Discrimination against Hindu Institutions-Talk by J Sai Deepak

J Sai Deepak, the Delhi based litigator who practices primarily before the Delhi High Court, delivered…

J Sai Deepak, the Delhi based litigator who practices primarily before the Delhi High Court, delivered a talk at the Press Club of India. The talk was organized by the Srijan Foundation on the topic: Freeing Hindu temples from government control. Here is a transcript from the select portion of the talk, where Sai Deepak introduces the audience to the magnanimity of the problem. The transcript has been done by Arjun Singh Kadian.

I would like to build from where you left the introduction. You said it is ironic that the majority is discriminated against. I don’t think it’s ironic in this country at all. I don’t find it surprising it at all. And, I don’t think I am alone in sharing this sentiment. Fortunately a good number of people in this country, they have woken up, they have started paying attention to things around them. I think the average middle-class person who has been paying attention to his livelihood has also woken up to the fact that if he focusses only on his livelihood, survival will become an issue after some point of time.

There is something I would like to start with before getting into the meat of the topic. There are any number of articles if one were to google, with respect to the number of temples that have been encroached upon, the number of jewels that have been stolen, the number of temples properties that have been alienated, and the kind of meager amounts that temples make with respect to the property that they have leased out. So much information available! It’s not as if I need to say something new which is not available in the public domain.

Then, why is it that there is a lack of action with respect to these issues? Why is it that there is a certain lack of activism with respect to these issues? Why aren’t people troubled in response to what has been happening around? It goes back, I think to attitude, knowledge, and initiative. These are the only three things. I don’t see anything else being responsible for the current state of affairs. Apathy is central for whatever is happening. And I think the consequences of apathy become very clear if one takes a look at the legislations that control of some of these temples in some of these states.

Even for a person who is not legally trained, who has absolutely no skills when it comes to interpretation of the law, of statutes and so on and so forth. These legislations are crying to be torn down. These legislations are crying to be struck down. It’s just surprising.

In fact, I started writing on these issues only around December 2015. Before that, I was only doing a preliminary reading. And, when I read these legislations, the first question that I asked myself was this-Why has it taken so many years for these legislations to be challenged before the court. Some of these legislations date back to 1927, then 1951 and then 1954. The 1954 legislation that currently applies to Tamil Nadu, goes back to 1927 legislation which was repealed and then they came out with 1951 legislation. The Supreme Court struck down the first time in the Shivir Math case of 1954. If somebody were to see that was struck down in 1954 and compare it with the legislation that came subsequently, they will ask themselves what is the difference? No difference at all. Nobody has bothered to even make a textual comparison as to what was stuck down and what was is in force today and forced to ask themselves how did this state legislature have the guts, the gall, the gumption, the audacity to bring something back into force which the Supreme Court of the country had struck down as fundamentally unconstitutional.

And this goes back to two specific socio-political reasons. Before we get into what is it that we can do about it and why is it that we need to do something about it.

Pardon me for me saying this, but the cause of temple has unfortunately become the cause of a single caste. It has become associated with a certain group or certain community or a certain caste, which I think is fundamentally wrong. That perception is wrong, that perception needs to go and needs to be thrown out of the window

A temple is of every caste, every sub-caste, every sub-sect or every community in the Hindu fold. Let there be no illusions about it. Let there be no two ways about it. Let’s be very clear.

Therefore, when a temple is affected, it doesn’t matter that it is run by a group, a certain sub-sect or a certain set of followers. What happens to them and what affects them is bound to affect you and your institution, because the very same steps will be extrapolated and extended to your own institutions. And there is no escaping this. There is absolutely no escaping this!

Therefore, the first thing that we need to do is to shake off a bit of inertia and ask ourselves, why is it that this inertia has lasted for so long. I think this is simply because we have a philosophical approach to these worldly issues. Sanatan Dharm hai toh Sanatan hi rahega! It will continue. It has continued. It has withstood the ravages of time and history and therefore it will continue to withstand ravages of time and history and it will not get lost in midst of sands of time. That’s more or less our justification. I think perhaps because of our own cowardice, inertia, weakness and lack of cohesive action, lack of concerted action and lack of collective action. I think this is the first thing that needs to be addressed.

Let me read out something, which I have been dying to read out to the public. Because this more or less is symptomatic of what’s happening and I think it more or less tells us why we are where we are today. So, I am just quoting from a decision of the Supreme Court in 1966 with respect to the AP legislation, which was challenged and the Supreme Court was given a certain argument as to why is that this legislation is exclusively applicable to Hindus. Why is it that these legislations are only applicable to only Hindu institutions? What is so peculiar about it?

So, let us put it this way. Suppose, Rahul is a Principal of a school or a teacher of a classroom He has the power to slap everybody, but Rahul chooses to do this with respect to one student or one class of students. Which means there is a power that has been given to Rahul institutionally to exercise equally across class, across communities, and across groups, but Rahul chooses to exercise this power and focuses his energy exclusively on one community. This gives rise to two or three conclusions.

Firstly, Rahul believes that, this is the only community or section of students, who deserve special attention either because they are weak or they are fundamentally flawed in their character and therefore their character needs some kind of intervention. That is the assumption and that is the message Rahul sends out.

Secondly, treating different people equally or equal people unequally is inequality. I would say unequal application of power is also inequality. I don’t see any distinctions at all. Consequences are more or less the same.

If you chose not to apply the power or exercise your power equally and choose to make one community to be the target of your power, then you are sending a very wrong message and this is the textbook definition of what amounts to discrimination, according to me. There are no two ways about it. You don’t need to be an expert in law, you don’t need to be an expert in constitutional law, and you don’t need to be an expert in jurisprudence for this simple point to be understood.

Now I will just read this out. This is the classical argument that has been given with respect to a lot of interventions in the Hindu society. Bear with me for just a few minutes while I read it out. More or less it will tell you what is the attitude of not just the executive or the government arm of the state, but also the judiciary with respect to the Hindu institutions.

It is up to you to see if this attitude of 1966 institutions is right. It is very important. This is presented on behalf of the petitioners for challenging the legislations, the Andhra Pradesh legislation, with respect to constitutionality.

It says that the main thrust of the argument to the learned council of petitioners is that articles 25-26 of the Indian Constitution, guarantee the freedom to manage religious affairs, and right to freely profess, practice and propagate the religion to all citizens alike. Hindus constitute majority population and Hindu religion is the major religion in the country, equally Muslim, Christian and Parsi citizens are entitled to the same constitutional rights under articles 25 and 26, without touching the administration and governance of charitable or religious institutions or endowments founded or maintained by Muslims, Christians, and Parsis. Making law regulating the administration of Hindu religious institutions offends articles 14 and 15, which deal with equality. This was the argument that was made. It was also contended that when a denomination which is a part of a major religion as protected under article 26, the major religions themselves as genus are equally entitled to protection under article 26. This essentially tries to say that if Vaishnavites are protected, Hindus as whole are equally entitled to the same protection, because Vaishnavites form part of Hindus. Institutions belonging to them can’t be regulated under the law offending their right to religious practice. This is the argument which was made.

Let’s see what the Supreme Court said and it will remind you of arguments that have been made in other aspects of the constitution. The first question is whether it is necessary that the legislature should make law uniformly applicable to all religions, charitable institutions, public institutions and endowments established or maintained by people professing all religions?

Now, here comes the secular narrative. India is a pluralistic society, wherein people have faith in respective religions, beliefs or tenets propounded by different religions or their offshoots. The founding fathers while making the constitution were confronted with problems to unify and integrate people of India professing different faiths, born in different castes, so on and so forth. The Directive Principles of State Policy themselves visualize diversity and attempted to foster unity among people of different faiths. A uniform law although is highly desirable, but enactment thereof in one go, will perhaps be counter-productive to the unity and integrity of the nation. In a democracy governed by the rule of law, gradual progressive change and order should be brought about. You see some sentiments are more important than others. Making law or amendment to a law is a slow process and legislature attempts to remedy where the need is most acute. So judiciary feels that the remedy is most important when it comes to Hindu institutions. You see, that is the logic. That is how we interpret pluralism. That is how we interpret secularism. That is how we enforce constitutional mandates and values in this country. The point that we have to understand is this-this question relevant in 1966 continues to be relevant in 2016.

One question we are entitled to ask is that, are you saying that in the last 50 years other societies and other communities have not become amenable to application of similar legislations. This was in 1966, we are in 2016. Understood in 1966 after 19 years of independence you are saying that I think Hindu institutions need most interpretations. Are you saying that post 50 years of the judgment, situation still says that it is only the Hindus who needs this while other communities don’t?

People must read the report of the Justice Challah Kondiah, which is the parent document that forms the basis of 1987 Andhra Pradesh legislation, which applies to Hindu religious institutions. That document, I am sorry to say, offends all sense of fairness, all sense of reasonableness, and takes for granted the patience of the majority community and takes for granted the dignity of the majority community. Because that document categorically says that Hindu institutions, Hindu temples, Hindu religious institutions are the ones where corruption abounds, or there are instances of corruption and since it relates to 80 percent of the population, if you remedy the 80 percent of population in a society, the rest of the 20 percent will fall in place. This is the beautiful logic!

I don’t see how this is different from the logic that was applied by West Pakistan with respect to East Pakistan. Wipeout 3 million people, the rest of them will listen to you. Those were the instructions given to General Tikka Khan.

The point I try to make is that this attitude needs to be questioned.

Let me just qualify the topic of discussion a bit. One, we are not asking for the state to do anything that is unconstitutional. Let’s be clear. Second, what we are asking for, is not something that needs a constitutional amendment as well. It can well be done within the four corners of the constitution as it exists today. There is no need for a random, revolutionary, abrupt upheaval as far as the constitution is concerned. Let’s be very clear about that.

We are saying this. Either interfere with everyone equally or don’t interfere with anyone at all. And, should you choose to interfere with us; start with everyone and after that, you are only entitled to do that which the constitution permits.

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