madini Dr. Surendra Jain has affirmly stated that the venomous and objectionable remark made by Jamat Ulema-e-Hind while opposing the decision is highly reprehensible. He asked will Madini come forward and ask for admission of non Muslims to Mecca and allow Hindus to recite Hanuman Chalisa”.
Other religion barred entry in their places of worship:
It is significant to mention herein that other religions while maintaining their religious ethics barred entry of individuals who do not have faith in their religion to enter in their places of worships such as Christians as well do not permit the tourists to go beyond a certain demarcation cordoned off from the rest of the St. Peter’s at Vatican and at the other orthodox Churches! The Jews also do not permit any Gentiles(non-Jews) or any Reformist Jews to enter their synagogues. Non Muslims are prohibited to enter into and form building places of worship in Mecca and Medina which is being duly protected under International law which extended that every state has a right to implement its own laws to protect its national integrity and security and therefore Saudi Arabia has a law which restricts non-muslims from entering into Mecca and Medina and building places of worship there.
Article 12(3) of the International Covenant on Civil and Political Rights 1966 (ICCPR) restricts the freedom of movement, after mentioned to the right to liberty of movement and freedom, by stating that: “The above-mentioned rights shall not be subject to any restrictions except those provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant”.
Subject to the restriction of entry of Non Zorastrians in Sanctum Sanctorum of holy Fire temple an PIL has been filed before the Hon’ble Delhi High Court in the year 2019 sought for a declaration that the prohibition on non Parsi men and women to enter Sanctum Sanctorum of holy Fire temple at Delhi Parsi Ajnuman (hereby referred as “DPA”) is illegal and unconstitutional. Whereby DPA argued that the exclusion of non-Zoroastrians from entry into a Fire Temple, in the practice of the Zoroastrian religion, is constitutionally protected under Article 25 and 26 of the Constitution of India. DPA in their argument has also submitted that:
“Barring entry of non-Zoroastrians in Zoroastrian places of worship is not based on factors like caste, colour or race nor is it discriminatory. It is only meant to uphold and maintain the rules and laws that govern the protection and integrity of the sacred fires and the pledge taken by the first band of refugees from ancient Persia not to adopt conversion in India”.
A valid question is, whether the action taken by the Temple Committee of Badrinath-Kedarnath along with others whereby the entry of Non Hindus have been barred in temples in the past is valid and stands on the footing of Constitution of India or not. The question has already been raised and decided by the Madras High Court in the year 1972 and 2024 taking into consideration the Constitution of India and hereby the decision of restricting and prohibiting entries of Non Hindus in the temple is being valid and constitutional in very nature.
Kalyan Das Vs, State of Tamil Nadu and Anr.
Equivalent Citations: AIR1973MAD264, AIR 1973 MADRAS 264
Challenged: Vires of Rule 4-A of the Rules framed by the Government of Tamil Nadu under section 8 of the Tamil Nadu Temple Entry Authorization Act (Act V of 1974) which allowed the entry of Non Hindus in the Temple.
Question of law involved: Whether the concerned Rule 4-A is contrary to Article 25 and 26 of the Constitution of India.
Subjects dealt by the Court:
- What is Religion
- Essential Practice of Religion
- Article 25 and 26 of the Constitution of India
- Meaning of Temples
Under the Petition the petitioner has challenged the Vires of Rule 4-A of the Rules framed by the Government of Tamil Nadu under section 8 of the Tamil Nadu Temple Entry Authorization Act (Act V of 1974) which thus allowed the entry of Non-Hindus in the Temple. It is significant to mention herein that until 1970 the concerned Rules did not contemplate non Hindus to enter or offer worship in the temple or use the waters of any sacred tank, well, spring or any sacred place including hill or hillrock, street, pathway which is requisite for obtaining access to the temple.
Another argument raised by the petitioner that such rule violates the very principle of the constitution of India while contradicting to Article 25 and 26 of the Constitution of India as “as the mode and manner of worship at Hindu temples are all matters of religion which are guaranteed by the provisions of the Constitution of India”. Argument submitted by the government pleader was that sanctity of the temple is no way affected by the entry of the non hindus in the temple and that too under certain guidelines and therefore it does not interfere with the freedom of pious and religious of Hindus. It was also put forwarded that the concererd rule was indented to subserve the ideal of Secularism.
What is religion, Hindu religion and Hindu temple
The Court in its judgement has discussed the very foremost essential to decide the vires of the Rule 4-A of the Act is what is the actual meaning of Religion. While referring the meaning of religion the hon’ble court described it as an “expression of man belief” and surrender to the creator of the universe. It was also mentioned that the Hindu Religion is ancient in its nature but maintained its ethics, practices and mandates with the changing time.
“……. expression of man’s belief in and reverence for a superior human power recognized as creator and governor of the universe. Sanctimoniousness is not a necessary creed annexed to a firm religious tenet. But Hindu religion, whose origin is so ancient has maintained throughout, its ethics, practices and mandates, that they have lived to every changing times, but maintaining at all times its pristine usefulness and its inhered capacity to demand respect and reverence to such tenets…..”
The court has affirmly quoted that the there are certain well laid practices regarding the mode of worship in Hindu Temples and therefore the court shall not ignore them as they are deep rooted with the very Hindu religion just on the ground of Secularism.
“….there are certain well-laid practices regarding the mode of worship in a Hindu temple and if such ordainments are backed up by Agamas and therefore, are matters connected with the religion, it is not for law courts to lightly ignore such deep-rooted and venerable tenets on the only ground that progressive secularism demands it…”
It was held by the Hon’ble Supreme Court of India in the very case of Commissioner, H. R. E. v. Lakshmindra Thirtha Swamiar of Shirur Mutt that religion with itself not only confined to code of ethical rules for the followers but also inclusive of rituals, observance, ceremonies and mode of worship and therefore it is regarded to be the essential parts of religion. With this the next question which arises as what are the “Essential Part of the Religion”.
Essential part of the religion
The very subject can be bracketed with the doctrines of the religion itself. Very food offering the deity, certain hours followed with periodical ceremonies in particular manner and mode and everything related to it can be bracketed under the definition of essential party of the religion and everything required to fulfill the modes and manners of the rituals, ceremonies and conduct towards the deity such as expenditure, priests etc. are not secular but covers under the very principle of essential part of religion under Article 26(b) of the Constitution of India.
“…..offerings of food should be given to the idol at particular hours of the day, the 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 will be regarded as parts of religion…..”. “….use of marketable commodities will 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)“.
Article 25 and 26 of the Constitution of India
It is important to understand that what does these Articles of the Constitution of India signifies. Article 25 of the Constitution of India provides for the Freedom of Conscience and free profession, practice and propagation of religion and Article 26 deals with the freedom to manage religious affairs. The interpretation of the mentioned articles has came before the Court in the very case of Srimad Perarulala Ethiraja Ramanuja Jeer Swami v. State of Tamil Nadu it was held by the court that these articles do not limited to the matters of doctrine or belief but they are extended to the acts done in the pursuance of the religion and for the same it has to be decided by the court with the reference of the doctrine of the particular religion including practices.
“…… The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremony”es and modes of worship which are integral parts of religion….”. “…..essential part of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion…”
Temple and ceremonial laws relating to it
Temple is considered as sole repository of “Divine Power” to which person who has faith thereby having a belief in such theology approaches with fervor and faith. When we talk of rituals it is to be seen with twofold, one to attract the worshipper to participate in the worship with that devotion is being developed and another is to preserve the image from pollution, defilement or discreation, which is therefore a part of religious belief of a Hindu worshipper. Temple is only dedicated to “Hindu Community and its section thereof” which can be understand with the definition provided in the Temple Entry Act under section 2(1) as:
“Temple’ means a place, by whatever name known which is dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof as a place of public religious worship and includes subsidiary shrines and mandapams attached to such place”.
Doctrine of exclusion of Non Hindus
It was mentioned in the very beginning that the case was being filed before the Hon’ble Court challenging the insertion of rule 4-A in the Act by omitting Rule 3 whereas Rule 3 provides for the restriction of entry of non hindus and Rule 4-A provides for the entry of Non Hindus with conditions as provided under the concerned rule. Hindu temples are always treated as place of worship and everything related to them its rituals, practices and anything “connected therewith” become part of Hindu theology. The court has mentioned in its judgement that it is also the practice that non muslims are not allowed at a particular place of worship inside the mosque and being a matter of Islamic religion it has been respected by all citizens of India.
It was categorically observed the Hon’ble Court that Hindu temple is intended for the spiritual benefit of all classes of “Hindus” and therefore it is to be kept unpolluted and undefiled and therefore no non hindu can for pleasure and social evaluation can seek entry into such temples. Such entry would negate the very purpose and object of temple as non hindu is totally unconnected with any matter of Hindu Religion.
“…… Hindus temples are always treated as places of worship and such veneration to the temples, its place, rituals, and practices connected thereto have become part of the Karmakanda of Hindu theology. By way of analogy, it is well known that near a Muslim mosque no band or music or amusement could pass by so as to disturb the peace of the precincts of the mosque, no matter whether it is Namaz time or not. It is also the practice in mosques not to allow non-Muslims at a particular place of worship inside the mosque….”
“Hindu temple is intended for the spiritual benefit of all classes of Hindus…… no non-Hindu can for pleasure and social evaluation seek entry into such temples. The purpose of such entry is totally unconnected with any matter of religion known to Hinduism and to Hindus. Such entry would negate the very object and avowed purpose of the temple entry itself which says that entry into temples is available to all classes of Hindus”
The court has also observed that Temples are not for pubic exhibition and neither the courts nor the legislation could convert the temples into archic objects of visual important and therefore the argument to substanitae the point that non hindus desiing to enter into the temple or any portion thereof for self evaluating and for exploration does not hold foot on the grounds. The Court observed that:
“….it is not unreasonable to assume that non-Hindus desiring to enter the temple or any portion thereof not for worship and not because of their subservience to Hindu theology but to view certain paintings or architectural expositions in the temple or to study the excellence of Hindu Art inside the temple, Courts and even our legislation cannot convert our temples into archaic objects of visual importance intended for public exhibition….” (Para 20)
It is significant to mention herein that the Non Hindus is not a Hindu in any form and the Hon’ble Court in its judgement has put the affirm and strong reliance on essential part of religion and practices connected therewith. It is also significant to mention herein that the Hon’ble court very strongly observed that even the legislature also cannot by making the rule can treat the non hindu as Hindu.
“….A non-Hindu is not a Hindu. He belongs to a different class. He cannot on mundane and social considerations claim the same privileges or right as a Hindu regarding entry into a Hindu Temple. The Legislature also cannot, in exercise of its rule making power, treat the non-Hindu in the abstract as a Hindu, by ignoring the policy and intendment of the temple entry Act. This is a well-known proposition of law”.
It is therefore the Court while deciding the mentioned Petition stuck down Rule 4-A in the Act which thus allow the entry of Non Hindus in the Hindu temples as ultra vires in its very nature and therefore with this it become evident that the decision of restricting the entries of non hindus in temples by the temple committee is not against the principles of Constitution of India but very much within the principles of Article 25 and 26 of the Constitution of India and therefore justified. It is therefore the decision taken by the temple committee subject to the restriction of the Non Hindus stands valdid, justified and Constitutional in its nature.
