Today, I will tell you a story about faith. My brother Raj is an architect by profession who has architected his house. Recently, he got married to his office colleague, Ria. Last day when we were on call, Raj told me that Ria has been a blessing to him but she has substantially changed the interior designs and made radical changes in the ways of administering the house. I asked Raj, "Has she modernized the design and administration of the house," because I knew that Ria di is educated in Delhi and my brother is from Bengal. He answered, “Yes”. I told him that it is fine and that he should adopt new things. Raj interjected, “Do you know what is the difference between purchasing a flat and building your own house?” I answered, “In the former case, you do not plan, others plan for you, but in the latter case, it is the otherwise”. Raj said, “Not only that, when you build your own house, every brick thereof stands content on your faith in perseverance”. I said, “Hold on! It is not a religious place, why are you then bringing faith,” he asserted, “No, it is”. I questioned, “How?” He explained, “When we build a house, we build it on the faith that we can persevere with the time that it will take to build it, and thereafter we can administer it by ourselves in our own way only”. I was convinced that he is being emotional and he should be because he built the house with this life and blood.
You would agree with me that building your house is a matter of emotion and if you will, a matter of faith also, then tell me why temples which do not only represent faith but allow the devotees to worship their faith, will be administered in the way the State would want? Raj may adjust with Ria di regarding the administration of the house as they are partners in love but the civil servants are not our partners in love then why should we make them our partners in matters of faith?
You would find that every published piece on the State's administration of temples has criticized such administration on the ground that when the Guruduwaras, Mosques, and Churches administration are not taken over by the State then why the State has taken over the administration of Hindu religious institutions? I argue that that argument is an argument of discrimination but I will interpret the source of law, from which the State claims that it derives power to administer the temples, to manifest that such source does not grant such power to the State, as claimed by it.
Now it shall be made clear that such administration is justified by the State on the ground that the State does not want the temples to misappropriate its funds, I argue if this has been the mentality of the State with the administration of the banks then we would not have to run pole to pole in the UK despite the existence of extradition treaty with them. And this very apprehension that without the State's regulation, the funds would be misappropriated is distrust in prior which the State has with us.
Coming to the said source of law, the state of Madras argued before the court that Article 25(2)(a) of our Constitution permits the State to administer religious institutions for secular activities. The south of India enjoys the most number of temples in India, and therefore, Madras has been the cynosure of legal battles as to the administration of the temples.
You would agree with me that if we address Article 25(2)(a) to make our case that such a clause does not permit the State to take administration of the temples regarding any matter which falls within the contours of the administration of property and religious affairs protected under Article 26, then that address would be the end of all legal justifications that our State gives us for the administration of the temples. Today, I would endeavour to address Article 25(2)(a) and 26 which, to my knowledge, the Supreme Court addressed wrongly in The Commissioner, Hindu ... vs Sri Lakshmindra Thirtha Swamiar ... on 16 April 1954.
I could have avoided delving into the history of the administration of the temples by the State during British rule and post-independence as it is extensively delved into by proficient authors but still a brief history of the same will set the context straight.
In the past, the temples were today's banks and therefore were the repository of wealth, and every time this land has been invaded, the invaders attacked the temples for looting our wealth.
As the British also came here to loot our wealth, they, inter alia, also took over the administration of the temples via Bengal Regulation Act No. 19 of 1810 and the Madras Regulation Act No. 7 of 1817. Till then the temples were administered by the local people, as alleged, but the law shows—
(Ben. Reg. 19 of 1810), of the Bengal Code (for the due appropriation of the rents and produce of lands granted for the support of Mosques, Hindu Temples, Colleges and other purposes; for the maintenance and repair of Bridges, Sarais, Kattras, and other public buildings; and for the custody and disposal of Nazul Property or Escheats). See the Preamble of the Religious Endowments Act, 1863.
Therefore, the British used to collect rent from land on which temples were been established but did not went on to administer the financial affairs of the temples like what started to happen in the last leg of the independence struggle.
The Christians did not want the Britishers to interfere with the religious affairs of any religion, and therefore, the Britishers freed the temples by The Religious Endowments Act, of 1863.
During 1925-1935, the provincial legislature of Madras from time to time granted the power to the board, constituted under the law, to regulate the temples. The board was having the power to exclude and include a temple from its administration.
Post-Independence, The Madras Hindu Religious and Charitable Endowments Act, 1951 was enacted for perpetuating the administration of the temple by the State. The law was scrutinized by the Supreme Court and many provisions thereof were invalidated however, please observe what the Supreme Court in The Commissioner, Hindu ... vs Sri Lakshmindra Thirtha Swamiar ... on 16 April 1954 had to say about the administration of the temple by the State:
“Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant... No doubt the Commissioner is invested, with powers to pass orders, but orders can be passed only for the purposes specified in the Section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution...”
We should argue why the Court feels that the funds received by us needed to be utilized for the public interest. Are not we not entitled to use the funds for our community only? We do public service as a matter of conscience; we do not want any law or order to do so. The Trustees misappropriating the funds is punished by IPC then why has a separate clutch of law been made? What should be done with our funds only we will decide not the State. If the State grants us the fund that is another thing.
Thereafter, the Madras legislature attempted to cure the defects of that law by amendments in 1954 and 1959 only to consolidate the power of the State to administer temples, the amendment of 1959 was criticized by the former Chief Justice of Bharat and then MLA of Madras legislature Shri Patanjali Shastri.
In 1960, the Hindu Religious Endowments Commission recommended the states which are not administering the Hindu religious institution, to start administering the temples on the ground the Kings always supervised and punished erring temples and priests. The commission forgot that in ancient times the temples used to be the Banks of the country, and therefore, administrative control of the State thereon was needed, in the second place, the Kings had to interfere because they derived power from the God and the texts based on which the King used to function was interpreted by the priests, and therefore the King was inseparable from the temples but post-1950’s Bharat does not rely on temples to govern Bharatiyas, and Bharat now has been prohibited from interfering into the religious scheme of things. The commission said:
"... Apart from a text of Narada which says that a king can reduce to slavery a sanyasin guilty of incontinence, there are references to a minister of charitable works who was an officer of the Hindu kings in Viramitrodaya (Chapter 7, section 2) and also to the superintendent of religious institutions in Kautilya’s Arthasastra. In 256 BC, Asoka appointed censors of law of piety (Dharmamahamatya) and in 242 BC, he published a complete series of seven pillar edicts. These definitely suggest that from very early times religious and charitable institutions in this country came under the special protection of the ruling authority. Not only was general supervision exercised by the Hindu kings over temples, but they also interfered in the management of temples when they found mismanagement prevailing in them...
Even under the Mohammaden rule, the tradition of royal control was not forgotten and although some Mohammaden rulers were fanatical and intolerant, some of them intervened to provide against the deterioration and decay of the Hindu temples by neglect or mismanagement. We do not think it necessary to inquire whether the nature of the right exercised by the kings was in the technical phraseology visitatorial or not, but that the right existed seems to admit of no doubts whatsoever..."
We shall note that in the last paragraph, the commission said that it has not enquired whether the King was having a visitatorial right or if, I may say so, administering right regarding temples which would have conclusively decided whether the king does have the right to administer the temples or not, and therefore, I argue that report cannot be followed because it is inconclusive.
The Supreme Court has delved into the issue of the administration of temples in a catena of cases and has held that the secular practices of religion can be regulated by the State but not the unsecular practices.
Now keeping history in mind, let us now delve into Articles 25 and 26.
25. Freedom of conscience and free profession, practice and propagation of religion.—
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
We know that every fundamental right is wedded with restrictions but have you ever observed that the fundamental right of practising your religion has itself restricted itself by the other fundamental rights?
Article 25 grants every person the right to practice their religion in their individual capacity, which right Article 25 itself makes subservient to other fundamental rights including Article 26 by the expression used in Article 25(1) that is ‘Subject...to the other provisions of this Part, ...’ Therefore, Article 25 is subject to Article 26 as Article 26 is an Article of said Part-III.
Now let us have a look at Article 26:
26. Freedom to manage religious affairs.— Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
We shall note Article 26 does not use this expression— ‘Subject to the other provisions of this Part’, and therefore, has not restricted itself by other fundamental rights, and therefore, Article 26 cannot be restricted by any of the clauses of Article 25 namely clauses (2)(a) and (b), and I argue that the status of Article 26 as a fundamental right thereby stands more elevated than Article 25.
Article 26, amongst other rights, grants us the right to perform our religious affairs and administer our property according to law but no law made under Article 25(2)(a) for administering the political, economic, and financial affairs of our religion would be valid because Article 25 is subservient to Article 26 from which our religious institutions derive the right to administer its property and religious affairs exercising which our religious institutions may decide how we shall transact the political, economic and financial affairs of our institutions.
Let us now visit the Supreme Court’s observation on the said clauses of Articles 25 and 26. The Supreme Court in The Commissioner, Hindu ... vs Sri Lakshmindra Thirtha Swamiar ... on 16 April 1954 stated:
"The other thing that remains to be considered in regard to Article 26 is, what is the scope of clause (b) of the article which speaks of management "of its own affairs in matters of religion"? The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies."
The Supreme Court has distinguished the right of a religious institution to manage its religious affairs from its right to administer its property according to the law which I submit is ex facie erroneous. The reason for such distinguishment, according to the Court, is that clause (b) of Article 26 grants the right to manage religious affairs only which means non-religious affairs of a religion are not been protected by clause (b), the court feels that non-religious affairs include the right to administer property which is granted by the separate clause (d) of Article 26, which right the clause declares shall be exercised according to law, and therefore, the legislature can regulate the administration of the property of a religious institution by law.
A Hindu religious institution deciding that its property would be auctioned by a minor from its community and not by a major because the community believes that a minor conducting auction would be the deity conducting the auction, would it not then be that the administration of property is sought to be exercised for managing the religious affairs of a religion? Could the State be allowed to issue an order declaring that the minor shall not instead the major shall conduct the auction?
The court further said:
"What then are matters of religion? The word "religion " has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition... Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice... Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies... A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26."
We shall note that the court does declare that the religious institution does have the right to perform its rites and rituals but diluted such right by declaring the money, that may be generated by administering the property of the religious institution for performing such rites and rituals, can be regulated by law by any secular authorities. And therefore, a religious institution does not have the discretion to expend its own money according to its wish because the State will decide the amount of money that the latter can expend.
We should ask a question that a company pays taxes to the government on its income but can the government dictate to the company how much amount the same shall expend in the fields of business?
We are not claiming any exemption from the law. The temples pay taxes. Let me show you Article 31A:
31A. Saving of laws providing for acquisition of estates, etc.—
(1) Notwithstanding anything contained in Article 13, no law providing for
(a)...
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property,
Therefore, the State is having the fundamental right, granted by Article 31A, to take the over management of any property for a limited period but not perpetually which the State is doing with the temples. Therefore, we shall ask the question that why the State shall not follow this Article 31A(1)(b) while considering the merits of the administration of property by a religious institution.
I conclude that the administration of property by religious institutions, in most cases, is exercised for performing religious affairs, and therefore, you cannot segregate one from the other, and hence we, the Hindus, are having full liberty not only under the Constitution but also as a matter of our Dharma to expend money, as we wish, for our religious activities as Hindu dharma does not celebrate poverty instead it uplifts the impoverished, and mind the temples are not merely a place for worship, it does provide all hospitalities including medication, pathshala, lodging, and fooding and also education.
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