The Priest and the Caste

(By V. Bhaskaran Nambiar, Former Judge, Kerala High Court)

Are Brahmins alone entitled to be santhikarans, archakas or poojaris in temples? This aspect seems to be a matter of fierce public controversy and vigorous media debate. Let me attempt to highlight certain legal aspects and focus on some factual details.

A Full Bench of the Kerala High Court in Adithayan v. Travancore Devaswom Board posed the question for consideration whether in a particular temple of the Travancore Devaswom Board, a bhramin alone was entitled to be appointed as poojari of the temple?

Mr. Justice K.T. Thomas, then Acting Chief Justice speaking for the Bench held: Petitioner has no case that practice of a Malayala Brahmin performing poojas and rituals in the sanctum sanctorum of a temple is an essential and integral part of Hindu religion. If a person belonging to one section or caste in the Hindu religion can perform "any religious sendee" in a temple, such right, cannot be denied to another person belonging to a different caste of Hindu religion on the ground of his caste. One of the theme songs of Indian Constitution is that the erstwhile caste oriented social set up should never be resurrected in this land. Even the provisions for upliftment of schedule castes etc. embodied in the constitution are intended to bring up those weaker sections in the society to the level of others, so that caste should eventually be interred into oblivion and can remain there only as a fossil for future students in social science subjects. Any thinking to revive it must be snubbed in the bud itself.

The matter was taken in appeal to the Supreme Court. The apex court observed

"There has been no proper plea or sufficient proof in this case of any specific custom or usage specially created by the founder of the temple or those who have the exclusive right to administer the affairs - religious or secular - of the temple in question".

And held

'Where a temple has been constructed and consecrated as per agamas, it is necessary to perform rituals, poojas and recitations required to maintain the sanctity of the idol. It is not that in respect of any and every temple any such uniform rigour of rituals can be sought to be enforced, de hors its origin, the manner of construction or consecration.'

No doubt only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying that what is recognised and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras necessary to be recited for the particular deity and the method of worship ordained or fixed thereto. For example the Shivite temples or Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to be performed and recited in the respective temples and appropriate to the worship of the particular deity could be engaged as an archaka.

If traditionally or conventionally, in any temple, all along bhramin alone was conducting poojas or performing the job of santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a bhramin, but those others were not in a position and as a matter were prohibited from learning, reciting or mastering vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples.

Apart from this principle enunciated above, so long any one well versed and properly trained and qualified to perform the poojas in a manner conducive and appropriate to the worship of the particular temple and the particular deity is appointed as santhikaran, dehors his pedigree based on caste, no valid or legally justifiable grievance can be made in a court of law.

In the present case, it is on record that an institution has been started to impart training to students joining the institution in all relevant vedic texts, rites, religious observances and modes of worship, by engaging reputed scholars and thantris and the students, who ultimately pass through the test are being initiated by performing the investiture of a sacred tread and Gayatri.

That apart, even among such qualified persons, selection based upon merit is made by the committee, which includes among other scholars a reputed thantri also. The eligibility to perform the rites, observances and modes of worship are once again tested before appointment. While that be the position, to insist that the person should be a member of a particular caste born of particular parents of his caste can neither be said to be an insistence upon an essential religious practice, rite, ritual, observance or mode of worship and any proper or sufficient basis for asserting such a claim has been made either on facts or in law, in the case before us.

Thus, if an abstract question of law, divorced from facts, is raised 'whether bhramins alone can be priests in temples', the emphatic answer will be 'No' as it is a patent violation of the Constitution. No uniform rigour of rituals in respect of any and every temple can be enforced, because the rituals vary from temple to temple, from deity to deity.

The question whether bhramins alone can be priests in temples, entitled to enter the sanctum sanctorum and even touch the idol depends on several factors such as,

(a) The construction and consecration of the temple as per the agamas

(b) Traditions and customs and convention of a particular temple.

(c) Knowledge of the rituals and mantras necessary to be recited for the particular deity and the method of worship ordained or fixed.

(f) Performance of the poojas in a manner conducive to and appropriate to the worship in the particular temple by persons properly trained and qualified

(g) Denomination temple where specialised form of worship peculiar to such denomination

exists

Thus in cases where archaka can only be from particular families by immemorial custom or as hereditary right according to the traditions, custom and conventions of the temple, it cannot be said that anybody else has any right to be an archaka of that temple. This right is not based on caste and the right may descend to a family of bhramins or non-bhramins.

In the Temples of Kerala, a Census of India Publication by, Sri. S. JayaSanker, Director of Census Operations, Kerala, (at page 243) it is stated thus: -

"There are many temples in Kerala where the priesthood class is drawn from non-Brahmins. There are many temples where the hill tribes have a hierarchy of deities and spirits like the Sun, ancestor spirits, village deities, hunting-deities and Tramp - spirits apart from worshipping Shasta, Subramonya etc. Their mode of worship is peculiar and not based on any Saasthram, but the purpose is limited to obtaining those things, which are required for their existence. Generally the priest is the headman of the tribe, but there are some oracles among them who have a say in the rites. But none of them is seen to have any educational and thaanthric background. In several parts of the State there are temples belonging to Nairs, Ezhavas (Thiyyas), Vaathis, Pulayas, Chettis, Vellalas, Aasaris etc. and they do pooja according to their own tradition. Of late, irrespective of caste all Hindus go to such temples, provided they experience the blessings of the deity installed therein. In short, the priesthood of Hindus covers a wide spectrum of the society in Kerala without any inhibition of rigid caste restrictions.

To Hell with this Dress

(By K. Ramakumar, Advocate, High Court of Kerala)

Nature has dressed its creatures in colourful and distinct designs. A parrot wears green, a woodpecker brown and a crow black. The sheep has wool to keep itself warm, while a goat does not need it. A bull in Spain or in the States looks ferocious with its thick and tough exterior to withstand the winter, and are reared to be eaten, while Gopala's Go is gentle, meek and tender. See the views of the Apex Court on cows in (2005) 8 SCC 534.

Does not this dispensation of nature apply to human beings as well? An Arab wears a long Thob and has to keep his head covered to prevent the desert sand settling on his head and body. It adds to his credit and sense of nationalism that he attends even international events of moment only in his own homely dress. So are the East African statesmen. Smt. Indira Gandhi did not abandon her traditional sari, in any one of her eventful engagements abroad. And Chandrika Kumaratunge wore sari Sree Lankan style. That rustic, simple, Kamraj, braved the biting and stinging Russian weather in his usual khadi kurta dhothi outfit, of course covered by a thick shawl.

Why are we, other Indians, different? Why do we still ape our old rulers, and go about in their dress even in hot summers? Thank God our accomplished Lady Judges do not dress like Dame Mary Howrath Arden or Dame Janet Hilary Smith, Judges of the English Court of Appeal. The sight of gentlemen wearing three piece sudorific suits in crowded wedding halls in hot summer is common even in enlightened Kerala. Inferiority complex? Inflated sense of self importance? Or just supine supplication or supererogation? Whatever be the case it is bad. It is demeaning to our self respect and national ethos.

Do we now remember a Barrister who used to change bands, collars and shirts every day, later attending a London conference in a single cloth draped over his body, symbolic of the ill-clad millions of our country, who could hardly afford any cloth. It is not for nothing that he exhorted the burning of foreign clothes. Again symbolic. It is therefore, ironic that those in his own profession appear in sleek suits, western style - even on occasions like the Independence Day, Republic Day, and Gandhi Jayanthi Day, days remembered for saying good bye to the rule of suitwallahs.

Nationalism, it can be argued is not tailor made. Nor can it be disputed that dressing is a matter of personal preference. Imagine, however, our Pradhanmanthri unfurling our Tricolour on the ramparts of the Red Fort, in a Mark and Spencer custom made suit or the Rashtrapathi driving through the carriage-way to the Parliament in a Reid and Taylor suit and in Dunhill Tie? Selvi Jayalalitha, was perfectly right in commenting on the dress habits of a Union Minister from Tamil Nadu as alien to Tamil culture.

Look at the members of the Legal profession - They go about still in the comical and clumsy robes, a legacy from the church and from the times of Cicero imitating the dress of the Devils' Advocate. It is time for us to change our sartorial pattern suiting our climate. Do we still have to carry the insignia of our past colonial rulers? The Delhi and Punjab High courts have done away, with the wearing of the gowns in summer - April through August. The Bar Council is the authority to prescribe the dress code for lawyers. Either the gown can be dispensed with going in for a long black Coat, like that of the white variety of medical men or such other attire attuned to our climate. The Bar Council must set the agenda now and adopt a holistic view too.

Whether State Owns a Privileged Status?

(By Ajith N., Advocate, Irinjalakuda)

A.P. Kochudevassy v. State of Kerala 1982 KLT 100 is worthy for reconsidering an interesting aspect, "whether the 'State' belongs to a privileged class".

The plaintiff herein, a ration whole sale dealer of Kottappuram in Trichur District files a suit against the State on the basis of a concluded contract, which would show that the plaintiff was entitled for the transportation charges of the commodities from the Central Depots of the Government to his own Depots. Since distance was the deciding factor, three Zones were categorized. I Zone - for distance upto 10 miles, II Zone - upto 25 miles and the III Zone - for exceeding 25 miles. Transportation charges were fixed by the Government, depending upon the Zones. About six and half years from 1965 the dealer carried the goods from the Central Depot to his Depot, and he was paid the transport charges at the rate applicable to the II Zone. Subsequently he realised that the distance between his Depot and the Central Depot exceeded 25 miles and he ought, therefore, to have been placed in the III Zone instead of in the II Zone. It resulted in the demand for payment of the charges fixed for the III Zone with prospective effect. Though the Government conceded that there had been a mistake in allocating the dealer's Depot in Zone II, and agreed to pay the charges for Zone III in future, refused to pay the revised rate with retrospective effect. Thereupon the suit against the Government for recovering a sum of about Rs.79,000/- being the arrears of charges under the higher rate for Zone III. The trial court dismissed the suit on the grounds of knowledge, estoppel and waiver of the dealer's rights and hence the appeal. The contention of the appellant dealer, inter alia was that the agreement become void on the ground of mistake and the Government should pay at the higher rate on the basis of an implied contract. Government denied its liability on several grounds. The main question was whether the alleged mistake of the parties was sufficient or not to displace the contract. It was held that though there was a mistake, it did not render the contract void and in effect, the dealer could not claim the arrears, at the higher rate. The Court projects the main reasons for the decision as the following:

1. "Both parties" were under a common mistake as to the distance of the dealer's depot from that of the Government's.

2. As the mistake was only as regards the distance, and not the subject matter of the contract - not a case of mistake arising from res extincta, (a non existence of the thing) or res sua (a thing already owned) it did not vitiate the contract.

3. No doubt in cases of common mistakes arising from causes other than res extincta or res sua, a court of equity may interfere to alleviate the ill effect of such mistake but there is no such equitable grounds justifying the interference in this case.

4. On the contrary, if there was any room for exercise of any equity, it was according to the Court, only against the plaintiff (Whole sale dealer) and in favour of the Government, Plaintiff has misled the Government in treating the place of his business to be in II Zone rather than in third and so he could not claim the charges from the Government at the higher rates allowable for the III Zone.

It was held that the plaintiff could not claim the arrears due for the II Zone, and thus the appeal failed. It is rather strange that no reference to S.20 of the Contract Act is found in the judgment, though the head notes refers to S.20 among others. This was a case in which there was a contractual frame work (howsoever super-imposed by the government order) and to all intents and purposes, it was a contract under which the Government promised to pay the transport charges to the dealer who under took in return to carry the goods. The dispute was with respect to freight due and the fright had not been paid because of a mistake as to the distance. In a contract to carry, the distance for which the goods are to be carried is undeniably the basic, fundamental, essential or a material fact. The Court relied on several English rulings and held that "as it did not touch the subject matter, the mistake was inoperative in the sense that the contract bound the parties in full.

Had the court only referred to S.20 Contract Act, we may wonder why it was omitted to see the effect of the plain words of the Section, viz., "under a mistake as to a fact essential to the agreement". The Court merely followed some English Law. The justice of a case would demand that the State, should be directed to observe the highest kind of probity and fair dealing with its own subjects, the individuals. If the Government could pay the higher rates, for future operations, it ought to have been compelled to follow the same procedure for the transport operations in the past and pay the higher rates which was omitted to be paid admittedly because of mistake.

According to the learned Judge, another reason to support his judgment was "lack of care on the part of the plaintiff to verify the distance and make the correct demand". In other words, there was negligence on the plaintiffs part which negatived the aid of law or equity. Will it go together with an earlier holding that "both parties were under a common mistake". Here the case is different. It is not a case of one party who, although negligent has derived some benefits and who is compelled by an order of the Court to shed the unjust benefit in favour of the other party, but the case of a party who has lost something rightfully due to him, who had been negligent in making his full claim against the other owing to an honest mistake of fact. So to penalize the negligence, due to mistake, we may say the least of it, "piling unreason upon technicality". Government being the sanctioning and paying authority, for the charges claimed, should not have been allowed to harvest on the negligence of the plaintiff, or to take excuse under that pretext where as its own contributory negligence has resulted in the loss to the plaintiff. The plaintiff's mistakes might have been, in all probability, noticed and corrected by the Government if it was vigilant. The claim of the plaintiff, on the ground of mistake therefore, ought not to have been disallowed on the ground that the mistake was not sufficiently operative in law or on the ground of equity that the plaintiff had been negligent which has resulted in the mistake.

Cheshire and Fifoot, Law of Contracts 9th Edition p.215, would say that when a mistake operates in the minds of both parties to a contract, it may be either common or mutual. It is common when both the parties labour under an identical misapprehension and it is called mutual when each party understands the scope of the contract in his own way contrary to reality. S.20 of the Act covers both situations which runs as follows: "When both parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void".

S.65 of the Act declares that "When an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it." If the Government was cautious, the mistake would have been come out at the very inception. If the State while scrutinizing the agreement had seen the mistake, it would have corrected it since it is truly a "bargain". If the State kept mum and allowed the parties to go by the same, it is a case of willful concealment of a material fact for the benefit of the State and in other words a clear case of defrauding the other party for unlawful enrichment by not paying the due charges payable. If it is done by the State, the matter shall be dealt with seriousness. Here the State is rescued from its fall outs. Why such a special consideration for the State? Whether a common mistake of the parties can be treated as of no consequences merely for the reason that it does not relate to the existence of the subject matter of the contract. Whether the law should salute the law maker, the State and why A.P. Kochudevassy v. State of Kerala gives restriction to the scope of bilateral mistakes as a vitiating element in contracts?.

Is Section 43 Criminal P.C. Redundant?

(By T.M. Rajasekharan, Advocate, Calicut)

The learned judicial officer who contributed the Article reported in 2005 (4) KLT Journal 49 appears to have been carried away by the records of arrest in criminal cases. That many culprits are "arrested" by the private citizens (or public) is only a fact. But curiously no such arrest is recorded anywhere. The reason is obvious.

Culprits taken into custody by private citizens, are handed over to the Police. The Police officials, in order to take credit of the arrest, do not maintain documents u/S.43 Cr. P.C. but create records as if to show that it was the Police who arrested the accused. This practise is prevalent in the country.

S.43 Cr. P.C. is sidelined in the Police files also due to the ignorance of public regarding the salutary provision on one side and the dishonesty of the Police on the other. The media is also not well informed on this aspect. What is required is to create awareness among the public about the provisions. It is not without reason that Justice Malimath Committee recommended retention of S.43.

The provision is a useful one and enables the citizens to be active participants in the detection and investigation of crimes. No doubt, "If the private individual dares to exercise the power upon a criminal who does a criminal act in his presence", he may not succeed in taking the criminal to the police station. Yet the criminal could be kept in custody and the Police be informed about the arrest. What is envisaged is the collective function of the Public and not daring acts of individuals. Various other questions paused by the learned author are too hallucinatory to be accepted.

S.43 is not to be read in isolation. It is only supplementary to Ss.37, 38 and 39 of the Code. These Sections impose certain duties on the citizens to assist the Magistrates and Police to aid to arrest, and in execution of warrant to give information of certain offences etc. The Public is thus made vigilant rather than being reduced to silent spectators of crimes. That the Britishers misused the provision is not a ground to dispence with it.

A Fanciful and Wrongful Approach

(By T.M. Rajasekharan, Advocate, Calicut)

The classic example of neglect of important provisions of law is exhibited in two decisions of the Kerala High Court in Kesavan Nair v. State of Kerala and Haries v. State of Kerala (2005 (3) KLT 391 and 2005 (3) KLT 400 respectively). Much of the exercise in these two rulings could have been avoided had the attention of the Court been drawn to the S.216 of the Code of Criminal Procedure.

S.216 Cr. P.C. reads as follows:-

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(Sub-sections 3 to 5 omitted)

In Kesavan Nair v. State of Kerala, the Accused were charged with offences u/Ss.380 and 451 Indian Penal Code. It is not usual that the High Court interferes with the trial by hairsplitting evaluation of the allegations in the Complaint. But that is what precisely the court did, while interpreting the word "dishonestly" and scrutinizing the facts of the case. The Court, inexplicably, found that Ss.380 and 451 I.P.C. do not apply to the facts of the case. However without adverting to the salutory provisions of S.216 Cr. P.C. the entire proceedings in the case were ordered to be dropped, resulting in a strange and unmerited acquittal. The Court, with great respect let me state, failed to find that offences under S.447 and 427 I.P.C. were writ at large in the matter. If the statement of facts contained in the reported judgment were established at the trial, there would not have been any escape for the accused from conviction under those sections of the Penal Law. When charge sheets are filed by the Police, ignorantly, inadvertently or deliberately, the correct section of the Penal Code could be omitted. It is for the Court, when the evidence raises the curtain, to realise if there is any omission in the charge, and act accordingly.

As if to illustrate judicial inconsistency, barely within one month of the pronouncement of the judgment in Kesavan Nair's case, came the decision in Haries's case, applying different yardstick diametrically opposed to the earlier ruling. In the latter case, the High Court found that the charge under S.292, 294(b) and 506(1) would not lie, but instead of quashing the proceedings as was done in Kesavan Nair's case, searched out and discovered that offence under S.509 is attracted.

Paragraph 26 of the judgment in Haries' case reads: "But when this Court finds that the allegations revealed from the records constitute any offence or offences other than what are stated in the charge sheet, it will not be just and proper to quash the charge. Such quashing will not only not secure ends of justice but it will even result in miscarriage of justice". Further it is added "Though the specific section is not included in the charge sheet nothing prevents the lower Court from proceeding against the Petitioner for offence under S.509 I.P.C. Anyway, I am not inclined to quash the charge on the ground that there is failure to include a particular section in the charge sheet". A pathetic late realisation though for the good. In this situation, two aspects deserve the attention of students of law. Firstly, in a pre-trial intervention especially under S.482 Cr. P.C, the High Court should be cautious in analysing the facts contained in the case records. It will amount to prejudging the evidence. It is better to allow the trial courts do their own business. Secondly, while the provisions of the Indian Penal Code are subjected to detailed study, the related provisions of the Criminal Procedure Code should be discussed side by side. Unfortunate it is that rudiments of application of Criminal Law is to be reminded of through these columns.

I am constrained to add that there is yet another anomaly of far reaching consequences in the entire episode as far as Kesavan Nair's case is considered. The Kerala Buildings (Lease and Rent Control) Act is provided for eviction of tenants in a lawful manner. It is not for the land-lord to take the law into his hands with perfect immunity, to use force and throw the tenant out of the building disregarding the provisions of Specific Relief Act and disobeying the order of injunction granted by a competent court of law. Painstaking interpretations of the provisions of law is one thing, but to provide substantial justice to the aggrieved is another. The Court may find intellectual pleasure from the former but its basic duties demand the latter. The Court of law can neither act as a silent spectator or become a somnambulist by hiding in the darkness of a self-made cocoon. I am sure that the judgment of the Kerala High Court in the instant case is an open proclamation to all the land-lords that "might is right". The end of "rule of law" appears to be in the near vicinity.