Government control of Hindu Temples: A Legal Analysis

Author- Jerrin B. Mathew*

Introduction

Covid 19 news coverage was not just limited to medicine and healthcare, it covered various socio-economic topics that was happening due to Covid 19 Pandemic. One such issue that became a hot topic for a few days was the management of Hindu temples by the government authorities. There were allegations in social media against the government for appropriating funds from temples and giving it to mosques. Amidst all these, Subramanian Swamy also challenged The Uttarakhand Char Dham Devasthanam Management Act, 2019. The question of a secular government controlling Hindu temples arose once more in public discourse.

The question of government control of Hindu temples is not new in Indian legal cum religious discourse. It has been there right from the 1950s, just a few years after independence. People start questioning the secular nature of our country when they find that only Hindu temples have to pay money to the government, whereas Mosques and Churches don’t have to do so. It is seen as a discriminatory practice towards Hindus and the majority. Is it?

Is India secular?

People start to question secularism when it comes to government control of temples. That’s precisely what we should ask to dig into this issue. Is India secular? To answer this, we need to answer what do we mean by secularism. There is no single answer to it. Supreme Court in its various judgements has described secularism. Secularism in this regard means that the government doesn’t give preference to a particular religion. All religions are equal before the law. The honorable courts use the Sanskrit slogan of Sarv Dharm Sambhavto emphasising on Indian secularism. The common phrase that is used in the west i.e. separation of church and state, is not used in India.

Christianity, the most popular religion in the west, has denominations which are run like big Organisation. Role of each person is designated. It works like a bureaucracy. A Catholic must submit to the church authorities in matters of fund management even though he disagrees with the use. A protestant can change the church if he is not happy with the fund management of his pastors. In other words, separation of church and state was more feasible for the west because of the organised nature of Christianity. On the other hand, many religions including Hinduism are not Organised or Bureaucratic.

If we look at the constitution of India, we see that Article 14 and 15 provides for equality before law to all people of all religions in the country. Article 15 states that there shall be no discrimination based on religion, but it also says that nothing prevents the state from uplifting socially and economically backward classes. Hence if people of a particular religion are backward then there can be measures taken for their upliftment.

Now let’s look at some current Indian practices and laws. There is no official state religion of India. Article 14 professes equality before the law. However, we have criminal law for specific religious communities. Bigamy is a criminal offence under section 494 of IPC1860. It is only applicable to non-muslimsand gentile Hindus of Goa since a Muslim can have up to four wives in India and a gentile Hindu can have a second wife under some conditions. Only Hindus, Buddhists, Sikhs and Jains can have access to Hindu Undivided Family business.Thus, the tax benefit that a person receives in having a Hindu Undivided Family business is only available to Muslims, Christians and Parsis.

Sikhs are the only community in the country who are legally exempted from wearing helmets.[i] We have different personal laws for different religious, regional and tribal communities. If people from Schedule Castes convert or were converted in the past from Hinduism to Sikhism or Buddhism, they retain the reservation provided by the central government, however, if they convert to any other religion, they will lose the reservation benefits.[ii] Even today all the major government projects are inaugurated by Bhoomi pooja. This was upheld by Gujarat High court stating that these poojas are meant for compensating the wrong done to the earth. Hence, its for the benefit of all. [iii]

Various governments have given subsidies to schools run by religious organisations. Similarly, governments have given subsidies for religious pilgrimages of different religions, even pilgrimages for foreign countries. Similarly, some government posts in tribal areas are only given to Hindus and some seats in the legislature in Sikkim are given only to a particular religion.[iv] We have regiments in the army exclusively named after religion and castes. Article 25 allows the government to ‘reform’ Sikh, Jain, Buddhist, and Hindu religion. Only two religious institutions Travancore Devaswom Board and Tamil Nadu Devaswom board are mentioned in the Constitution under Article 290A. These boards get around 46 lakhs and 13 lakhs respectively amount from the government every year. Lastly, yes many big Hindu temples are managed by the government of India and state governments in some manner.

The paragraph above paints a picture of the relation between state and religion in India. Most of these laws and practices are currently approved by the courts. We can call this picture anything but separation of church and state. We surely don’t follow the model of separation of church and state that is followed in west. The above paragraph was not to deviate from the topic of temple funds but to give readers a realistic lens with which they should look at topics dealing with secularism in India.

History of Temple Administration

History of temple administration by the government dates back to Hindu rulers.[v] We need to understand that those were the period where there was no concept as secularism and kings used to build temples for the people. Mughals, as well as British, continued this supervision of religious places. Various British accounts state that even before British rule, interventions were made in both Muslim and Hindu places of worship when there were cases of mismanagement.

The first move by the British in religious administration was made in 1810 by Bengal regulation XIX. It was entrusted with the board of revenue. Contrary to the popular narrative that Britishers regulated temple administration for accelerating conversion, it was Christian missionaries who were the first effective voice against Britishers interfering in temple administration. Around 1840s several missionaries were against East India Company for making itself involved in ‘idol worship’. A major change came in 1927 when the Madras legislature enacted a religious endowment act. This according to some was a result of the Self Respect Movement in Tamil Nadu.[vi] Others say it was the aftermath of the Government of India Act 1919 through which many Indians got into the legislature and therefore the wrath of missionaries on ‘British’ administering temples was reduced.[vii]

Indian state came up with its constitution in which the matter of religious and charitable endowments was the 28th entry of the concurrent list of the seventh schedule. This means that both state and centre can make laws about the subject and in case there is a conflict between both laws, the law of the centre will prevail. Later Madras government came up with the Hindu Religious and Charitable Endowment Act of 1951 and brought forward a new Act under the same name in 1959. Similarly different states have different endowment laws.

Article 25 and Article 26

Article 25 and Article 26 is often quoted when people talk about temple administration. Let’s see what article 26 says

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

At first glance we would think under this law temples should not have been administered by the government. However, the judiciary has interpreted these clauses more strictly. First of all, this right is given religious denominations. So, any group which comes before the court has to prove that they are a distinct religious denomination. Article 26 (b) gives the right to manage the affairs of religion. According to Judicial interpretation, management of the funds and donations given in temples is not a matter of religion. It’s a secular matter.[viii]

Matters of religion includes how and when ceremonies are to be performed and what should be teachings of the particular religion. The government cannot interfere in all these matters. On the other hand, payment made to the pujaris for doing the puja, cleaning of temple premises, making temples accessible to people are all secular activities. These are not matters of religion. Article 26(d) gives the right to administer temple properties according to law. The phrase “according to law” is the cause for all havoc. The judicial interpretation of this phrase means this provision is subject to other provisions of the law. So, what are the other provisions of the law?

Let us look at Article 25 (2)(a)

“(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.”

Article 25 in other words allows the government to regulate the finances of the temple.

Article 31A 1(b) states

“(1) Notwithstanding anything contained in article 13, no law providing for—

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or….”

Article 13 more or less states that all laws that are in contravention of fundamental rights are null and void.

Hence, we could see that the law allows the government to manage funds and property of temples and this is not in violation of any form of secularism that India envisages.

Article 14

One of the main challenges put forward by those who don’t want government control of temples is that it violates Article 14 of the constitution since only Hindu religious institutions are regulated by the government while minority institutions like mosques and churches are not regulated.

Two counters can be provided by the government in this regard. Firstly, it's not that the government is not controlling or regulating any minority religious institutions. Darga of MounieednChisti is regulated by the government.[ix] There are Waqf boards which though have autonomy are not independent of government. They come under the ministry of minority affairs of the government of India. Moving down south there is a Church Act bill that has created controversy in Christian religious circles of Kerala.[x] One fraction wants that Act should be implemented because it will create more transparency in the management of church funds.

As of now, clergy have absolute power and not accountable to any secular body for the management of funds. The other faction is fiercely protesting the bill stating the ultimate purpose of this Act is to appropriate church properties. The tribunal established by the government will be the final authority in deciding whether church property should be sold or not. Gurudwaras in Punjab are regulated by the Gurudwara Sahib Act 1925. Governor can nominate members for the management of Gurudwara. This was challenged in court and was upheld by the court.[xi] So, to say that only Hindu religious institutions are managed by the government is not entirely true.

However, compared to other religious institutions, it’s true that most of the religious institutions in the country managed by the government are Hindu religious institutions. Whether a particular institution should be brought under government depends mainly on whether there is regular and gross mismanagement of funds and properties. Irrespective of these, there might be many cases of mismanagement in all minority institutions. However, it is up to the discretion of the government should it manage the concerned institution or not. The government will give priority to institutions which will have large funds foreseeing greater damage to the public.

There have been accusations that religious funds are used for secular purposes by the government like building roads and so on. This was severely criticised by the judiciary. However, it is alleged that appropriation of funds from temples for secular purposes continues. This is because governments take what we would call as a maintenance fee for the service rendered by the government to manage the temple. Hence the allegation is that governments are charging unreasonable amounts as maintenance fee and deprive temple of its wealth.[xii]

The second argument is about the religion of the government servants that are entrusted with the job of managing Hindu temples. It has been brought to notice numerous times that these government-appointed officers and workers are themselves non-Hindus.[xiii] Hence, it would hurt the sentiment of any religious person if a person of a different faith is managing a place of worship. While most laws and Acts restrict non- Hindus from becoming such officers[xiv], there is no overall rule which prohibits people of another religion to manage a different place of worship.

Religion v Government

One of the interesting things that researcher observed about this issue is that perhaps it’s the only issue where Hindu Right is not in daggers with the minorities especially Muslims and Christians. Other than that, most of the issues of the Hindu Right such as beef ban, Uniform Civil Code, Indian history, CAA etc conflict with the minorities. Not only do the minorities approve of Hindu Right in their demand to remove government from controlling religious places but they are fiercely opposing it when the government tries to control their institutions. There are also people those who want government regulation of their religious places of worship.[xv] This is the case with most religions. Hence, we need to understand that this is not a fight amongst religions but a fight between the government and religions.

The way forward

Recently we see a change in the tone of Judges when it comes to regulation of religious places by worship. CJI SA Bobde had said, “Devotees and not Government should manage temples”.[xvi] There have been two private member bill tabled in the past which demanded Hindu temples to be freed from government regulation.

There are some things to ponder in this issue

Firstly, the purpose of the government to encroach upon private property is to prevent mismanagement and set everything in order. Once the issue gets solved government should revert the property to the previous administration. Governments encroachment for a long period is against article 31A. Government control over temples has not effectively decreased mismanagement of temple property and temple funds. There have been allegations that there is government interference even in matters of religion and religious practices.[xvii]

There is also the allegation that bodies set up by the government will be favouring government over the temples. Some scholars argue that so-called secular activity like management of funds will inevitably affect matters of religion.[xviii]Since both Hindu Right and minorities want governments to stay away from religion, the government should reconsider its move on managing temple administration. The government should also consider whether state managing a place of worship because of the mismanagement of funds in particular religion really in the interest of the general public.

When a person donates to a place of worship, he is not giving it to the government. Why should the government be worried about the mismanagement of property or funds which was not given to it in the first place?No reasonable person would blame a secular government for mismanagement by a private religious head. Why is the government so caring about funds of religious devotees? Whether those funds are mismanaged or managed well, the government is not getting any substantial gain out of it. Moreover, we can’t draw a clear separation between the management of funds and religious works. The latter is heavily influenced by the former. If the government is appointing Pujaris then we can construe there is a possibility that it will only appoint those who are in line with the ideology of the ruling party and favouring the party, irrespective of whether the Pujaris is true to the faith or not.

Conclusion

There is no one word to describe the current relationship between the Indian state and religion. There is a wide spectrum of interference and non-interference in matters of religion. Although Article 25 and Article 26 provides freedom of religion and autonomy to establish a religious institution, managing funds of religious institutions are considered a secular activity. There has been interference in temple administration even before the British rule. However, Indian governments have continued this practice even though imbibing the word secular in the preamble of the constitution and constant demand from religious authorities against government interference.

According to the researcher, in the instance of mismanagement let the religious bodies decide what they seem fit. The government should not interfere in it until it becomes an issue of public order. Similarly, the government should not put its manpower and money to manage religious places of worship but rather put them into real developmental use of this developing country.

REFERENCE

[i]K. Veeresh Babu v UOI, AIR 1994 Kar 56. [ii] Sabrang India Staff, Why should Dalit Christians not get reservation? <https://sabrangindia.in/article/why-should-dalit-christians-not-get-reservations-scheduled-castes-notice-centre-sc> accessed on 3/11/2020. [iii] Ram Puniyani,Is Bhoomi Pooja by State a Secular Act?,<https://www.countercurrents.org/puniyani180311.htm>accessed by 3/11/2020. [iv]RC Poudyal v Union of India, MANU/SC/0292/1993. [v]Suhirth Parthasarthy , How Hinduism was Nationalised? <https://www.livemint.com/Sundayapp/FU6sreM7t13piRRwkvdKfP/Secularism-and-principled-distance-How-Hinduism-was-nationa.html.>accessed on 1/11/2020. [vi]https://www.youtube.com/watch?v=js936p_cvTE [vii]Suhrith Parthasarathy, How Hinduism was Nationalised? <https://www.livemint.com/Sundayapp/FU6sreM7t13piRRwkvdKfP/Secularism-and-principled-distance-How-Hinduism-was-nationa.html.>Accessed on 1/11/2020. [viii]Venkataramana v State of Mysore, AIR 1958 SC 255. [ix] The Durgah Khawja Sahebh Act, 1955. [x]Sandeep Vellaram, A draft bill to regulate churches and the controversies around it<https://www.thenewsminute.com/article/kerala-draft-bill-regulate-churches-and-controversies-around-it-97754> accessed on 30/10/2020. [xi]The Shiromani Gurdwara v The Governor of the Punjab, AIR 1959 P H 623. [xii] Sanjeev Nayyar, Indian govt won’t be any different from British if Hindus can’t manage their own temples? <https://theprint.in/opinion/indian-govt-wont-be-any-different-from-british-if-hindus-cant-manage-their-own-temples/218210/> accessed on 25/10/2020. [xiii] Anindya Rai Verman, Letting Non-Hindus run Hindu temples mockery of secularism. <https://www.sundayguardianlive.com/news/letting-non-hindus-run-hindu-temples-mockery-secularism> accessed on 1/11/2020. [xiv] Divya Chandra, Kerala Has Not Ruled Non-Hindus Can Rule Temples, Post is Fake<https://www.thequint.com/news/webqoof/image-on-kerala-government-ordering-non-hindus-can-control-temples-is-fake-fact-check>accessed on 4/11/2020. [xv]Sandeep Vellaram, A draft bill to regulate churches and the controversies around it <https://www.thenewsminute.com/article/kerala-draft-bill-regulate-churches-and-controversies-around-it-97754> accessed on 30/10/2020. [xvi] Amit Anand Choudhary, Temples should be managed by devotees, not government <https://timesofindia.indiatimes.com/india/temples-should-be-managed-by-devotees-not-government-sc/articleshow/68781876.cms> accessed on 1/11/2020. [xvii]J. Sai Deepak, Set India’s temple free <https://www.youtube.com/watch?v=js936p_cvTE&t=149s>accessed on24/10/20. [xviii]Suhrith Parthasarathy, How Hinduism was Nationalised? <https://www.livemint.com/Sundayapp/FU6sreM7t13piRRwkvdKfP/Secularism-and-principled-distance-How-Hinduism-was-nationa.html. >Accessed on 1/11/2020.

*The Author Jerrin B. Mathew is a 2nd year B.A.LLB (Hons) student at the National Law School of India University (NLSIU),Bengaluru, Karnataka.

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.