TEMPLE-ENTRY AND THE UNTOUCHABILITY (OFFENCES) ACT, 1955

Author(s): Marc Galanter

Source: Journal of the Indian Law Institute, Vol. 6, No. 2/3 (Apr.-Sept., 1964), pp. 185-195
Published by: Indian Law Institute
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 TEMPLE-ENTRY AND THE UNTOUCH ABILITY (OFFENCES)
ACT, 1955
Marc Galanter *

Exclusion from Hindu temples has been the möst publiciz

not the most onerous, single aspect of untouchability. It was th
in which government had most readily intervened to support e
sionary practices. It was the area which most troubled refor
publicists and politicians concerned with establishing or pres
Hindu unity. Temple entry movements received wide public
tion during the quarter century preceding the adoption of
Constitution. During the later part of this period, most of the
vinces and many of the princely states enacted laws to secu
opening of temples to untouchables.1
The Constitution establishes a secular state in which reli
liberty is guaranteed. Article 25 provides that " all persons are
entitled to freedom of conscience and the right freely to p
practice and propagate religion." Article 26 grants to "
religious denomination or section thereof... the right... to mana
own affairs in matters of religion."
The grant of religious liberty in Art. 25 is expressly qualifi
save existing temple-entry laws and to permit the State to p
" for social welfare or reform or the throwing open of hindu re
institutions of a public character to all classes and sections of h
"Hindu" is, of course, an equivocal term, sometimes used with r
rence to adherents of more or less orthodox vedic and brahmin
communions and at other times extending to embrace the full
of heterodox sects.2 An explanation is appended to the Constitu
temple entry proviso that " the reference to hindus., shall be con
as including a reference to persons professing the sikh, ja
Buddhist religion, and the reference to hindu religious insti
shall be construed accordingly."

* University of Chicago.
1. For a discussion of the pre-constitutional law and provincial legislatio
my article " Caste Disabilities and Indian Federalism," 3 J.I.L.I. 205-34 (19
2. See my article. " The Problem of Group Membership " 4 J J L.I. 33
347 if (1962) ; Derrett, Introduction to Modern Hindu Law (1963) Sec. 17-18.

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186 TEMPLE-ENTRY AND UNTOUCHABILITY (OFFENCES) ACT, 1955

In the Untouchability Offences Act of 1955, 3 Parliament included

temple-entry provisions, which proceed along the lines of the State acts
which it (in the main) supplanted.4 Section 3 of the UOA provides
that :

"Whoever on the ground of 'untouchability* prevents any person :

(i) from entering any place of public worship which is open
to other persons professing the same religion or belonging
to the same religious denomination or any section thereof,
as such person ; or
(ii) from worshipping or offering prayers or performing any
religious service in any place of public worship, or bathing
in, or using the waters of any sacred tank, well, spring or
water course, in the same manner and to the same extent
as is permissible to other persons professing the same
religion or belonging to the same religious denomination
or any section thereof, as such person ;
shall be punishable with imprisonment which may extend to six
months, or with fine which may extend to five hundred rupees or
with both."

The scope of the rights conferred by this provision depends on

the meaning of the phrases, " the same religion " and " the same
religious denomination or section thereof." The lawmakers, presu-
mably for the purpose of clarifying these terms, added an explanation
that :

"persons professing the Buddhist, Sikh or Jaina religion or

persons professing the Hindu religion in any of its forms or
developments including Virashaivas, Lingayats, Adviasis, follow-
ers of Brahmo, Prarthara, Ary a Samaj and the Swaminarayan
Sampradaya shall be deemed to be Hindus."
In spite of this explanation, the courts have resisted the implication
that temple-entry provisions obviate denominational and sectarian
distinctions. In State v. Puranchand 5 it was held that denial to untouch-
ables of entry to Jain temples is not a violation of Section 3 of the
UOA, since those excluded are not of the "same religion" as those

3. Act XXII of 1955.

4. See Art. cited note 1 Supra .
5. A.I.R. 1958 M.P. 352. The same reasoning was applied to a similar pr
sion of the Bombay Harijan Temple Entry Act (XXXV of 1947) in Bhaichand
chand v. State of Bombay A.I.R. 1 952 Bom. 233.

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 MARC GALANTER 187

admitted. The UOA, according to the

distinction between Hindus and Jain
right either in untouchables or in caste
It only puts the rights of untouchables
"others of the same religion"; i.e., unto
to enter a Jain temple that were previ
If the temple was not open to the lat
exclude untouchables from it now.

This interpretation of the temple-entry provisions is supported by «

the absence in the UOA of any evidence of intent to confer any new
rights on non- untouchables. The Act penalizes exclusion only " on
grounds of untouchability ", not on grounds of caste or sectarian j
exclusiveness. It would be, as the High Court points out, anomalous ļ
if untouchables were given right of entry more extensive than those
enjoyed by their high-caste co-religionists.
What, then, was the purpose and effect of including the expansive
definition of Hinduism in the UOA ? One of the Judges in the Pur an-
chand case attributes its presence to a desire to " bring the Act in line"
with the Explanation appended to Art. 25(2)(b) and to preserve the
distinctions between places of public worship belonging to different
religions.6 Since the power saved to the State by Art. 25(2) (b) is
clearly confined to Hindus and Hindu institutions, the desire to pro-
vide against narrow construction of this power is readily understand-
able. But this does not account for the Explanation found in the
UOA.

According to the High Court in the Puranchand case, the sum

effect of the Explanation is twofold : first^to insure that the exclusion
of their respective co-religionists is forbidden among Jains, Sikhs,
Buddhists and sectarians as well as among Hindus in the narrower
sensed secondato extend to Hindu untouchables whatever rights caste
Hindus might enjoy regarding entrance and worship at Jain, Buddhist,
Sikh and sectarian shrine^J But both of these objectives are accomplished
by the wording of s. 3 itself ; the Explanation, as interpreted, is not
required for either purpose. For, first, the act is not on its face
limited to Hindus in either the narrow or the broad sense. Its language
would seem to cover exclusion on grounds of untouchability even
when practised by those beyond the widest possible definition of

6. Ncnaskar J., Ibid, at 354.

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188 TEMPLE-ENTRY AND UNTOUGHABILITY (OFFENCES) ACT, 1955

Hinduism.7 And secondly, parity of rights in sectarian temples is

accomplished without the Explanation, for the rights of entry are
measured not by the sectarian character of the premises, but by the
affiliation of those who use it.8

It appears, then, that the Court has read the Explanation right
out of the UOA. But the result would not be much different if it
were taken in its most direct and plausible meaning - as lumping all
of the named groups into the "same religion". For the ,ťsame
religion " qualifications is followed by the further requirement that
the excluded persons belong to the "same religious denomination or
section thereof" as those admitted. Even if all of the different faiths
and sects mentioned in the Explanation are deemed to be the "same
religion " they would still remain distinct denominations or sections
within it.9 And these denominational lines would set the boundary
of the rights conferred by the UOA.
In State of Kerala v. Venkitesvara Prabhu ,10 untouchables were pre-
vented from entering the Nalambalam of a temple belonging to the

7 The explanation in the UOA might be read as an implicit limitation, con-

fining the operating of its temple-entry provision to " Hindus " as thus defined. This
would accord with the scope of the temple-entry power conferred by Art. 25(2 )(b),
which is confined to Hindus. It would also conform to the governmental policy of
recognizing untouchability only among Hindus for purposes of special treatment. See
the article cited in note 2 supra But even though the temple entry proviso in
Art. 25(2 (b) is limited to Hindus and Hindu institutions, the same article empowers
the state to enact laws for " social welfare and reform ". It is clear that the temple-
entry proviso of Art. 25(2) ( b) overrides the denominational rights of Art. 26(b) Sri
Venkataramana Devaru v. State of Mysore A.I.R. 1958 S C 255. Does the state's power
to enact social reform have the same overriding effect ? In any event, practices of
exclusion on grounds of untouchability would be unlikely to be recognized as
" matters of religion" for non -Hindu communities, since the courts have never
recognised a right to exclude among non- Hindus based on pollution. Michael Pillai
v. Barthe A.I.R. 1917 Mad. 431.
8. See the definition of łt place of public worship " in UOA, Sec. 2 (iv).
9. "Religion" and "religious denomination" have shifting meanings.
Adopting the dictionary definition of denomination as " a religious sect or body
having a common faith and organization and designated by a distinctive name" the
Supreme Court ( Commissioner v. Laximindra Thirtha Swamiar A.I.R. 1954 S C. 282)
concluded that every sect and sub-sect within Hinduism would qualify. Jains and
Parsis are also religious denominations. Ratilal v. State of Bombay A I.R. 1954 S.C.
388. Hinduism as a whole is a " denomination " and each school within it and
every territorial or doctrinal sub-group within such a group is a " section th
Laximindra Thirtha Swamiar v. Commissioner H.R.E. , A.I.R. 1952 Mad. 613, 639.
10. A.I R. 1961 Ker. 55.

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 MARC GALANTER 189

Gowda Saraswat Brahmin communi

other members of this community or
temple, the High Court held that exc
was not a violation of S. 3, since those
to the same " denomination or sectio
rights of untouchables to a parity wi
did not increase the rights of the
communities enjoyed no right of entr
such right was conferred on untouch
The rights conferred on untouchabl
sions of the UOA are sub ject to still
enter and worship " in the same mann
permissable for other persons professi
to the same religious denomination
chables do not have any right to ente
other than the regular hours, or to pers
reserved to special functionaries. 11 A
to prescribe the hours for rituals clos
untouchables, no offence is committe
excluded. 12 Nor do untouchables hav
temple closed to ordinary worshippers
by restricting the access of other w
excluded from entering the Vishwan
permitted darshan of the holy image
side passage. During the famous im
chables, the aperture was enlarged
untouchables eventually obtained ad
built a new temple to which Harijans
one except the priests are allowed in t

11. Sri Venkataramana Deuaru v. State of M

12. Baji Mahipatra v. Indian Dominion A.I.R
a prosecution under the Orissa Temple Entry
likely under the UOA although it might equ
manner and to the same extent " means what
than the reduced rights given the latter upon
In this case the pujaris had closed the templ
first turned away and their reappearance with
13. Hariharanand v. The Jailor A.I.R. 19H
14. Report of the Commissioner for Sched
1956-57, p. 13.

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190 TEMPLE-ENTRY AND UNTOUCH ABILITY (OFFENCES) ACT, 1955

The acceptance by the courts of denominational lines within

Hinduism as limiting the operation of temple entry provisions may
produce some unanticipated results. 15 For the " religion " and " deno-
mination" qualifiers also appear in other provisions ofthe UOA relating
to : use of utensils and other articles kept in restaurants, hotels, etc. ;
use of wells, water sources, bathing ghats, cremation grounds ; the use
of " places used for a public or charitable purpose ; " the enjoyment
of benefits of a charitable trust ; and the use of dharmasala, sarais and
musafirkhanas. 16 Given the reading of " religion " and " denomina-
tional " generated by judicial solicitude for sectarian prerogatives the
rights granted by some of the central and crucial provisions of the UOA
seem to be seriously limited.
This judicial solicitude for the prerogatives of groups within
Hinduism seems entirely consistent with Art. 26, which provides that :
"Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right...
(b) to manage its own affairs in matters of religion."
At first glance it is difficult to see how such denominational autonomy
can be reconciled with governmental power to provide for temple entry.
Denominational rights would seem to represent the outermost consti-
tutional limit of the temple-entry power ; the two could be reconciled
by excluding denominational institutions from the " Hindu religious
institutions of a public character " mentioned in Art. 25 (2) b.
However, the courts have been unwilling to impose such a
limitation on the temple-entry power. The first High Court to face
the problem upheld the extension of the Madras Temple Entry Act 17
to denominational temples by suggesting a variety of possible

15. To the extent that these qualifications repreient a desire to preserve

denominational prerogatives and the rights of Muslims, Christians, Jains, etc. to
control access to their premises, they are superfluous since it is only exclusion on
" grounds of untouchability " that is outlawed and " untouchability " has been
interpreted not to include religious exclusiveness. Deuarajiah v. Padmanna A J.R. 1958
Mys. 85 ; Saifuddin Saheb v. State of Bombay A.I.R. 1962 S.G. 853.
16. Sections 4(ii), 4(iv), 4(v), 4(vi) and 4(ix). Strangely enough, the qualifi-
cation is omitted from Sec. 4(x) regarding " the observance of any... religious custom,
usage or ceremony or taking part in any religious procession." The untouchables
seem to have access to the religious processions of Hindu denominations and sects
but not to their wells, etc.
17. Madras Temple Entry Authorization Act (V of 1947) and Amending
Act (XIII of 1948).

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 MARC GALANTER 191

reconciliations. 18 First, it asserted t

unrestricted by Art. 26. But this is
grounds. For Art. 25 (2) (b) expressly e
from coverage by the rights granted in
ing the rights granted in Art. 26. A
expressly made subject to Art. 26, wh
" public order, morality and health. "
Second, the Court held that the right
worship constitutes the " practice " of
rather than a "matter of religion " fall
is unconvincing, for Art. 26 is concern
while Art. 25 clearly deals with the religi
Finally, it held that Art. 26 (b) is subje
morality " and that Art. 17 makes the
chability " a standard of public mor
exclude any class of pious Hindus from
avoids the textual unseemliness of the
question whether exclusion from de
practice of untouchability.
But none of these lines was followed when a similar case was before
the Supreme Court in Sri Venkataramana Devaru v. State of Mysore . 20
The temple involved was a denominational one, founded for the
benefit of the Gowda Saraswat Brahmin community. The general
public were admitted on most occasions, although non Gowda Sara-
swats were excluded from some ceremonies. Under the Madras Act,
which defined a temple as a " place which is dedicated to or for the
benefit of the Hindu community or any section thereof as a place of
public religious worship," the temple was a public one and subject to
temple-entry laws. The trustees resisted the application of the Act on
the ground that asa denominational temple they enjoyed freedom to
manage their religious affairs.
Is the exclusion of all or some other communities a "matter of
religion ?" Religion embraces not merely doctrine and belief but
also "practices which are regarded by the community as part of its

18. P. S. Charya v. State of Madras A.I.R. 1956 Mad. 541.

19. The Supreme Court has rejected the notion that the religious " practice "
protected by Art. 25 is different from "matters oi religion " protected by Art. 26(b).
Commissioner H,R.E. v. Laximindra Thirtha Swamiar A.I.R. 1954 S.G. 282.
20. A.I.R. 1958 S.C. 255.

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192 TEMPLE-ENTRY AND UNTOUCHABILITY (OFFENCES) ACT, 1955

religion". 21 Under the Hindu law of ceremonial, "the persons entitled

to enter into [temples] for worship and where they are entitled to stand
and worship and how the worship is to be conducted are all matters of
religion." 22 Thus the claims of the denomination here fall squarely
within the ambit of Art. 26 (b). The Court concedes that if the issue
were to be decided on grounds of 26 (b) alone, the application of the
Act to denominational temples would be unconstitutional.
Does Art. 25 (2) (b) authorize the state to provide for temple-entry
at denominational temples ? Art. 25 (2)(b) extends to all temples "of a
public character." The Court holds that this includes not only those
dedicated to the Hindu community as a whole and not merely those
used by all " touchable" Hindus, but even denominational institutions.
For "public" institutions include those founded for only a section of
the public and thus includes denomination temples. Textual argu-
ments that the government's power is subordinate to the denomina-
tional rights, are rejected on the ground that they ignore the true
nature of the right conferred by Art. 25 (2) (b). "That is a right
conferred on 'all classes and sections of Hindus' to enter into a public
temple, and on the unqualified terms of that Article, that right must be
available, whether it is sought to be exercised against an individual
under Art. 25 (1 ) or against a denomination under Art. 26(b). Although
Art. 25 (1) deals with the rights of individuals, Art. 25 (2) is much
wider in its content and has reference to the rights of communites,
and controls both Art. 25 (1) and Art. 26 (b)."22a

21. Ibid. y at 264. The judicial view of what constitutes tť religion " has under-
gone a process of expansion and then refinement in the past decade. At first the
courts were inclined to accept the narrower American view (derived from decisions
of the American Supreme Court upholding the prohibition of Mormon Polygamy)
that religion was confined to matters of faith and belief rather than practice. State
of Bombay v. Narasu Appa Mali A I.R. 1952 Bom. 84 (polygamy) ; Taker Saifuddin v.
Tyebbhai Moosaji A. I.R. 1953 Bom. 183 (ex-communication). In Commissioner H.R.E. v.
Laximindra Thirtha Swamiar A. I.R. 1954 S.C., 282, the Supreme Court broadened it to
include "rituals and observances, ceremonies and modes of worship" which are
regarded as integral parts of religion. Subsequently the Supreme Court confined
the protection of Art. 26 to " such overt acts as are enjoined or sanctioned by his
religion". Ratilal v. State of Bombay A.I.R. 1954 S C. 388, 391 . It was narrowed
to acts which are " enjoined " by religion in Quareshi v. State of Bihar A.I.R. 1958
S.C. 731, but it extends to " essential religious practices " as well as beliefs. Samp-
singh v. State of Punjab A.I.R. 1959 S.C. 860. For a discussion of the course of this
development see Subramanian, " Freedom of Religion " 3 J.I.L.I. 323-350, (1961).
22. A.I.R. 1958 S.C. 255, 265.
22a. Ibid., at 268.

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 MARC GALANTER 193

Article 26 (b) must then be read as subj

proviso. Thus the Court reconciles de
temple-entry power by what amounts to
ment. In order to preserve the temple-ent
denominational rights, it treats the temp
appeared in Art. 26 as well as in Art. 25.
entry provision as conferring rights on i
powers on the government. The Court repe
conferred by Art. 25 (2) (b). It is clear t
confers any rights, they are considerably
by the criminal sanctions of the UOA
extensive as the full ambit of the power
authorize. Presumably even without legis
could be used defensively and, since they
writ petitions and other civil proceedings
them.

But to read Art. 25 (2) (b) as conferring "right" is to fly in the face
of the text. Unlike Art. 17, it does not speak in tones of prohibition.
It does not seem to confer any rights on excluded groups, nor of itself
to extinguish any existing exclusionary rights. On its face, it is merely
an enabling provision, insuring that the guarantee of freedom of religion
does not remove governmental power in this field. If the Supreme
Court were taken literally, it would represent a major piece of judicial
legislation. But what the Court presumably means is that the rights
conferred by the state pursuant to this provision have constitutional
status comparable to those granted in Part III itself. It is not necessary
to infer that the section creates new rights of access in all classes and
sections of Hindus, but only that the rights of entry given to particular
classes by temple-entry legislation are rights of constitutional status
and of such weight as to overcome the rights granted in Art. 26(b).
Although the temple-entry rights have overriding force, the
denominational rights may be exercised so long as they do not "sub-
stantially reduce the right conferred by Art. 25 (2) b." 24 The denomi-
nation may exercise its rights to exclude others and confine certain
services to initiates so long as " what is left to the public of the right of

23. Subramanian, op. cit. supra note 21 at 334 notes that Art. 26 rather than
Art. 25 would appear the appropriate location of the temple-entry proviso and calls
its appearance in Art. 25-a " defect in drafting
24, A.I,R, 1958 S,C, 255, 269.

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194 TEMPLE-ENTRY AND UNTOUCH ABILITY (OFFENCES) ACT, 1955

worship is something substantial and not merely the husk of it." 25

The Supreme Court found the other occasions of worship were
sufficiently numerous and substantial that temple-entry rights could be
exercised compatibly with the denomination's right to exclude all non-
Gowda Saraswats during certain ceremonies.
There is a wide gap between the extent of the power conferred
by Art. 25 (2) (b), as interpreted by the Supreme Court, and the exercise
of this power in the UOA, as interpreted by the High Courts. The
UOA, as interpreted, uses only part of the power conferred by the
Constitution.

First, the constitutional power extends not only to temples but to all
"Hindu religious institutions." It includes the full array of insti-
tutions of instruction, meditation, hermitage as well as the "places of
public worship" and the sacred tanks and waters dealt with by the
UOA.26

Second, Art. 25 (2) (b) empowers, the state to confer rights of entry
not only on untouchables, but on "all classes and sections of Hindus."
It concerns exclusion not merely on grounds of untouchability but on
any ground that might be applied to a class or section of Hindus.
While the UOA only expands the rights of untouchables to a parity
with those formerly enjoyed by caste-Hindus, the Constitution em-
powers the state to extend the rights of members of higher castes as well.
Third, the UOA, as interpreted by the Courts, recognized deno-
minational and sectarian differences as limiting the extent of rights of
entry. But the Constitution empowers the state to confer cross-deno-
minational rights ; not merely to enter and use premises not only of the
same religion or denomination, but any Hindu institution. The wording
of Art. 25 (2) (b) was altered in the Constituent Assembly for the express
purpose of making it applicable not only to entry of untouchables, but
to enlarge it so that "there should not be any distinction between one
class and another class of Hindus." 27
The existence of this gap has already been felt and responded to
by state legislation. Troubled by the anomalous situation that while it
is an offence to exclude untouchables from temples, classes of
"touchable" Hindus could be excluded with impunity, several States

25. Ibid,
26. " Religious institutions " was intended to include more than " temples."
See VII Constituent Assembly Debates , 828-9.
27. VII Constituent Assembly Debates, 828-9.

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 MARC GALANTER 195

responded by enacting supplementary

makes it an offence to prevent "Hindu
entering or worshipping at a temple to th
manner as any other class or section of H
Act, inspired by judicial barriers to entr
nath temple in Benares, declares the righ
offer worship at any Hindu temple. 29 T
the full ambit of the constitutional pow
extend protection to non-untouchables an
and denominational limitations which the courts read into the UOA.
Although the States are limited in their power to legislate directly on
untouchability, this legislation will substantially broaden the rights of
untouchables as well. For the rights of the latter under the UOA are
automatically elevated to a parity with the new rights which the state
legislation confers on caste-Hindus

28. Bombay Hindu Places of Public Worship (Entry Authorization) Act

(XXXI of 1956).
29. United Provinces Temple Entry (Declaration of Rights) Act, 1956. This
Act contains no penal provision, but declares the rights of all sections of Hindus to
participate in worship in Hindu temples and prohibits the courts from recognizing
any custom, usage or practice to the contrary. After passage of the Act criminal
prosecutions were instituted against those who obstructed Harijans from entering.

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