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 vary from State to State or from region to region. The practice
also varies to a large extent. The Hindu religion is based on scriptures such as
Upanishads, vedaa, Geetha etc. Hindu religion is considered to be a way of life.

One of the important practices of Hindu religion is Charity. Historically, people

were engaged in the practices of “Ishta” and “purta” through which, over the
years, the institution of Hindu religious and charitable endowment came into
place. It is pertinent to mention here that there was no uniform law to protect the
sanctity of Hindu religious and charitable endowment and time and again state
has intervened in the institution of Hindu religious and charitable endowment
for the purpose of diluting religion from it.

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 take over 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 was meant for the upkeep
of temples and conduct of rituals.

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. 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 also constituted the HRE Board, which was ostensibly an
independent regulatory agency, to the HRCE Department, an executive
Department of the Government; it brought all the religions and charitable
endowments under that Department.
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 was a despicable intervention by Government applied to Hindu

Institutions.
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.
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 Madras Hindu Religious & Charitable Endowment Act 1951,
as indicated in the preamble is “to amend and consolidate the law relating to the
administration and governance of Hindu Religious & Charitable Endowment”.

The famous Shirur Math Case or the case of Sri Lakshmindra Tirtha
Swamiar vs The Commissioner HRE Board, was one of the earliest cases
which challenged the validity of the HREC Act of 1951 on the ground that it
violated the fundamental rights of equality, religious and cultural freedom
guaranteed in Articles 14, 15, 19(1), 25, 26, 27 and 30 of the
Constitution. While rejecting the plea (except in reference to a few sections of
the Act), the Madras High Court observed that “The religion and the secular
management of the property of the Math are independent so that one simply
exists for the other.

However, certain provisions of the Act of 1951 were struck down by the Madras
High Court and the Supreme Court in the Shirur Math case and this led to the
modified Act of 1954, certain provisions of which were also found to be
inadequate by the Courts in the Udipi Math case. The Government felt the need
for a comprehensive legislation which led to the Act of 1959.
Perfecting the legislation, The HRCE Act of 1959
This bill also came up for serious criticism. Sri Patanjali Sastri, member of the
Madras Legislative Council and former Chief Justice of India declared that rigid
departmental control over the religious institutions and the management was
against the secular nature of the Indian Constitution. He pointed out that these
implications of secularism were acknowledged and granted by Article 26 of the
Indian Constitution,

“The religious denominations are allowed the right to manage their own affairs
on matters of religion. The temples and maths belong to the Hindu community..
And the right to administer such property in accordance with law is also
conferred as a fundamental freedom upon the Hindu community, i.e., the
religious denominations relevant in this case.”

Recommending the HRCE Model for all States: The Hindu

Religious Endowments Commission (1960-62)
In 1960, the Government of India constituted a Hindu Religious Endowments
Commission to “examine generally the institutions of Hindu religious
endowments and to recommend the classes of such endowments which should
be treated as public religious endowments” and to enquire into “the manner in
which Hindu religious endowments are being managed” and “the manner in
which holders of offices in relation to Hindu public religious endowments are
being chosen.

The Commission essentially provided some sort of sanction from the Hindu
intellectual elite for further strengthening of the Government control and
management of the Hindu religious institutions. The following extracts from the
Report of the Commission would give some idea about the views of the
Commission as to how the various legislations which had been passed in
different states of India on the management of Hindu religious institutions were
in continuity with our traditions and in fact fulfil the long standing aspirations
of the Hindu society; the Commission urgently recommended that states which
had not enacted such legislations should do so right away:

There are references to a minister of charitable works who was an officer of the
Hindu kings in Viramitrodaya (Chapter 7, section 2) and also to the
superintendent of religious institutions in Kautilya’s Arthasastra. These
definitely suggest that from very early times religious and charitable institutions
in this countrwy came under the special protection of the ruling authority. Not
only was general supervision exercised by the Hindu kings over temples, but
they also interfered in the management of temples when they found
mismanagement prevailing in them.

In order the safeguard social and secular ethos the legislature always made
transformation and knowingly or unknowingly attacked the basic framework of
religion be it Hinduism, Islam, Christianity or any other.

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.