Can Governments ‘take over’ Administration of Hindu Religious Institutions? – VI

Can Governments ‘take over’ Administration of Hindu Religious Institutions? – VI

In the first five parts of the current series, I had discussed in some detail the fundamental rights of Hindu religious institutions under the Constitution and the State’s ability to limit them. In the last two parts (1) (2) in particular, I examined the constitutional validity of the position taken by the Travancore Devaswom Board (TDB) in relation to the entry of women aged between 10 and 50 years into the Sabarimala Temple. Starting today, over the next few articles, I will analyse the Hindu Religious and Charitable Endowments (HRCE) legislations that are in force in the Southern States with specific focus on the extent of the State’s intrusion into the functioning and administration of the Hindu religious institutions.

This exercise assumes greater relevance in the backdrop of the news reports that the Supreme Court is expected to commence hearing final arguments on July 13, 2016 in the Writ Petition (W.P. (C) No. 476/2012) filed by the Late Swami Dayananda Saraswathi challenging the constitutionality of the HRCE legislations of the three Southern States, namely Tamil Nadu, Andhra Pradesh, and Puducherry. The first legislation I intend to examine as part of this exercise is the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which is the legislation in force as on date in Tamil Nadu.

To get a general idea of the kind of roadblocks and challenges these Hindu-specific legislations have created for Hindu religious institutions, I would strongly recommend reading the judgement of the Supreme Court in the case of the Thillai Nataraja Temple in Chidambaram (also known as the Sabhanayagar Temple/Chidambaram Temple). The judgement crisply captures the history of the litigation, which informs even a lay reader of the manner in which the 1959 Act and its predecessor statutes such as The Madras Hindu Religious and Charitable Endowments Act 1951 have been used by successive Tamil Nadu State Governments over the decades to encroach upon the independence and autonomy of Hindu religious institutions in the State. The factual matrix also tellingly demonstrates as to how State Governments embroil Hindu religious institutions in protracted legal battles for decades, in this case from 1951 to January 2014 with a brief lull in between, to drain them of their will and resources to stave off statist intrusions.

The 1959 Act itself is the product of a tortuous history, which is replete with litigation. In a nutshell, the promulgation of the 1959 legislation was primarily necessitated due to the landmark judgement of the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt, wherein the Court struck down as unconstitutional Sections 21, 30(2), 31, 55, 56, 63-69 and 76 of the 1951 Act. Pursuant to this decision, a number of amendments were carried out to the 1951 Act in 1954, and finally the Act was repealed and replaced by the 1959 Act.

While the 1959 Act has several key provisions which have a bearing on the freedom of Hindu religious and charitable institutions, the three important provisions which were discussed by the Supreme Court in the Chidambaram Temple case were Sections 45, 107 and 116 of the Act:

  1. Section 45 enables the appointment of that creature called the “Executive Officer (EO)” and spells out the powers of the EO to intervene in Temple administration.
  2. Section 107 clarifies that nothing in the Act shall be deemed to confer any power or impose any duty, which is in violation of the rights of a religious denomination under Article 26, except as provided for in Section 106 of the Act and Article 25(2) of the Constitution. While Section 106 deals with removal of discrimination with respect to distribution of prasadams or theerthams, Article 25(2), readers may recollect, has been interpreted by the Supreme Court as being a constitutional limitation on the scope of fundamental rights of religious denominations under Article 26. Article 25(2) permits the State to make laws which: (a) Regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice or (b) Advance social welfare and reform or provide for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
  3. Section 116 of the Act empowers the Government to make rules to carry out the objectives of the Act.

Based on a combined and purposive reading of these three provisions of the 1959 Act and the framework of the Act, the Supreme Court held that the rights of ‘denominational religious institutions’ are to be preserved and protected from any invasion by the State, as guaranteed under Article 26 of the Constitution and reiterated by Section 107 of the Act itself. Having held thus, the Court clarified that a ‘religious denomination’ can only claim to maintain and administer that institution, which has been established by it. Critically, on the issue of the takeover of a religious institution by the State under the pretext of “managing” the administration of the institution, the Court held thus:

15. The Constitution Bench of this Court in Shirur Mutt (Supra) categorically held that a law which takes away the right to administer the religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed in clause (d) of Article 26 of the Constitution. Therefore, the law could not divest the administration of religious institution or endowment. However, the State may have a general right to regulate the right of administration of a religious or charitable institution or endowment and by such a law, State may also choose to impose such restrictions whereof as are felt most acute and provide a remedy therefore.”

As for the nature of the activity of a religious institution which can be “regulated” by the State Government, the Court interpreted Sections 44 and 45 of the 1959 Act to hold that the State can regulate only “secular activities” of the institution, but not its religious activities. Observing that the primary and limited object of the framing of schemes for Temple administration under the Act is to remedy maladministration or mismanagement of the Temple, the Court further held that “regulation” must necessarily be limited to achieving the stated goal of such schemes, and must not result in the usurpation of the fundamental right of religious denominations to administer institutions established by them. Here are the unequivocal conclusions of the Court on the issue of indefinite intervention by State Governments:

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. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force.

“Super-session of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration, but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period.”

One couldn’t have captured the restrictions on the State’s power to interfere with Temple administration with greater clarity. While this ruling is certainly a shot in the arm in challenging indefinite or mischievous intrusions by the State into Temple administration, there is more that needs to be done on this front to facilitate exercise of the fundamental rights of Hindu religious and charitable institutions to their fullest potential. In the next part, I will continue with further scrutiny of the 1959 Act.

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Sai Deepak

J. Sai Deepak is a Delhi-based litigator who practises primarily before the Delhi High Court. Sai writes on economic laws and policy on his blog "The Demanding Mistress" He is @jsaideepak on Twitter.