Do Hindu Religious Institutions Have Rights? – I

So which part of the Constitution is one supposed to look into to understand the rights and freedoms available to Hindus.

Over the years, one has heard a vast cross-section of Hindus express concern over the seemingly unfettered authority exercised by governments over Hindu religious institutions, in particular temples and their property.

These legitimate concerns broadly relate to governments’ appointment of puppets to Temple Boards, control over the property and income of Temples, diversion of their funds to further political goals through subsidies for other religious groups, abysmal maintenance of Temples and interference in their day-to-day functioning and traditions.

Unfortunately, the expression of concern at best leads to hand wringing, as opposed to informed, intelligent, systematic and sustained advocacy by those interested in protecting the rights and interests of Hindu religious institutions. It must be borne that no government, notwithstanding its stated ideological moorings, can be expected to take up these causes in the absence of a political incentive or dogged pressure from groups advocating such causes.

templeThis is something the so called Indic Right must learn and learn fast because it couldn’t have asked for a more conducive combination of circumstances to pursue these causes and see them through to their logical ends or at least lay a formidable foundation for the future.

On this front, it needs to be said that barring a handful of examples of yeoman individual effort, the Indic Right has not employed legal and democratic means as widely and as effectively as the Left or non-Hindu groups.

Importantly, this is a shortcoming that Hindus need to work on to shatter the stereotype that it has little faith in Constitutional means and the rule of law. As I have consistently held elsewhere in my exhortations, free speech, free expression and methods rooted in democratic values are the best friends of the Right.

But for that, diligent spade work must be undertaken to collate facts and understand the legal/policy framework that applies to an issue. This approach, like it or not, calls for a fair amount of hard work. If the Indic Right is serious about achieving long-term goals or even short term ones, it must repose faith in concrete and focused action since idle lamentation and lazy analysis can never be substitutes for depth and rigour.

Since the first requirement of advocacy is that it must be “informed”, beginning with this essay, this series will endeavour to set out the scope of the State’s powers under the Constitution to interfere with Hindu rights and religious institutions.

Although the discussion involves making sense of certain provisions of the Constitution, in the interest of lucidity one shall attempt to keep the legalese and jargon to the minimum, hopefully without bulldozing nuances and subtleties. After all, in law, the devil lies in the detail and interpretation.

Hindu Rights and the Constituition

So which part of the Constitution is one supposed to look into to understand the rights and freedoms available to Hindus and the limits on the State’s powers to interfere with the functioning of Hindu religious institutions?

In the Seventh Schedule to the Constitution, Entry 28 of the Concurrent List deals with “charities and charitable institutions, charitable and religious endowments and religious institutions”.

Since these subjects form part of the Concurrent List, the Parliament as well as State Legislatures can pass laws relating to them. As for religious and cultural freedoms, these are specifically recognized in Articles 25-30 in Part III of the Constitution which deals with “Fundamental Rights”. In this piece, I shall limit the discussion to Article 25.

Article 25 (1) recognizes every person’s right to freedom of conscience and to freely profess, practise and propagate one’s religion. However, these rights are not absolute because their enjoyment is subject to public order, morality, health and other provisions of Part III.

Those interested in addressing forcible or fraudulent conversions might be aware that in Reverend Stainislaus v. State of Madhya Pradesh, the Supreme Court held that while Article 25(1) guaranteed every person’s right to practise and preach the tenets of her or his faith, it did not envisage a fundamental right to convert another person to one’s own religion.

Simply put, while the right to religious freedom is a fundamental right, the right to convert is not. The basis of the Supreme Court’s view was that the right to convert another person impinges on the latter’s freedom of conscience and could lead to breach of public order.

Needless to say, evangelical groups have a clear interest in getting the Supreme Court to revisit and reverse this decision. In fact, in 2011, the World Evangelical Alliance had “recommended” the repeal of anti-conversion laws to the UPA Government under the pretext of furthering religious freedoms.

000_Par8272647The sad part is that Hindu religious institutions (barring affluent Ashrams) cannot stand up to these groups since their own institutions are under the thumb of governments leaving them with little or no material resources to respond to such challenges. This is but one of several good reasons to rid Temples of unwarranted interference by the State in its affairs.

This takes us to the power of the State under Article 25(2). According to the provision, nothing contained in it shall affect any existing law or prevent the creation of a new law, if such law:

(a) Regulates or restricts any economic, financial, political or other secular activity which may be associated with religious practice or

(b) Advances social welfare and reform or provides for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Understanding the import of Article 25(2) is critical because it informs us of the State’s power to intrude into religious affairs. In plain and simple terms, the provision translates to the following:

  1. There are no fetters in the Article which prevent the State from enforcing an existing law or creating a new one if the law relates to subjects referred to in (a) or (b). That being said, fetters or limitations continue to apply to the State’s powers by virtue of other provisions of the Constitution.
  2. As far as Art. 25(2)(a) is concerned, its application is not limited to Hindus. In other words, the provision applies equally to all religious groups. However, the scope of the State’s interference under the provision is limited to “secular activities”, meaning activities though undertaken in relation to a religious practice are not religious activities in themselves. This explains the use of the words “economic, financial or other secular activity”.
  • In contrast to Article 25(2)(a), 25(2)(b) uses broader terms like “social welfare”, “reform” and importantly it speaks of throwing open of Hindu religious institutions of a “public character” to “all classes and sections of Hindus”. While the first portion of 25(2)(b) allows the State to pass a law to advance “social welfare and reform” which applies to all communities, the second portion of “throwing open of Hindu religious institutions of public character” applies only to Hindus of all classes and sections.

A few questions must be asked at this juncture:

  1. Under Article 25(2)(a), to what extent can the State interfere in the functioning of Hindu religious institutions in so far as its “ secular” (non-religious) activities are concerned?
  2. Under Article 25(2)(b), can the State alter or abolish a Hindu religious practice which is protected under Article 26 in the name of “social welfare” or “ reform”? If yes, to what extent is the interference permissible under the law?
  3. In the name of social welfare or reform under Article 25(2)(b), can the State pass a law requiring Hindu religious institutions to open their doors even to non-Hindus?

While I shall attempt to answer these questions in the next part, the next time the media manufactures a controversy on the ground that a non-Hindu was not allowed entry into a Hindu religious institution, do bring Article 25(2)(b) to its attention since the provision only speaks of throwing open Hindu religious institutions of a “public character” to “all classes and sections of Hindus”.

Let’s see what the media has to offer as an intelligent counter, if it is capable of one.

Continued in the next part

J. Sai Deepak is a Delhi-based litigator who practises primarily before the Delhi High Court. Sai writes on economic laws and policy on his blog “The Demanding Mistress” He is @jsaideepak on Twitter.
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  • Lalitaditya Muktapida

    One only has those rights which one is willing to fight for, to die for, to kill for. Since Hindu religious institutions are unwilling to do any of the above for what they call “their rights”, the laws of natural justice therefore state that the Hindu Religious institutions do not have any rights!

  • SuchindranathAiyer

    Orphans have no rights in brutal, law less India that has enshrined inequality under law, exceptions to the rule of law and “Many Nations” in its grotesque “Constitution”

    It is really very simple. Hindu is a defunct nationality comprising many religions and many ways of life that was held together by Aryan (Brahmanical) Law. It took decades of assiduous study, sacrifice, and a frugal way of life to be a competent, traditional Brahmin. The Hindu Common Wealth maintained them for the community good and the propery initiated and educated Brahmin was the sole library of “Hindus”, the repository of the traditional History, and dispensed justice from the Nyaya Mantapas of the temples. Till 1921, the British employed Pundits to give advise in British Courts in the he rare cases of Hindu vs Hindu that were unresolved in the temples and came before them. The 1857 mutiny was led by Brahmins and the Moslems deftly turned the blame entirely on the Brahmin community in British eyes. Madrassi, Sikh and Pathan soldiers were put to work by the British to massacre every Brahmin (man, woman and child) they could lay hands on in the erstwhile Bengal Presidency and the United Provinces (Entire East India which is yet to recover from this genetic hole). The British recognized that Brahmanism was the soul of Hinduism and set out to eradicate it in order to turn Hinduism into a vacuum where religions they favoured such as Islam and Christianity could prosper. In the South (Madras Presidency) The British fomented the “Justice Party” (the progenitors of the “Dravid” movements and parties). The British stooge Rao Bahadur Sir Patro, the Oriyan Zamindar and Chief Minister of Madras Presdiency promulgated the Gazetted Order 613 of 1923 to discriminate against Brahmins in all walks of life and confiscated the Temples, Common Wealth, Vyayamashalas, Pathashalas, Vaidya Shalas, Common Grazing Lands, and so on effectively taking over Hinduism from the Brahmins for British use.They also declared Non-Hindus as Hindus to marginalize the original Hindus further. In 1949, the Constitution of the Indian Republic turned those who had been Hindus prior to 1921 and those descended from them into Third Class Citizens by preferring all others in what remained of India including the former Princely States. In 1959, the Indian Republic which was essentially a creature of the West and run by WOGs educated in Harrow, Oxford, Columbia, Cambridge, Presidency College, Elphinstone College and so on, confiscated all Hindu Common Wealth, Temples, Common Lands, Assets and treasure. The real destruction of the Soul of Hinduism came with the eradication of the aquifers of Brahmanism who, now bereft of the resources for traditional education, upkeep and even public security, were rendered extinct. With this, the availability of the Hindu Library, Law, Knowledge, Culture and Tradition has been replaced with Convented Secularist, Christian, Moslem and Dalit Judges, administrators, media, historians and priests who decree what Hinduism is, was and will be.

    In the surrogacy of British India, Pakistan and Bangla Desh are well ahead of the India Republic in persecuting Hindus. This is not because of the Constitution and laws for in 1949, the Indian Republic turned all those descended from those who were Hindus before 1921 into Third Class Citizens by preferring everybody else. In 1959, the Indian Republic confiscated, desecrated and pillaged Hindu temples, grazing lands, treasures, traditional educational, medical, gymnasium and other institutions and starved them of resources in order to eradicate them. To do so, they exterminated the traditional, hereditary Hindu priesthood who led frugal lives devoted to learning and kept custody of the commonwealth, History, laws, culture and tradition. The sole reason is that there are, as yet, more Hindus in the Indian Republic than elsewhere. And while the many religions that comprised traditional Hinduism might have been eradicated and turned into a thousand cults including the Government backed cult of Khilafat Gandhi’s “Gita”, The Constitutionally orphaned are coalescing into a political rather than a religious force as it is the Non-Hindu and Anti-Hindu Judges, Administrators, Priests and Media who decree what Hinduism was, is and will be providing a violent antipodal and contrarian political “leadership…

  • Rangaesh Gadasalli

    Nehru and his daughter who married a Muslim did not care for hindus and hindu religion. They hated all the pro hindu forces and their activities and some times banning them also. Sonia had an agenda to help the Missionaries and during her time more than a million evangelists have come and converted millions all over north east, kerala, orissa and other places, These are the people who are constantly feeding the west with horrible stories about Hindus and India, right now under Modi. unless we educate the MPs and MLAS through their Gurus all over India and unless we take all the gurus to confidence, we can not get any bills passed. Let us not forget that Congress had not given citizenship to refugee sindhi hindus and Sikhs all these years. Congress allowed lakhs of illegal Bangladeshis to Assam and got them on electoral rolls. Lot needs to be done.

  • Ananth Sethuraman

    There is a benefit in letting the state run Hindu temples. Hindus can say that the secular-religious divide in Hinduism is such that the secular side has a very large jurisdiction and the religious side a very small jurisdiction. That is to say, the secular-religious divide of Hinduism has always been better than the secular-religious divide of European Christianity.

    Even today, the Pope and the Archbishop of Canterbury play many roles that Hindus would consider secular: (1) Via Liberation Theology, the Church of Rome participates in labour unions. (2) The Church of Rome and the Church of England talk about global warming, migration, poverty in third-world countries, etc., as though they were also Op-Ed columnists.

    English-language articles try to translate “mutt / adheenam-adhipati” into “pontiff”. This is wrong. It is better to say that “pontiff” = “mutt / adheenam-adhipati + intellectual + labour union leader + khap panchayat + ….”!

  • Savarkar’s Disciple

    “It must be borne that no government, notwithstanding its stated ideological moorings, can be expected to take up these causes in the absence of a political incentive or dogged pressure from groups advocating such causes.”
    So basically the Indian Pseudo Nationalist Party takes Hindu votes for granted.Interesting that younger litigators like Sai Deepak here understands the nuances and analyses it wonderfully but Veterans like Jaitley,Sushma n Advani cd not formulate a strategy to amend the laws.Great days lay ahead for Hindus.Thanks for reminding that there is NO Poltical Party which wants to champion the Hindu Cause unabashedly.

    • Hariharan B.

      Correct. Very dismal situation for the hindus the gravity of which was predicted/forseen by the great Savarkar long before independence. He wanted people to vote for only hindu politicians, not congress politicians, who unequivocally support/work for the hindu cause. But the the so called hindu party, bjp, is found to be another version of congress and became another betrayer of hindus and hence their hope is effectively destroyed. Unless minority appeasement policies/super rights/ grants/reservations benefits, etc.are removed there will not be equal rights for the hindus. But I still do not know, sir, how these unconsitutional/disproportional rights to one section of the people are embedded in the constitution and upheld also by the courts! All irrational and very baffling.

      • Savarkar’s Disciple

        I personally think Hindus should think seriously of floating a Hindu Bauddhika Kshatriya party.BJP cant stand up for our cause at times to bring about an proaction some reaction might be necessary.Today these BJP walas have taken the Hindu vote for granted and everyone who tries to tell them are using a bottom up approaches.A Top Down Approach would be to talk from a position of power and that can only happen if you start making serious inroads into their Hindu Vote bank.Whats the Return on Investment for us in voting for BJP ?every Hindu cause is brushed under the carpet.The Biggest issue is freeing of temples and Hindu Institutions but the BJP just doesn’t care if they dont want to do it then why do they ask for our votes.I have even begin to think of using NOTA for 2019.

        • yogesh

          Rather than dividing votes further better idea is to pressurize, reform and influence BJP from whatever ways available to us. Work with them to get the things done.