Common Judgment:
V. Ramasubramanian, J.
History will find greatness in Felix Frankfurter as a justice, not because of the results he reached, but because of his attitude toward the process of decision. His guiding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end and dedication to the Court as an institution. Because he was human, Justice Frankfurter did not always live up to his own ideal. But, he taught us the lesson that there is importance in the process (New York Times Editorial The Frankfurter Legacy, on September 2, 1962).
1. A very recent decision of the Supreme Court in Joint Secretary, Political Department, Government of Meghalaya, Main Secretariat, Shillong Vs. High Court of Meghalaya through its Registrar, Shillong [Civil Appeal No. 2987 of 2016 dated 18.3.2016] began with the above quote. In the said decision, the Supreme court reminded all the Judges of this country about their duty and also quoted the following passage from its earlier judgment in Census Commissioner and Ors. Vs. R.Krishnamurthy [2015 (2) SCC 796] :-
The present appeal depicts and in a way, sculpts the non-acceptance of conceptual limitation in every human sphere including that of adjudication. No adjudicator or a Judge can conceive the idea that the sky is the limit or for that matter there is no barrier or fetters in one s individual perception, for judicial vision should not be allowed to be imprisoned and have the potentiality to cover celestial zones. Be it ingeminated, refrain and restrain are the essential virtues in the arena of adjudication because they guard as sentinel so that virtuousness is constantly sustained. Not for nothing, centuries back Francis Bacon4 had to say thus:
Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. Let the Judges also remember that Solomon s throne was supported by lions on both sides: let them be lions, but yet lions under the throne.
2. The learned Advocate General appearing for the State reminded us of this sagely advice, while commencing his arguments in the present appeals, which arise out of an order passed by the learned Single Judge directing the State, after disposing of a writ petition, to impose a dress code in temples. The learned Single Judge felt that in order to enhance the spiritual ambiance among the devotees, thronging the temples, a dress code for devotees visiting the temples in Tamil Nadu is essential and hence, gave a direction to the State Government and the Hindu Religious and Charitable Endowments Department to consider implementing a dress code. The learned Judge also prescribed a code as follows:-
"For Men:
Dhoti or pyjamas with upper cloth or formal pants and formal shirts
For Women:
Saree or half saree with blouse, churidhars with upper cloth.
For Children:
Any fully covered dress
For Police, Fire and Rescue Personnels and Security Guards:
No bar to wear uniforms, prescribed by their respective departments inside the Temples."
3. The learned Judge also gave the following direction to the State:
The State Government is directed to take a decision on this issue as expeditiously as possible. Till such time, the Dress Code mentioned in paragraph No.10 (supra) has to be followed in all the Temples with effect from 1.1.2016. The fourth respondent is directed to send circulars to all the Temples to strictly adhere to the Dress Code, by way of intimation in the notice board to all the devotees. However, it is made clear that there are certain procedures being followed in some of the Temples like Tiruchendur, by prohibiting boys and men to wear upper cloth, while entering the Temple for worship and the same can be followed by such Temples till a decision is arrived at by the Government. Likewise, the temples, which are not coming within the purview of the Government, shall strictly enforce their own traditional dress code to create a righteous atmosphere for worshipping God/Goddess. Police shall not allow devotees inside the Hindu Temple of Tamil Nadu, who wear dresses other than the one prescribed above. With the above direction, this writ petition is disposed of."
4. In order to implement his order and to make the police responsible for the same, he directed the Registry to mark a copy of this order to the Director General of Police, Tamil Nadu. In para 10 of the order, the learned Judge merely directed the State government to consider implementing the dress code for the devotees visiting the temples as suggested by him. But, till such time the State government takes a decision, the dress code prescribed by him was made mandatory. It must be noted that in the original writ petition, neither the State government nor the Hindu Religious and Charitable Endowment Board was a party. On the day of disposal of the writ petition (26.11.2015) the State Government was impleaded suo motu, but the State did not have an opportunity to respond. Therefore, a grievance is projected by the appellant - State in their Memorandum of Appeal and in ground No.5 it was pleaded as follows:
The Hon ble Judge ought to have seen that the appellant was not a party to the case originally. Once the Hon ble Judge had chosen to implead the appellant suo motu, ought to have issued notice to the appellant and heard the State on the issue involved.
5. It is relevant to note here that the relief claimed in the original writ petition filed by the writ petitioner, (who is the first respondent in all the writ appeals) has nothing to do with the implementation of a dress code. The relief claimed by the writ petitioner was as follows:-
To issue a writ, order or direction or any other writ in the nature of a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order passed by the 3rd respondent dated 16.11.2015, quash the same and consequently direct the respondents to grant permission and police protection for Gramiya Adal Padal Vizha scheduled to be held on 23.11.2015 at 7.30 p.m., at Sri Shenbaga Vinayagar temple premises located at Akkiyampatti Village, Palayapalayam Post, Marungapuri Taluk, Trichy District and pass such further or other orders as this Hon ble Court may deem fit.
6. When the above writ petition came up for admission on 20.11.2015, the learned Additional Government Pleader took notice on behalf of the State. Therefore, without waiting for any response from the three respondents, who are the police officers, an order was passed to the following effect:-
"The petitioner has come forward with this petition for the purpose of conducting Bharatha Nattiyam on 22.11.2015 and Village with Kudamuzhukku Vizha and Annadhana Vizha of Sri Shenbaga Vinayagar Temple premises located at Akkiyampatti village, Palayapalayam Post, Marungapuri Taluk, Trichy District.
Considering the cause exposed by the petitioner, this court is of the view that an interim direction can be issued for conducting the above said programmes. Accordingly, the third respondent is directed to permit the petitioner to conduct Bharatha Nattiyam schedule to be held on 22.11.2015 from 7.30 p.m. to 10.30 p.m. and Village Cultural Programme (Gramia Adal Padal) on 23.11.2015 from 07.30 pm. To 10.30 p.m. at Sri Shenbaga Vinayagar Temple premises located at Akkiyampatti Village, Palayapalayam Post, Marungapuri Taluk, Trichy with the following conditions:-
(i) The petitioner and other participants shall not shout, raise any slogan for or against any party or party leader, any case, community or creed.
(ii) The petitioner shall ensure that no untoward incident is caused disturbing the public peace and tranquility.
(iii) Songs praising communal leader or having communal overtones should not be played.
(iv) Mike sets should not be used during the programmes
(v) The Petitioner will ensure that no flex board or hoardings depicting particular community or leader will be displayed.
(vi) No flex boards in support of any political party or religious leader be erected
(vii) If there is any violation of any one of the conditions imposed, the concerned Police Officer is at liberty to take necessary action, as per law and stop such performance;
(viii) Similarly, the police is empowered to stop the programme, if it exceeds beyond the permitted time.
(ix) If the third respondent finds that the conditions are violated and there is any problem they have got right to stop the programme and bring the same to the notice of this Court.
(x) To enhance the spiritual ambience among the devotees, thronging to worship God/Goddess, there should be a dress-code for men and women, including children, which are as follows:
For Men :
a) Dhoti or pyjamas with upper cloth For Women:
a) Saree or half saree with blouse, churidhars with upper cloth
For Children :
a) Any fully covered dress
(xi) The police shall not allow the devotees inside any Hindu Temple, who wear Bermudas, shorts, mini skirts, middies, sleeveless tops, low waist jeans, short length t-shirts etc.
(xii) The second respondent is directed to issue necessary permission, incorporating the above conditions.
Post the matter on 25.11.2015 for reporting as to whether the conditions imposed by this Court as stated above have been duly complied with or not. It is made clear that in the event of noncompliance of the conditions, further orders will be passed in this case.
7. Whether an interim order permitting such dance programmes can at all be passed and that too, at the time of admission of the writ petition itself is a doubtful preposition. One of us (V.Ramasubramanian,J) in identical circumstances declined to grant such an order, when a similar request for conducting a dance during the time of a temple festival and it was observed as follows:-
Even if there is a likelihood of a person making an indecent representation, the same is prohibited by the said Act. It is needless to point out that the likelihood of depravation, corruption or injury to public morality stands on a different footing than the actual depravation, corruption or injury.
While all offences under the Indian Penal Code become offences after commission of an act, one offence, namely an attempt to commit suicide, which when actually committed successfully, cannot be prosecuted. But, the very attempt to commit it is prosecutable. What the petitioners want in these cases is similar to the same and this Court cannot issue a Writ of Mandamus to permit the petitioners to do something when there is a likelihood of violation of the law.
8. Of course, there is no unanimity of opinion on this issue among the Judges of this court. Some Judges decline such a prayer on well established legal principles to the effect that no writ of mandamus will lie to compel the authorities to perform what is not thrust upon them by the statute. But some Judges allow the prayer for the conduct of dance programmes, partly on the ground that it is a harmless relief and partly on the ground that it is the only source of entertainment for the villagers (forgetting for a moment that temple festivals are not intended to be of entertainment value).
9. In the case on hand, the learned Judge thought fit to grant the prayer, but unfortunately, did not close the writ petition, after granting the prayer. When the matter came up on 26.11.2015 (five days from the date of the order granting relief to the writ petitioner), it was informed by the counsel for the petitioner that the programme was conducted in a disciplined manner without causing any hindrance or disturbance to the general public and in accordance with the conditions imposed by the learned Single Judge. This fact was also confirmed by the respondents as noted by the learned Judge.
10. Therefore, nothing actually survived thereafter in the writ petition. But, the learned judge passed further orders regarding dress code in that writ petition itself. In para 4 of the order under appeal, he had stated that he wants to suggest to the State Government to prescribe a dress code. At that time, it was informed to the court by the learned Special Government Pleader that the Hindu Religious and Charitable Endowment Department was not a party to the writ petition and if any suggestions are made, the same may have to be placed before the State Government. Therefore, he sought eight weeks time. Noticing that the State Government was not a party, the learned Judge suo-motu impleaded the State Government then and there and disposed of the matter. The learned Judge gave certain reasons for passing the order and they are borne out in paras 7 to 9, which read as follows:-
The main object of prescribing Dress Code to the devotees is to restrict some of the devotees visiting the Temple wearing improper clothing. It is worthwhile to mention that the famous Shree Somnath Temple has recently imposed a dress code banning short skirts and shorts by exhibiting a board about 200 metres away from the main temple to the effect that "Not allowed inside the temple improper disrespectful dress" (as per the news hosted in the internet by The Times of India dated 11.06.2014). Though the language carved in the board is not clear, yet it conveys the meaning that the devotees, who wear improper and disrespectful dress, will not be allowed to enter the Temple. Even the Tirumala Tirupati Devasthanams, which manages the country's richest temple in Chittoor District of Andhra Pradesh, started implementing a "dress code" for everyone including VIP pilgrims, who want to have the break darshan of Lord Venkateshwara in the morning and evening.
All the religions in the world preach a decent, neat and disciplined dress code for worshiping their respective Gods. According to Christianity, a general lesson from the New Testament is that "we should dress for public worship in a way that is generally considered appropriate. Standards of dress are different from church to church and change over time, but we should avoid any style of dress that is offensive or sends a message opposing the church community's values".
The Islamic religion is very particular in following their own dress code, while entering the Mosque, that is to say, women should have all skin covered; ankle-length skirts or pants are required. Sleeves should reach to each wrist and the hair should be covered by a headscarf. Pants or skirts that are too revealing, clingy, or tight should not be worn and the dress permissible to men for worship is that they should wear long pants and plain shirts without messages or slogans when visiting mosques. Short-sleeved shirts are acceptable as long as the sleeves are not shorter than average and in the event of any doubt, it was suggested to wear long sleeves.
11. But, we are of the considered view that the reasons stated above, run contrary to the word of the word of caution sent by the Supreme court in Meerut Development Authority Vs. Association Of Management Studies {2009 (6) SCC 171}, wherein the Supreme Court observed as follows:
It would seem to us wise for the courts not to venture into this unchartered minefield. We are not exercising our will. We cannot impose our own values on society. Any such effort would mean to make value judgments.
The impugned judgment illustrates "the danger of judges wrongly though unconsciously substituting their own views for the views of the decision maker who alone is charged and authorized by law to exercise discretion."
12. First of all, prescribing a dress code for the devotees worshipping in temples was not an issue, which arose directly or indirectly in the writ petition. Secondly, there was no prayer by the petitioner seeking the prescription of a dress code for the worshippers in Hindu temples. Thirdly, the prayer of the writ petitioner had practically become infructuous, as the main relief claimed by him was granted by the interim order itself and that order had also been complied with and therefore, there was nothing in the writ petition to be further adjudicated. Hence, the directions issued by the learned Judge beyond the scope of the lis that was before him, cannot be approved.
13. After the learned Judge issued the above directions, a huge public debate started on the question as to whether there should be a dress-code for entry into temples or not. Another incidental question also arose as to who has the authority to prescribe a dress-code, even if there should be one. Thus, instead of resolving a private dispute on hand, the decision of the learned Judge triggered a public debate.
14. As a knee jerk reaction to the debate created by the judgment of the learned Judge, the Commissioner for Hindu Religious and Charitable Endowments issued a circular bearing R.C.No.62577/2015/Z3/ dated 11.12.2015 directing the Board of Trustees of the respective temples to take a decision on the issue, keeping in mind the customary practices prevailing in the temple, the prescriptions contained in the particular Agama on the basis of which, the temple was consecrated and also keeping in mind Rules 2 and 4 of the Rules framed under the Tamil Nadu Temple Entry Authorisation Act, 1947.
15. The above circular created an impression as though the directions issued by the learned Judge had been implemented by the State. Therefore, two women's organisations came up with third party writ appeals, challenging the order of the learned Judge. But, dispelling all doubts, the State itself came up with the appeal in W.A.(MD)No.1 of 2016, challenging the order of the learned Judge.
16. After noticing that two women's organisations filed third party appeals and after noticing that the State had also filed an appeal, several individuals jumped into the fray and filed petitions for impleading, so as to support the prescription of a dress code. These individuals took a preliminary objection that the writ appeals are not maintainable, in view of the implementation of the order of the learned Judge by the State, with the issue of the circular dated 11.12.2015.
17. But, as rightly pointed out by the learned Advocate General, the circular dated 11.12.2015 merely states the obvious. The circular points out the existence of a statutory prescription, that could not be brought to the notice of the learned Judge, as the State had no time to respond to the suggestion of the learned Judge. This circular is not issued in implementation of the directions issued by the learned Judge. Therefore, the right of the State to file an appeal has not been lost.
18. As rightly contended by the learned Advocate General, the circular merely directs the Board of Trustees of the respective temples to adhere to the customary practices prevailing in those temples and the prescriptions contained in the Agamas, on the basis of which, the temples were consecrated. Such a direction is borne out of the fact that the predominant role of the Hindu Religious and Charitable Endowment Department is to exercise control over the temporal affairs, but not the religious affairs of the temples. The Department cannot even interfere with some of the age old practices followed in temples as they are protected by Articles 25 and 26.
19. In His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami, etc. Vs. State of Tamil Nadu [AIR 1972 SC 1586 : 1972) 2 SCC 11], the Supreme court held that the right conferred under Articles 25 and 26 of The Constitution of India is not limited to matters of doctrines or beliefs, but to extend to the acts done in pursuance of religion and therefore, the guarantee of rituals, ceremonies and modes of worship are integral parts of religion. But, however, about what constitutes as essential part of religion, the Court, in paragraph 12 of the judgment, observed as follows:
"...what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion."
20. In Dr.M.Ismail Faraqui and Others Vs. Union of India and Others [1994 (6) SCC 360], the Court pointed out the distinction between religious practices and what constitutes an essential and integral part of the religion. The following passage found in paragraph 77 of the judgment makes it clear:
"The right to practise, profess and propagate religion guaranteed under Article 25 of The Constitution does not necessarily include the right to acquire or own or possess property. Similarly, this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed under Articles 25 and 26 of The Constitution. The protection under Articles 25 and 26 of The Constitution is to religious practice, which forms an essential and integral part of the religion. A practice may be a religious practice, but not an essential and integral part of practice of that religion."
21. Once again in N.Adithayan Vs. Travancore Devaswom Board and Others [2002 (8) SCC 106], the Court observed in paragraph 16 as follows:
"The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down." (Emphasis added) Role of the Tamil Nadu HRandCE Act, 1959.
22. Very recently, the Supreme court reiterated in Adi Saiva Sivacharyargal Nala Sangam and Ors Vs. Govt of Tamil Nadu and Another [2016 (2) SCC 725] that the freedom of religion under Articles 25 and 26 is not only confined to beliefs, but extends to religious practices. The rights guaranteed under Articles 25 and 26 are circumscribed and are to be enjoyed within the constitutionally permissible parameters. It was observed in para 43 as follows :-
Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the Constitutional Court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity.
23. The writ petition, which gave raise to these writ appeals, is not one such petition where this Court is called upon to decide whether the State Government can prescribe a dress code for the temples coming under the supervision of the Hindu Religious and Charitable Endowment Board. In case some devasthanams prescribe a dress code and that give raise to a litigation, there may be a chance for this Court to examine the legality, propriety and desirability of such prescription. In the absence of any such real lis before this court, it will not be open for us to tread into an unknown territory.
24. Ms.U.Nirmala Rani and Ms.A.Rajini, learned counsel appearing for the women's organisations, who have filed third party appeals, assailed the order of the learned Judge on the basis of the freedoms guaranteed under The Constitution. In response, M/s.S.Srimathy, RM.Arun Swaminathan, S.Arunkumar and K.Gokul, the learned counsel appearing for the impleading petitioners and one Mr.Killivalavan appearing in person submitted elaborate arguments on the need for a dress code.
25. In other words, both sets of private parties, wanted this Court to decide a lis that was not before the learned Judge, but was actually created by the learned Judge. However, we have refrained from adjudicating upon this controversy, as the same was not at all before the learned Judge. As rightly contended by the learned Advocate General, Courts are not expected to adjudicate any matter academically in the absence of any real lis between parties. Courts are not entitled to create a controversy and adjudicate upon the same. Therefore, we respectfully disagree with the directions issued by the learned Judge in the writ petition in his final order and we are constrained to set aside the same and reserve it for an occasion, when a real litigation comes before us.
26. Duty bound as we are by the dictum laid down by the Supreme Court, we hereby set aside the order of the learned Judge dated 26.11.2015 made in W.P.(MD)No.20559 of 2015. The writ appeal in W.A.(MD)No.1 of 2016 is allowed. In so far as the writ appeals in W.A.(MD)Nos.126 and 150 of 2016 are concerned, they are unnecessary, as the relief has been granted in the appeal filed by the State, which was a necessary and proper party before the learned Judge. Hence those writ appeals are dismissed. All the miscellaneous petitions are closed. However there will no order as to costs.