Temples, the civilizational core of Bharat: Their destruction under an apathetic State
The Hindu temples exhibit a glorious history and traditions for centuries. The Hindu temples are not only a place of worship but also a grand stage for art through musicians, poets, and dancers, thereby creating strong spiritual and cultural ecosystems. During the course of history, these temples were plundered, destroyed and reduced to ashes for their wealth. Despite a relentless assault on culture and religion by alien forces on these spiritual eco systems, few of the temples managed to survive (barely). Due to subsequent conquest of the British on Indian soil gradually, the British East India Company took complete control over India, the management of religious institutions became a subject of the state.
History and Judicial Precedent
In the year 1949, the then Madras constituency has introduced The Hindu Religious and Charitable Endowments (HRCE) Bill, after subsequent discussion it came into force in the year 1951, to be known as the Madras Hindu Religious and Charitable Endowments Act, 1951[1] ( the 1951 Act). It was a first attempt made by the state post-independence, to attack on religious properties of Hindus. The main provisions of the bill included the establishment of HRCE Board, an independent and unchecked authority[2] , bought all endowments under its purview, it also assumed its power to notify various mathams falling under its purview , it also appointed it’s executive officers to monitor them. It also went a step ahead and stipulated an administrative fee [3] to be paid to the board by Hindus. It has to be noted that, the 1951 Act has its roots in plethora of legislations passed by the British India prior to Indian independence, including the Madras Hindu Religious Endowments Act, 1923 (Act I of 1925), however this act was repealed on the grounds in manner in which the act was enacted and passed, only to be replaced by its newer version in, Hindu Religious Endowments Act, 1926, Act II of 1927 repealing Act I of 1925. In furtherance, the Hindu Religious Endowments Act has undergone many changes and was amended from time to time to take its final shape in 1951, the most notable of which was in 1935, the act XII of 1935, it essentially vested the power in the state to notify and monitor the temples in the region. It can be concluded that, the establishment and powers of an arbitrary authority existed much before independence.
In the case of Hindu Religious Endowments, Madras V. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1952 Mad 1963), the so called Supreme Court has engaged itself in the problematic interpretation of the word ‘religion’ itself. Ironically, the court relied heavily on the American and Australian jurisprudence [4] in arriving at a definition. The case however, agreed on what constitutes an essential part of religion, the court has held that, “under Article 26b of the constitution, a religious denomination or organization enjoys a complete authority in the matter of deciding what rites and rituals constitute as essential practice and no outside authority has any jurisdiction to interfere with their decisions. …”. This case is extraordinarily contradictory to its purpose, on one hand, the court has stated that, the mathadhipati is not a mere agent of the state, he performs certain spiritual functions as well, as the court has tried to include and widen the scope of religion and essential practice by giving the matt a freehand to decide the rituals of the temple. On the other hand, however, the court has validated a historical wrong, an uncorrected practice and absolute mockery of famous maxims like ‘rule of law’ and ‘constitutional supremacy’, as it legitimized the state’s control over temples. Though the minor portions of the act were removed, only for the amendment to come back stronger in 1959 and led to the formation of HRCE Act, 1959. This interpretation was further re-emphasized by the Hindu Religious Endowments Commission of 1960. The commission has recommended a uniform legislation throughout the nation to supervise, assume control and disrupt the sanctity of temples[1]. The commission has erroneously recommended that, all mutts to be treated as public places and substantial public be involved in management of religious institutions. Thus, all these developments resulted in multiple legislations being adopted by the states to manage the affairs of the temples and bureaucratization of temples and more so the tenets of Hinduism.
The courts have slowly and steadily validated the state’s control over Hindu temples. In the case of A.S.Narayana Deekshithulu Vs. State of A.P (AIR 1996 SC 1765), the A.P Charitable and Hindu Religious Institutions and Endowments Act of 1987, was challenged on grounds that, the regulations prescribing the appointment of archakas under the prescribed Act, was ‘unconstitutional’ as it violated articles 25 and 26. The court dismissed the petition and upheld the Act. The court has promptly assumed itself to decide ‘what amounts to essential practice?, what amounts to dharma ? And what part of the constitution offers protection to religion. Further, the apex court has stated that, there was a need for secularization of non-religious activities in order to preserve the secular nature of constitution. This was not only a mighty failure of the court to understand the applications of religion but also uphold the validity of state’s control. In my opinion, the only sensible and logical definition of religion and practices was proposed by Justice Chagla[2], wherein he has stated that “essentially religion is a matter of faith and belief and personal relation of himself and with almighty from whom he believes it to be”. Principally, the idea of religion is a matter of private lives and what it binds moral and ethical principles of one’s life to it. The courts have made a failed attempt to compartmentalize and fit in the idea of a religious practice under the relevant rules of constitution. In doing so, the idea of religious practice and control over religious properties were compromised to a large extent. The Courts have used all their intellect and legal expertise to narrow down the definition of religion and religious practice, so as to apply the scheme of constitution to ancient dharma and its practices. During the course of time, the courts have sparingly came to the rescue of temples, in the case of Dr. Subramaniam Swamy V. State of Tamil Nadu[3],the court has stated that, the appointment of executive officers under the HRCE Act is to be examined under certain special circumstances for which they ought to be appointed. The court has stated that, “ We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust”. This lead to a formation of rules which are required for the appointment of executive officers in 2015. In another case of Arjun Elayaraja Vs. Secy. To Govt[4], the HRCE Act, 1959 was challenged on its ‘constitutionality, the court after hearing submissions from both sides has contended that, unlike the American constitution the Indian constitution does not prohibit the state to make laws on religion. Further, the tenets of secularism were shaken. The courts in India have taken a debatable approach dealing with constitutionality and religion. It is not beyond logic and history to assume that, the religion especially a vast set of dharmic values like Hinduism cannot be viewed from the lens of constitution only a vide holistic view is to be adopted in dealing with it. It is of my opinion that, the matters of religion to be best left to private individuals and the courts only task is to protect the rights of private individuals in doing so. Unfortunately, this pragmatic approach is far from being taken up by the courts in India.
A valiant attempt was made in 2019 by Dr. Satyapal Singh in 2019 by introducing the Bill №205 of 2019[5]. The bill intends to prohibit the state to have control over religious institutions the bill also prohibits the use of proceeds from the temples be used by the state. The bill recommends several constitutional amendments with an intention to separate the state and the religious institution. This remains a powerful tool to regain the control of temples by Hindus. Though, the journey is long there is certainly hope to regain the control over temples in the future.
[1] https://indianculture.gov.in/report-hindu-religious-endowments-commission-1960-1962
[2] Ratilal Panchand V. State of Bombay AIR 1953 Bom. 242.
[3] Civil Appeal №10620/2013
[4] W.P №35966/2019
[5] http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/2676ls%20AS%20INTRO.pdf
