GOVERNMENT HATAO; TEMPLE BACHAO!

Nandi Betta, a hill about 60 kilometers from Bengaluru, features an ancient fort dating back to the Ganga period.

Atop the hill is the Yoga Nandīśwara Temple built by the Cholas about thousand years ago. In 2003, the government ensnared this temple into its administrative control under the Karnataka Endowments Act.

A visit to this beautiful shrine reveals a sad saga of wanton neglect and gross mismanagement. Rotting doors, ill-maintained precincts, structural dilapidation, missing kalaśa atop the śikara, majestic pillars callously plastered with cement concrete…the list is endless! A grand showpiece of past glory is a shameful blot of present ruin.

Courtesy: An apathetic, incompetent government; its negligent functionaries and inadequacy of resources.

The moot point: Why does our State meddle with religious affairs despite its secular credentials? Why is our meddlesome government entangled in administering only Hindu temples?

The simple answer: greedy, shoddy government clubbed with a lax, careless community!

Regulation of Religion in India

The Indian Rebellion of 1857 was a watershed moment in the independence struggle. Simmering skepticism over British rule and raging resentment against their policies culminated in the insurrection. The final spark for the rebellion was the use, as rumored, of beef and pork tallow to grease Enfield rifle cartridges. The British eventually quelled the mutiny. The colonial regime though learned its lesson— interference in religious affairs and indigenous traditions had to be minimal in the sub-continent.

Till the mid-1800s, regulations provided for general superintendence of Hindu temple endowments. The Board of Revenue was authorised to appoint local agents for achieving objects of endowments. In the aftermath of the sepoy revolt, the British introduced a new Act in 1863 to relinquish direct administration and provide for supervision of temples by local committees. In effect, an arm’s length philosophy was adopted for regulating religion.

The 1863 legislation had no in-built mechanism for enforcing orders; hence, the British enacted laws in 1920s for supervisory control of Hindu religious and charitable endowments in presidency towns. The erstwhile princely State of Mysore too promulgated an enactment in 1914 for regulating Hindu endowments. The Act was amended in 1927 to extend control over all religious institutions, including masjids, dargahs, etc. Indeed the endowment laws applied equally to all religions in British Raj.

Origins of the Karnataka Enactment

State boundaries were redrawn to create modern Karnataka in 1956. Yet, multiple, commendably-secular British-era endowment laws continued to be prevalent in the State. These statutes— such as: the Mysore Religious and Charitable Institutions Act, 1927; the Hyderabad Endowment Regulations, 1349 Fasli; and, the Bombay Public Trust Act, 1950— provided for the registration and supervision of all public trusts, charitable endowments and religious institutions, including temple, maṭha, waqf, church, synagogue and agiary.

In its 1980 Admar Mutt judgment, the Hon’ble Apex Court severely criticised the absence of a comprehensive legislation encompassing all temples and mutts in the reorganized State of Karnataka. This paved the way for a unified legislation to uniformly regulate religious institutions.

Unfortunately though, the government— initially, Śri JH Patel’s Janata Dal and later, Śri SM Krishna’s Congress governments— destroyed the secular fabric of previous legislations under the garb of unifying endowments laws of Karnataka. Thus, the Karnataka Hindu Religious & Charitable Institutions Act, 1997 was enacted and notified for targeted regulation of only Hindu temples and religious institutions.

Constitutionality of the Enactment

The 1997 Act excludes Hindu mutts and Sikh, Jain and Buddhist institutions from its ambit. The discrimination aside, it also enables the diversion of common pool fund contributions of Hindu temples for the benefit of other religions. Hence, on judicial challenge (Sahasra Lingeshwara case), the High Court of Karnataka found the Act was arbitrary, unreasonable, unjustifiable; violative of Articles 14, 25 and 26. Hence, it was declared unconstitutional!

The State then constituted a high-powered committee under Justice Rama Jois to suggest suitable amendments for circumventing the unconstitutionality. The stated object was to strengthen Hindu institutions by regulating 'secular and pecuniary matters', facilitating 'good and efficient administration' and protecting 'religious autonomy'.

Flawless rationale! The exercise of sovereign power to regulate any religious institution is indeed kosher.

But, administration?

Absolutely not!

Legislative Discrimination and Arbitrariness

The Hon’ble Supreme Court held (in Gopalakrishnan Nair case) that the Constitution prohibits the establishment of a theocratic State. The government is proscribed from constituting an atheist society and identifying itself with or favouring any one religion. It clarified that secularism is about affording “equal status of all religions without any preference…or discrimination…”— a view reiterated in the Bal Patil Judgment too, wherein it also proclaimed that religious, cultural and educational rights of all people, enshrined in Articles 25 to 30, must be protected. The ideal of a democratic society should be the elimination of majority and minority and forward and backward classes.

When viewed from the prism of the above precedents, any legislation that provides for administrative control, besides regulation, of only Hindu institutions is discriminatory. The exclusion of other religions is inherently communal, for it implies that non-Hindu religious institutions are never mismanaged.

The 1997 Karnataka Act curtails the rights of Hindus only; it transgresses unjustifiably the equal entitlement to freedom of conscience afforded to all under the Constitution.

Hence, the unjust act must be assailed vigorously; and, with vehemence, right?

Fundamental Right to Equality

Under Indian laws Hindu deities are juristic persons— so too, the Guru Granth Sahib— capable of holding property, receiving income, suing and being sued in court. The Hon’ble Apex Court has held (Basheshar Nath and Chiranjit Chowdhuri cases) that 'fundamental rights' are guaranteed to all; and, that the rights to 'equality before law' and 'equal protection of laws' enure to the benefit of all persons, citizens and non-citizens.

The State Trading Corporation (STC) judgment echoes the view that the Constitution contra-distinguishes rights to be enjoyed by all, “irrespective of whether they were citizens or aliens, or…natural…or juristic persons...”

It was clarified in the Budhan Choudhry judgment that Article 14 forbids class legislation, but not reasonable classification founded on intelligible differentia for legislation. The classification must relate rationally to the object of the statute though, for "the reason for a law ceasing, the law itself ceases.”

Hence, if alleged, legislative discrimination must be properly justified. As observed in the Bachan Singh case: “‘rule of law’…permeates the Indian Constitution…arbitrariness or unreasonableness…is denial of rule of law.”

Faith, Equality and Secularism

The interpretation espoused in the STC case shows the “right to equality” applies to artificial, juristic entities such as Hindu deities. Hence, any legislation that abridges or diminishes the fundamental rights of any person, be it the presiding deity of a temple, or its devotees, would be unconstitutional.

The Hon’ble Apex Court has declared (Ismail Faruqui case) that “secularism is one facet of…equality” All religions and religious communities must be preserved, protected and placed on par. The expression ‘any person’ in Article 14 has been construed (TMA Pai judgment) to mean similarly situated persons. It has also been held (SR Bommai case) that religion of a person 'is immaterial'; all are equal and entitled to be treated equally.

This secular duty of upholding the right to equality of all persons extends to holding all juristic entities and artificial persons on an equal pedestal regardless of religious color, spiritual flavor or philosophical tenor.

The moot point is: Can a secular government differentially favor faiths or selectively curtail rights of deities associated therewith?

Certainly not!

Yet, Hindu institutions of all hues have been singled out for State intervention. Similar laws do not exist for empowering direct State involvement in the affairs churches, mosques, etc.

And, that surely is discriminatory, no matter how you slice and dice it!

Right to Propagate Religion

A secular state is an areligious, irreligious or non-religious state; it has no inherent right to “manage religious affairs” or “administer Hindu temples”. The Apex Court has observed (AVKV Temple case) that the right to manage temples or endowments is “not integral to religion or religious practice.”

So, a duty is imposed on the State to intervene in the event of mismanagement of religious affairs.

In the landmark Shirur Mutt case, the Supreme Court ruled that propagation of belief is protected, regardless of whether it “takes place in a church or monastery or…temple or parlor meeting.” In other judgments too (Govindlalji and Ratilal Gandhi cases) it has reiterated that the freedom to practice rituals; manage religious affairs; and, administer property lawfully are guaranteed, fundamental rights. Legislation cannot take away those rights, which are neither absolute nor unfettered though.

Yet, state meddling in administrative affairs of Hindu temples transgresses rights. It depletes Hindu ability to retain their ‘devoted faithful’, which is intrinsic to the temple ecosystem and pivotal for propagating Hindu dharma.

Thus, the Constitution does not contemplate the governance of religious practices, subject to public order, health and morality. It does permit the regulation of religious activities, which are economic or political in character.

Regulation, though, does NOT mean administration!

Real Meaning of Denomination

The Hon’ble Apex Court relied (Shirur Mutt case) on the Oxford Dictionary to equate ‘denomination’ with Hindu mutt/maṭha (based on sampradāya), which is designated by a distinctive name, has a common faith and spiritual organisation. The Karnataka Endowments Act too describes ‘Hindu Religious Denomination’ in like terms.

So, what is a ‘denomination’?

Dictionaries define it as 'branch of any religion' and 'religious organization whose congregations are united in adherence to distinctive beliefs (about God) and practices'. A Christian denomination is an ecclesiastical order with a structured theological organisation; associated hierarchy of local churches and comprised of congregations of faithful members. It has distinctive procedures for traditions, such as, ordination, laicization, defrocking, induction (membership) into the “covenant community”, transfer of affiliation, repentance, profession of faith, confession/acceptance of and commitment to Lord Jesus, baptism, remission of sins, sanctification, etc.

A new denomination is created when some members reject the spiritual leadership of a church/group due to doctrinal dissent or immoral practices. The breakup is typically nominal, and not schismatic (refuted by some groups), since both factions stay within Christianity despite disparate labels, beliefs and practices.

Thus, the Christian denomination is an identifier for affiliation by membership to an organised school of thought, which consists of well-defined ‘procedural mechanisms’ and ‘command and control structure, either central or decentralised’. On top, there is a 1:1 relationship between devotee (the member) and denomination.

Hindu Denomination— A Misnomer?

Hinduism has no organisational hierarchy; ecclesiastical order; governing body or central authority. Neither is there a prophet or binding holy book. Unlike monotheistic, Abrahamic religions, Hinduism affords freedom on theistic— polytheistic, pantheistic, monistic, or atheistic— beliefs. Within its open, diffuse and diverse structure, spirituality in Hinduism is a matter of personal faith, individual experience and philosophical discovery of Divinity and individual devotion to His manifestations or embodiments.

Swami Harshānanda’s “Encyclopedia of Hinduism” explains 'sampradāya' literally as: “that which is given or handed over (in succession)” from a guru/teacher to śiśya(s)/disciple(s). Sanskrit-English dictionaries unanimously interpret the term as referring to bodies of founder-teachers and their disciples. It connotes traditional doctrine of knowledge; or, conventional teaching in arts, sciences or religion; or, established belief, custom, practice or usage.

Monier Williams though adds the connotation of ‘sect’ or ‘class of people’ in his lexicon— perhaps the seminal reason for importing an extrinsic term like ‘denomination’ into Hinduism. In reality, sampradāya and denomination are like chalk and cheese; yet, equating the two is force-fitting of the dhārmic narrative into a western paradigm.

Every maṭha/mutt typically has a definitive parampara (tradition); darśaṇa (philosophical doctrine); mārga (path); and, associated sampradāya-based monastic order and lineage. Hence, deeming maṭha (so too āśrama) to be the Hindu-equivalent of the alien, Christian concept of 'denomination' is flawed.

Hindu Temples and Denominations

If the Shirur Mutt interpretation of ‘denomination’ is the judicial gold standard, then every Hindu devālaya (literally, abode of the Almighty) or temple constitutes a religious denomination. So it can be tenably argued.

The argument is simple.

The temple is a religious institution based on a distinctive belief, conforming to specific vāstu-, śilpa- and sthāpatya-śāstras; the presiding Deity is consecrated based upon spiritual affiliation to a definite sampradāya. Distinctive veda and āgama dictate the religious practices— rituals, observances, ceremonies and modes of worship catering to the needs of and providing succor to congregated devotees.

Given the religious fabric and devotional constructs of Hinduism, classifications exist socially through birth-based jāti (caste) and theoretically through varṇa (class). Every Hindu owes allegiance to numerous temples and seeks solace in presiding Deities, regardless of jāti, varṇa, dharma, sampradāya and parampara. For example, the Manjunātheśwara Temple in Dharmasthaḷa, Karnataka has Jain dharmādhikāris administering the temple as its hereditary trustees and vaiśnava archakās worshiping the mūrti of Śiva therein.

Ergo, endowment laws must be recalibrated to hold every Hindu temple as a ‘denomination’ for conferring rights.

Right to Maintain Religious Institutions

Article 26 bestows the fundamental right to “establish and maintain” religious and charitable institutions on every denomination. Indeed, administration is integral to [if not synonymous] maintenance of an institution. The Karnataka High Court ruled (Mukundaraya Shenoy case) that a law, which takes away administrative rights from a religious denomination altogether and vests them in another authority, would violate Article 26. The Orissa High Court too expressed (Ram Chandra Deb case) similar sentiments; it pronounced that if Zoroastrians are a separate religious denomination within the meaning of Article 26, then so too are all Hindus.

Further, the State cannot discriminate between Hindu denominational and institutional temples. To wit, a maṭha is as much a religious institution as a devālaya is a religious denomination and vice-versa.

Further, Article 25(2) empowers the State to regulate or restrict any economic, financial, political or other secular activity associated with religious practice. But, 'administrative control' of temple activities, secular or religious, cannot be deemed to be 'regulation or restriction' of such activities. Therefore, the ratio decidendi of Pannalal Pitti case perhaps deserves a revisit.

Administration, not just superintendence, of Hindu shrines by the State abridges, if not abrogate, the religious rights of Hindus. It impinges on the fundamental right of equality of all Hindu persons. Regulation of properties of only Hindu Deities is arbitrary and unreasonable; it contravenes judgments in Bal Patil and other cases.

Governmental Takeover of Hindu Temples

The right to property is not a fundamental, but a constitutional right. The Hon’ble Apex Court has held (Elphinstone Mills and other cases) the State is empowered to take over management of any property for a limited period, not indefinitely. But, the takeover must objectively be “in public interest or…to secure proper management…”

The Karnataka statutes and rules stipulate no objective method for ascertaining financial irregularity and/or managerial lacunae. The ‘takeover’ of about 35,000 Hindu religious institutions in Karnataka has been effected: (a) without adverse complaints, not to mention flimsy, frivolous grounds; (b) often on subjective report of the competent authority; and, (b) without specifying the period of takeover.

Thus, the governmental exercise ad infinitum of administrative control over Hindu places of worship is vitiated by illegality— a fraudulent affront to the dignity the Constitution.

Primary functions of government are reduction of class disparities and enhancement of socio-economic conditions of its people through good governance and transparent administration. Entanglement in the management of places of worship is contrary to secular tenets. Such takeover must be only in public interest, provided there is objective evidence of maladministration as a condition precedent. Further, while exercising regulatory power over various faiths, religions and denominations, the State is duty-bound to be neutral and impartial.

However, that mandate has been deviously hijacked to usurp the fundamental rights of only Hindus.

Autonomous Temple Administration

The Hon’ble Apex Court (Sabayanagar Temple case) has held that when government acquires a temple, it must hand management back after remedying the evil. Power to regulate does not empower superseding administration indefinitely. Direct engagement of a secular government in the administrative affairs— ‘secular’, ‘pecuniary’ or ‘religious’— of religious institutions infringes the fundamental rights of devotees.

Every temple ecosystem entails activities around three realms, namely: the ādhibhautika, ādhidaivika and ādiatmika, which respectively correspond to the ‘physical & financial’, ‘ritual & cultural’ and ‘spiritual & philosophical’ relationships with Divinity.

Regulation should be restricted to the ādhibhautika realm, that is, only the physical and financial aspects of the temple. It must be arm’s length superintendence, for the core objects of every temple is practice and propagation of religion. All incidental activities are auxiliary to and intertwined with those main objects.

Arguably no temple activity is purely non-religious, or exclusively secular, in nature.

Conclusions

The ultra vires administration of Hindu temples aside, legislative loopholes give ample opportunity for unabashed, unabated exploitation. The concomitant loot, larceny and largesse by the instrumentality of the State has to end.

The fence eating the crop must stop! The Karnataka Endowments Act having only Hindu institutions under its purview is an ill-conceived, politically-motivated move— a Trojan for trampling upon the rights of Hindus.

Thus, an urgent need exists for affording greater autonomy to Hindu temples. The preservation of pluralistic society and a secular, democratic State is at stake!

The million-dollar question: Will government show spine in coming up with a pan-religion legislation?

Your guess is as good as mine!