Hindu Temples in shackles: Is it not discrimination?
When the advocate for Travancore Devaswom Board, which controls the Sabarimala temple, argued before the Supreme Court that Hindu rituals are more “primitive” [i] than those of Semitic religions, he was not referring to their antiquity. He was communicating the attitude of a secular state which administers a large number of Hindu temples.
More recently, the Kerala Law Reforms Commission, headed by former Supreme Court judge Justice KT Thomas, published a draft bill titled the Kerala Church (Properties and Institutions) Bill, 2019 on its website in order to invite objections from the public. The stated objective of the bill was to create a forum for Christians to complain against arbitrary transfers of church properties and misuse of church funds. The bill was a much watered-down version of the Kerala Christian Church Properties and Institutions Trust Bill[ii] that was proposed by the Law Reforms Commission headed by late Justice V. R. Krishna Iyer in 2009. Within a matter of days, the Chief Minister of Kerala announced that the bill was put out by the commission without consulting the government and that the government had no intention to pass such a law.[iii] This happened after various Christian factions threatened[iv] a second ‘liberation struggle’ against the communist government. Even the draft of the bill is now missing from the website of the Kerala Law Reforms Commission.[v]
The Church Bill is not even comparable to the intrusive laws that empower Devaswom Boards to micro-manage Hindu temples.
In 2018, the High Court of Kerala, in the matter of T. G. Mohan Das vs. State of Kerala[vi] expressed concerns regarding the lack of transparency in the matter of appointment of members to the Travancore and Cochin Devaswom Boards, both of which together control over 1600 Hindu temples in Kerala. The High Court recommended measures for bringing transparency, while expressing helplessness in doing anything beyond making recommendations. The High Court implored the state government to act on its recommendations as fast as possible. This, upon finding that the present system permits favoritism, cronyism, patronization and nepotism in the appointment by politicians of persons who administer Hindu temples. The High Court also recounted three of its earlier judgments, the first being of the year 1979, each expressing the need for transparency in appointments, all of which had been ignored by successive governments. Despite a passionate appeal by the bench, the latest recommendations have also been ignored by the Kerala government. In Kerala alone, about 3000 Hindu temples are controlled by the state government.
Article 14 of the Constitution
Why are temples subjected to governmental control, to the exclusion of churches and mosques? On what basis was it claimed that Hindu institutions, and they alone, were mismanaged to warrant such drastic measures? Is it not discrimination? These questions must have crossed every devotee’s mind.
The legal argument is that the right to equality before law, guaranteed under Article 14 of the Constitution of India, is denied to Hindus when their religious and charitable endowments alone are subjected to hostile legislation by the government. This argument was raised before the Kerala High Court in T. G. Mohan Das’s case6. The Kerala High Court refused to go into it, citing earlier judgments wherein the same argument had been considered and rejected. A cursory look at those judgments (in chronological order) will reveal that the indifference of the Hindu community and probably a callous approach of the judiciary have resulted in the perpetuation of gross injustice.
Chiranjit Chowdhuri’s case of 1950
The first in a line of judgments on the interpretation of Article 14 is Chiranjit Lal Chowdhuri vs. the Union of India[vii], a decision of a five-judge bench of the Supreme Court, delivered only months after the Constitution came into force. A petition was filed before the Supreme Court by a shareholder of a spinning and weaving mill challenging selection of that mill exclusively for taking over of administration and management by the central government on the grounds of mismanagement. The challenge was rejected by a majority of three out of five judges, all of whom authored separate judgments. The majority decision rejected the argument of discrimination raised by the petitioner on the ground that there was no material produced before the court to show that there was another mill in the same category which was also being mismanaged, though the burden to demonstrate the same was upon the petitioner. One judge found that the government had conducted a proper enquiry, consulted stakeholders and experts, and had followed certain guidelines on the basis of which the petitioner’s mill was picked, and concluded based thereon that the criteria adopted by the government, which was fair and reasonable, was not applicable to any other mill.
Two judges wrote separate dissenting opinions. The dissenting judges held that when hostile discrimination is writ large over the legislation, the burden can’t be upon the petitioner to show that there were other mills that were similarly mismanaged. Also that it will be impossible for the petitioner to prove mismanagement in some other mill. It was held that to carry a presumption of good faith and knowledge on the part of the legislature, to the extent of always holding that there must be some undisclosed and unknown reason for subjecting a certain entity to hostile and discriminating legislation, was to make the protecting clauseof Article 14 “a mere rope of sand”.
F. N. Balsara’s case of 1951
The law laid down in Chiranjit Chowdhuri’s case was followed by a five-judge bench of the Supreme Court in the matter of State of Bombay Vs. F. N. Balsara[viii]. The case involved challenge to various provisions of the Bombay Prohibition Act, 1949 which brought prohibition on possession, consumption and sale of alcohol, while permitting consumption of alcohol by the armed forces. This provision was challenged by the petitioner as being violative of Article 14. This challenge was declined by the bench relying upon the law laid down in Chiranjit Chowdhuri’s case.
The unanimous judgment, by and large, takes into account the points raised in the dissenting opinions in Chiranjit Chowdhuri’s case. The two judges who had dissented from the majority opinion in Chiranjit Chowdhuri’s case concurred. It was held in F. N. Balsara’s case that the presumption in favour of constitutionality of a law that hits only a particular individual or class can be rebutted by showing that on the face of the statute there is no classification at all and that there is no difference peculiar to any individual or class and not applicable to any other individual or class. It was further held that classification must be based upon some real and substantial distinction and that classification cannot be made arbitrarily and without any substantial basis. Based on the summarized principles, it was held that the armed forces can be treated as a separate class for the purpose of enforcing prohibition. However, before arriving at such a conclusion, the court went into the traditions, work conditions, etc. of armed forces to hold that there were relevant considerations for classifying the armed forces as a distinct class from the general public for the purpose of enforcing prohibition.
Application of principles to legislations targeting only Hindu institutions
In the light of the law laid down by the Supreme Court in the above cases, if a legislation for taking over management and administration of Hindu religious institutions and endowments has to pass muster on the touchstone of Article 14, a court will have to be satisfied that there is indeed a valid classification based on a differentia peculiar to Hindu religious institutions. A court cannot decide such an issue by looking at Hindu religious institutions in isolation. How can the correctness of classification of an individual or a class belonging to a category be tested by only looking at the classified individual or class, and not at the rest in the category? The court will necessarily have to look at other similar religious and charitable institutions and endowments of other religions also. However, this was never done, as can be seen from the cases where the question was considered.
Shirur Mutt’s case before Madras High Court in 1951 (Tamil Nadu statute)
The above principles regarding the scope and application of Article 14 were applied in the context of legislation for controlling and managing Hindu religious institutions, for the first time, in the case of Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt Vs. the Commissioner of Hindu Religious Endowments[ix], by the Madras High Court. The case was filed before the Madras High Court by the Matathipathi of Shirur Mutt challenging the Madras Hindu Religious and Charitable Endowments Act, 1951, under which the administration of his Mutt was sought to be taken over. One of the grounds for challenge was indeed that Hindu religious institutions and endowments were alone selected and subjected to hostile and discriminatory legislation. While the challenge of the Matathipathi was allowed, declaring many provisions of the Act to be ultra vires the Constitution, the argument based on Article 14 was rejected. The division bench of the High Court, after referring to the Chiranjit Chowdhuri’s case and after quoting from the F. N. Balsara’s case, held as follows:-
“In view of this clear pronouncement of the highest authority, it is needless to refer to the authorities so copiously cited at the bar to illustrate one or the other of the principles enunciated above. The gravamen of the charge is that while the Christian and Muhammadan religious and charitable institutions and endowments were excluded, Hindu religious and charitable endowments and institutions alone were selected for special treatment and that such a discrimination is unwarranted, unreasonable and unjust. The classification of institutions and endowments based on religion, Hindu, Muhammadan or Christian, cannot be said to be either arbitrary or unreasonable having regard to the object sought to be attained viz, the better administration and management of such institutions. It is not a classification or division made for the first time by the State Legislature. The distinction existed for nearly a century. As the incidents and the nature of the institutions and endowments of different religions differ in several respects, it cannot be said that the classification is based solely on religion as the institutions included in the classification are religious as well as secular and having regard to the object in view, the institutions having several common features are rightly classified, under one group. Article 14 does not prevent the legislature from taking up one set of institutions for legislative consideration at one time and enacting laws in respect of them while reserving the other types of institutions for consideration to a future date. It is impossible to accept the contention that the impugned Act violates either Article 14 or Article 15.” (emphasis added)
It appears from the above paragraph that the High Court proceeded on the basis that the distinctiveness of Hindu religion and its institutions alone is sufficient to treat it as a separate class, to be taken up for hostile treatment. Hindu religious intuitions are indeed distinct in many ways from institutions of Abrahamic religions. The question is, what is that alleged unique distinction that requires a hostile treatment as a remedy? This question is not answered. In spite of recording submission of the petitioner that Christian and Islamic religious institutions were excluded and Hindu institutions alone were selected for special treatment, the court does not even consider whether there is a differentia which has a nexus with the object sought to be achieved, based on which the classification is done, which is peculiar to Hindu religious institutions and not applicable to Christian or Islamic religious institutions.
The court also holds that the institutions included in the classification are religious as well as secular, implying that religion was not a criterion. It completely overlooks the point that only secular endowments for the benefit of Hindus could come under the preview of the statute. This is clear from the definition clause of the statute itself.
The High Court appears to be referring to earlier actions of British colonial officers targeting Hindu institutions when it states that the classification is not being made for the first time by a state. The Madras Hindu Religious and Charitable Endowments Act, 1951, was the first piece of such legislation post coming into force of the Constitution of India, passed by the Congress government of Madras. The High Court should have thoroughly tested the legislation on the touchstone of Article 14 of the Constitution, in the light of the law laid down by the Supreme Court. Justice Patanjali Sastri in his dissenting judgment in Chiranjit Chowdhuri’s case compared the legislation impugned in that case to the notorious British parliamentary procedure called as the ‘bills of attainder’, where an individual or an entity is targeted for perceived delinquency and denied basic rights, while holding that such procedures should not receive judicial encouragement. The Madras High Court in Shirur Mutt’s case sought to overlook allegations of discriminatory classification on the basis that the British colonial regime had been doing it earlier!
Bramadathan Nambooripad’s case of 1955 (Kerala statute)
The question of discrimination against Hindu religious institutions came up next before the Kerala High Court in the year 1955, in P. M. Bramadathan Nambooripad Vs. The Cochin Devaswom Board[x], when a three-judge bench of the court was considering a challenge to the very same statute that the division bench of the court was dealing with in the T. G. Mohan Das case6. The bench answered the question by quoting from the judgment of Madras High Court in Shirur Mutt’s case and Balsara’s case (wrongly referred to in the judgment as Manohar Lal vs. the State). Without any further discussion, the bench held that it is in agreement with the view expressed by the Madras High Court. The bench noted that an appeal was preferred from the Madras High Court judgment to the Supreme Court and that, “…though there is no specific discussion of this point in the judgment of the Supreme Court, the Madras view should be taken as having been approved by the Supreme Court when after striking down certain specified sections of the Madras Act the judgment went on to say: The rest of the Act is to be regarded as valid.”
The decision of the Supreme Court in the appeal from the Madras High Court judgment is the celebrated judgment of 1954 rendered by a seven-judge bench, that is now known as the Shirur Mutt case[xi], wherein the court evolved the ‘essential religious practices’ test. The appeal before the Supreme Court was filed by the Commissioner of Hindu Religious Endowments, Madras, the respondent in the case before Madras High Court, being aggrieved by the declaration of certain provisions of the Act as invalid. The Matathipathi, the petitioner, did not pursue his challenge to the legislation on the grounds of violation of Article 14 by filing an appeal before the Supreme Court, probably because he had obtained the main relief he had sought, viz. restraining the Commissioner from taking over the administration of his Mutt. The Supreme Court, therefore, had no occasion to consider the correctness of the decision of the Madras High Court regarding violation of Article 14. The Supreme Court, in paragraph 7 of the judgment, categorically states that arguments have been advanced before it only relating to those provisions which have been held to be invalid by the Madras High Court. Article 14 is not even referred to in the entire judgment. Yet, the Full Bench sought to fortify its acceptance of the decision of the Madras High Court by portraying a mere clarificatory statement by the Supreme Court that “the rest of the Act is to be regarded as valid” as approval of the decision of the High Court on the question of violation of Article 14.
In 2018, when the question of discrimination against Hindu religious institutions was raised before a division bench of the Kerala High Court in T. G. Mohandas’s case, the division bench had little choice but to follow the three-judge bench’s decision in Bramadathan Nambooripad’s case. The appeal filed by Dr. Subramanian Swamy before the Supreme Court is pending, with an order passed on 31st January, 2019 for expeditious disposal of the appeal.[xii]
Kakinada Annadana Samajam’s case of 1970 (Andhra Pradesh statute)
In 1970, the challenge to the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, reached the Supreme Court. A five-judge bench in the case of Kakinada Annadana Samajam Vs. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad[xiii] dealt with the argument of discrimination thus:
“A faint attempt was made to sustain the attack under Arts. 14 and 26(d) of the Constitution but finally hardly any arguments were addressed worth noticing on these points.”
Pannalal Bansilal Patil’s case of 1996 (Andhra Pradesh statute)
In Pannalal Bansilal Patil Vs. State of Andhra Pradesh[xiv], a two-judge bench of the Supreme Court considered the argument based on discrimination against the same Andhra Pradesh legislation that was challenged in the Kakinada Annadana Samajam’s case. After observing that a uniform law applicable to all religions in India may be counter-productive to “unity and integrity of the nation”, the court held that the law has been made where the need was felt the most acute and that a uniform law can be brought in stages and not necessarily in one go. In short, after expressing fear of reactions that could threaten the unity and integrity of the nation, if the administration of institutions of other religions is taken over by the state, the court repeated what the Madras High Court had said in 1951: a uniform law will come.
Sri Sahasra Lingeshwara Temple case of 2006 (Karnataka statute)
In the case of Sri Sahasra Lingeshwara Temple Vs. State of Karnataka[xv], the division bench of the Karnataka High Court struck down the whole Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, inter alia on the grounds that the act excludes Jains, Buddhists and Sikhs from the definition of ‘Hindu’, thereby excluding their institutions from the preview of the act. The bench rejected the finding of the single judge that the state has the right to pick and choose without a justifiable basis. The bench rejected the argument of the state government that Jains, Buddhists and Sikhs differ from Hindus in religious practices and rituals by stating that even the several castes and sub-castes among Hindus follow different practices and rituals. The appeal filed by the state government against the judgment of the division bench is still pending before the Hon’ble Supreme Court which has stayed the impugned judgment. While so, the Karnataka government brought an amendment to the act of 1997, yet again excluding Jain, Buddhist and Sikh institutions from the preview. The amended act was challenged before the Karnataka High Court, and in the year 2015, by a judgment in the matter of Shri Maha Ganapati Shankara Vs. State of Karnataka[xvi], a division bench affirmed the earlier judgment and struck down the amended act in its entirety. The state filed an appeal against the judgment before the Hon’ble Supreme Court and obtained a stay. The said appeal is also awaiting a hearing. The argument against picking only Hindu institutions while excluding those of Abrahamic religions was not raised in these cases.
Were Hindu Temples and religious endowments alone mismanaged?
The answer to this question is not far to seek. A glance at the history of this kind of legislations will suffice. The Bengal Regulation XIX of 1810 and Regulation VII of 1817 were laws brought by the East India Company pertaining to Hindu and Muslim religious institutions and endowments citing mismanagement. Christian institutions and Churches were excluded from these laws. These laws were not implemented due to objections from British Christian missionaries and evangelists who viewed the laws as official patronage of and tacit recognition of native superstitions and heathen practices[xvii]. This resulted in the Religious Endowments Act of 1863 by which the government sought to withdraw from the management of religious institutions by entrusting the job to trustees, managers, superintendents and local committees. This act was made applicable to “mosques, temples or other religious establishments”.
Thus, the East India Company felt that Muslim religious institutions were also mismanaged. Christian institutions were naturally excluded. However, down south, in the year 1811, Col. Munro annexed control of Hindu Temples purporting to exercise a right inherent in Hindu sovereigns over Hindu Temples. From then began the expropriation of temple wealth and decline of temple ecosystem in south India.
Hindu apathy, the root cause
Our society and courts have always accorded equal sanctity to churches, mosques and temples; so also to places of worship of other religions. Though the Supreme Court, in the case of M. Ismail Frauqui Vs. Union of India[xviii] found, in the context of acquisition by state, that a mosque is not an essential part of the practice of the religion of Islam, the court also held in the same judgment that the status of mosques under the Constitution is the same and equal to that of places of worship of other religions, namely, churches, temples, etc. Yet, when it comes to Hindu temples, all institutions of our democracy appear to be indifferent to the discriminatory and hostile treatment.
In April 2019, while hearing a case regarding the management of the Jagannath temple, Justice S. A. Bobde, the present Chief Justice of India, commented, “I do not know why government officials should manage temples?”[xix] Eminent jurist Fali Nariman, in his scathing critique of state interference in Hindu religious affairs wrote, “The nationalization of religious endowments, temples and places of learning sits uneasily with both the guarantee of religious freedom and secularism”[xx]. Lawyer and author Abhinav Chandrachud wrote, “The wall of separation between temple and state in India was first constructed by a colonial government which wanted to distance itself from religions that it considered heathen and false. That wall was then pulled down by Indian leaders who felt that government entanglement in religious institutions, especially Hindu temples, was essential, even in a secular state”.[xxi]
Justice H. N. Nagamohan Das of Karnataka High Court in the Karnataka statute case described the role of temples in the society thus, “Temples are religious centres and are places of public worship. Every town and every village has its own Gods and Goddesses. Every temple had been a centre of artistic activity as the temple itself was a beautiful building decorated with sculptures and paintings. It was provided with an Orchestra and dancing girls or devadasis for the Ranga bhoga of the temple. It was the place where village panchayats were held. It sheltered travellers and students. It provided facilities for the education of adults by arranging the recitation of puranas and other such programmes. It maintained stud bulls (Basava) and helped animal husbandry. It provided warehouse for the excess grain of every village. A temple was a centre where science and literature was patronized. A temple was a great employer as it required administrators, priests, dancing girls, players of music, sweepers, cooks, flower garden, keepers, garland makers, storekeepers, masons, sculptors etc. It was a centre of social and cultural activity. The annual fairs and festivals not only provided gay moments to the people by their pomp and pageant, but also served as occasions for the marketing of various goods as merchants from far and near flocked there with their wares. Special livestock markets were also organised on such occasions. Even to this day the temples continue to dominate people’s life whether in villages or in cities.”[xxii]
Hindus appear to be ignorant of the positive changes that flourishing temples can bring to the entire society. Considering the rate at which the demography is changing in a state like Kerala, it might be too late by the time Hindus realize this. Our existing laws subject Hindu temples and institutions to hostile discrimination. But, in a democracy, the laws merely reflect the will of the people. Hence, it is for the Hindus to come together to free their temples from governmental shackles.
[xii] Diary No.- 31638 /2018
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