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!
