Continuing the series on Hindu Temples, their conception, history, heritage and legacy authored by M.D. Srinivas.
Strengthening the government control over Hindu religious institutions: The Madras HRCE Act (Act XIX of 1951)
Much before the Constitution of Independent India took shape and much before truly elected Legislative bodies came into being, the Congress Government in Madras felt the urgency to strengthen the HRE legislation to strengthen the control of the Government on the Hindu temples. The Hindu Religious and Charitable Endowments (HRCE) Bill was piloted in the Madras Legislative Assembly on February 4, 1949.
Some of the new features that the bill sought to introduce were the following: It conveyed the HRE Board, which was ostesibly an independent regulatory agency, to the HRCE Department, an executive Department of the Government; it brought all the religions and charitable endowments under the Department, to give Directions regarding the dittam and make alterations, additions and omissions in the budget of all religious institutions, including mathams; it gave power to the Department to notify mathams also and appoint executive officers; it expected decisions of the Department concerning removal of hereditary trustees, fixing of dittams, application of surplus funds and alienation of immovable trust property from being contested in the Courts; it stipulated that every institution getting an income of more than Rs 200 per annum was to contribute 5% of its income to the HRCE Fund for the services rendered by the Government and their officers to the institution; further, those institutions with an income exceeding Rs. 1000 were to pay an audit fee of 1.5% of their income, and so on.
While introducing the Bill, the Minister for Religious Endowments, Dr. T.S.S.Rajan, noted that the Government was not satisfied with the machinery of the HRE Board because it did not have enough powers to carry out properly the intentions of the trust. Referring to the problem of interference of state in religious endowments, he claimed that the past record of instances under the Hindu rulers, East India Company and later the Diarchy (the system introduced under Government of India Act of 1919) had amply justified the intervention of the Government in order to protect the properties of the Hindu religious institutions. When questioned about the legality of Government interference in religious affairs in a secular state, which independent India claimed to be, his reply was:73
We have examined the question and we have been assured that we are within our rights in handling religious institutions and endowments…, the fear of interfering with religious institutions has always been there with an alien Government, but with us it is very different. Ours may be called a secular Government and so it is. But it does not absolve us from protecting the funds of the institutions which are meant for the service of the people…Whatever the future Constitution may say when it becomes an Act, under the present Constitution74 we have complete power to undertake a Bill as we have done…
The opinion in the Congress Party itself was sharply divided on the bill. Various Congress members expressed themselves in the Assembly debates. Reacting to Dr. Rajan’s speech while piloting the Bill, Sri A. Vaidyanatha Iyyer pointed out that the Article 20 of the draft Constitution guaranteed to a religious denomination the right to administer the properties of its trusts in accordance with law. He emphasised that:75
…administering a property in accordance with law does not mean that a law could be passed taking away the administration itself. That would make the fundamental right [Article 20 of the draft Constitution] a mockery. The rights may be regulated but the substance of them cannot be taken away.
Sri Vaidyanatha Iyyer’s amendment to circulate the Bill to elicit public opinion was defeated and the Government’s motion to refer it to the Joint Select Committee was passed. However, of the 190 Congress members on the roll only 70 voted for the bill and it was reported at that time that many Congressmen felt that, in matters of such intimate concern as religion, it would be a negation of democracy to deny freedom of action to party members.
In replying to some of the points raised in the debate, Dr. Rajan came up with what has now become the standard argument in justifying all manner of Governmental interference and control over Hindu religious institutions:76
Both in the case of temples as well as in the case of maths, the distinction between matters of pure religion and religious rituals, and matters relating to the administration of properties and other secular matters will have to be kept in mind and while the Constitution safeguards the Fundamental Rights in respect of the former without any restrictions, the latter are subject to such laws as the legislature might enact.
The “Premier of Madras” and leader of the House, Sri O.P.Ramaswamy Reddiar, assured the House of his Government’s intention in bringing the Bill:77
In bringing forward this Bill sir, let me make it clear that I have the highest interest of our faith at heart…The regulation of Hindu temples and maths is regulation of the community’s life and conduct; the revival of our temples is the revival of our people. If we do not make our temples a positive force, radiating a healthy progressive, social and cultural outlook, we shall be playing into the hands of the turbulent Godless crowd…
The Joint Select Committee was formed on February 26, 1949. It received a large number of representations from individuals and organisations. There was in fact strong public criticism of the bill. Over 90% of the public representations made to the Joint Select Committee were against the proposed legislation. The main line of criticism was that the adoption of the ideology of secular state did not permit the Government to undertake the responsibility of administration and supervision of religious institutions through its Commissioner. When the HRCE bill was published, The Hindu opined that “..for a secular democratic State, it would be, to say the least, anomalous if the supervision of and control of religious endowments of the Hindus alone should be vested in the secular Government“.78
The Joint Select Committee made a few additions and alterations in the Bill. It allowed the trustee of math to spend at his discretion any “padakanika” he may receive. It provided for framing of schemes for maths by the Commissioner alone. It allowed appeal in Courts regarding some decisions of the Commissioner. It introduced Area Committees which were to be appointed by Government. The altered Bill was introduced in the Madras Legislative Assembly on September 11, 1950.
The altered Bill was also severely criticised in the House. Sri Bhashyam pointed out that the bill applied to the Hindu religious and charitable endowments and left out the Muslim and Christian endowments and to that extent violated articles 14 and 15 of the Constitution, which provided equal treatment for all religions. The bill also violated Article 26 of the Constitution by denying a religious denomination the right to manage its own trust properties in accordance with law.
However the Bill, with a few amendments, was passed by both the Houses of State legislature and put on the Statute Book as the Act XIX of 1951 on August 27, 1951. This Act repealed Act II of 1927 relating to Hindu religious endowments and Regulation VII of 1817 relating to Hindu charitable endowments.
Perfecting the Legislation: The HRCE Act XXII of 1959
Certain provisions of the Act of 1951 were struck down by the Madras High Court and the Supreme Court in the Shirur Math case and this led to the modified Act XXVII of 1954, certain provisions of which were also found to be inadequate by the Courts in the Udipi Math case. The Government felt the need for a comprehensive legislation which led to the Act XXII of 1959.
This bill also came up for serious criticism. Sri Patanjali Sastri, member of the Madras Legislative Council and former Chief Justice of India declared that rigid departmental control over the religious institutions and the management was against the secular nature of the Indian Constitution. The Secular state, he claimed, should not only protect the rights of the minority but also assure that the rights of the majority were equally respected. The majority was to be allowed as much freedom of religion and the right to manage its own affairs as the minorities. He pointed out that these implications of secularism were acknowledged and granted by Article 26 of the Indian Constitution, “the religious denominations are allowed the right to manage their own affairs on matters of religion. I need hardly say that the management of temples and management of maths are essentially and primarily managements of matters of religion .. The temples and maths belong to the Hindu community.. And the right to administer such property in accordance with law is also conferred as a fundamental freedom upon the Hindu community, i.e., the religious denominations relevant in this case.”
Further Sri Sastri stated: “The aim of every legislative measure seeking to contrail the management of religious institutions and endowments should go no further than the enforcement of the obligations imposed by the general law on the trust, coupled no doubt, with appropriate remedial provisions for due enforcement of these obligations. If any measure strayed beyond these well recognised limitations, to that extent it would be against the spirit, if not the letter of the Constitution of India.”
Sri Patanjali Sastri publicly expressed his view that the bill violated the principles and implications of a secular state
The Minister Sri M.Bhaktavatsalam, while moving the bill, argued that the bill did not conflict with Article 26 of the Constitution as the Hindus were not a religious denomination but a religious sect. The judicial decisions, he noted, had placed temples of religious denominational character outside the scope of the Act, but not the temples in which all the Hindus, irrespective of denomination were interested.
The Bill was passed and placed on the Statute Book as the Act XXII of 1959. Sri Patanjali Sastri publicly expressed his view that the bill violated the principles and implications of a secular state, which require that the state should not actively or passively associate itself with the religious life of the people. Though it is commonly understood to guarantee religious freedom to minorities, it is a mistake to think that minorities are the only beneficiaries. Thus both the majority and minority communities are entitled to the enjoyment of freedom from state control of the religious affairs and the properties of their trusts.
Recommending the HRCE Model for all States: The Hindu Religious Endowments Commission (1960-62)
The Madras HRCE Act of 1951 was not the first legislation in independent India which sought to strengthen the government control of Hindu religious institutions as was prevalent under the British rule. There was the Bombay Act (Act 20) of 1950, which was also enacted prior to any elected government came into being. Around this time there were similar laws enacted in several other states, such as the Bihar HRT Act (Act I of 1951) and the Orissa HRE Act (Act II of 1952) and so on.
In 1960, the Government of India constituted a Hindu Religious Endowments Commission to “examine generally the institutions of Hindu religious endowments and to recommend the classes of such endowments which should be treated as public religious endowments” and to enquire into “the manner in which Hindu religious endowments are being managed” and “the manner in which holders of offices in relation to Hindu public religious endowments are being chosen”. 79
The Commission was under the chairmanship of Dr. C.P.Ramaswamy Iyer, with the following members: Sri Sankar Saran (Retd. Judge, Allahabad), Sri Mahavir Prasad (Advocate General, Bihar), Swami Harinarayananand (Gen. Secy., Bharat Sadhu Samaj), Sri P. Kameswara Rao (Retd. Commissioner, HRE, Madras), Sri K. Venkataswamy Naidu (Advocate, Madras) and Sri K.C.Sen (Retd. Judge, Bombay).
The Commission essentially provided some sort of sanction from the Hindu intellectual elite for further strengthening of the Government control and management of the Hindu religious institutions. The following extracts from the Report of the Commission would give some idea about the views of the Commission as to how the various legislations which had been passed in different states of India on the management of Hindu religious institutions were in continuity with our traditions and in fact fulfil the long standing aspirations of the Hindu society; the Commission urgently recommended that states which had not enacted such legislations should do so right away:
The available texts dealing with the duties of kings in relation to temples and their properties are not many…Apart from a text of Narada which says that a king can reduce to slavery a sanyasin guilty of incontinence, there are references to a minister of charitable works who was an officer of the Hindu kings in Viramitrodaya (Chapter 7, section 2) and also to the superintendent of religious institutions in Kautilya’s Arthasastra. In 256 BC, Asoka appointed censors of law of piety (Dharmamahamatya) and in 242 BC, he published a complete series of seven pillar edicts. These definitely suggest that from very early times religious and charitable institutions in this country came under the special protection of the ruling authority. Not only was general supervision exercised by the Hindu kings over temples, but they also interfered in the management of temples when they found mismanagement prevailing in them…
Even under the Mohammaden rule, the tradition of royal control was not forgotten and although some Mohammaden rulers were fanatical and intolerant, some of them intervened to provide against the deterioration and decay of the Hindu temples by neglect or mismanagement. We do not think it necessary to inquire whether the nature of the right exercised by the kings was in the technical phraseology visitatorial or not, but that the right existed seems to admit of no doubts whatsoever… (p. 22-3)
After the advent of British rule, it was found that the income of many endowments had been misspent and misappropriated by the persons in charge of them and professedly following the traditions of former rulers, the British Government asserted by virtue of its sovereign authority the right of supervision over the endowed properties by enacting the enabling regulation 19 of 1810 for the old Presidency of Bengal, Regulation 7 of 1817 for the old Presidency of Madras and the Regulation 17 of 1827 for the old Presidency of Bombay…(p.23)
…certain Christian zealots and religious propagandists in the United Kingdom in or about 1839 started an agitation urging the that it was not one of the functions of a Christian Government to administer Hindu endowments and provide for the Hindu temples and Mohammedan mosques. In 1842 arising out of Lord Ellenborough’s action in restoring the doors of the famous temples at Somnath which had been removed to Ghazni, there was a debate in the House of Commons demanding the Government of India to observe a strict policy of non-intervention in religious affairs. This policy was accordingly adopted in practice in India from that year. The Board of Revenue was advised to withdraw, as far as possible, from the active management of religious institutions, although the Regulations themselves continued to be in force. This relinquishment of the control which till then was by and large beneficial to the religious institutions, led in its turn to the absence of any active supervising agency over the working of these institutions and consequent on this mismanagement and misappropriation of temple funds became rampant and this state of things came to serious notice by about the year 1860 or 1861. Ultimately the Religious Endowments Act (20 of 1863) was enacted… (p.24)
It was soon found by experience that the provisions of the act of 1863 did not give adequate protection against dishonest and inefficient administration with the result that public opinion expressed itself continuously from 1870 in regard to the need for the legislature and the Government adopting a more helpful and dynamic attitude in respect of religious endowments. Section 539 was accordingly inserted in the Civil Procedure Code by act 20 of 1877…(p.25)
Public opinion however continued to press for legislation for ensuring the proper management and administration of religious endowments. In the meanwhile the Government of India Act 1919, vested some legislative powers in the local legislatures so as to make it possible for them to make adequate provisions for the efficient administration of religious endowments. The Madras Local Legislatures thereafter enacted the Madras Hindu Religious Endowments Act 1925. …This act had to be amended several times… and was ultimately replaced by the Madras Hindu Religious and Charitable Endowments Act, 1951…(p.26)
The Courts sanctify every form of governmental interference in temple and math affairs
The HRCE Department was constituted as per the Act XIX of 1951. Actions initiated by the Department under the various provisions of the Act, and the Constitutionality of many of the provisions themselves, were soon to be questioned in Courts of law. Here, the Judiciary by and large came in support of the premises underlying the legislation, though some of the particular provisions were found ultra vires the Constitution.
The famous Shirur Math Case or the case of Sri Lakshmindra Tirtha Swamiar vs The Commissioner HRE Board, was one of the earliest cases which challenged the validity of the HREC Act of 1951 on the ground that it violated the fundamental rights of equality, religious and cultural freedom guaranteed in Articles 14, 15, 19(1), 25, 26, 27 and 30 of the Constitution. While rejecting the plea (except in reference to a few sections of the Act), the Madras High Court80 observed that “The religion and the secular management of the property of the Math are independent so that one simply exists for the other. The Mathadhipati has got to manage both for the sake of efficiency.” In 1954, the Supreme Court also upheld the validity of most of the provisions of the Act in a trail blazing judgement which served to define the contours of the right of religion guaranteed in the Constitution with respect to the Hindu religious institutions.81
In the case, Narayanan Nambudaripad vs State of Madras, it was alleged that the HRCE Act was an unconstitutional interference in the matter of religion and therefore void, and that the Act was discriminatory in character in singling out the Hindu community and therefore violated Article 14 of the Constitution.
While rejecting the plea in 1953, the Madras High Court observed that any religion had two aspects, the private and the public.82 The former applied to the doctrine and ritualistic aspects of the religion and the latter to the administration of properties endowed to religious institutions. The first aspect was saved by Articles 25 and 26, though the Government might impose control. Rejecting the other contention that the Act violated Article 14, as it singled out Hindu religious endowments for special treatment, the court adverted to its judgement in the Shirur case.
The way the Supreme Court of India has gone about sanctifying every form of governmental interference in temple affairs has been outlined in a recent study:83
One of the devices for handling religious conflict is through the categories of “religion” and “secular”. According to the [Indian] Constitution, life can be divided into these two all-encompassing categories. It is the category of religion that is granted freedom. Bur over against “religion” is the “secular” for which the same degree of freedom is not provided…
We will now turn to several important Supreme Court cases to show how the categories of “religion” and “secular” are used to deal with cases where traditional religion conflicts with the Constitution…Religion is not defined in The Constitution of India…
[In Commissioner, Hindu Religious Endowments Madras v. Sirur Mutt] the Supreme Court acknowledged that defining religion would be difficult if not impossible. But it was clear that the definition offered by the American Supreme Court in Davis v. Benson which centered on a Creator and the obligations that the Creator imposed on his creation would not help in the Indian arena. To define “religion” in a theistic manner would define Buddhists and Jains out of existence…
In Commissioner, Hindu Religious Endowments Madras v. Sirur Mutt, the concept of “essentiality” was introduced. The Court held that what was essential to a religion was to be determined “with reference to the doctrines of that religion itself.” At first the Court seemed to say that it was the believers of a religion that would determine what was essential. Later it acknowledged that religions are not usually monolithic and that the Court would have to make the determination…
In Commissioner, Hindu Religious Endowments Madras v. Sirur Mutt, it was held that the determination of what rituals were necessary in a temple was a “religious” matter, but that the scale of expenses for the rituals was a “secular” matter and could legitimately exist under governmental control. Financial matters, and acquiring and administering of property are “secular” matters. Hence there is no interference with “religion” if a governmentally appointed commissioner oversees the daily affairs of the temple, for that is a “secular” matter.
When Sikhs contested governmental action legislating the method of representation of the Board which manages their Gurdwaras, it was determined that the manner of representation was “secular” and could be determined by the state.84
In Bira Kishore Deb v. State of Orissa, it was argued85 that the Shri Jagannath Temple Act of 1954 deprived the Raja of Puri of his personal property…Section 15(1) of the Act required that an appointed committee provide for the proper maintenance of worship in accordance with the Record of Rights. The Court pointed out that there were two aspects to sevapuja. The one aspect has to do with the provision of the materials for the puja and this is a “secular” matter. After this, the servants use the materials according to the dictates of “religion”. Section 15(1) of the Act deals with the “secular”. …the determination of duties which are “religious” in accord with the Record of Rights is not itself a “religious” determination. So long as the committee allows (even enforces) the sevaks to perform the duties, their “religious” rights have not been touched. So the “secular” management of the temple includes not only the financial matters but also the determination of the “religious” rites demanded by the Record of Rights.
Several petitions representing Vaishnava and Shaiva temples in Tamil Nadu contended that the infringed upon their “religious” rights in doing away with the hereditary rights of succession to the office of archaka (pujari – priest) in their temples… Examining the Agamas, the Court found that only a qualified archaka could step inside the sanctum sanctorum. 86 Moreover, a Saivite cannot serve in a Vaishnavite temple, nor can a Vaishnavite serve in a Saivite temple. It was this rule that the principle of hereditary succession was intended to protect… The Court continued by seeking to clarify the concept of essence. It rejected the idea that hereditary succession was essential. What was essential was that the image not be polluted. The Court also conceded that the hereditary principle was common usage and was in practice from antiquity. “The real question therefore, is whether such a usage can be should be regarded either as a secular usage or a religious usage.” … The Court, then, resolved the conflict in favour of the Act by declaring that, although what the archaka did in the temple in his function as pujari.
The above is only indicative of a whole corpus of judicial pronouncements which have sanctioned governmental interference and control of Hindu religious institutions by bringing more and more of their activities under the domain of “secular”. For instance, when there was an appeal made to the High Court of Madras questioning the validity of a series of circulars issued by the HRCE in 1971 instructing temple authorities to change the archanai language to Tamil, the High Court of Madras rejected the appeal in January 1974 noting that “No doubt archanai may be part of the religious practice, but we doubt whether the language is so”. 87
Thus, the decisions of the Indian Courts have interpreted most of the traditional arrangements and activities associated with Hindu religious institutions as coming under the category of “secular”, so that there is indeed very little of “religious freedom” that they are entitled to under the constitutional guarantees. It is noteworthy that, at the same time, the Indian Courts have also interpreted the religious and cultural freedoms guaranteed in the Constitution for the religious minorities progressively in a manner which seems to leave almost no scope for any regulation of their institutions and activities