WHY ONLY TEMPLES: FREE TEMPLES FROM STATE CONTROL

ABSTRACT

The Hindu temples in various states are subject to government control regarding matters of
administration, finance, superintendence etc. The free temples spree brings a lot of unanswered
questions with itself when comes to the determination of management of Temples being freed
from government control. This article aims to answer certain questions regarding State control
over Hindu temples which are still left unanswered. The issue is that Hindu temples in India,
which has the largest Hindu population in the world, are subject to control of the government
whereas no other nation has such control over any Hindu temple or any other religious
institution. In India too, the government does not exercise any such control over any religious
institution but Hindu temples. This discrimination is unexplained till now. This article deals
with all the aspects of this issue including the history of these legislations, the standing of these
legislations on various principles laid down by the Apex Court regarding various Fundamental
Rights guaranteed by the Constitution. The main objective of this article is to put forth the
social and legal standing of these legislations on the pedestal of constitutional principles.
Despite being many attempts and protests these legislations exists even today. The wrong
cannot be undone but it sure can be discontinued. This article is just an attempt to put light on
the reasons for doing so.

Keywords: Free temples, State control, Fundamental Rights, Constitution of India.

INTRODUCTION

From 1800s till the present time, the State control over religious institutions has been a heated
topic for debate. Initially, in the 1800s, the East India Company took over management of all
the religious institutions by passing laws for the same as religious institutions were seen as
places where people would gather in order plan revolts against the East India Company. But
after protest by minorities the law gave back the control of religious institutions to the
communities but the case was not the same with Hindu Temples. Even after Independence,
various legislations have been passed in various states all over the country under which the
control, superintendence and administration of the Hindu temples is subject to the control of
the state government, but the strictest law in this aspect which exists in present time is in the
State of Tamil Nadu. But the question is that should in the world’s largest democracy which is
a secular country too, should religious institution of only one particular religion be subject to
State control. The concept of essential practices doctrine becomes crucial in this context. In
layman terms, the phrase is generally used for interpretation by courts over time for evaluation
of matters concerning religious policies. One of the most protruding problems with this
administration is that the government generally focuses on larger administration of larger
temples and smaller temples often lose the chance of care they generally deserve. Small temples
especially in South India act as the central part of unity of ecosystem in a village or a town.
But according to reports itself, more than 90,000 forced to shut due to lack of administration
or insufficiency of funds. This article discusses in detail the history, issues and the legal aspect
of these laws and also presents the contention that why these legislations are against the
Fundamental Rights which also form a part of the basic structure of the Constitution.

THE IMPUGNED LAW

As stated above, the strictest law in this aspect which exists even in the present time is in the
State of Tamil Nadu, namely, the Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1951 (hereinafter referred to as “the impugned Act”). The impugned Act has certain
provisions which are violative of the Fundamental Rights guaranteed under the Constitution of
India. These provisions are as follows:

• Chapter II (Section 8 – Section 22) of the impugned Act which relates to appointment of
commissioner, additional commissioners, deputy commissioners, joint commissioners and
other authorities

• Chapter III (Section 23 – Section 43A) which lays down powers of the abovementioned
authorities to have superintendence and control over the administration and control over all
the matters of the Hindu religious institutions.

• Chapter VIII (Section 86 – Section 91) which gives powers to government authorities to
have control over matters related to budgets, accounting and auditing of Hindu religious
institutions.

• Chapter X (Section 92 – Section 95) which relates to management of finances of the Hindu
religious institutions and lays down that a Hindu religious institution has to pay an annual
contribution to the State Government.
• Section 111 of the impugned Act which lays down that a notification passed by the State
Government to take over the control over the State Government cannot be called into
question in the court of law.

Therefore, the impugned Act is discriminative on the grounds of religion as it differentiates

Hindu religious institutions from the religious institutions of other religious groups without any
rationale nexus with the object of the impugned Act. This issue has been discussed later on in
this article.

LAWS RELATING TO RELIGIOUS INSTITUTION OF OTHER RELIGIONS

Their also exist laws which deal with matters related to religious institutions of other religions
like the Sikh Gurdwaras Act, 1925 which is related to religious institutions of Sikhs, i.e., the
Gurudwaras. But the difference here is that in the legislations dealing with matters related to
religious institutions of other religions like the Sikh Gurdwaras Act, 1925 the members of the
board or committees and their heads are elected,1 unlike in the case of legislations relating to
religious institutions of Hindus wherein the commissioners are directly appointed by the State
Government.2 This difference of process of election and appointment for management of
matters relating to religious institutions of different religions is in itself arbitrary. Unlike the
regulations for Sikh, Muslim and Christian institutions wherein the governing authority is of
that very religion, in case of regulations for religious institutions of Hindus, the State exercise
a significant and unreasonable control by appointing the governing authority.

BACKGROUND

In 1925, the British enacted the Madras Religious and Charitable Endowments Act, 1925 which
was applicable to religious endowments of all religions. As a result of this, religious minorities
like Christians and Muslims protested which resulted in enactment of a new legislation named
the Madras Hindu Religious Endowments Act, 1927 which was only applicable to Hindus.

Even in the post-independence era, in 1950, the Law Commission of India suggested that laws
must be passed to check the misuse and misappropriation of funds and properties of various

1
Sikh Gurudwaras Act, 1925, s. 42-101.
2
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951, s. 8 – 22.
Hindu temples. Subsequently, in 1951, the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1951 was passed.

In the Shirur Mutt Case,3 the Constitution Bench of the Supreme Court held that a
Madhadhipati of a math had rights under Article 25, 26 and 27 to administer the math and
manage the religious affairs related to it and the government could not interfere in the working
of the math as such. But this judgement did not change the state of Hindu temples. Hindu
temples in various states including Tamil Nadu, Kerala, Rajasthan etc. are still subject to State
control.

HOW THE IMPUGNED ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS?

The impugned Act per se is not only violative of rights of Hindus guaranteed under Articles 25
and 26 but it is also manifestly arbitrary and unreasonable therefore is violative of Articles 14
and 15 of the Constitution of India. Also, as per the embargo of Article 13 of the Constitution
and as per the constitutional principles, the legislature has no legislative competence to
interfere in the religious matters of a particular community as it is against the secular structure
which is guaranteed under the Constitution itself. Further, the Hindu citizens have the duty to
value and preserve the rich heritage of our composite culture as laid down under clause (f) of
Article 51A of the Constitution of India.4

Also, in the case of Daryao v. State of UP,5 it was held:

“The Fundamental Rights are intended not only to protect individual rights but they
are based on high public policy. Liberty of the individual and the protection of his
fundamental rights are the very essence of the democratic way of life adopted by the
Constitution, and it is the privilege and the duty of this Court to uphold those rights.
This Court would naturally refuse to circumscribe them or to curtail them except as
provided by the Constitution itself.”

Therefore, no law can be violative of Fundamental Rights guaranteed under the Constitution
of India.

3
Commissioner, Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
4
Constitution of India, Article 51A.
5
AIR 1961 SC 1457.
Article 13

Article 13(1) of the Constitution of India,6 states lays down that any law which were passed by
a competent legislature in India before the commencement of the Constitution of India, if
inconsistent with the guarantees of Fundamental Rights under Part III of the Constitution of
India will be void to extent of such inconsistency.7 Similarly, if any legislation which was
enacted before the commencement of the Constitution of India relating to the State control over
the Hindu temples can be declared void by the judiciary and those legislation will be void from
the date if commencement of the Constitution i.e., 26th of January, 1950.8

The Constitution of India not only declares that laws before the commencement of the
Constitution would be void to the extent of inconsistency with Fundamental Rights, but under
Article 13(2) it also lays down that a law which is enacted after the commencement of the
Constitution of India would be void to the extent of its inconsistency with the Fundamental
Rights guaranteed under Part-III of the Constitution.9 Therefore, Acts and legislations which
were enacted after the commencement of the Constitution and which are violative of
fundamental rights, which form a part of basic structure of the constitution and cannot be
abridged,10 must be declared void.

Article 14

Article 14 of the Constitution guarantees to every person equality before law and equal
protection of laws.11 According to the principles laid down in various precedents, a law in order
to be in conformity with Article 14 must have a reasonable classification and it must be non-
arbitrary and reasonable. It was held in the case of S. Rly. Co. v. Greene:12

“While reasonable classification is permitted without doing violence to the equal

protection of the laws, such classification must be based upon some real and
substantial distinction bearing a reasonable and just relation to the things in respect
to which such classification is imposed, and classification cannot be arbitrarily made

6
Constitution of India, Article 13.
7
State of Sikkim v. Surendra Prasad Sharma, (1994) 5 SCC 282; Peerless General Finance and Investment Co.
Ltd. v. RBI, (1992) 2 SCC 343.
8
Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128.
9
Constitution of India, Article 13.
10
I.R Coelho v. State of T.N., (2007) 2 SCC 1; M. Nagaraj v. Union of India, (2006) 8 SCC 212.
11
Constitution of India, Article 14.
12
216 US 400.
 without any substantial basis. Arbitrary selection, it has been said, cannot be justified
by calling it a classification.”

Therefore, it is clear that law can make and set apart the classes according to the social needs.
The law can even recognise the degrees of the mischief, but the classification should never be
arbitrary, artificial or evasive.13 Rather, the classification must be reasonable i.e.,
(a) the classification must be founded on intelligent differentia, and
(b) the differentia must have rational relation to the object sought to be achieved by the Act.14

The differentia which is the basis of classification and the object of the Act are two distinct
things and what is a necessary requirement for a classification to comply with Article 14 is that
there must be a nexus between them.15 While dealing with the constitutional validity of a
classification, the rational nexus of the differentia on which the classification is based should
be read with the purpose or object of the legislation so determined.16 In the case of Atam
Prakash v. State of Haryana,17 the Court observed that while considering a classification under
Article 14 the Court must consider that a classification not in tune with the Constitution is per
se unreasonable.

However, the provisions of the impugned Act are not based on reasonable classification.
Reason being that the statement of object and reasons of the impugned Act is as follows:

“… Some of the sections of Madras Act XIX of 1951 as amended by Madras Act XXVII
of 1954 require revision in view of the later decisions of the High Court and the
Supreme Court. … It has been decided that suitable provisions should be made in the
Act so as to remove the above difficulties, and also to remove the defects pointed out
by Courts. … It is also considered necessary that the comprehensive Act should be
made applicable to all Hindu Public Religious institutions and endowments …

The Bill seeks to give effect to the above objects.”18

Therefore, as it is clear from the statement of objects and reasons of the impugned Act that it
was enacted to remove the difficulties which existed in the earlier legislations but it never met
that purpose. Rather, it only furthered the discrepancies of the old legislation with the

13
(1979) 1 SCC 380.
14
Ibid.
15
Ibid.
16
Shashikant Laxman Kale v. Union of India, (1990) 4 SCC 366.
17
Atam Prakash v. State of Haryana, (1986) 2 SCC 249.
18
Fort St. George Gazette, Extraordinary, dated the 13th April 1959, Part IV-A, page 213.
Fundamental Rights. The differentia i.e., the basis of classification between the institutions on
which the impugned Act would and would not apply, is based only on the ground of religion
which did not remove the difficulties of the old Act and therefore, the differentia had no
rationale nexus with the object of the impugned Act. Therefore, the impugned Act itself is not
based on a reasonable classification and is violative of Article 14.

Also, a temporary measure initially valid can become discriminatory with time on the nexus
with the object no longer surviving. Hence there would be violation of the Article14.19 The
impugned Act was enacted in the year 1959 but after the 42nd Constitutional Amendment Act
the word “Secular” was added in the preamble of the Constitution which forms the part of the
basic structure of the Constitution.20 Whereas, the impugned Act being violative of the
principles of secularism, is manifestly arbitrary per se and therefore, violative of Article 14 of
the Constitution.

Article 15

Article 15 of the Constitution,21 prohibits unreasonable discrimination i.e., arbitrary and

unfavourable distinction between citizens, only on the grounds for religion, race, caste, sex,
place of birth or any of them.22 This means that if a law is brought for social reform of Hindu
community only it can be constitutionally valid but only if the classification made under the
law is based on the social advancement of Hindus and not only on the ground of religion, as a
classification based only on the ground of religion would be violative of Article 15 of the
Constitution.23 However, the impugned Act differentiates the institutions only on the ground
of religion and not on any other ground. The differentia is not related to social advancement of
Hindus but the question which is considered while determining that whether the provisions the
impugned Act would apply to a particular religious institution or not is that whether that
religious institution belongs to Hindus or not. Therefore, the provisions of the impugned Act
are violative of Article 15 of the Constitution.

19
Motor General Traders v. State of A.P., (1984) 1 SCC 222; Satyawati Sharma v. Union of India, (2008) 5 SCC
287.
20
S. R. Bommai v. Union of India, (1994) 3 SCC 1.
21
Constitution of India, Article 15.
22
State of Sikkim v. Surendra Prasad Sharma, (1994) 5 SCC 282,292,293; Indra Swahney v. Union of India, 1992
Supp (3) SCC 212.
23
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84; Srinivasa Aiyar v. Saraswathi Ammal, AIR 1952
Mad 193; Chennamma v. Dayna Setty, AIR 1953 Mys 136.
Article 25

Articles 25 gives to every person the freedom to practice, profess and propagate any religion.24
This freedom of religion under the Article 25 is not merely a freedom to hold opinions, beliefs
etc., but this freedom also includes the freedom to perform certain acts in pursuance of the faith.
The freedom of religion also embraces the rights to profess the religion, i.e., to publicly state
one’s creed or faith; to practice, i.e., to perform worship or offer prayers, etc., and to propagate,
i.e., to explain the religious tenets to others. Clause (1) of Article 25 of the Constitution also
guarantees freedom of conscience to every person and not merely to the followers of a
particular religion. The word “propagate” under Article 25 means “to transmit or spread from
person to person or from place to place, coming forward or onward, diffuse, extend, as to
propagate a report, to propagate religion.”25

Further, it has been held that a head of a religious institution can complain of the infringement
of Article 25 of the Constitution,26 and what constitutes an essential part of religious practice
has to be decided by the court with reference to the doctrine of a particular religion.27 In this
regard, the Supreme Court observed:

“What constitutes an essential part of a religion is primarily to be ascertained with

references to the doctrines of that religion itself. If the tenets of any religion sect of the
Hindus prescribe that offering of food should be given to the idol at particular hours
of the day, that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred text...all these would
be regarded as parts of religion and the mere fact that they involve expenditure of
money...would not make them secular activities...all these are religious practices and
should be regarded as matters of religion within the meaning of Article 26(b).”28

The Apex Court has ruled that persons who claim to belong to a religious denomination must
satisfy the following tests:
(i) It must be collective of individuals who have a system of beliefs with regard to their spiritual
well-being;
(ii) there must be a common organisation and

24
Constitution of India, Article 25.
25
Lily Thomas v. Union of India, (2006) 6 SCC 224.
26
Stainislaus Rev. v. State of Madhya Pradesh, AIR 1975 MP 163.
27
Seshmmal v. State of T.N., (1972) 2 SCC 11.
28
Sri Venkatramana Devaru v. State of Mysore, AIR 1958 SC 255; Tilkayat Shri Govindlalji Maharaj v. State of
Rajasthan, AIR 1963 SC 1638.
(iii) it must have distinctive name.29

The impugned Act is violative of rights of Hindus to pray, profess, practice and propagate their
religion under Article 25 of the Constitution of India. There is a doctrine under Hindu law
which says that ‘Temple property is never lost … and even the king cannot take away temple
property as deity is embodiment of God and is juristic person’.

Therefore, as the impugned Act gives the state government an absolute unguided discretion to
appoint the commissioner of any religious institution of Hindus, this in itself is an interference
with the freedom of Hindus to profess and practice their religion without any unnecessary
interference by the government.

Article 26

Article 26 of the Constitution gives every religious denomination the right to establish and
manage their religious institutions.30 The fact is that the protection under Article 25 and 26 is
also available to those professing the faith of the majority, namely Hindus,31 because it not only
applies to a religious denomination but it also applies to a section thereof, like a Math.32 The
right to establish and maintain a religious institution must be given to that religious
denomination where such institution is established and maintained by that very denomination.33
In the case of Ratilal Panachand Gandhi v. State of Bombay,34 the Apex Court held that the
State could not allow any secular authority to misappropriate the property or funds of any
religious institution for the purposes other than for what it was created, unless the institution
fails in that purpose or the donor’s intention cannot be fulfilled, in which case doctrine of cy-
pres would apply. Clause (b) of Article 26 of the Constitution guarantees to each religious
denomination the right to manage its domestic affairs in matters which are concerned with
religion and the State cannot interfere in these affairs unless the denomination so exercises its
right as to interfere with ‘public order, morality or health’. Another limitation of right under

29
Bramchari Sidheshwar Shai v. State of W.B., (1995) 4 SCC 646; Sri Adi Visheshwara of Kashi Vishwanath
Temple v. Kashi Vishwanath Temple v. State of U.P., (1997) 4 SCC 606.
30
Constitution of India, Article 26.
31
Pannalal Bansila Pitti v. State of A.P., (1996) 2 SCC 498.
32
Commissioner, HRE v. Lakshmindra Thiratha Swamiar, AIR 1954 SC 282.
33
S. Azzez Basha v. Union of India, AIR 1968 SC 662; Khajamian Estates v. State of Madras, (1970) 3 SCC 894;
State of Rajasthan v. Sajjanlal Panjawat, (1974) 1 SCC 500.
34
AIR 1954 SC 388.
Article 26(b) is that it is subject to Article 17,35 and Article 25(2)(b),36 or is prejudicial to public
interest or is in violation of the criminal law of the country.37 Besides these there are no other
limitations imposed by the Constitution. Hence, religious denominations have the right of
beneficial use or enjoyment of the denominational property.38 However, the impugned Act
gives the power to the commissioner and to the state government to take decisions in matters
relating to the use of funds and properties of religious institutions of Hindus which in itself is
a clear violation of the right guaranteed by Article 26 of the Constitution.

Further, the right of management under Article 26(b) also includes the right to spend the income
or the property of the institution for religious purposes and objects indicated by the founder or
established by usage obtaining in a particular institution. Therefore, to divert the funds or
property of the institution, although the original objects of the founder can still be carried out,
is an unwarrantable encroachment upon the right guaranteed to a religious institution by Article
26(b),39 even though such other purposes are charitable.40

Going by this principle, the power of the state government and its appointed commissioners in
the religious institutions of Hindus to collect fee or tax and to decide the expenditure of the
funds of the temples very clearly violates the rights guaranteed to Hindus by Article 26 of the
Constitution.

Furthermore, the right of management under Article 26(b) also includes the right to maintain a
religious institution under the management of a spiritual head of the denomination, which
would be destroyed if a statutory authority is appointed for the purpose.41

Therefore, the appointed of a commissioner by the state government eliminates any

participation of Hindu devotees in electing the head under whose management their religious
institution would run. This is also a violation of the right guaranteed by Article 26 of the
Constitution.

Hence, the provisions of the impugned Act are violative of the abovementioned Fundamental
Rights.

35
Saifuddin Saheb, Sardar Syedna Taher v. State of Bombay, AIR 1962 SC 853.
36
Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
37
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta (2004) 12 SCC 770.
38
Sarup Singh v. State of Punjab, AIR 1959 SC 860.
39
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
40
Ram Chandra Deb v. State of Orissa, AIR 1959 Ori 5.
41
Ibid at 38.
 JUDICIAL PRONOUNCEMENTS

In Sri Lakshamana Yatendrulu and Ors. v. State of A.P. and Anr.,42 the Apex Court examined
the constitutional validity of some of the provisions of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act 1987. The Court also examined the object
of the scheme framed under Section 55 of the said Act and held as under:

“...That the power of the Commissioner to frame scheme is not absolute hut is
conditioned upon reasonable belief on the basis of the report submitted by the Deputy
Commissioner and there must be some material on record for entertaining a
reasonable belief that the affairs of the Math and its properties are being mismanaged
or that funds are misappropriated or that the mathadhipathi grossly neglected in
performing his duties.”

Further, in the same case,43 as the Act of 1987 did not provide the duration for which the scheme
would remain in force, the court while holding that “the duration of the scheme thus framed
may also be specified either in the original scheme or one upheld with modification, if any, in
appeal.” also held:

“The object of Section 55 appears to be to remedy mismanagement of the math or

misutilisation of the funds of the math or neglect in its management. The scheme
envisages modification or its cancellation thereof, which would indicate that the
scheme is of a temporary nature and duration till the evil … is remedied or a fit person
is nominated as mathadhipathi …”

The Constitution Bench of the Hon’ble Supreme Court in Shirur Mutt case,44 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 (b) of
Article 26 of the Constitution. ‘Therefore, the law could not divest the administration of
religious institution or endowment.

42
AIR 1996 SC 1414.
43
Ibid.
44
Commissioner, Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
In the landmark judgement of Subramanian Swamy v. State of Tamil Nadu and Ors.,45 the Apex
Court while laying down that power to regulate does not mean power to supersede the
administration for indefinite period, held:

“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. … Super-session of
rights of administration cannot be of a permanent enduring nature.”

Hence, the Apex Court has many times held that the State cannot control Hindu temples for
unreasonable time.

SUGGESTIONS & CONCLUSION: A WAY AHEAD

From the above-mentioned contentions, it is clear that the impugned Act and other similar
legislations are violative of the Fundamental Rights guaranteed under the Constitution of India
and the temples must be controlled by a group of persons who would be representatives of the
Hindu devotees. Also, it is clear that the state governments have followed the menacing British
policy of exerting total control on temples and their management even after commencement of
the Constitution in 1950. Being the centre of the nation’s socioeconomic structure, temples
have a long and intricate relationship with the State. Before the British intervened, the nation
and society benefitted from a rich economic and cultural legacy, as seen by the temples that
still stand today. In the past, the temples were independent and self-sufficient, with their own
resources like as farms, water supplies, corpus, gathering places, etc. A support system, which
in turn depended on these, kept them going. The temples serve as a record of past architectural
advancement, construction methods, and sculpture. The temples promoted societal
advancement through promoting education. Temples supported and were essential to the
growth of culture, including music, paintings, dancing, and other art forms.

The counter argument which are presented by many in support of State control over Hindu
temples is based on the assertion that if Hindu temples are freed from the State control, it would

45
(2014) 5 SCC 75.
give rise to corruption and misappropriation of funds. This fallacy is incorrect because without
any reasonable ground to presume so, it makes two wide presumptions that firstly, corruption
exists only in Hindu temples and not in any other religious institution, that is why they should
be subject to State control while religious institutions of other religions can run freely; and
secondly, that all the Hindu temples will have corruption if left free from State control, that is
why all the temples must be administered and controlled by the state governments. The fact is
that both of these presumptions are baseless and do not have any reliable evidence or statistical
data to support them.