On 7th June, 2021, JUSTICES R.MAHADEVAN and P. D. AUDIKESAVALU, Madras High Court, rendered a seminal judgment in Suo Motu v. The Director, Archaeological Survey of India, Janpat, New Delhi-110 004 and others. The proceedings arose in these circumstances, as captured by the bench itself.
“2.1 On 06.01.2015, the First Bench headed by the Hon’ble The Chief Justice Sanjay Kishan Kaul, as he then was, initiated a suo motu proceedings, based on the newspaper report published in “The Hindu” on Sunday, 4th January, 2015 titled “Silent Burial”, relating to the inaction on the part of the Government in establishing the statutory authority, framing rules and constituting a 17-member Heritage Commission to advise them on heritage issues. It was pointed out that in April 2012, the Government announced its decision to enact a law on Heritage Commission, which move was welcomed by activists and conservationists and the State Legislature passed a bill in this regard and it had received the assent of the Governor, however, there was no progress ever since. The newspaper report further indicated about another initiative of the Government viz., the Mamallapuram World Heritage Area Management Authority, inspired from the model of Hampi World Heritage Area Management Authority, meant for conservation of cultural heritage of area declared as a World Heritage Site in 1984, which has also not been set up.”
It would normally have ended up adding to the spate of Suo Motu initiated legal literature. They could have alluded to Art. 49 of Directive Principles of State Policy and Art.51-A of Fundamental Duties (added during the period of Internal Emergency) of the Constitution, and issued the directions called for.
For the record, The Directive Principles of State Policy of India are the guidelines or principles given to the institutes governing India. These provide Part-IV (Article 36-51) of the Constitution of India, are not enforceable by any court, but the principles laid down there in are considered ‘Fundamental’ in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles of the State of Ireland which are related to social justice, economic welfare, foreign policy, and legal and administrative matters.
Article 49: Protection of Monuments And Places And Objects Of National Importance.
It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
Art. 51A- Fundamental duties “It shall be the duty of every citizen of India ……(f) to value and preserve the rich heritage of our composite culture;”
And it would still have been an important verdict in the cultural and heritage annals of this country and not confined to Tamil Nadu alone. Formation of the Heritage Commission and Management Authority, after a decade of utter insolence from the other branches of democracy, may have happened, at the instance of Judiciary, ‘the least powerful arm of government’, as written by Alexander Hamilton in his Federalist Paper No. 78.
Kudos are due to the learned judges, for not ‘skimming the surface or dancing around the edges’ as Justice V R Krishna Iyer said in a different context. It may have been easy for them to pick up the cause and record the failure of powers that be, to constitute the institutions. And then issued a mandamus to them to do their constitutional duty within a time line. They did not do that.
They ‘deep dived’ as Justice Antonin Scalia may have said, and expended on the ‘call of duty’ as a ‘call of conscience’. Quoting from Albert Camus and Victor Hugo, as preamble, they painstakingly built a lovely story from our nation’s culture and heritage. In a monumental decision on our Monuments, gratitude is due to the law lords for their painstakingly intellectual indulgence. Surely, not easy. A reading of the 225 page ‘dissertation’, as I would call it, in 58 Paras with 75 specific and pointed directions is revelatory of the thought process that has gone into this exercise. ‘It is as expansive and sweeping as they come, to cover many a crevice’ as Lord Denning once said.
No doubt, as acknowledged by the learned judges (Para 58) assistance may have come from those who appeared before them, including a party in person, always in the news vis a vis Lord Rangathaswamy Temple, Srirangam. But it is evident, that the Justices have done a lot of homework and possibly burnt the midnight oil, to deliver a verdict, which they can ‘proudly claim to be part of my legacy’ genre, as Justice Louis Brandeis branded his Ohmstead baby. Well done.
After adverting to the rival submissions, with the Hindu Religious & Charitable Endowments Department, Tamil Nadu, defending itself despite its dismal track record, the court in Para 39, succinctly supported its pronouncement with this irrefutable factual foundation:
“ 39. This Court has exhaustively discussed in the preceding paragraphs about the role played by the temples in the development of the society. The temples of Tamil Nadu have embodied the continuing traditions and living heritage of the Country. It was as early as from 7thcentury during the Pandya period, thereafter Chola period to the Vijayanagara and Nayaka periods, because of their architectural, artistic, archaeological, socio-religious and economic value, the temples were restructured and constructed, which are now of great cultural significance and historical value. Since the temples belong to either of the two main sects, ie., Saivities and Vaishnavites, they are visited by the local devotees and Hindu pilgrims and they are immensely valued by historians, researchers, archaeologists etc., as benchmark of architecture. The shore temple of Mamallapuram and the Big temple of Brihadeeswarar in Thanjavur, have already been listed in the World Heritage List. Shri Ranganatha Swamy Temple at Srirangam is also placed in the tentative list for future nomination as World Heritage Site. Since it is not just the physical structures of the temples but also the traditional principles, it is indeed a great challenge to define a singular conservation approach for the temples of Tamil Nadu. It is only if the daily rituals are performed and the temples are preserved, the religion itself could survive. By sheer numbers and considering the age of the monuments, our country would be the country with maximum monuments and in India, Tamil Nadu would be premier state having the number of temples and other places of historical significance. The secularism and protection as embodied in the constitutional framework are available to all the religions and faiths. So, it is the duty of the state to protect, preserve and maintain all places of archaeological and historical importance. Miniscule developments have been shown because of the intervention of this court in the last few years.”
The author of the verdict Justice R Mahadevan revealing his skill and dexterity as a Tamil scholar of no mean talent, let out an arrow that must wound and hurt, in responsive souls. Sigh!
“At this juncture, it is relevant to quote the lines of the great Tamil poet Thirumoolar in his book ‘Thirumandiram’, meaning as follow:
‘None should cause any damage or usurp the properties of the temple’. But, the statistical record reveals that out of 5.25 lakh acres of land, only 4.78 lakh acres are available as of now and the balance acres of land are in the hands of encroachers. It is significant to mention here that the HR & CE department is the custodian and administrator of the temples and its properties. But this department, to the knowledge of this Court, has not purchased even a small portion of land for the benefit of any temple.
As administrator, the role of this department is much more responsible and the officials are culpable and liable to be punished in case of breach of their responsibility. The administrative right to deal with the temple properties is only to preserve and augment more revenue, implying that the temple lands ought not be alienated or given away. It is to be noted that the Government cannot claim right over the temple lands and the same cannot be a part of any Government scheme, otherwise, the very object of the creation of the HR & CE department would get defeated.”
The 225 page order is a strong indictment of the HR & CE Department, for its multiple omissions and commissions. Nothing new, you may say. No, this is new because it is a veritable charge sheet with a factual matrix shining bright, on alphabet, letter, syllable, phrase, sentence, pages and para wise. The learned judges have said ‘Not something almost everything is rotten in the State of Denmark’ as Marcellus addressing Horatio in Hamlet. A true tragedy of epic proportions. Is anyone out there listening please!
Not stopping with temples it stepped in to archaeological monuments and has culled out statistics that may stand posterity in good stead, to realise its Fundamental Duty as in Art.51-A.
“43. As per the statistics, there are about 413 monuments in Tamil Nadu under the control of ASI, out of which 403 fall under Chennai circle and 10 under the Thrissur Circle. The excavations at various sites have thrown a light on the unanswered questions on the origin and evolution of humanity. The state department has conducted excavation at 40 sites. The excavation at Keeladi has brought a new dimension to the claim of the people of this land regarding the ancientness of the language and origin. Though the State has done commendable work in certain areas like manuscripts, it has fallen short in the maintenance of heritage sites and temples as pointed out in the report of the UNESCO team.”
The learned judges got to the wicket, possibly to play a T-20 match. They were willing to knock a few boundaries and sixes and sew up the match. Alas, they were in for a long haul. They were not overwhelmed, by the task on hand. They picked up the gauntlet. They wielded a scalpel and a sledgehammer, if need be. In subtle and direct, hard and soft, suave and sharp, alternating terminology, as if a pair of opposites in theology, the author of the judgement has gone hammer and tongs, in agony with anguish not animosity and anger, as why we are, where we are. What a fall my countryman, he/they say in woe!
Picking up the shredded pieces of the temples and monuments, as they appear to have been orphaned and reduced to , with the vintage Seshammal verdict of 1950 to Sarika in 2018 to Sridhar in 2020, the learned judges , with ‘all the momentum and motivation to do good to society at large’, as Thurgood Marshall (later an Associate Justice himself) said on Brown v. Board, the iconic 1954 SCOTUS verdict, ending segregation in schools, have issued no less than 75 directions, in Para 55 of the judgment.
Apart from ordering the constitution of the “17-member Heritage Commission to advise the Government of Tamil Nadu and formation of ‘Mamallapuram World Heritage Area Management Authority,” inspired from the model of Hampi World Heritage Area Management Authority, meant for conservation of cultural heritage of area declared as a World Heritage Site in 1984, the learned judges have served a Template for adherence on a Platter. If there is a Will, there is a Way, we say. Here is the Way with a capital W. From the law lords on the State pulpit. Is there the Will and WILLINGNESS for the powers that be?
Much like the ‘Koil Ozhugu’ has a good deal of authentic documentation of the Srirangam Lord Ranganathar temple’s history and Saint Ramanujar laid down the Template for the religious practices and festivals in the temple, the learned judges have given a Template to the powers that be ‘to do good, if they deign and decide’ as Fali S Nariman talked of State’s obligations.
It may be pertinent to note the classic judgement of the Supreme Court dated 13.07.2020 relating to “Management Rights over Sree Padmannbhaswamy Temple”. In that verdict, in so far as ‘religious practices and festivals’ in the temple where concerned, they were left in the hands of the Chief Thanthri and not in hands of the executive officers.
The learned judges have played smart. They know the mischief that could be done, to their good intentions and whiplash directions. So they have guardedly ordered:
“75) No litigation in respect of the subject matter of the present petition shall be entertained by subordinate courts. Incase any suit or other legal proceedings are filed, the subordinate courts shall refer the same to this court in view of the decision rendered by the Honble apex court in Mrinalini Padhi case (cited supra). For clarification,if any, the party interested / affected is at liberty to approach this Bench in the present proceeding itself, as directed by the Hon’ble Chief Justice, by order dated 23.08.2016”.
And aware of the landmark nature of the directions and at least a decade long disdain, abstinence and indifference, allied with omissions and commissions of the powers that be, the learned judges have imposed on themselves, the Fundamental Duty under Art.51-A, to paving the way for others to follow the leader, by directing the listing of the proceedings after twelve (12) weeks of 7th June,2021, ‘for reporting compliance’.
Honestly, one is stunned with the sweep of the order. It is historical, cultural, theological, archaeological, ‘monumental’, religious, yet on the legal and constitutional plane. The law lords have not simply ‘ordered mandamus for the asking’ as Justice V Parthiban , recently bemoaned at the flood of such kind, of the inane and insulting. They learned judges have done all the running. They have presented a White or Black Paper, with not a catena of woes and woeful. They have gone beyond and presented a practical and workable Template, as if a ‘Koil Ozhugu’ for all temples and heritage monuments in the State of Tamil Nadu.
And they have guardedly retained supervision, to await ‘reporting compliance’. One can be sure that they are not likely to lower the guard. They are in rollicking form. They are likely to treat any non compliance with the seriousness it may deserve. The powers that be, Beware.
Not as a legal or a constitutional duty, but as a higher call of duty as a call of the conscience, as the learned judges have shown the way. In the meanwhile, here’s hoping that the tide would turn for the better. A pivot for good . It would be such a pity, if this glorious Template on a Platter, is given a go by. Hope not, pray, We The People.
(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)
