A Secular State in no any condition should involve in appointment of priests and giving salary to them under the garb of management of the temple. Such control by the State is deep and pervasive and squarely brings such management/institution under the definition of State under Article 12 of the Constitution, which is against the principle of secularism. Such affairs needs to be left with the society and to the devotees, for whom that place is a place of worship and faith.
In difficult COVID times, Hindu temples are under attack. Voices advocating nationalization of temple land includes even a former Chief Minister suggesting liquidation of all temple gold. We also saw renowned government-controlled trust of Tirupati deciding to auction immovable properties and then withdrawing under public pressure and heavy criticism. Much ahead was the Government of Kerala which ordered the Devaswom Board to directly contribute to the exchequer. Most controversial decision was taken by the Government of Tamil Nadu which notified a circular under section 36B of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 where it demanded the surplus left with the temple trusts to be contributed directly to the Chief Minister’s Relief fund. However, the circular was withdrawn after it was struck down by the Madras High Court as being against the mandate of thelegislation itself.
In past also, several State Governments have admitted on different occasions in replying to RTI’s and even before Courts of using temple money for funding activities of other religions. In short, ‘secular state apparatus’ has been milking Hindu Temples as cash cows and directly controlling religious activities in Hindu institutions with the instruments of endowment legislations. In this article we will analyze, how different State Governments breaching the principle of Secularism, has nationalized Hindu temples by unconstitutional and unfair framework of endowment legislations and deprived Hindu community of its constitutional right to manage affairs of religion.
Historically, it goes back to 1925 when Justice Party government in erstwhile State of Madras introduced Hindu Religious Endowments Act, 1925. The attempt was to attack the monopoly of Brahmins in conducting religious affairs. However, as India became independent and constitution was enacted, it took a different dimension altogether. In 1951, State of Madras replaced this Act, some provisions of which were struck down by the Supreme Court in Shrirur Math case as being violative of Article 25, 26 & 19(1)(f). However, it was replaced by a statute with similar provisions in 1959 by the newly formed State of Tamil Nadu. Following the legacy, State of Andhra Pradesh, Odisha, Kerala, Karnataka, Union Territory of Puducherry had also enacted similar endowment legislations which ensured direct control of Hindu religious institutions by the State.
India being a faith dominated country; religion runs in her blood. A characteristic feature of this part of South Asia is its cultural uniformity with diversity in modes of worship. It is always difficult for a constitutional republic to devise a mechanism for ensuring freedom and dignity of religious faiths for such a diverse heritage. Constitutional forefathers, being conscious of this fact, demarcated the contours of freedom of religion while laying the foundations of a secular democracy. Constitutionally the role of state, without any wall of separation has been limited to an ‘impartial felicitator’ in the matters of religion.
Article 25 and 26 of the Constitution were debated on 6th& 7th December, 1948 in the constituent assembly. Almost every member of the assembly stressed that secularism in India means separation of government and religion but does not mean an absence of spirituality. H.V. Kamath said, “a secular state was neither a godless state nor an anti-religious state”. Two major concerns which cropped up regarding implications of Article 25(2)(a) were regulation and restriction of secular activity and its impact on personal laws. Amendment was moved to empower the state not only to regulate & restrict the secular activity but also to prohibit the same, fearing influence of money collected by religious institutions on politics. The concerns of rampant corruption in religious institutions, as they collect large sums of money, compelled the constitution framers to put state in a capacity as watchdogs to ensure that religious influence does not overshadow democratic institutions.
Original intent of the framers was undoubtedly to use Article 25(2)(a) in matters of all religious faith without any fear or favor. But who knew that a provision which was provided to be used as a shield by the state in a limited role would be used institutionally as a weapon only to deprive Hindus of their constitutional rights? Since the subject of religious & charitable endowments finds its place in entry 28 of the concurrent list. The power in Article 25(2)(a)- “to regulate other secular activity associated with religious practice” has been used by different states to enact endowment legislations for taking over of Hindus Temples & Muths. The argument of the state for such intervention has been massive irregularities and rampant corruption in the management of the affairs of such institutions. But pragmatically if we analyze such interventions under the scanner of Doctrine of Deep and Pervasive Control, characteristic feature of such state interventions has been siphoning of funds and indirect control on religious activity.
Individual freedom of religion to ‘profess, practice and propagate’ enshrined in Article 25 (1) of the Constitution is meaningless without ‘collective observance’. Therefore, Article 26 empowers religious denominations or sections to establish institutions, own property and manage their own affairs of religion. This combination of individual and collective rights constitutes the charter of freedom of religion in Indian constitution. However, empowering the role of the state as a reformist one, constitution leaves a scope of state intervention in matters of religion in Article 25(2) (a) & (b). This regulatory power in clause (a) for streamlining secular activities connected with religion and power in clause (b) for reforming public institutions of Hindu religion constitutes the basis for state intervention in religious matters.
The scheme of Article 25 & 26 is such that both the articles are subject to public order, morality and health but Article 25 is subject to other provisions in Part III of the constitution. Consequently, rights enshrined in Article 26 prevail over any restrictions stipulated by state in Article 25(2), which means that the power with the state to regulate the secular activity associated with religious practice or reform Hindu religious institutions of public character as stated in Article 25(2) of the constitution is subject to religious freedom protected under Article 26. However, as a compromise formula courts have stressed on harmonious construction of two provisions namely Article 25(2) & Article 26(b). In this constitutional matrix, it is argued that freedom of religion in Article 25 stands for individual’s right to worship and Article 26 advocates freedom to religious institutions, very conveniently missing the inter-dependence between the two provisions.
It is always put forth that Religious & Charitable Endowment legislations derive their constitutional basis from Article 25(2)(a) which has nothing to do with religious freedom of an individual or denial of collective rights of a religious institution. But what if regulation of a secular activity has a direct impact on religious freedom, wouldn’t that amount to denial of individual’s religious freedom in Article 25 or collective denominational rights in Article 26 of the constitution? It is pertinent therefore to quote the Hon’ble Supreme Court in the landmark Shrirur Math case:
“If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices”
As a direct impact of government control on Hindu Temples by Endowment Boards or departments, deprivation of priests from their salaries, Idols from Bhog and devotees from rituals is a characteristic feature of such a regime. In 2017, Madras High Court had to direct the Government of Tamil Nadu to implement revised pay scale for priest which hadn’t been implemented since 1980 & stood at Rs. 175/- per month only. In State of Andhra Pradesh, priest could get their salaries cleared after much protest from endowment department. Abysmally low salaries and deferred payments is what the endowment departments have given to Hindus on the name of regulation of secular activity. Across states like Tamil Nadu, Andhra Pradesh, Kerala etc., endowment departments have dried up funds to such an extent that priests themselves pay for rituals and bhog, consequently the size of banana is the shortest and ghee in Aarti is adulterated. How can a religious institution function without funds and functionaries, if this is not a direct intervention in religious practice in the guise of regulating secular activity than what else can be.
Though it can be argued that since rampant corruption due to huge offerings and other endowments to such religious institutions, nothing is fundamentally wrong with regulating such institutions. As there exists a constitutional basis for such legislations in the form of Article 25(2)(a) and consistently the Apex court has upheld it throughout, there exists no legal basis for challenging their constitutionality. It can also be argued that since legislations like Durgah Khwaja Saheb Act, 1955 have been enacted and upheld by the Hon’ble Supreme Court in The Durgah Committee, Ajmer Vs Syed Hussain Ali, so it is irrelevant to blame state of being discriminatory on the basis of religion and its actions being against secularism. It is correct that the legislations for big shrines like Maha Kaleshawar, Kashi Vishwanath or Jagannath Temple in Puri fall well within the exception of public order in the Article 25 & 26. So, the shrines which require in the interest of public order to be regulated by the state are constitutionally allowed to be so regulated either its Durgah shrine in Ajmer or Nathdwara temple in Rajasthan. However, the case presented in this paper is not about regulation of one shrine, it’s about systematic deprivation of Hindu community in conducting their own affairs of religion by umbrella endowment legislations which deprive Hindus not only from conducting their own affairs of religion but also from practice and propagation of their religion.
Notwithstanding constitutional impropriety even if we assume that such endowment legislations are inevitable for the purpose of regulating religious and charitable endowments even then there are no procedural safeguards in the respective state legislations for the purpose of fairness while taking over of such temples. For Instance, Section 3(1) of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 states that, “Where the Government have reason to believe that any Hindu or Jain public charitable endowment is being mismanaged, they may direct the Commissioner…”. Empowering state apparatus with wide ranging arbitrary tool in the form of “reason to believe” would result in subjecting institutions on the whims and fancies of government officials. Takeover of temples for perpetuity on pretext of mismanagement just for the purpose of siphoning of funds and exercise government control is an obvious consequence of such legislations. In Chidambaram temple case Hon’ble Supreme Court criticized the state of Tamil Nadu for takeover of management in perpetuity:
“47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period”
Hindu Religious & Charitable endowment legislations in different states violate fundamental rights of Hindus protected under Article 25 & 26. They are used by respective governments to control funds of temple trusts and appropriate them. Ideally funds collected from any religious institution should be utilized only for the welfare of Temple Staffs and the Religious activities associated with the institution. How such endowed funds should be utilized is a complete non-secular decision and should be taken by the non government religious head of the institution.
The role of State, if any, is only limited to stop mismanagement and in being a facilitator. It cannot assume the role of Coach and Captain for any religious Institution. And supposedly, if it assumes such extra-constitutional roles, it should be done for all religious institutions without discriminating on the basis of faith. Selective secularism must stop. Under the Constitutional mandate, State in no any circumstance can posture itself being a decision maker with regard to monies collected or donations received by the devotees in favor of any particular religious institution. Devotees donate to the presiding deity for the propagation of faith associated with the deity and temple management only. It can never be utilized for any other purpose alien to that unless the spiritual religious head of the institution sanctions it. Even the religious head of that institution cannot utilize such funds on his whims and fancies.
A Secular State in no any condition should involve in appointment of priests and giving salary to them under the garb of management of the temple. Such control by the State is deep and pervasive and squarely brings such management/institution under the definition of State under Article 12 of the Constitution, which is against the principle of secularism. Such affairs needs to be left with the society and to the devotees, for whom that place is a place of worship and faith.
Endowment departments & its officials not only embezzle funds but also interfere in rituals and functions organized by temple trusts. The entire state apparatus for Hindu Endowments is not only discriminatory and against secularism but also deprives Hindus from managing their own religious institutions and use the funds for the propagation of Hindu way life. The approach of the courts differentiating sacred from secular or protection offered only to essential religious practices thereby assuming the role of a clergy has altogether failed the constitutional mandate to freedom of religion to all amidst maximum state intervention.
It must be understood that wealth in temples is the result of the relationship shared by Hindu devotees with their deity. Since “Daan” is an inherent part of Hindu way of life, gold or land with temples comes with consent of the person making endowment to be used accordingly. Post-Independence, an institutionalized plunder of such Hindu institutions began in the guise of regulatory endowment legislations.
However, In the light of the arguments advanced and authorities cited above multiple state legislations regulating thousands of Hindu temples and Maths are blatantly unconstitutional. They not only violate Article 25, 26 and 27 of the constitution but also disregard the basic feature of secularism & Rule of Law. Although Union Minister Shri Satyapal Singh has introduced a private member bill, proposing to introduce clause (2) in Article 26 to neutralize the effect of Article 25(2)(a) of the constitution thereby debarring state apparatus from taking over of religious or charitable institutions for the purpose of administration. But a central legislation is imperative on this concurrent list subject for emancipation of Hindu institutions from this religious socialism of Indian state.
(Rahul Kaushik is an entrepreneur and Digital Marketing expert and Shubham is a fourth year law student at NALSAR )