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Published : July 25, 2014 | Author : kiruthikadhanapal@legalserviceindia.com
Category : Constitutional Law | Total Views : 14105 | Rating :

  
kiruthikadhanapal@legalserviceindia.com
Kiruthika D Student B.A.,B.L.,(Hons) School of Excellence in Law
 

Constitutional Validity of the Hindu Religious and Charitable Endowment Act

Indian Democracy is governed by a written constitution. The majority population of this sub continent are Hindus. The Hindu religion is considered to be one of the oldest religions in the world. Hindu religion encompasses itself several castes/sub castes of different shape and different colour. The caste and sub caste also very from State to State or from region to region. The practice also varies to a large extent. The Hindu religion at best can be considered to be a case of unity in diversity. The Hindu religion is based on scriptures such as Upanishads, vedaa, Geetha etc. Hindu religion is considered to be a way of life. Hindu religion permits worship of even inanimate objects-Ashwatha vriksha is worshipped/ Nagadevatas are worshipped/soil is worshipped/ sea is worshipped to give few examples.

The law of the land, which is common and uniform throughout the country across all states and union territories for the religious minorities, is not so for the Hindu majority. This anomaly is clearly evident from the fact that the Hindu Religious and Charitable Endowments Act is not uniform across the country. In a ‘secular’ country, which is supposed to have equal respect for all the religions, how could a state have control of only Hindu Temples and not other religious worshipping places? How come the HR and CE Act is enacted in some states and not so in some other states? So, it automatically throws a big question, whether the charter of HR and CE Act is Constitutional?

Background Of Passing Of The Hindu Religious And Charitable Endowment Act

Around 1840, the then British Government started giving up administration of temples. They asked some of the prominent mutts in Tamil Nadu to look after some of the important temples and endowments. The Heads of Mutts who were happy to takeover the administration of these temples so that they are run as they ought to be run, were careful enough to get written documents or “Muchalikas” from the British Government, which assured them that they would not take back the temples from the Mutts.

Thus some very important temples came under the complete control and ownership of these Mutts and the Mutts ran them ably and efficiently. The primary purposes of worship and utilization of funds meant for the upkeep of temples and conduct of rituals were never lost sight of by the Heads of Mutts or officers. While a few temples were thus brilliantly administered by the Mutts, thousands of other temples in the then Madras Presidency were handed over to the respective trustees with the then Government playing little or no role in supervising them.

In 1925, the Madras Hindu Religious Endowments Act, 1923 (Act I of 1925) was passed by the local Legislature with the object of providing for better governance and administration of certain religious endowments. The Act divided temples into what are known as Excepted and Non-excepted temples. Immediately after the Act came into force, its validity was challenged on the ground that the Act was not validly passed. For this reason, the legislature enacted the Madras Hindu Religious Endowments Act, 1926, Act II of 1927 repealing Act I of 1925.

This Act was amended from time to time. It is unnecessary to refer to the changes introduced later. Suffice it to say that the Act was amended by 1946 by as many as ten Acts I of 1928, V of 1929, IV of 1930, XI of 1931, XI of 1934, XII Of 1935, XX of 1938, XXII of 1939, V of 1944 and X of 1946. A radical change was introduced, however, by Act XII of 1935. The Government was not satisfied with the powers of the Board then existing and they clothed the Board with an important and drastic power by introducing a new Chapter, Ch. VI-A, by which jurisdiction was given to the Board to notify a temple for reasons to be given by it.

Thus, it can be seen that even in the pre-independence era, the Board had systematically consolidated its powers to take over and administer temples. Of course, this despicable intervention by Government applied only to Hindu Institutions.

Notwithstanding the clear directions of the Madras Government in 1947 to drop notification proceedings and the clear direction of the Hon’ble Madras High Court in 1939 that the Board cannot undertake notification process on frivolous grounds, the Board started the notification process of the Chidambaram Shri Sabhanayagar Temple in 1950 and the then Madras Government issued a Government Order (G.O.) Ms. 894, Rural Welfare Dept. dated 28-8-1951 published in the Fort St. George Gazette on 4-9-1951.

Meanwhile, India after gaining independence from British rule had become a Republic on 26 January 1950, with its Constitution guaranteeing certain fundamental rights to its citizens. Special religious and administrative rights were guaranteed to Religious Denominations or sections thereof.

The Board also tried to take over the famous Shri Guruvayurappan Temple in Guruvayur, Udupi Shri Krishna Temple under the management of Shri Shirur Mutt of Udupi and Shri Venkataramana Temple belonging to the sect of Gowd Saraswath Brahmins in Mulkipetta of South Kanara district.

All the above religious institutions challenged the takeover by the HRCE Board. In the meantime, a new Hindu Religious Act was passed by the Madras Government, known as the Hindu Religious and Charitable Endowments Act, 1951.

The Object Of The Hindu Religious And Charitable Endowment Act

The religious freedom is guaranteed by the Constitution so the intervention of the Government in the administration of religious institution through the Statutory Boards may seen paradoxical. There was no mention of temples in Vedic Collection of Hymns and Prayers. When fire was lit oblations were said to be made in the place there at. In later Brahmana period temples were Constructed for accommodation of images of gods. Charities began to flourish and valuable endowments such as landed properties for pious purposes were well established in later period the cult of religious worship developed and Gifts for religious and Charitable purposes were impelled by the desire to acquire religious merit. So the Hindu temples are founded, endowed and maintained generally for the benefit of general Hindu public.

In earlier period it was a private affair and as an when the temples became inspiring centres of the Social and Cultural life of the Community, Centres of promotion and patronage of art and architecture, and other fine arts, and began to serve as a centres of learning and fostering and growth of the piety and learning and as an effective instrument of poor-relief, it began to become a public affair. Thereafter out of the rituals for establishment of endowments which became an object of general public utility. Since dedication is the renunciation of ownership, to the deity, and hence began the accumulation assets beyond imagination and slowly mismanagement, discrepancies, and mal administration began to Geep into the temple administration to keep it within the domain of persons with ulterior motive. The avaricious began to rool the roost of temple affairs, which invited the intervention of the Government to the administration of religious institutions. But the objectives of various enactments of the yester years would mention, as an effort to put an end to the greed of the power mongers, whose quarrelsome contest to grab the flourishing assets of even the almighty, and to protect and make due upkeep of the temple and properties attached thereto, from anti social elements for its eternal existence. As such the object of the legislation of the Madras Hindu Religious & Charitable Endowment Act 1951, as indicated in the preamble is “to amend and consolidate thelaw relating to the administration and governance of Hindu Religious & Charitable Endowment”. So the Hindu Religious & Charitable Endowment Act exists for better administration, protection and preservation of temples and the endowed properties attached thereto, and for fulfillment of the objects, with reasonable restrictions, which do not violate the rights of religious freedom guaranteed by the constitution.

Secularism-Conceptual Contradiction Need For Secular Minds

A discussion on ‘Secularism’ seems to be highly pertinent at this moment given the fact that our country is now witnessing fissiparous endencies apparently based on religion. Although the menace of communalism is not a new phenomenon in the Indian society, yet it is quite baffling and embarrassing that even after more than six decades of independence and despite an emphatic proclamation by the constitution that we are secular, still things are not so bright.

Before proceeding further, it is necessary to have an idea of the nature and meaning of the term ‘secularism’. It is interesting to note that there is no agreed and precise meaning of ‘secularism’ in our country. As Jawaharlal Nehru wrote in his autobiography… “no word perhaps in any language is more likely to be interpreted in different ways by the people as the word ‘religion’. That being the case, ‘secularism’ which is a concept evolved in relation to religion can also not have the same connotation for all”.

There are two possible models of secularism. In the first one, there is a complete separation of religion and state to the extent that there is an ‘impassable wall’ between religion and secular spheres. In such a model, there is no state intervention of religious matters and vice versa. In the other model, all religions are to be treated equally by the state; in other words, the state is equi-distant from all religions. This model is also referred to as ‘non-discriminatory’ and is particularly relevant for multi-religious societies. In contrast to the former model, the latter allows for state intervention on grounds of public order and social justice. The Sanskrit phrase ‘Sarva Dharma Sambhava’ is the most appropriate Indian vision of secular state and society. But it should not be forgotten that the word ‘Secular’ has not been defined or explained under the constitution either in 1950 or in 1976 when it was made part of the preamble.

Secularism as a modern political and constitutional principle involves two basic propositions. The first is that people belonging to different faiths and sects are equal before the law, the constitution and the government policy. The second requirement is that there can be no mixing up of religion and politics. It follows that there can be no discrimination against

any one on the basis of religion or faith nor is there room for the hegemony of one religion or majoritarian religious sentiments and aspirations. It is in this double sense – no discrimination against any one on grounds of faith and separation of religion from politics – that our constitution safeguards secularism.

India is a multi-religious society and the survival of such a society is possible only it all religions are given equal treatment without any favour or discrimination. The partition of the country was apparently based on religion and this was an eyeopener for the makers of the constitution when they were engaged in the task of giving a concrete shape to the constitution of our country. The word ‘secular’ was not there in our constitution when it actually came in the being. It was subsequently incorporated in to the preamble of the constitution by the 42nd Amendment Act of 1976. The formal inclusion of the adjectival terms ‘secular’ is mainly the result of meeting out the exigencies of the prevailing circumstances, requirement of party politics and ideological window-dressing. The some extent, it also reflects the ignorance and apathy of the ideologues that they added it merely to the preamble, and did not take care to bring about suitable modifications inside the constitution. It can be pointed out that the term used after the word ‘Socialist’ is redundant as a socialist democratic state has necessarily to be secular. In view of the various articles appearing in part III of the constitution, it can be said that India was already a secular state and there was no need of such addition. It rather gave a false impression that previously India was not a secular state.

The constitution requires that there shall not be any state religion and that the state shall treat all religions equally. It does not, however, prevent the state from financially assisting educational institutions sponsored by the ‘church’ or religious organizations. The state has also reserved to itself and has sometimes exercised the right to interfere in the religious practices of various communities in the interest of their peaceful coexistence and cultural development. Although freedom of religion is granted to all people as a fundamental right under Article 25 of the constitution, Article 44 directs the state to enact a uniform civil code applicable to all irrespective of their religions faith and beliefs. Further, the directive principles contain a special provision-enunciating ban on cow-slaughter as a desirable policy.

Is India truly secular? Well, if we go through the basic feature of secularism as understood in the west, it can be seen that state has nothing to do with religion and there will be no discrimination between citizens on the basis of their religion or form of worship and that everybody will be equal before law. If this is true secularism, India ceases to be secular for it has different sets of laws for different communities.

If we analyze the various legislations, which are in vogue in our country, we would find that some of them are not in consonance with the concept of secularism. For instance, under section 494 of the Indian Penal Code, bigamy is an offence and a person, who contracts a second marriage while the first marriage is subsisting, is guilty of the offence. But this provision is in applicable to those people who can have more than one wife as per their religion. The very fact that operation of a penal provision is not alike among all people and that it is dependent on one’s religious faith tantamount to making a mockery of the very concept of secularism. Similarly, the enactment of the Muslim women (Protection of Rights on Divorce) Act, 1986 with a view to circumvent the apex court’s decision in the ‘Shah Bano case’ and to treat the divorced Muslim women differently from their counterparts in other religious faiths can not be termed as secular. To deny rights to Muslim women which are available to the women of other faiths is a violation of the provisions of the constitution that the state shall not discriminate against any citizens as grounds of religion. Although Article 15 of the constitution prohibits discrimination on the basis of religion, even today the rights and liabilities of people relating to maintenance, inheritance etc. differ according to their religion. This casts a shadow on our claim of being a truly secular state.

It is a matter of great concern that secularism is struggling for survival in our country now. The anti thesis of secularism is communalism, which is gaining momentum in our society at an alarming pace. The mixing of religion with politics and the dangerous growth of communal parties pose a major threat of the secular framework of our country. India is a secular state and yet communalism continues to shape its policies. Frequent occurrences of violence in the name of religion give fatal blows to the very existence of secularism. There have been reports that some state governments were partisan and were instrumental in aggravating communal violence. Such shocking incidents would undoubtedly affect the secular credentials of our country. The divorce of politics from religion is the need of the hour and unless this task is expeditiously accomplished, secularism is bound to have its last breath in our country. The constitution of India does not clearly and explicitly and hence there is hardly any remedy if the state acts in an unsecular way.

The Indian concept of secularism is full of contradictions and therefore, is unable to provide a clear, un-ambiguous guidelines either to the individual or to the state. As a consequence, the religious values continue to dominate the day-to-day affairs and in the process generate tension because of plurality of religious views. In such circumstances, it is imperative that serious attention is paid to revive secularism and curb communalism. A secular state in India is not only necessary from the point of view of the religious minorities by is in the interest of all the people in India including the majority community. In order to permanently banish the recurrence of communal riots, it is necessary to advance the concept of secularism. We need to progress to a stage where politics is completely free of religion and religious freedom of an individual is allowed only to the extent that is does not interfere with the personal freedom of others and betterment of the society in general.

With that end in view, we need to have a second look at the provisions of the constitution concerning secularism. At present, there is hardly any remedy available to us against the state jettisoning secular path or for using the organs of the state for religious and communal purposes. There is nothing in the constitution to stop formation and functioning of communal organizations and groups and their participation in elections. Such loopholes need to be plugged without any procrastination.

Over and above all these measures, there is need for positive change in the attitude and outlook of the society towards Secularism. In a multi-religious, multiracial and multi-cultural developing society like India, it is necessary that rulers, leaders, administrators and citizens have very clear ideas about Secularism. If we are to evolve a secular state, we need to produce secular minds.

The Hr and Ce Act Violates Articles 14, 25 And 26 Of The Indian Constitution

Article 14 prohibits discrimination. It further prohibits an arbitrary, unreasonable Act on the part of the state. Equality and equal protection is available to all citizens of the country. There can never be discrimination by the State. These principles are well settled.

In Moseb Kaba Chowdhary & Anr. v. State of West Bengal, deals with Article 14 of the Constitution of India. The Supreme Court has ruled as under:
It is well established by the decisions of Supreme Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

In M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors., the Supreme Court again notices in paras 19 and 21 reading as under:
India is a secular country. Secularism has been inserted in the Preamble by reason of the Constitution 42nd amendment Act, 1976. The object of inserting the said word was to spell out expressly the high ideas of secularism and the integrity of the nation on the ground that these institutions are subjected to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of the public good. It is now well-settled:

1) The constitution prohibits the establishment of a theocratic State.
2) The Constitution is not only prohibited to establish any religion of its own but is also prohibited to identify itself with or favouring any particular religion.
3) The secularism under the Indian Constitution does not mean constitution of an atheist society but it merely means equal status of all religions without any preference in favour of or discrimination against any one of them.

From these caselaws, what is clear to us is that discrimination is a plea available for the purpose of Article 14 of the Constitution of India. Law is also well settled that in the event of any discrimination, it is hit by Article 14. Equals are to be treated equally and equals are not to be treated with un-equals. Equal treatment is the foundation of Article 14 of the constitution. State cannot discriminate in the matter. However, discrimination if alleged, then the State has to justify discrimination by acceptable material with acceptable reasons. Reasonable classification is permissible.

In K. Mukundaraya Bhenoy v. The State of Mysore, the court has considered the right of administration of a religious denomination temple. The Court ruled in that case that 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 Article 26 of the Constitution of India. In the subsequent Judgment reported in Angappa Goundan v. Kuppammal, the Court considered the question of Hindu public temples. The Court noticed Mukundarya Shenoy's case and after noticing, a Division Bench of this Court has ruled that the Hindus in the larger sense, including all sections of Hindus constitute a religious denomination within the meaning of Articles 21 and 26 of the Constitution of India. This Judgment would show that in the matter of temple administration, the state cannot discriminate between Hindu Religious denomination Visa-vis, the Hindu temple. The inapplicability to the Hindu religious institution by Hindu Religious denomination is also hit by Article 14 of the constitution of India. State has failed in its duty to justify its exclusion on the facts of this case.

A Full Bench of the Kerala High Court in T. Krishnan v. G.D.M. Committee has ruled in paras 35 and 36 as under:
A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this Includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by the usage obtaining in a particular institution. To divert the trust properties or funds for purposes which a statutory authority or official or even a court considers expedient or proper although the original objects of the founder can still be carried out, is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. A statute cannot therefore empower any secular authority to divert the trust money for purposes other than those for which the trust was created as that would constitute a violation of the right which a religious denomination has under Articles 25 and 26 of the Constitution to practice its religion and to Manage its own affairs in matters of religion.

The real purpose and intendment of Articles 25 and 26 is to guarantee especially to the religious minorities in this country the freedom to profess, practice and propagate their religion to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law subject only to the limitations and restrictions indicated in those Articles. No doubt, the freedom guaranteed by these two Articles applies not merely to religious minorities but to all persons (Article 29) and all religious denominations or sections thereof (Article 26). But in interpreting the scope and content of the guarantee contained in the two Articles the Court will always have to keep in mind the real purpose underlying the incorporation of these provisions in the fundamental rights Chapter.

When a challenge is raised before a Court against the validity of any statute as contravening the fundamental rights guaranteed under Articles 25 and 26 it is from the above perspective that the court will approach the question and the tests to be applied for adjudging the validity of the statute will be the same irrespective of whether the person or denomination complaining about the infringement of the said fundamental right belongs to a religious minority or not.

The supreme Court has ruled in Bal Patil and Anr. v. union of India that the State has no religion and State has to treat all religions and religious people equally and with equal respect without in any manner interfering with their Individual rights of religion, faith and worship.

In Ratilal v. State of Bombay, the supreme Court has ruled as under in para 11:
The language of this two Clause (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body, is a guaranteed fundamental right which no legislation can take away, on the other hand, as regards administration of property which a religious denomination is entitled to own and acquire. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.

Article 26(b) provides for a law with regard to regulating or restricting any political and other secular activities and providing for social welfare etc. But taking over and providing administration in respect of the Government temples, despite their better management certainly would be in violation of not only Article 14 but also under Articles 25 and 26 of the constitution of India. Taking all temples and administering then without any adverse order would be hit by Article 26 of the Constitution of India. Therefore, the Government cannot in the guise of better administration takeover even the best administered temple for the purpose of managing the temple without justification. That would be certainly, a rightly argued, in violation of Article 26(b) of the Constitution.

In the Shirur Mutt Case, the SC has rules has under:
The judgment of the Constitution Bench of the Supreme Court in the appeal related to the Shirur Mutt and the judgment by another Constitution Bench in the Venkataramana Devaru vs. State of Mysore are landmark judgments that Courts in India are expected to follow regarding Article 26 of the Indian Constitution and Denomination rights.

The Hon’ble Supreme Court agreed with the Hon’ble Madras High Court that many of the sections of the 1951 HR & CE Act were ultra vires the Constitution. It also clearly observed that while the legislature could seek to regulate the administration, it must always leave the administration to the denomination. The Advocate General of Madras agreed with the Court and said he could not defend those sections.

Article 25 And 26 Of The Indian Constitution Must Be Viewed With Pragmatism

Adopted in 1950, Article 17 of the Indian Constitution legally abolished untouchability—the ancient Hindu system of social discrimination—forbade its practice in any form, and made the enforcement of any discrimination arising out of this disability a criminal offence. At the same time, the Indian Constitution guaranteed freedom of religious belief and practice under Article 25 and autonomy of religious institutions under Article 26. How odd, since that is exactly what happened in India in the 1950s and 1960s. In those decades, Article 26 was brandished all over India in response to reformist legislation passed in most states in order to give effect to Article 17. These “Temple Entry” laws opened Hindu temples to Dalits—people considered untouchable by caste Hindus. However, unlike American jurists and judges, the makers of the Indian Constitution had foreseen constitutional conflict, hence the freedom of religion clauses (Articles 25 and 26) came qualified ab initio with declarations of the ability of the Indian state to regulate the non-religious aspects of religion and to undertake social reform. Thus, when Gouda Saraswath Brahman trustees attempted to keep the temple of Sri Venkataramanah, in Mulki, South Karnataka, free of pollution from untouchables by claiming that it was a denominational temple and hence entitled to limit its benefits to members of the denomination or those admitted at their discretion, the Supreme Court stated that the constitutional clauses enabling the state to open Hindu temples to all Hindus (i.e. including Dalits) overrode other considerations. And when the Gujarati Swaminarayan Sampradaya, or Satsangis, claimed exception, in Sastri Yagnapurushdasji v. Muldas Bhundardas, on the basis that they were not Hindus at all, an activist judiciary, led by then Chief Justice P.B. Gajendragadkar, committed all those epistemic sins that writers in this series have discussed: he reduced Hinduism to certain basics, and then told Satsangi escapists that they jolly well were Hindus and had better behave like good, modern, but also authentic Hindus. In pursuit of a century-long effort to make Hinduism ethical and democratic, an act was passed by the state of Madras in 1951 reinforcing the power of a government department called the Hindu Religious and Charitable Endowments Commission to inspect and supervise Hindu temples and maths (monasteries) and audit their accounts. In response, several Article 26 cases were lodged, which led to certain sections of the Hindu Religious and Charitable Endowments Act (1951) being deemed unconstitutional. But in one case, the judges of the Madras High Court also explained why the freedom of religion clauses did not offer a secure escape route from the reformist agenda of the Indian state. Charmingly, they said it was because India was not America—in India there was no rigid and complete wall of separation between the Church and State.

The Supreme Court had said in the Judgment in Bal Patil & Anr. v. Union of India. The supreme court has ruled that "Differential treatments to linguistic minorities based on language within the state is understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities." Therefore, we have no hesitation in holding that on this ground also, the Act Buffers from violation of Article 14 of the Constitution of India.

In Moseb Kaba Chowdhary & Anr. v. State of West Bengal, deals with Article 14 of the Constitution of India. The Supreme Court has ruled as under:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification or the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (11) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like, what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

In Pannalal Bansilal Patil and Ors. v. State of Andhra Pradesh and Anr., deals with uniform law for all desirable one. The Supreme court in para 12 has ruled as under:
The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their off-shoots the founding fathers while making the Constitution were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking different languages and dialects in different regional and provided secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualize diversity and attempted to foster uniformity among people of different faiths. A uniform law though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.

The Supreme Court in The Commissioner, Hindu…..v. Sri Lakshmindra Thirtha Swamiar: has ruled that the uniform law is necessary in the administration of the religious institution belonging to Hindus.

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 administrator, institution are not matters of religion to which Clause (b) of the Article applies.

What Article 25(2)(a) contemplates is not regulation by the station 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.

In Ratilal v. State of Bombay, the supreme Court has ruled as under in para 11:
The power to take over the administration in the event of mal administration financial/mis-management certainly cannot be termed as violation of Article 26(b) of the constitution of India. It has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the state may validly impose.

In A.V.K.V. Temple v. State of Uttar Pradesh, the Supreme Court ruled as under:
The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos/Creator and realise his spiritual self.

It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression "religion" or "matters of religion" or "religious beliefs or practice". Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practice rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowments is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate then by appropriate legislation.

Conclusion
Hindu religion is one of the oldest religions available in India. It has the backing of centuries old scriptures, belief etc., those believes, rituals, practices etc., are to be protected, unless the same is totally opposed to any part of the Constitution of India. Therefore, while on one hand, the religious rights in terms of Article 25 are to be protected and on the other hand, mal administration, financial irregularities by any religious institution has to be taken serious note of in the larger interest of temple discipline itself. The state has to draw a balance in maintaining temple disciple/temple administration in terms of the Constitution of India. Since the very Act is held to be discriminatory in this application, it is not possible to severe other parts and hence the entire Act has to be struck down as unconstitutional. We also deem it proper to observe that the intention of the Legislature seems to be a uniform law for all Hindu religious institutions. If that is so, as has been done in Andhra Pradesh in terms of the Supreme court, the Government would be well advised to have a commission constituted for temple affairs and involve all non Hindu religious leaders/matadipathis/religious experts/social reformers and other experts and thereafter proceed to pass a uniform law in terms of the judgment of the Supreme Court in The Commissioner, Hindu…..v. Sri Lakshmindra Thirtha Swamiar…….., The Government can also think of having different regulatory measures for temples/maths/Jains etc., depending upon their religious belief etc., and of course, within the four-corners of the constitution.

However, it is for the legislature to decide the religious reformative law in terms of this policy of uniform law for Hindu religions. We would leave it to the Legislature to take a legislative decision in terns of the Constitution. However, we deem it proper to observe that the Government would be doing a great service to the Hindu society by eliminating all the evil and corrupt practices, if at all prevailing in Hindu institutions. That would go a long way in Hindu temple reforms.
************
Bibliography
Books:

# Ronojoy Sen, Legalizing Religion: The Indian Supreme Court and Secularism, East-West center Washington, 2007.
# The National Foundation for Communal Harmony, Secularism and the Law, New Delhi, 2010.

Articles:
# B.R. Haran, HR & CE Act: A Fraud on the Constitution, bharatabharati.wordpress.com.
# T.R. Ramesh, HR & CE Act, www.vijavaani.com.
# The Object of the HR & CE Act, www.malabardevaswom.kerala.gov.in.


Documents:
# Constitution of India.
# The Hindu Religious and Charitable Endowment Act.

Journals:
# All India Reporter.

# B.R. Haran, HR & CE Act: A Fraud on the Constitution, bharatabharati.wordpress.com.
# T.R. Ramesh, HR & CE Act, www.vijavaani.com.
# The Object of the HR & CE Act, www.malabardevaswom.kerala.gov.in.
# The National Foundation for Communal Harmony, Secularism and the Law, New Delhi, 2010, p. 1-5.

# AIR 1958 SC 536
# AIR 2005 SC 3053
# 1959 Mys.LJ 709
# 1970 (1) MLJ 170
# AIR 1978 Kerala 68
# AIR 2005 SC 3172
# AIR 1954 SC 388
# AIR 1954 SC 282
# 1958 SCR 895
# (1959) 61 BOMLR 1016.
# 2005 SC 3172.
# 1958 SC 536
# 1964 (9) FLR 355
# 1980 SC 1
# AIR 1954 SC 388
# 1997 (4) SC 124
# Ronojoy Sen, Legalizing Religion: The Indian Supreme Court and Secularism, East-West center Washington, 2007, p.46.
# AIR 1980 SC 1.

 

The  author can be reached at: kiruthikadhanapal@legalserviceindia.com

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Article Comments

Posted by PREM on October 01, 2014
hello every one.
i am consultant based at hyderabad . can any one guide me with information regarding hindu relegious endowment act rules .have a doubt that can we take on rental basis from NGO TO USE THEIR LAND FOR TRAINING PURPOSE ? IF YES HOW CAN WE DO IT.PLEASE MAIL ME TO MY EMAIL REGARDING ABOVE QUERRY .

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