- (1.) These five appeals by special leave arise from the division bench judgment of the Allahabad High court, made on 28/10/1986 in CM Writ Petition No. 1244 of 1984 and batch. The primary question is as to the constitutionality of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 (U. P. Act No. 29 of 1983) (for short "the Act") , made for the management of the temple of renowned Lord Vishwanath, otherwise known as Sri Adi Visheshwara of Kashi. By and large, every Hindu believes that without a visit to Kashi for a bath in River Ganges and prayer offered to Lord Shiva, life is incomplete and meaningless and every endeavour is made to visit Kashi at least once in life. The idol of Lord Shiva at Varanasi on the bank of holy River Ganges is one of the five Jyotirlingas in India believed to be self-incarnated (swayam bhuva) ; other four, viz. , (1 Rameshwaram in Tamil Nadu State; (2 Srisailam on the banks of River Krishna in Andhra Pradesh; (3 Dwarka in Gujarat State; and (4 Onkar in Madhya Pradesh on the bank of River Narmada, are believed to be Jyotirlingas according to Hindu mythology. Hindus believe that Lord Brahma is the Creator, Lord Vishnu is the Protector and Lord Shiva is the Destroyer of evils and the wicked. Lord Shiva is the commonman's God and it is believed that He is easily accessible by fervent prayer and fulfils the prayers of devotees. Though there are several stories on self-incarnation of linga (idol) at Varanasi, the fact remains that it is very ancient. For the last one thousand years. Lord Vishwanath/visheshwara has been pre-eminent Shiva Linga (idol) at Kashi, the supreme principal deity. According to the mythological literature, Lord Avirnukteshwara (never forsaken) appears to be the supreme deity in Kashi since the Gupta ages, i. e. , 4th century AD till 12th century AD Pandit Lakshmi Dhara of 12th century in his "puranic Mahatmya" and "tirtha Vivechana Kanda' and Dandini, the great Sanskrit Scholar (6th century) in his "dasha Kumaracharita" refer to this aspect of the matter. Mitra Mishra in his book "tirtha Prakash" has also stated that Lord Visheshwara and Lord Avirnukteshwara appear to be separately located as is spoken in "linga Parana" quoted by Lakshmi Dhara. The ancient name of Kashi appears to be "avimukta". The Linga of Lord Visheshwara appears to have been located to north of the sacred well, Jnana Vapi while encircling the Temple of Avirnukteshwara, the shrines of Dandapani, Taraka and Mahakaal all of which are also erected near the Jnana Vapi and Lord Visheshwara Temple. According to Puranic Mahatmya and Kashi Khanda of the Skanda Parana, the Jyotirlinga was established by Lord Shiva himself when he went into exile to the Mount Mandara during the reign of the legendary King Divodasa. Since Lord Shiva himself disguised the Linga, according to Mahatmya Lord Shiva never really left the sacrosanct and sacred temple. Hence, it became "avimukta" (Never Forsaken). This was also stated by Vaachaspati Mishra in his famous Puranic work "tirtha Chintamani" in 1460 wherein he had stated that "visheshwara" and "avirnukteshwara" were merely two names for the same Jyotirlinga. Narayan Bhatta had similarly mentioned it to be so in 16th century in hiswork "tirthalisetu". According to the literature, by 13th to 14th century AD and especially dated 1325 AD the Temple called Padameshvara was existing as per "kashi Ka Itihas", p. 190 written by Moti Chandra. As stated earlier, in due course, Jyotirlinga in the name of Lord Visheshwara gained popularity and Avirnukteshwara Linga was installed in a comer of the temple. Every Hindu believes that Lord Shiva is worshipped by the common man and perhaps for that belief Linga of Lord Sri Visheshwara became famous. In the year 1193 AD, when one of the Lieutenants of Mohd. Ghori, namely, Kutubuddin Eibak completely destroyed Lord Shiva's Temple, the priest (mahant) concealed the idol of Lord Vishwanath from being defiled and destroyed. The Temple construction was undertaken in a big way in 1585 by Raja Todar Mal, the Finance Minister of Akbar the Great, the Mughal Emperor who was then governor of Jaunpur. The Temple was constructed accordingly on a large scale consisting of a central sanctum (Garba Griha) surrounded by eight mandapas or pavilions. Aurangzeb again destroyed the Temple of Lord Shiva in 1669 AD when again the then priest (mahant) removed the idol of Lord Shiva so as to prevent it from being defiled and destroyed. Thereafter, it was again restored in the year 1777 AD by Rani Ahilya Bai Holkar of M. R who had built the present Temple and installed the present deity. Maharaja Ranjit Singh in 1859 AD had got it renovated, covering the dome with gold plates weighing 22 tons of gold.
(2.) Though it is claimed that some of the appellants are the descendants of Pt. Visheshwar Dayal Tiwari and that the mahant (priest) of the Temple got it re-erected, it is not necessary for the purpose of this case to dwell on the history. Suffice it to state that the management of the Temple was in an appalling condition. Devoted pilgrims when they visited the Temple were subjected to exploitation at the behest of pandas and the precincts were in most unhygienic condition. Admittedly, the jewellery of Lord Shiva was stolen which necessitated constitution of a Committee which had gone into and recommended to the government to take steps for proper management thereof. The theft that took place in the midnight of 4/1/1983-5-1-1983, 14 years from now, had become a cause of concern to all the Hindus and the residents of Varanasi, in particular for protection and proper management of the Temple. It became necessary to take effective steps to provide efficient administration and proper arrangements for orderly visit and prayer by the devotees thronging daily the precincts of the Temple in millions coming from every nook and corner of the country and abroad. On the basis of the recommendation of the said Committee dated 14/1/1983, an Ordinance titled "u. P. Sri Kashi Vishwanath Temple Ordinance, 1983" was promulgated by the governor of the State of Uttar Pradesh on 24/1/1983 whereby the management and control of the said Temple was taken over from the mahants and pandas (priests). On 28/1/1983, the government issued a Notification specifying the "appointed Date" under the Ordinance to be 28/1/1983 and another Ordinance No. 9 of 1983, namely, U. P. Sri Kashi Vishwanath Temple (Second) Ordinance, 1983 was issued since the first onewas to expire on 16/3/1983 by operation of proviso to Article 213 of the Constitution. The government issued another Ordinance, viz. , Ordinance No. 20 of 1983 on 27/4/1983, which was replaced by the Act of Parliament. The appellants, though initially challenged the Ordinance, pending proceedings, the U. P. Act No. 29 of 1983 came into force after receiving the assent of the President on 12/10/1983 and was notified in the State Gazette on 13/10/1983.
(3.) By operation of Ss. (2 of Section I, the Act came into force w. e. f. 28/1/1983, i. e. , on the "appointed date" under the first Ordinance. Before the High court, the Act was assailed by filing a writ petition, primarily on the ground that it infringes the appellants' fundamental rights enshrined in Articles 25 (1 and 26 (b) and (d) of the Constitution. One of the learned Judges of the bench had held that though the Temple of Sri Kashi Vishwanath was and is a public Temple of the common people, the presiding deity, i. e. Lord Vishwanath is the Lord of all. It is a commonman's Temple but it is a denominational temple of Shaivites of Hindu community. Another learned Judge held that it is not a denominational one. However, both the learned Judges held that the legislature was competent to enact the law for management of the Temple along with its properties. The learned Judges gave directions to consider taking in some of the representatives of the appellants as members of the Board; they gave other directions which we would consider at the appropriate places while dealing with questions separately. The appellants feeling aggrieved by the decision of the High court, have filed the present appeals. The learned counsel on both sides have filed written arguments, pursuant to this court's direction dated 13/12/1991. After a considerable time having been taken while the matter was before different benches, it ultimately came up before this bench and has been heard at length.;